Providence Health & Services et al v. Certain Underwriters at Lloyd's London et al
Filing
79
STIPULATED PROTECTIVE ORDER re: parties' 78 Joint Statement Regarding Stipulated Protective Order. Signed by Judge Ricardo S. Martinez. (PM)
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Honorable Ricardo S. Martinez
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE
PROVIDENCE HEALTH AND SERVICES;
and SWEDISH HEALTH SERVICES,
NO. 2:18-cv-00495 RSM
STIPULATED PROTECTIVE ORDER
Plaintiffs,
v.
CERTAIN UNDERWRITERS AT LLOYD'S
LONDON, SYNDICATE 2623/623
(BEAZLEY); and FEDERAL INSURANCE
COMPANY,
Defendants.
1.
PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential, proprietary, or
private information for which special protection may be warranted. Accordingly, the parties,
Plaintiffs Providence Health and Services and Swedish Health Services (“Providence”) and
Defendants Certain Underwriters at Lloyd’s London, Syndicate 2623/623 (“Beazley”) and Federal
Insurance Company (collectively “Insurers”), hereby stipulate to and petition the court to enter the
following Stipulated Protective Order. The parties acknowledge that this agreement is consistent
with LCR 26(c). It does not confer blanket protection on all disclosures or responses to discovery,
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the protection it affords from public disclosure and use extends only to the limited information or
items that are entitled to confidential treatment under the applicable legal principles, and it does
not presumptively entitle parties to file confidential information under seal.
2.
“CONFIDENTIAL” MATERIAL
“Confidential” material shall include the following documents and tangible things
produced or otherwise exchanged:
Documents with patient health information that Providence is obligated to protect
under a variety of laws, including but not limited to, the federal Health Insurance
Portability and Accountability Act and Washington’s Uniform Health Care
Information Act.
Documents that include confidential commercial information, including but not
limited to trade secrets, policies regarding proprietary business operations,
employment contracts, and business organization charts.
The parties reserve the right to seek leave for amendment of this order by the Court if additional
categories of materials are identified as this matter proceeds
3.
SCOPE
The protections conferred by this agreement cover not only confidential material (as
defined above), but also (1) any information copied or extracted from confidential material; (2) all
copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony,
conversations, or presentations by parties or their counsel that might reveal confidential material.
However, the protections conferred by this agreement do not cover information that is in
the public domain or becomes part of the public domain through trial or otherwise.
4.
ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1
Basic Principles. A receiving party may use confidential material that is disclosed
or produced by another party or by a non-party in connection with this case only for prosecuting,
defending, or attempting to settle this litigation. Confidential material may be disclosed only to the
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categories of persons and under the conditions described in this agreement. Confidential material
must be stored and maintained by a receiving party at a location and in a secure manner that ensures
that access is limited to the persons authorized under this agreement.
4.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
by the court or permitted in writing by the designating party, a receiving party may disclose any
confidential material only to:
(a)
the receiving party’s counsel of record in this action, as well as employees
of counsel to whom it is reasonably necessary to disclose the information for this litigation;
(b)
the officers, directors, and employees (including in house counsel) of the
receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties
agree that a particular document or material produced is for Attorney’s Eyes Only and is so
designated;
(c)
experts and consultants to whom disclosure is reasonably necessary for this
litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d)
the court, court personnel, and court reporters and their staff;
(e)
copy or imaging services retained by counsel to assist in the duplication of
confidential material, provided that counsel for the party retaining the copy or imaging service
instructs the service not to disclose any confidential material to third parties and to immediately
return all originals and copies of any confidential material;
(f)
during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of
transcribed deposition testimony or exhibits to depositions that reveal confidential material must
be separately bound by the court reporter and may not be disclosed to anyone except as permitted
under this agreement;
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(g)
any governmental regulators, auditors, reinsurers, or others for whom the
review of a parties’ files may be required by law, regulation, treaty, or contract;
(h)
the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
(i)
4.3
any other person or entity that the producing party agrees to in writing
Filing Confidential Material. Before filing confidential material or discussing or
referencing such material in court filings, the filing party shall confer with the designating party,
in accordance with LCR 5(g)(3)(A), to determine whether the designating party will remove the
confidential designation, whether the document can be redacted, or whether a motion to seal or
stipulation and proposed order is warranted. During the meet and confer process, the designating
party must identify the basis for sealing the specific confidential information at issue, and the filing
party shall include this basis in its motion to seal, along with any objection to sealing the
information at issue. LCR 5(g) sets forth the procedures that must be followed and the standards
that will be applied when a party seeks permission from the court to file material under seal. A
party who seeks to maintain the confidentiality of its information must satisfy the requirements of
LCR 5(g)(3)(B), even if it is not the party filing the motion to seal. Failure to satisfy this
requirement will result in the motion to seal being denied, in accordance with the strong
presumption of public access to the Court’s files.
