Andersen v. National Association of Letter Carriers et al

Filing 30

STIPULATED PROTECTIVE ORDER re Parties' 29 Stipulated MOTION for Protective Order. Signed by Judge Ricardo S. Martinez. (SB)

Case 2:20-cv-01678-RSM Document 30 Filed 10/01/21 Page 1 of 11

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SHANNON ANDERSEN,

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Plaintiff,

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v.

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NATIONAL ASSOCIATION OF LETTER
CARRIERS, a labor organization, and
NATIONAL ASSOCIATION OF LETTER
CARRIERS, BRANCH 79, a labor
organization, and UNITED STATES
POSTAL SERVICE, and LOUIS DEJOY,
POSTMASTER OF THE UNITED STATES,

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STIPULATED
PROTECTIVE ORDER
Note on Motion Calendar:
October 1, 2021

Defendant.

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CASE NO. 2:20-cv-01678-RSM

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

STIPULATED PROTECTIVE ORDER
2:20-cv-01678-RSM
PAGE– 1

UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
[phone]

Case 2:20-cv-01678-RSM Document 30 Filed 10/01/21 Page 2 of 11

1 disclosure and use extends only to the limited information or items that are entitled to confidential
2 treatment under the applicable legal principles, and it does not presumptively entitle parties to file
3 confidential information under seal.
4 2.

“CONFIDENTIAL” MATERIAL

5

“Confidential” material shall include the following documents and tangible things

6 produced or otherwise exchanged:
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•

Any person’s financial records, including tax returns

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Medical records and medical information

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Personnel and employment-related records of any current or former Postal Service

10 employee
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Law enforcement sensitive information, and

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Any other records whose release without a protective order would potentially

13 violate the Privacy Act, 5 U.S.C. § 552a.
14 3.

SCOPE

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The protections conferred by this agreement cover not only confidential material (as

16 defined above), but also (1) any information copied or extracted from confidential material; (2) all
17 copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony,
18 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

20 the public domain or becomes part of the public domain through trial or otherwise.
21 4.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL

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4.1

Basic Principles. A receiving party may use confidential material that is disclosed

23 or produced by another party or by a non-party in connection with this case only for prosecuting,
24 defending, or attempting to settle this litigation. Confidential material may be disclosed only to the
25 categories of persons and under the conditions described in this agreement. Confidential material
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STIPULATED PROTECTIVE ORDER
2:20-cv-01678-RSM
PAGE– 2

UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
[phone]

Case 2:20-cv-01678-RSM Document 30 Filed 10/01/21 Page 3 of 11

1 must be stored and maintained by a receiving party at a location and in a secure manner that ensures
2 that access is limited to the persons authorized under this agreement.
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4.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

4 by the court or permitted in writing by the designating party, a receiving party may disclose any
5 confidential material only to:
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(a)

the receiving party’s counsel of record in this action, as well as employees

7 of counsel to whom it is reasonably necessary to disclose the information for this litigation;
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(b)

the officers, directors, and employees (including in house counsel) of the

9 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties
10 agree that a particular document or material produced is for Attorney’s Eyes Only and is so
11 designated;
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(c)

experts and consultants to whom disclosure is reasonably necessary for this

13 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(d)

the court, court personnel, and court reporters and their staff;

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(e)

copy or imaging services retained by counsel to assist in the duplication of

16 confidential material, provided that counsel for the party retaining the copy or imaging service
17 instructs the service not to disclose any confidential material to third parties and to immediately
18 return all originals and copies of any confidential material;
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(f)

during their depositions, witnesses in the action to whom disclosure is

20 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
21 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of
22 transcribed deposition testimony or exhibits to depositions that reveal confidential material must
23 be separately bound by the court reporter and may not be disclosed to anyone except as permitted
24 under this agreement;
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(g)

the author or recipient of a document containing the information or a

26 custodian or other person who otherwise possessed or knew the information.

STIPULATED PROTECTIVE ORDER
2:20-cv-01678-RSM
PAGE– 3

UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
[phone]

Case 2:20-cv-01678-RSM Document 30 Filed 10/01/21 Page 4 of 11

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4.3

Filing Confidential Material. Before filing confidential material or discussing or

2 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 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.

