Pena v. Chipotle Mexican Grill, Inc.
Filing
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STIPULATED PROTECTIVE ORDER re: 15 Stipulated MOTION. Signed by Judge Marsha J. Pechman. (PM)
HONORABLE MARSHA J. PECHMAN
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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JEIDY PENA, an individual
No. 2:18-cv-00574-MJP
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Plaintiff,
STIPULATED PROTECTIVE ORDER
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v.
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CHIPOTLE MEXICAN GRILL, INC.,
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Defendant.
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The parties hereby agree, through their respective undersigned counsel, to the following
Confidentiality Agreement:
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STIPULATED PROTECTIVE ORDER
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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
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, 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.
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“CONFIDENTIAL” MATERIAL
“Confidential” material shall include the following documents and tangible things produced or
otherwise exchanged: (1) financial information, including but not limited to payroll records, tax
returns, financial statements, banking records, brokerage records, and electronic data containing
financial information; (2) medical records and healthcare information, including but not limited
to any counseling records, pertaining to individuals, and (3) employment and application records
including records referencing a person’s personal information, such as education, date of birth,
contact information, immigration status, social security numbers, medical information, and
employment history.
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.
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STIPULATED PROTECTIVE ORDER
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4.1
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defending, or attempting to settle this litigation. Confidential material may be disclosed only to
the 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
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disclose any confidential material only to:
(a)
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other outside legal counsel;
(b)
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a party, 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;
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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, and
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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
ordered by the court or permitted in writing by the designating party, a receiving party may
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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,
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ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
(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)
independent litigation support services, including persons working for or
as court reporters, graphics or design services, photocopy or imaging services, and database
services retained by counsel to assist in the duplication of confidential material, provided that
counsel for the party retaining these services instructs the service not to disclose any confidential
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STIPULATED PROTECTIVE ORDER
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material to third parties and to immediately return all originals and copies of any confidential
material;
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(f)
reasonably necessary, or potential witnesses 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)
(h)
(i)
(j)
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any mediator in this litigation, and employees and personnel of said
any other individuals agreed to in writing by the designating party.
mediator;
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the videographer who videotapes Confidential Information at a
deposition in this litigation;
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the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
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during their depositions, witnesses in the action to whom disclosure is
4.3
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
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. The parties will endeavor to confer at least two days before filing confidential
information. Local Civil Rule 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.
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
STIPULATED PROTECTIVE ORDER
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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., second paragraph of 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)
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 three days after
STIPULATED PROTECTIVE ORDER
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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.
Until expiration of the three-day period, the entire deposition or hearing transcript shall be treated
as confidential.
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(c)
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).
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Other tangible items: the producing party must affix in a prominent place
5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
designate qualified information or 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. A party shall not be obligated to challenge the confidential
designation at the time made, but must do so prior to the deadline for Motions in Limine in this
case. If any party to this litigation disagrees with such designation, such party shall provide to
the producing or third party written notice of its disagreement with the designation. The parties
shall first try to resolve such dispute in good faith on an informal basis. If the dispute cannot be
resolved, the party challenging the designation may request appropriate relief from the Court.The
burden of proving that information has been properly designated as confidential is on the party
making such designation.
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
STIPULATED PROTECTIVE ORDER
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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 face-to-face meeting or a telephone conference.
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6.3
Judicial Intervention. If the parties cannot resolve a challenge without court
intervention, the designating party may file and serve a motion to retain confidentiality under
Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of
persuasion in any such motion shall be on the designating party. Frivolous challenges, and those
made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
other parties) may expose the challenging party to sanctions. All parties shall continue to
maintain the material in question as confidential until the court rules on the 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
(c)
cooperate with respect to all reasonable procedures sought to be pursued
by the designating party whose confidential material may be affected.
If the designating party seeks a protective order within 14 days of the date of service of
the notification, the party served with the subpoena or court order shall not produce any
confidential material before a determination by the court from which the subpoena or order
STIPULATED PROTECTIVE ORDER
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issued, unless the Party has obtained the producing party’s permission. The producing party shall
bear the burden and expense of seeking protection in that court of its confidential material. If
the party served with the subpoena or court order is required by that subpoena or court order to
produce the materials at issue before the court rules on the designating party’s motion for a
protective order, then producing those materials in compliance with the subpoena or court order
does not constitute a violation of this agreement.
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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.
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
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UNAUTHORIZED DISCLOSURE OF 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 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 copies, extracts
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STIPULATED PROTECTIVE ORDER
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and summaries thereof. Alternatively, the parties may agree upon appropriate methods of
destruction.
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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 as part of the client file, even if such materials contain confidential material,
which either party may maintain for up to six years as recommended by the WSBA Guide to
Best Practices for Client File Retention and Management, even if such materials contain
confidential material. While counsel may retain Confidential material in compliance with the
WSBA’s Guide to Best Practices for Client File Retention and Management, counsel may not
disclose any Confidential material in any way that would violate this Confidentiality
Agreement.
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The confidentiality obligations imposed by this agreement shall remain in effect until a
designating party agrees otherwise in writing or a court orders otherwise.
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MODIFICATION
Each of the Parties shall also retain the right to file a motion with the Court (a) to modify
this Stipulated Protective Order to allow disclosure of, confidential information to additional
persons or entities if reasonably necessary to prepare and present this action and (b) to apply for
additional protection of confidential information.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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STIPULATED PROTECTIVE ORDER
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DATED:
By:
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s/ Robin J. Shishido
Jordan A. Taren, WSBA No. 50066
Robin J. Shishido, WSBA No. 45926
Shishido Taren PLLC
1001 Fourth Avenue, Suite 3200
Seattle, WA 98104
Telephone: (206) 684-9320
Email: jtaren@shishidotaren.com
rshishido@shishidotaren.com
Attorneys for Plaintiff
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DATED:
By:
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/s Eric Harrison
Eric Harrison, WSBA No. 46129
ATTORNEY WEST SEATTLE, P.S.
5400 California Avenue S.W., Suite E
Seattle, Washington 98136
Tel:
206.745.3738
E-mail: eric@attorneywestseattle.com
Attorneys for Plaintiff
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DATED:
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STIPULATED PROTECTIVE ORDER
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By:
s/ Joseph Davison
Joseph Davison, WSBA No. 51264
DLA Piper
701 5th Avenue, Suite 7000
Seattle, WA 98104
Telephone: (206) 839-4800
Fax: (206) 839-4801
Email: joseph.davison@dlapiper.com
Attorneys for Defendant
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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
proceeding in any other court, 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.
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DATED: September 17, 2018
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A
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The Honorable Marsha J. Pechman
United States Senior District Court Judge
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STIPULATED PROTECTIVE ORDER
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, ____________________________________ [print or type full
name], of
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____________________________________ [print or type full address], declare under penalty
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of perjury that I have read in its entirety and understand the Stipulated Protective Order that was
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issued by the United States District Court for the Western District of Washington on [date] in
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the case of Jeidy Pena v. Chipotle Mexican Grill, Inc., No. 2:18-cv-00574. I agree to comply
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with and to be bound by all the terms of this Stipulated Protective Order and I understand and
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acknowledge that failure to so comply could expose me to sanctions and punishment in the nature
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of contempt. I solemnly promise that I will not disclose in any manner any information or item
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that is subject to this Stipulated Protective Order to any person or entity except in strict
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compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court for the
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Western District of Washington for the purpose of enforcing the terms of this Stipulated
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Protective Order, even if such enforcement proceedings occur after termination of this action.
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Date:
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City and State where sworn and signed:
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Printed name:
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Signature:
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STIPULATED PROTECTIVE ORDER
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