United States Fire Insurance Company et al v. Icicle Seafoods Inc et al
Filing
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STIPULATED PROTECTIVE ORDER re Parties' 38 Stipulated Motion. Signed by Judge David W. Christel. (LH)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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UNITED STATES FIRE INSURANCE
COMPANY; ET AL.;
Plaintiffs/ Counterclaim
Defendants,
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v.
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CASE NO. 2:20−cv−00401−RSM−DWC
STIPULATED
PROTECTIVE ORDER
ICICLE SEAFOODS, INC., ET AL.,
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Defendants/ Counterclaim
Plaintiffs
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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 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
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disclosure and use extends only to the limited information or items that are entitled to confidential
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treatment under the applicable legal principles, and it does not presumptively entitle parties to file
confidential information under seal.
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MULLIN, ALLEN & STEINER PLLC
STIPULATED PROTECTIVE ORDER - 1
(2:20−cv−00401−RSM−DWC)
101 Yesler Way, Suite 400
Seattle, WA 98104
Phone: (206) 957-7007
Fax: (206) 957-7008
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2.
“CONFIDENTIAL” MATERIAL
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“Confidential” material shall include the following documents and tangible things
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produced or otherwise exchanged: (a) defendant/counterclaim plaintiffs Icicle Seafoods, Inc.’s
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and ISVesselCo, Inc.’s (1) financial documents (e.g., income statements, balance sheets, profit and
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loss statements, tax returns, trial balances, forecasts, pre-season plans and projections, production
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reports, budgets, analyses, inventories, accounts and ledgers), (2) contracts, (3) corporate records,
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and (4) surveys; and (b) plaintiffs/counterclaim defendants United States Fire Insurance
Company’s and all other insurers’ and syndicates’ (1) financial documents (e.g., income records,
loss records, and expense records) and (2) underwriting and claim handling guidelines, policies
and procedures.
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3.
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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
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copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony,
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conversations, or presentations by parties or their counsel that might reveal confidential material.
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However, the protections conferred by this agreement do not cover information that is in
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the public domain or becomes part of the public domain through trial or otherwise.
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4.
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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
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
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that access is limited to the persons authorized under this agreement.
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MULLIN, ALLEN & STEINER PLLC
STIPULATED PROTECTIVE ORDER - 2
(2:20−cv−00401−RSM−DWC)
101 Yesler Way, Suite 400
Seattle, WA 98104
Phone: (206) 957-7007
Fax: (206) 957-7008
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4.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
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by the court or permitted in writing by the designating party, a receiving party may disclose any
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confidential material only to:
(a)
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of counsel to whom it is reasonably necessary to disclose the information for this litigation;
(b)
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the receiving party’s counsel of record in this action, as well as employees
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
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litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(d)
(e)
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the court, court personnel, and court reporters and their staff;
copy or imaging services retained by counsel to assist in the duplication of
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confidential material, provided that counsel for the party retaining the copy or imaging service
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instructs the service not to disclose any confidential material to third parties and to immediately
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return all originals and copies of any confidential material;
(f)
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during their depositions, witnesses in the action to whom disclosure is
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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
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(Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of
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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;
(g)
the author or recipient of a document containing the information or a
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custodian or other person who otherwise possessed or knew the information.
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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,
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MULLIN, ALLEN & STEINER PLLC
STIPULATED PROTECTIVE ORDER - 3
(2:20−cv−00401−RSM−DWC)
101 Yesler Way, Suite 400
Seattle, WA 98104
Phone: (206) 957-7007
Fax: (206) 957-7008
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in accordance with Local Civil Rule 5(g)(3)(A), to determine whether the designating party will
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remove the confidential designation, whether the document can be redacted, or whether a motion
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to seal or stipulation and proposed order is warranted. During the meet and confer process, the
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designating party must identify the basis for sealing the specific confidential information at issue,
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and the filing party shall include this basis in its motion to seal, along with any objection to sealing
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the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be followed and
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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 Local Civil Rule 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
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the strong presumption of public access to the Court’s files.
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5.
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection. Each party
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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
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standards. The designating party must designate for protection only those parts of material,
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documents, items, or oral or written communications that qualify, so that other portions of the
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material, documents, items, or communications for which protection is not warranted are not swept
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unjustifiably within the ambit of this agreement.
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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.
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If it comes to a designating party’s attention that information or items that it designated for
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protection do not qualify for protection, the designating party must promptly notify all other parties
that it is withdrawing the mistaken designation.
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MULLIN, ALLEN & STEINER PLLC
STIPULATED PROTECTIVE ORDER - 4
(2:20−cv−00401−RSM−DWC)
101 Yesler Way, Suite 400
Seattle, WA 98104
Phone: (206) 957-7007
Fax: (206) 957-7008
1
5.2
Manner and Timing of Designations. Except as otherwise provided in this
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agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
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ordered, disclosure or discovery material that qualifies for protection under this agreement must
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be clearly so designated before or when the material is disclosed or produced.
(a)
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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).
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(b)
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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
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after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the
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transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or
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exhibits thereto, as confidential. If a party or non-party desires to protect confidential information
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at trial, the issue should be addressed during the pre-trial conference.
