Feng v. Zonar Systems Inc

Filing 14

STIPULATED PROTECTIVE ORDER re Parties' 13 Stipulated MOTION for Protective Order. Signed by Judge J Richard Creatura. (SR)

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Case 2:20-cv-01779-JCC-JRC Document 14 Filed 02/17/21 Page 1 of 10 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 JANE FENG, Plaintiff, 11 STIPULATED PROTECTIVE ORDER v. 12 CASE NO. 2:20-cv-01779-JCC-JRC ZONAR SYSTEMS, INC., 13 Defendant. 14 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. The parties 20 acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket 21 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 22 treatment under the applicable legal principles, and it does not presumptively entitle parties to file 23 confidential information under seal. The parties agree to be bound by this Stipulated Protective 24 STIPULATED PROTECTIVE ORDER - 1 Case 2:20-cv-01779-JCC-JRC Document 14 Filed 02/17/21 Page 2 of 10 1 Order as of the date they execute it, and if the Court does not enter this order the parties agree to 2 confer and propose a modified protective order or enter into a similar protective agreement. 3 2. “Confidential” material shall include the following documents and tangible things 4 5 6 “CONFIDENTIAL” MATERIAL produced or otherwise exchanged. Inclusion in this list does not indicate agreement that such information or material is discoverable, relevant, or admissible. 2.1 7 Private personal information including without limitation the social security number, date of birth, personal financial information, medical records, and healthcare 8 information pertaining to Plaintiff. 9 2.2 Private personal information and materials related to nonparties, including 10 without limitation personnel records, complaints, investigations, social security numbers, 11 dates of birth, wage information, and personal financial information for any current or former owner, member, manager, supervisor, or employee of Defendant. 12 2.3 The financial status of Defendant including without limitation any non-public 13 financial information such as tax records, profit and loss statements, accounting 14 documents, reports, or assessments, business and contractual relationships, contracts, 15 business or strategic plans and internal cost, budget, productivity, and revenue tracking 16 reporting information, nonpublic document showing market research, and investigations 17 and statements related to same, excluding any documents already in the public domain. 18 3. SCOPE The protections conferred by this agreement cover not only confidential material (as 19 defined above), but also (1) any information copied or extracted from confidential material; (2) all 20 copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 21 conversations, or presentations by parties or their counsel that might reveal confidential material. 22 However, the protections conferred by this agreement do not cover information that is in 23 the public domain or becomes part of the public domain through trial or otherwise. 24 4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL STIPULATED PROTECTIVE ORDER - 2 Case 2:20-cv-01779-JCC-JRC Document 14 Filed 02/17/21 Page 3 of 10 1 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 2 or produced by another party or by a non-party in connection with this case only for prosecuting, 3 defending, or attempting to settle this litigation. Confidential material may be disclosed only to the 4 categories of persons and under the conditions described in this agreement. Confidential material 5 6 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 7 8 by the court or permitted in writing by the designating party, a receiving party may disclose any confidential material only to: 9 10 (a) the receiving party’s counsel of record in this action, as well as employees of counsel to whom it is reasonably necessary to disclose the information for this litigation; (b) 11 12 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 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 13 designated; 14 15 (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); 16 (d) the court, court personnel, and court reporters and their staff; 17 (e) copy or imaging services retained by counsel to assist in the duplication of 18 19 confidential material, provided that counsel for the party retaining the copy or imaging service instructs the service not to disclose any confidential material to third parties and to immediately return all originals and copies of any confidential material; 20 (f) 21 during their depositions, witnesses in the action to whom disclosure is reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 22 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of 23 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 24 STIPULATED PROTECTIVE ORDER - 3 Case 2:20-cv-01779-JCC-JRC Document 14 Filed 02/17/21 Page 4 of 10 1 2 be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this agreement; 3 4 (g) custodian or other person who otherwise possessed or knew the information. 4.3 5 6 the author or recipient of a document containing the information or a Filing Confidential Material. Before filing confidential material or discussing or referencing such material in court filings, the filing party shall confer with the designating party, in accordance with Local Civil Rule 5(g)(3)(A), to determine whether the designating party will 7 8 remove the confidential designation, whether the document can be redacted, or whether a motion to seal or stipulation and proposed order is warranted. During the meet and confer process, the 9 designating party must identify the basis for sealing the specific confidential information at issue, 10 and the filing party shall include this basis in its motion to seal, along with any objection to sealing 11 the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be followed and 12 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 13 requirements of Local Civil Rule 5(g)(3)(B), even if it is not the party filing the motion to seal. 14 Failure to satisfy this requirement will result in the motion to seal being denied, in accordance with 15 the strong presumption of public access to the Court’s files. 16 5. 17 18 19 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 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, 20 documents, items, or oral or written communications that qualify, so that other portions of the 21 22 material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this agreement. 