DESIGNATING PROTECTED MATERIAL

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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.
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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.
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STIPULATED PROTECTIVE ORDER
2:20-cv-01678-RSM
PAGE– 4

UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
[phone]

Case 2:20-cv-01678-RSM Document 30 Filed 10/01/21 Page 5 of 11

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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.
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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.
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(a)

Information in documentary form: (e.g., paper or electronic documents and

9 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 the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate
13 markings in the margins).
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(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.
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(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).
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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

26 designate qualified information or items does not, standing alone, waive the designating party’s

STIPULATED PROTECTIVE ORDER
2:20-cv-01678-RSM
PAGE– 5

UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
[phone]

Case 2:20-cv-01678-RSM Document 30 Filed 10/01/21 Page 6 of 11

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.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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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.
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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 face17 to-face meeting or a telephone conference.
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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.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

26 LITIGATION

STIPULATED PROTECTIVE ORDER
2:20-cv-01678-RSM
PAGE– 6

UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
[phone]

Case 2:20-cv-01678-RSM Document 30 Filed 10/01/21 Page 7 of 11

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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:
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(a)

promptly notify the designating party in writing and include a copy of the

5 subpoena or court order;
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(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
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(c)

cooperate with respect to all reasonable procedures sought to be pursued by

10 the designating party whose confidential material may be affected.
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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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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.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

20 MATERIAL
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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.

STIPULATED PROTECTIVE ORDER
2:20-cv-01678-RSM
PAGE– 7

UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
[phone]

Case 2:20-cv-01678-RSM Document 30 Filed 10/01/21 Page 8 of 11

1 10.

NON TERMINATION AND RETURN OF DOCUMENTS

2 Within 60 days after the termination of this action, including all appeals, each receiving party must
3 return all confidential material to the producing party, including all copies, extracts and summaries
4 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

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.
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The confidentiality obligations imposed by this agreement shall remain in effect until a

10 designating party agrees otherwise in writing or a court orders otherwise.
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STIPULATED PROTECTIVE ORDER
2:20-cv-01678-RSM
PAGE– 8

UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
[phone]

Case 2:20-cv-01678-RSM Document 30 Filed 10/01/21 Page 9 of 11

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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

4 ____________________________________ [print or type full address], declare under penalty of
5 perjury that I have read in its entirety and understand the Stipulated Protective Order that was
6 issued by the United States District Court for the Western District of Washington on [date] in the
7 case of Andersen v. National Association of Letter Carriers, et al., Case No. 2:20-cv-01678-RSM.
8 I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I
9 understand and acknowledge that failure to so comply could expose me to sanctions and
10 punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner
11 any information or item that is subject to this Stipulated Protective Order to any person or entity
12 except in strict 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:
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STIPULATED PROTECTIVE ORDER
2:20-cv-01678-RSM
PAGE– 9

UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
[phone]

Case 2:20-cv-01678-RSM Document 30 Filed 10/01/21 Page 10 of 11

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

2 DATED this 1st day of October, 2021.
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s/ Patricia S. Rose
4 PATRICIA S. ROSE, WSBA #19046
5 1455 NW Leary Way, Suite 400
Seattle, WA 98107
6 T: 206-622-8964 / F: 206-694-2695
E: [e-mail]
7 Attorney for Plaintiff
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9 TESSA M. GORMAN
Acting United States Attorney
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s/ Sarah K. Morehead
11 SARAH K. MOREHEAD, WSBA #29680
United States Attorney’s Office
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700 Stewart Street, Suite 5220
13 Seattle, WA 98101
T: 206-553-7970
14 E: [e-mail]
Attorney for Federal Defendants
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s/ Kate M. Swearengen
KATE M SWEARENGEN, *Admitted Pro Hac Vice
COHEN, WEISS AND SIMON LLP
900 Third Avenue, Suite 2100
New York, NY 10022-4869
T: [phone]
E: [e-mail]
Attorney for Union Defendants

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22 s/ Benjamin Gerger
BENJAMIN BERGER, WSBA #52909
23 BARNARD IGLITZIN & LAVITT LLP
24 18 W Mercer St, Suite 400
Seattle, WA 98119
25 T: [phone]
E: [e-mail]
26 Attorney for Union Defendants

STIPULATED PROTECTIVE ORDER
2:20-cv-01678-RSM
PAGE– 10

UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
[phone]

Case 2:20-cv-01678-RSM Document 30 Filed 10/01/21 Page 11 of 11

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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

3 documents in this proceeding shall not, for the purposes of this proceeding or any other federal or
4 state proceeding, constitute a waiver by the producing party of any privilege applicable to those
5 documents, including the attorney-client privilege, attorney work-product protection, or any other
6 privilege or protection recognized by law.
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DATED this 1st day of October, 2021.

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A

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RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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STIPULATED PROTECTIVE ORDER
2:20-cv-01678-RSM
PAGE– 11

UNITED STATES ATTORNEY
700 STEWART STREET, SUITE 5220
SEATTLE, WASHINGTON 98101
[phone]