(c)
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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 information or items does not, standing alone, waive the designating party’s
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right to secure protection under this agreement for such material. Upon timely correction of a
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designation, the receiving party must make reasonable efforts to ensure that the material is treated
in accordance with the provisions of this agreement.
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MULLIN, ALLEN & STEINER PLLC
STIPULATED PROTECTIVE ORDER - 5
(2:20−cv−00401−RSM−DWC)
101 Yesler Way, Suite 400
Seattle, WA 98104
Phone: (206) 957-7007
Fax: (206) 957-7008
1
6.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any party or non-party may challenge a designation of
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confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality
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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
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burdens, or a significant disruption or delay of the litigation, a party does not waive its right to
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challenge a confidentiality designation by electing not to mount a challenge promptly after the
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original designation is disclosed.
6.2
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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
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or affidavit, that the movant has engaged in a good faith meet and confer conference with other
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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.
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6.3
Judicial Intervention. If the parties cannot resolve a challenge without court
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intervention, the designating party may file and serve a motion to retain confidentiality under Local
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Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of
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persuasion in any such motion shall be on the designating party. Frivolous challenges, and those
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made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
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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
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If a party is served with a subpoena or a court order issued in other litigation that compels
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disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party
must:
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MULLIN, ALLEN & STEINER PLLC
STIPULATED PROTECTIVE ORDER - 6
(2:20−cv−00401−RSM−DWC)
101 Yesler Way, Suite 400
Seattle, WA 98104
Phone: (206) 957-7007
Fax: (206) 957-7008
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(a)
promptly notify the designating party in writing and include a copy of the
subpoena or court order;
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(b)
promptly notify in writing the party who caused the subpoena or order to
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issue in the other litigation that some or all of the material covered by the subpoena or order is
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subject to this agreement. Such notification shall include a copy of this agreement; and
(c)
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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
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material to any person or in any circumstance not authorized under this agreement, the receiving
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party must immediately (a) notify in writing the designating party of the unauthorized disclosures,
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(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,
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and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be
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Bound” that is attached hereto as Exhibit A.
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9.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
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When a producing party gives notice to receiving parties that certain inadvertently produced
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material is subject to a claim of privilege or other protection, the obligations of the receiving parties
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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-
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waiver order under Fed. R. Evid. 502(d) as set forth herein.
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10.
NON TERMINATION AND RETURN OF DOCUMENTS
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MULLIN, ALLEN & STEINER PLLC
STIPULATED PROTECTIVE ORDER - 7
(2:20−cv−00401−RSM−DWC)
101 Yesler Way, Suite 400
Seattle, WA 98104
Phone: (206) 957-7007
Fax: (206) 957-7008
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Within 60 days after the termination of this action, including all appeals, each receiving
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party must return all confidential material to the producing party, including all copies, extracts and
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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
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documents filed with the court, trial, deposition, and hearing transcripts, correspondence,
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deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work
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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.
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DATED: September 9, 2020.
BAUER, MOYNIHAN & JOHNSON, LLP
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s/ Matthew C. Crane
Matthew C. Crane, WSBA #18003
Robert D. Sykes, WSBA #49635
Attorneys for Plaintiffs/Counterclaim
Defendants
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DATED: September 10, 2020
MULLIN, ALLEN & STEINER PLLC
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s/ Dan Mullin
s/ Tracy Duany
Daniel F. Mullin, WSBA #12768
Tracy A. Duany, WSBA #32287
Attorneys for Defendants/Counterclaim
Plaintiffs Icicle Seafoods and ISVesselCo, Inc.
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MULLIN, ALLEN & STEINER PLLC
STIPULATED PROTECTIVE ORDER - 8
(2:20−cv−00401−RSM−DWC)
101 Yesler Way, Suite 400
Seattle, WA 98104
Phone: (206) 957-7007
Fax: (206) 957-7008
1
PURSUANT TO STIPULATION, IT IS SO ORDERED
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IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any
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documents in this proceeding shall not, for the purposes of this proceeding or any other federal or
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state proceeding, constitute a waiver by the producing party of any privilege applicable to those
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documents, including the attorney-client privilege, attorney work-product protection, or any other
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privilege or protection recognized by law.
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DATED this 11th day of September, 2020.
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A
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David W. Christel
United States Magistrate Judge
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MULLIN, ALLEN & STEINER PLLC
STIPULATED PROTECTIVE ORDER - 9
(2:20−cv−00401−RSM−DWC)
101 Yesler Way, Suite 400
Seattle, WA 98104
Phone: (206) 957-7007
Fax: (206) 957-7008
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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 of
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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 the
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case of United States Fire Insurance Company, et al. v. Icicle Seafoods, Inc., et al., Case No.
2:20−cv−00401−RSM−DWC. 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
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not disclose in any manner any information or item that is subject to this Stipulated Protective
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Order to any person or entity except in strict 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 Protective
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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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MULLIN, ALLEN & STEINER PLLC
STIPULATED PROTECTIVE ORDER - 10
(2:20−cv−00401−RSM−DWC)
101 Yesler Way, Suite 400
Seattle, WA 98104
Phone: (206) 957-7007
Fax: (206) 957-7008
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