4.4
Use of Confidential Materials at Trial. The parties shall meet and confer regarding
the procedures for use of any Confidential materials at trial and, in the event an agreement is
reached by the parties, shall move the Court for entry of an appropriate order. Otherwise, the
burden shall be on the designating party to obtain a Court Order requiring special procedures for
use of any Confidential materials at trial.
5.
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection. Each party
or non-party that designates information or items for protection under this agreement must take
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care to limit any such designation to specific material that qualifies under the appropriate
standards. The designating party must designate for protection only those parts of material,
documents, items, or oral or written communications that qualify, so that other portions of the
material, documents, items, or communications for which protection is not warranted are not swept
unjustifiably within the ambit of this agreement.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are
shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
unnecessarily encumber or delay the case development process or to impose unnecessary expenses
and burdens on other parties) expose the designating party to sanctions.
If it comes to a designating party’s attention that information or items that it designated for
protection do not qualify for protection, the designating party must promptly notify all other parties
that it is withdrawing the mistaken designation.
5.2
Manner and Timing of Designations. Except as otherwise provided in this
agreement (see, e.g., section 5.2(a) below), or as otherwise stipulated or ordered, disclosure or
discovery material that qualifies for protection under this agreement must be clearly so designated
before or when the material is disclosed or produced.
(a)
Information in documentary form: (e.g., paper or electronic documents and
deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings),
the designating party must affix the word “CONFIDENTIAL” to each page that contains
confidential material. If only a portion or portions of the material on a page qualifies for protection,
the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate
markings in the margins).
(b)
Electronic documents / files produced in their native format (e.g., Excel
spreadsheets, Power Point files, etc.): for electronic documents / files produced in native format,
the designating party may insert the word “CONFIDENTIAL” into the name of the document /
file, the metadata fields produced, or affix it to the image slip sheet of the native file rather than
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affixing it to each page within the document / file itself. If only a portion of the document / file is
“CONFIDENTIAL,” a clear explanation shall be provided in writing by the designating party that
specifies what particular aspect(s) of the document / file are designated “CONFIDENTIAL.”
(c)
Testimony given in deposition or in other pretrial proceedings: the parties
and any participating non-parties must identify on the record, during the deposition or other pretrial
proceeding, all protected testimony, without prejudice to their right to so designate other testimony
after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the
transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or
exhibits thereto, as confidential. If a party or non-party desires to protect confidential information
at trial, the issue should be addressed during the pre-trial conference.
(d)
Other tangible items: the producing party must affix in a prominent place
on the exterior of the container or containers in which the information or item is stored the word
“CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection,
the producing party, to the extent practicable, shall identify the protected portion(s).
5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
designate qualified physical or electronic documents, information, or other items does not,
standing alone, waive the designating party’s right to secure protection under this agreement for
such material. Upon timely correction of a designation, the receiving party must make reasonable
efforts to ensure that the material is treated in accordance with the provisions of this agreement.
6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any party or non-party may challenge a designation of
confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
burdens, or a significant disruption or delay of the litigation, a party does not waive its right to
challenge a confidentiality designation by electing not to mount a challenge promptly after the
original designation is disclosed.
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6.2
Meet and Confer. The parties must make every attempt to resolve any dispute
regarding confidential designations without court involvement. Any motion regarding confidential
designations or for a protective order must include a certification, in the motion or in a declaration
or affidavit, that the movant has engaged in a good faith meet and confer conference with other
affected parties in an effort to resolve the dispute without court action. The certification must list
the date, manner, and participants to the conference. A good faith effort to confer requires a faceto-face meeting or a telephone conference.
6.3
Judicial Intervention. If the parties cannot resolve a designation challenge without
court intervention, the designating party may file and serve a motion to retain confidentiality under
LCR 7 (and in compliance with LCR 5(g), if applicable). The burden of persuasion in any such
motion shall be on the designating party. Frivolous designations and/or challenges, and those made
for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other
parties) may expose the designating and/or challenging party to sanctions. All parties shall
continue to maintain the material in question as confidential until the court rules on the designation
challenge.
7.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION
If a party is served with a subpoena or a court order issued in other litigation that compels
disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party
must:
(a)
promptly notify the designating party in writing and include a copy of the
subpoena or court order;
(b)
promptly notify in writing the party who caused the subpoena or order to
issue in the other litigation that some or all of the material covered by the subpoena or order is
subject to this agreement. Such notification shall include a copy of this agreement; and
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(c)
cooperate with respect to all reasonable procedures sought to be pursued by
the designating party whose confidential material may be affected.
