Holaday v. KeyBank National Association

Filing 38

AMENDED STIPULATED PROTECTIVE ORDER re Parties' 36 Amended Motion for Protective Order. Signed by Judge Ricardo S. Martinez. (SR)

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1 Honorable Ricardo S. Martinez 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 9 10 MARK HOLADAY, 11 Plaintiff,   12 v. 13 KEYBANK N.A., 14 Case No. 19-cv-01199-RSM AMENDED STIPULATED PROTECTIVE ORDER Defendant. Noted for Hearing: 7/13/21 (w/o oral argument) 15 16 1. PURPOSES AND LIMITATIONS 17 Discovery in this action is likely to involve production of confidential, proprietary, or 18 private information for which special protection may be warranted. Accordingly, the parties hereby 19 stipulate to and petition the court to enter the following Stipulated Protective Order, which has 20 been amended to correct the concerns the Court expressed before. See dkt. #35. 21 The parties acknowledge that this stipulation is consistent with LCR 26(c). It does not 22 confer blanket protection on all disclosures or responses to discovery, the protection it affords from 23 public disclosure and use extends only to the limited information or items that are entitled to 24 confidential treatment under the applicable legal principles, and it does not presumptively entitle 25 parties to file confidential information under seal. 26 AMENDED STIPULATED PROTECTIVE ORDER - 1 (Case No. 19-cv-01199-RSM) MILLER NASH LLP  AT T O RN E YS  A T L AW   T : 2 06 .6 2 4.8 3 00  |  F:  2 0 6. 34 0. 95 99   P I E R  7 0   28 01  AL A SK AN  W A Y,  S TE  30 0   SE A T TLE ,  W AS H IN G TO N   98 12 1   1 2. 2 3 “CONFIDENTIAL” MATERIAL “Confidential” material shall include the following documents and tangible things produced or otherwise exchanged: 4 A. Consumer credit applications, loan documents and statements related to accounts 5 held by plaintiff Mark Holaday at KeyBank. These documents contain “nonpublic personal 6 information” as defined by the Gramm-Leach-Bliley Act and its implementing regulations. See 15 7 U.S.C. § 6801, et seq.; 12 C.F.R. § 1016.1, et seq. 8 B. Internal KeyBank policies and procedures related to account security and fraud detection, and documents describing KeyBank’s investigation of the charges that Mr. Holaday 10 alleges were unauthorized on his account. The public disclosure of these documents could aid bad 11 actors’ attempts to circumvent or abuse KeyBank’s security procedures. 12   9 3. SCOPE 13 The protections conferred by this agreement cover not only confidential material (as 14 defined above), but also (1) any information copied or extracted from confidential material; (2) all 15 copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 16 conversations, or presentations by parties or their counsel that might reveal confidential material. 17 However, the protections conferred by this agreement do not cover information that is in 18 the public domain or becomes part of the public domain through trial or otherwise. 19 4. 20 ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 21 or produced by another party or by a non-party in connection with this case only for prosecuting, 22 defending, or attempting to settle this litigation. Confidential material may be disclosed only to the 23 categories of persons and under the conditions described in this agreement. Confidential material 24 must be stored and maintained by a receiving party at a location and in a secure manner that ensures 25 that access is limited to the persons authorized under this agreement. 26 AMENDED STIPULATED PROTECTIVE ORDER - 2 (Case No. 19-cv-01199-RSM) MILLER NASH LLP  AT T O RN E YS  A T L AW   T : 2 06 .6 2 4.8 3 00  |  F:  2 0 6. 34 0. 95 99   P I E R  7 0   28 01  AL A SK AN  W A Y,  S TE  30 0   SE A T TLE ,  W AS H IN G TO N   98 12 1   1 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 2 by the court or permitted in writing by the designating party, a receiving party may disclose any 3 confidential material only to: 4 (a) the receiving party’s counsel of record in this action, as well as employees 5 and independent contractors of counsel to whom it is reasonably necessary to disclose the 6 information for this litigation; 7 (b) the officers, directors, and employees (including in house counsel) of the 8 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties 9 agree that a particular document or material produced is for Attorney’s Eyes Only and is so 10 11   12 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); 13 (d) the court, court personnel, and court reporters and their staff; 14 (e) copy or imaging services retained by counsel to assist in the duplication of 15 confidential material, provided that counsel for the party retaining the copy or imaging service 16 instructs the service not to disclose any confidential material to third parties and to immediately 17 return all originals and copies of any confidential material; 18 (f) during their depositions, witnesses in the action to whom disclosure is 19 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 20 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of 21 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 22 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 23 under this agreement; 24 25 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 26 AMENDED STIPULATED PROTECTIVE ORDER - 3 (Case No. 19-cv-01199-RSM) MILLER NASH LLP  AT T O RN E YS  A T L AW   T : 2 06 .6 2 4.8 3 00  |  F:  2 0 6. 34 0. 