23 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 24 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to STIPULATED PROTECTIVE ORDER - 4 Case 2:20-cv-01779-JCC-JRC Document 14 Filed 02/17/21 Page 5 of 10 1 2 unnecessarily encumber or delay the case development process or to impose unnecessary expenses and burdens on other parties) expose the designating party to sanctions. 3 If it comes to a designating party’s attention that information or items that it designated for 4 protection do not qualify for protection, the designating party must promptly notify all other parties 5 6 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 7 8 9 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 10 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), 11 the designating party must affix the word “CONFIDENTIAL” to each page that contains 12 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 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 at trial, the issue should be addressed during the pre-trial conference. 20 (c) 21 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 22 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 23 the producing party, to the extent practicable, shall identify the protected portion(s). 24 STIPULATED PROTECTIVE ORDER - 5 Case 2:20-cv-01779-JCC-JRC Document 14 Filed 02/17/21 Page 6 of 10 1 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 2 designate qualified information or items does not, standing alone, waive the designating party’s 3 right to secure protection under this agreement for such material. Upon timely correction of a 4 designation, the receiving party must make reasonable efforts to ensure that the material is treated 5 6 in accordance with the provisions of this agreement. 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 7 8 Timing of Challenges. Any party or non-party may challenge a designation of confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 9 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 10 challenge a confidentiality designation by electing not to mount a challenge promptly after the 11 original designation is disclosed. 12 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 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 19 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 20 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 21 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 22 other parties) may expose the challenging party to sanctions. All parties shall continue to maintain 23 the material in question as confidential until the court rules on the challenge. 24 STIPULATED PROTECTIVE ORDER - 6 Case 2:20-cv-01779-JCC-JRC Document 14 Filed 02/17/21 Page 7 of 10 1 2 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 3 If a party is served with a subpoena or a court order issued in other litigation that compels 4 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party 5 must: (a) 6 promptly notify the designating party in writing and include a copy of the subpoena or court order; 7 8 9 (b) 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) 10 11 12 promptly notify in writing the party who caused the subpoena or order to 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 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 MATERIAL 20 When a producing party gives notice to receiving parties that certain inadvertently 21 produced material is subject to a claim of privilege or other protection, the obligations of the 22 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 23 is not intended to modify whatever procedure may be established in an e-discovery order or 24 STIPULATED PROTECTIVE ORDER - 7 Case 2:20-cv-01779-JCC-JRC Document 14 Filed 02/17/21 Page 8 of 10 1 agreement that provides for production without prior privilege review. The parties agree to the 2 entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. 3 10. Within 60 days after the termination of this action, including all appeals, each receiving 4 5 6 NON TERMINATION AND RETURN OF DOCUMENTS party must return all confidential material to the producing party, including all copies, extracts and summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction. Notwithstanding this provision, counsel are entitled to retain one archival copy of all 7 8 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 9 product, even if such materials contain confidential material. And counsel for each party may 10 retain a copy of confidential material obtained through litigation for the sole purpose of abiding 11 by its malpractice insurance policies to the extent they require the retention of case files for a 12 specified time. The confidentiality obligations imposed by this agreement shall remain in effect until a 13 designating party agrees otherwise in writing or a court orders otherwise. 14 15 16 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: 02/10/2021 /s/Mika Rothman Attorneys for Plaintiff DATED: 02/10/2021 /s/Nate Bailey Attorneys for Defendant 17 18 19 20 /// 21 /// 22 /// 23 24 STIPULATED PROTECTIVE ORDER - 8 Case 2:20-cv-01779-JCC-JRC Document 14 Filed 02/17/21 Page 9 of 10 1 PURSUANT TO STIPULATION, IT IS SO ORDERED 2 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 6 documents, including the attorney-client privilege, attorney work-product protection, or any other privilege or protection recognized by law. Dated this 17th day of February, 2021. 7 8 A 9 10 J. Richard Creatura United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 STIPULATED PROTECTIVE ORDER - 9 Case 2:20-cv-01779-JCC-JRC Document 14 Filed 02/17/21 Page 10 of 10 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 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 February 7 15, 2021, in the case of Feng v. Zonar Systems, Inc., 2:20-cv-01779-JCC-JRC. I agree to comply 8 with and to be bound by all the terms of this Stipulated Protective Order and I understand and 9 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 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 15 Protective Order, even if such enforcement proceedings occur after termination of this action. 16 Date: 17 18 19 City and State where sworn and signed: Printed name: Signature: 20 21 22 23 24 STIPULATED PROTECTIVE ORDER - 10

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