Dick v. University of Washington et al

Filing 36

PROTECTIVE ORDER re Plaintiff's 32 Motion for Protective Order re confidential documents. Signed by Judge J Richard Creatura.(SR)

Case 2:21-cv-00805-RAJ-JRC Document 36 Filed 11/17/21 Page 1 of 11

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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HENRY JB DICK,
Plaintiff,

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CASE NO. 2:21-cv-00805-RAJ-JRC
PROTECTIVE ORDER

v.
UNIVERSITY OF WASHINGTON, et al.
Defendants.

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This matter is before the Court on plaintiff’s motion for a stipulated protective order.

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Dkt. 32. The parties dispute whether to include a provision related to Fed. R. Evid. 502(d),

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which allows a court to order that certain disclosures do not waive attorney-client privilege or

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work-product protections. Plaintiff wishes to adhere to the default rule set forth in Fed. R. Evid.

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502(b), which requires a party who makes an inadvertent disclosure of such protected

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information to follow certain steps to avoid waiving the protections.

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The Court declines to delete the language endorsed by the District’s model stipulated
protective order, as plaintiff’s counsel essentially argues personal preference. The Court

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otherwise adopts the parties’ changes to the model protective order. Accordingly, the Court

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enters the protective order below.
PROTECTIVE ORDER

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1.

PURPOSES AND LIMITATIONS

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Discovery in this action is likely to involve production of confidential, proprietary, or

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private information for which special protection may be warranted. Accordingly, the parties hereby

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stipulate to and petition the court to enter the following Stipulated Protective Order. The parties

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acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket

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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

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confidential information under seal.

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2.

“CONFIDENTIAL” MATERIAL

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“Confidential” material shall include, but not be limited to, the following documents and

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tangible things produced or otherwise exchanged: medical records; protected health information;

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non-party personnel files; and other identifying, financial, and personal information of Plaintiff

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Henry J.B. Dick, Ph.D., and current and/or former employees or students of the University of

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Washington, or third parties.

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3.

SCOPE

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

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defined above), but also (1) any confidential information copied or extracted from confidential

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material; (2) all copies, excerpts, summaries, or compilations containing confidential material; and

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(3) any testimony, conversations, or presentations by parties or their counsel that might reveal

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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

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or produced by another party or by a non-party in connection with this case only for prosecuting,

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defending, or attempting to settle this litigation. Confidential material may be disclosed only to the

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categories of persons and under the conditions described in this agreement. Confidential material

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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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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:

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(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)

the officers, directors, administrators, managers, and employees (including

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Assistant Attorneys General) of the receiving party to whom disclosure is reasonably necessary

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for this litigation;

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(c)

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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;

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(e)

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;

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(f)

witnesses in the action to whom disclosure is reasonably necessary and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

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agreed by the designating party or ordered by the court. Pages of transcribed deposition testimony

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or exhibits to depositions that reveal confidential material must be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this agreement;

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(g)

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

custodian or other person who otherwise possessed or knew the information.
4.3

Filing Confidential Material. Before filing confidential material or discussing or

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referencing such material in court filings, the filing party shall confer with the designating party,

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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

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under seal. A party who seeks to maintain the confidentiality of its information must satisfy the

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requirements of Local Civil Rule 5(g)(3)(B), even if it is not the party filing the motion to seal.

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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.

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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

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber or delay the case development process or to impose unnecessary expenses

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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

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that it is withdrawing the mistaken designation.

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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.

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(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),

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the designating party must affix the word “CONFIDENTIAL” to each page that contains

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confidential material. If only a portion or portions of the material on a page qualifies for protection,

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the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins).

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Any third-party producing documents pursuant to a subpoena may designate materials

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“CONFIDENTIAL”, subject to section 5.1, above. Furthermore, either party also may designate

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as “CONFIDENTIAL” material produced by a third-party. Such post-production designation must

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be made by identifying the page numbers over which the party asserts confidentiality protections

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within a reasonable time following the disclosure. Both parties shall then designate their copy as

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“CONFIDENTIAL” subject to the procedures for disputing that designation. Two weeks is

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rebuttably presumed to be a reasonable time, but a longer period may also be reasonable depending

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on the volume of the production, counsel’s unavailability, or other relevant factors.

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(b)

Testimony given in deposition or in other pretrial proceedings: the parties

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and any participating non-parties must identify on the record, during the deposition or other pretrial

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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 30 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.

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(c)

Other tangible items: the producing party must affix in a prominent place

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on the exterior of the container or containers in which the information or item is stored the word

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“CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection,

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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

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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

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in accordance with the provisions of this agreement.

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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.

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6.2

Meet and Confer. The parties must make every attempt to resolve any dispute

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regarding confidential designations without court involvement. Any motion regarding confidential

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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

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the date, manner, and participants to the conference. A good faith effort to confer requires a face-

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to-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

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the material in question as confidential until the court rules on the challenge.

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7.

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LITIGATION

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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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

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must:

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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

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(c)

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

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the designating party whose confidential material may be affected.

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8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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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

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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

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MATERIAL

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When a producing party gives notice to receiving parties that certain inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of the

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receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision

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is not intended to modify whatever procedure may be established in an e-discovery order or

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agreement that provides for production without prior privilege review. The Court orders the entry

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of a non-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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Within 60 days after the termination of this action, including all appeals, each receiving

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party must return or destroy all confidential material to the producing party, including all copies,

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extracts and summaries thereof. Alternatively, the parties may agree upon appropriate methods of

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disposition.

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Notwithstanding this provision, counsel are entitled to retain one archival copy of all
documents produced.

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

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designating party agrees otherwise in writing or a court orders otherwise.

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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 17th day of November, 2021.

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A

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J. Richard Creatura
Chief United States Magistrate Judge

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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

____________________________________ [print or type full address], declare under penalty of
perjury that I have read in its entirety and understand the Stipulated Protective Order that was
issued by the United States District Court for the Western District of Washington on
__________________ in the case of Henry J.B. Dick, Ph.D. v. University of Washington, Case
No. 2:21-cv-00805-RAJ-JRC. 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

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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.
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
Order, even if such enforcement proceedings occur after termination of this action.
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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PROTECTIVE ORDER - 11