95 99   P I E R  7 0   28 01  AL A SK AN  W A Y,  S TE  30 0   SE A T TLE ,  W AS H IN G TO N   98 12 1   1 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, 3 in accordance with Local Civil Rule 5(g)(3)(A), to determine whether the designating party will 4 remove the confidential designation, whether the document can be redacted, or whether a motion 5 to seal or stipulation and proposed order is warranted. During the meet and confer process, the 6 designating party must identify the basis for sealing the specific confidential information at issue, 7 and the filing party shall include this basis in its motion to seal, along with any objection to sealing 8 the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be followed and 9 the standards that will be applied when a party seeks permission from the court to file material 10 under seal. A party who seeks to maintain the confidentiality of its information must satisfy the 11 requirements of Local Civil Rule 5(g)(3)(B), even if it is not the party filing the motion to seal. 12   2 Failure to satisfy this requirement will result in the motion to seal being denied, in accordance with 13 the strong presumption of public access to the Court’s files. 14 5. 15 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 16 or non-party that designates information or items for protection under this agreement must take 17 care to limit any such designation to specific material that qualifies under the appropriate 18 standards. The designating party must designate for protection only those parts of material, 19 documents, items, or oral or written communications that qualify, so that other portions of the 20 material, documents, items, or communications for which protection is not warranted are not swept 21 unjustifiably within the ambit of this agreement. 22 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 23 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 24 unnecessarily encumber or delay the case development process or to impose unnecessary expenses 25 and burdens on other parties) expose the designating party to sanctions. 26 AMENDED STIPULATED PROTECTIVE ORDER - 4 (Case No. 19-cv-01199-RSM) MILLER NASH LLP  AT T O RN E YS  A T L AW   T : 2 06 .6 2 4.8 3 00  |  F:  2 0 6. 34 0. 95 99   P I E R  7 0   28 01  AL A SK AN  W A Y,  S TE  30 0   SE A T TLE ,  W AS H IN G TO N   98 12 1   1 If it comes to a designating party’s attention that information or items that it designated for 2 protection do not qualify for protection, the designating party must promptly notify all other parties 3 that it is withdrawing the mistaken designation. 4 5.2 Manner and Timing of Designations. Except as otherwise provided in this 5 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 6 ordered, disclosure or discovery material that qualifies for protection under this agreement must 7 be clearly so designated before or when the material is disclosed or produced. 8 (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), 10 the designating party must affix the word “CONFIDENTIAL” to each page that contains 11 confidential material. If only a portion or portions of the material on a page qualifies for protection, 12   9 the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate 13 markings in the margins). 14 (b) Testimony given in deposition or in other pretrial proceedings: the parties 15 and any participating non-parties must identify on the record, during the deposition or other pretrial 16 proceeding, all protected testimony, without prejudice to their right to so designate other testimony 17 after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the 18 transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or 19 exhibits thereto, as confidential. If a party or non-party desires to protect confidential information 20 at trial, the issue should be addressed during the pre-trial conference. 21 (c) Other tangible items: the producing party must affix in a prominent place 22 on the exterior of the container or containers in which the information or item is stored the word 23 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 24 the producing party, to the extent practicable, shall identify the protected portion(s). 25 26 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 AMENDED STIPULATED PROTECTIVE ORDER - 5 (Case No. 19-cv-01199-RSM) MILLER NASH LLP  AT T O RN E YS  A T L AW   T : 2 06 .6 2 4.8 3 00  |  F:  2 0 6. 34 0. 95 99   P I E R  7 0   28 01  AL A SK AN  W A Y,  S TE  30 0   SE A T TLE ,  W AS H IN G TO N   98 12 1   1 right to secure protection under this agreement for such material. Upon timely correction of a 2 designation, the receiving party must make reasonable efforts to ensure that the material is treated 3 in accordance with the provisions of this agreement. 4 6. 5 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 6 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 7 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 8 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 9 challenge a confidentiality designation by electing not to mount a challenge promptly after the 10 original designation is disclosed. 11 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute   12 regarding confidential designations without court involvement. Any motion regarding confidential 13 designations or for a protective order must include a certification, in the motion or in a declaration 14 or affidavit, that the movant has engaged in a good faith meet and confer conference with other 15 affected parties in an effort to resolve the dispute without court action. The certification must list 16 the date, manner, and participants to the conference. A good faith effort to confer requires a face- 17 to-face meeting or a telephone conference. 