8.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential
material to any person or in any circumstance not authorized under this agreement, the receiving
party must immediately (a) notify in writing the designating party of the unauthorized disclosures,
(b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the
person or persons to whom unauthorized disclosures were made of all the terms of this agreement,
and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be
Bound” that is attached hereto as Exhibit A.
9.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
When a producing party gives notice to receiving parties that certain inadvertently
produced material is subject to a claim of privilege or other protection, the obligations of the
receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision
is not intended to modify whatever procedure may be established in an e-discovery order or
agreement that provides for production without prior privilege review. The parties agree to the
entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein.
10.
NON TERMINATION AND RETURN OR DESTRUCTION OF DOCUMENTS
Within 60 days after the termination of this action, including all appeals, each receiving
party must return all confidential material to the producing party, including all exact copies, and
must destroy any non-exact copies, extracts, and/or summaries thereof. Alternatively, the parties
may agree upon appropriate methods of destruction of confidential material other than non-exact
copies, extracts, and/or summaries. The provisions of this Paragraph 10 shall not be binding on
any party to the extent that they conflict with applicable Federal or State law or regulations. The
Parties shall be entitled to retain any materials provided that contain confidential materials to the
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extent and for the time required by any applicable regulatory requirements or until any good faith
coverage dispute between the Parties is resolved.
Notwithstanding this provision, counsel are entitled to retain one archival copy of all
documents filed with the court, trial, deposition, and hearing transcripts, correspondence,
deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work
product, even if such materials contain confidential material.
The confidentiality obligations imposed by this agreement shall remain in effect until a
designating party agrees otherwise in writing or a court orders otherwise.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED this 6th day of August, 2019.
GORDON TILDEN THOMAS & CORDELL LLP
Attorneys for Plaintiffs
By
STIPULATED PROTECTIVE ORDER- 9
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s/ Chelsey L. Mam
Franklin D. Cordell, WSBA #26392
Brendan Winslow-Nason, WSBA #39328
Chelsey L. Mam, WSBA #44609
1001 Fourth Avenue, Suite 4000
Seattle, Washington 98154-1007
206.467.6477
fcordell@gordontilden.com
bwinslow-nason@gordontilden.com
cmam@gordontilden.com
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DATED this 6th day of August, 2019.
WILSON SMITH COCHRAN DICKERSON
Attorneys for Defendants Certain Underwriters at
Lloyd’s London, Syndicate 2623/623 (Beazley)
By
s/ John M. Silk
John M. Silk, WSBA #15035
901 Fifth Avenue, Suite 1700
Seattle WA 98164-2050
206.623.4100
silk@wsdc.com
DATED this 6th day of August, 2019.
TROUTMAN SANDERS
Attorneys for Defendants Certain Underwriters at
Lloyd’s London, Syndicate 2623/623 (Beazley)
By
s/ Ross Smith
Kevin F. Kieffer
Monique F. Fuentes
Ross Smith
5 Park Plaza, Suite 1400
Irvine, CA 92614
949.622.2700
Kevin.fieffer@troutman.com
Monique.fuentes@troutman.com
Ross.smith@troutman.com
DATED this 6th day of August, 2019.
SOHA & LANG, PS
Attorneys for Defendant Federal Insurance Company
By
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s/ Geoffrey Bedell
Steven Soha, WSBA #09415
Geoffrey Bedell, WSBA #28837
1325 Fourth Avenue, Suite 2000
Seattle, WA 98101
206.624.1800
soha@sohalang.com
bedell@sohalang.com
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ORDER
PURSUANT TO STIPULATION, IT IS SO ORDERED.
IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any
documents in this proceeding shall not, for the purposes of this proceeding or any other federal or
state proceeding, constitute a waiver by the producing party of any privilege applicable to those
documents, including the attorney-client privilege, attorney work-product protection, or any other
privilege or protection recognized by law.
DATED: August 7, 2019.
A
RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE
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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,
____________________________________
[print
or
type
full
name],
of
____________________________________ [print or type full address], declare under penalty of
perjury that I have read in its entirety and understand the Stipulated Protective Order that was
issued by the United States District Court for the Western District of Washington on [date] in the
case of ________________ [insert formal name of the case and the number and initials
assigned to it by the court]. I agree to comply with and to be bound by all the terms of this
Stipulated Protective Order and I understand and acknowledge that failure to so comply could
expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will
not disclose in any manner any information or item that is subject to this Stipulated Protective
Order to any person or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the
Western District of Washington for the purpose of enforcing the terms of this Stipulated Protective
Order, even if such enforcement proceedings occur after termination of this action.
Date:
City and State where sworn and signed:
Printed name:
Signature:
STIPULATED PROTECTIVE ORDER- 12
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