18 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court 19 intervention, the designating party may file and serve a motion to retain confidentiality under Local 20 Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 21 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 22 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 23 other parties) may expose the challenging party to sanctions. All parties shall continue to maintain 24 the material in question as confidential until the court rules on the challenge. 25 7. 26 LITIGATION PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER AMENDED STIPULATED PROTECTIVE ORDER - 6 (Case No. 19-cv-01199-RSM) MILLER NASH LLP  AT T O RN E YS  A T L AW   T : 2 06 .6 2 4.8 3 00  |  F:  2 0 6. 34 0. 95 99   P I E R  7 0   28 01  AL A SK AN  W A Y,  S TE  30 0   SE A T TLE ,  W AS H IN G TO N   98 12 1   1 If a party is served with a subpoena or a court order issued in other litigation that compels 2 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party 3 must: 4 5 (a) promptly notify the designating party in writing and include a copy of the subpoena or court order; 6 (b) promptly notify in writing the party who caused the subpoena or order to 7 issue in the other litigation that some or all of the material covered by the subpoena or order is 8 subject to this agreement. Such notification shall include a copy of this agreement; and 9 (c) cooperate with respect to all reasonable procedures sought to be pursued by 10 the designating party whose confidential material may be affected. 11 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL   12 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 13 material to any person or in any circumstance not authorized under this agreement, the receiving 14 party must immediately (a) notify in writing the designating party of the unauthorized disclosures, 15 (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the 16 person or persons to whom unauthorized disclosures were made of all the terms of this agreement, 17 and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be 18 Bound” that is attached hereto as Exhibit A. 19 9. 20 MATERIAL INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 21 When a producing party gives notice to receiving parties that certain inadvertently 22 produced material is subject to a claim of privilege or other protection, the obligations of the 23 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 24 is not intended to modify whatever procedure may be established in an e-discovery order or 25 agreement that provides for production without prior privilege review. The parties agree to the 26 entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. AMENDED STIPULATED PROTECTIVE ORDER - 7 (Case No. 19-cv-01199-RSM) MILLER NASH LLP  AT T O RN E YS  A T L AW   T : 2 06 .6 2 4.8 3 00  |  F:  2 0 6. 34 0. 95 99   P I E R  7 0   28 01  AL A SK AN  W A Y,  S TE  30 0   SE A T TLE ,  W AS H IN G TO N   98 12 1   1 10. NON TERMINATION AND RETURN OF DOCUMENTS 2 Within 60 days after the termination of this action, including all appeals, each receiving 3 party must return all confidential material to the producing party, including all copies, extracts and 4 summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction. 5 Notwithstanding this provision, counsel are entitled to retain one archival copy of all 6 documents filed with the court, trial, deposition, and hearing transcripts, correspondence, 7 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work 8 product, even if such materials contain confidential material. 9 10 11   12 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: July 13, 2021 s/ Setareh Mahmoodi Setareh Mahmoodi, WSBA No. 44288 Attorney for Plaintiff DATED: July 13, 2021 s/Kellen A. Hade Kellen A. Hade, WSBA No. 44535 Attorney for Defendant 13 14 15 16 17 18 19 20 21 22 23 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 this 14th day of July, 2021. 24 25 26 A RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE AMENDED STIPULATED PROTECTIVE ORDER - 8 (Case No. 19-cv-01199-RSM) MILLER NASH LLP  AT T O RN E YS  A T L AW   T : 2 06 .6 2 4.8 3 00  |  F:  2 0 6. 34 0. 95 99   P I E R  7 0   28 01  AL A SK AN  W A Y,  S TE  30 0   SE A T TLE ,  W AS H IN G TO N   98 12 1   1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ____________________________________ [print or type full name], of ____________________________________ [print or type full address], declare under penalty of 5 perjury that I have read in its entirety and understand the Amended Stipulated Protective Order 6 that was issued by the United States District Court for the Western District of Washington on 7 _______________ [ date] in Holaday v. KeyBank N.A., Case No. 19-cv-01199-RSM. I agree to 8 comply with and to be bound by all the terms of this Stipulated Protective Order and I understand 9 and acknowledge that failure to so comply could expose me to sanctions and punishment in the 10 nature of contempt. I solemnly promise that I will not disclose in any manner any information or 11 item that is subject to this Stipulated Protective Order to any person or entity except in strict 12   4 compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 Western District of Washington for the purpose of enforcing the terms of this Stipulated Protective 15 Order, even if such enforcement proceedings occur after termination of this action. 16 Date: 17 City and State where sworn and signed: 18 Printed name: 19 Signature: 20 21 4831-7142-2193.1 22 23 24 25 26 AMENDED STIPULATED PROTECTIVE ORDER - 9 (Case No. 19-cv-01199-RSM) MILLER NASH LLP  AT T O RN E YS  A T L AW   T : 2 06 .6 2 4.8 3 00  |  F:  2 0 6. 34 0. 95 99   P I E R  7 0   28 01  AL A SK AN  W A Y,  S TE  30 0   SE A T TLE ,  W AS H IN G TO N   98 12 1  

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