United States of America et al v. Cherokee General Corporation et al

Filing 49

PROTECTIVE ORDER. Signed by District Judge Kymberly K. Evanson. (SB)

THE HONORABLE KYMBERLY K. EVANSON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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UNITED STATES OF AMERICA, for the Use
and Benefit of SCI INFRASTRUCTURES,
LLC; AND SCI INFRASTRUCTURES, LLC,
a Washington limited liability company,

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Plaintiffs,

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v.

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CHEROKEE GENERAL CORPORATION, an
Oregon corporation; and HARTFORD FIRE
INSURANCE COMPANY, a Connecticut
corporation,
Defendants.

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CHEROKEE GENERAL CORPORATION, an
Oregon corporation,
Counterclaim and Third-Party Plaintiff,

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v.

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SCI INFRASTRUCTURES, LLC, a
Washington limited liability company; and
SWISS RE CORPORATE SOLUTIONS
AMERICAN INSURANCE CORPORATION
f/k/a NORTH AMERICAN SPECIALTY
INSURANCE COMPANY, Bond No. 2216797

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Counterclaim Defendants.

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CASE NO. 2:22−cv−00299−KKE
PROTECTIVE ORDER

STIPULATION

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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.

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“CONFIDENTIAL” AND “ATTORNEYS’ EYES ONLY” MATERIAL
2.1

Confidential Material. “Confidential” material shall include the following

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documents and tangible things produced or otherwise exchanged: (i) the parties’ tax information,

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financial

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communications/documents and/or means/methods of production which are trade secrets and/or

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would provide competitive advantage to third parties if disclosed; (iii) any materials disclosed by

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a party or a third party in the United States Court of Federal Claims, Cherokee General

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Corporation v. United States, Case No. 18-412C (“COC Action”) that was designated as

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“Confidential”/”Protected Information,” pursuant to the Protective Order entered on or about

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December 7, 2018 in the COC Action (herein “COC Protective Order"); and (iv) any materials

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disclosed by a party or a third party in the United States District Court Western District Of

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Washington, Case No. 2:17-cv-01908-JLR: Pinnacle Crushing and Construction LLC, Et Al., v.

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Cherokee General Corporation Et Al., Case No. 2:17-cv-01908-JLR (herein “First Lawsuit”) that

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was designated as “Confidential”/”Protected Information”, pursuant to the Protective Order

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entered on or about November 15, 2018 in that action (herein “First Lawsuit Protective Order").

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2.2

information,

bidding

information;

(ii)

commercially

sensitive

Attorneys’ Eyes Only. “Attorneys’ Eyes Only” material shall include information

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or documents that a party or third-party in good faith reasonably believes contains, constitutes, or

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includes highly confidential information or material that is believed in good faith to be not only

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confidential, but also constitute trade secrets or commercial business information that could be

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used to the detriment of the producing party’s business, including: information reflecting pricing,

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profits, competitive analysis, strategies, marketing plans, operational plans, and unreleased

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initiatives, services, and/or business deals.

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3.

SCOPE

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The protections conferred by this agreement cover not only confidential material and

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attorneys’ eyes only material (as defined above), but also: (1) any information copied or extracted

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from confidential material; (2) all copies, excerpts, summaries, or compilations of confidential

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material; and (3) any testimony, conversations, or presentations by parties or their counsel that

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might reveal confidential or attorneys’ eyes only material.
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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MATERIAL

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ACCESS TO AND USE OF CONFIDENTIAL OR ATTORNEYS’ EYES ONLY

4.1

Basic Principles. A receiving party may use confidential or attorneys’ eyes only

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material that is disclosed or produced by another party or by a non-party in connection with this

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case only for prosecuting, defending, or attempting to settle this litigation. Confidential or

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attorneys’ eyes only material may be disclosed only to the categories of persons and under the

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conditions described in this agreement. Confidential or attorneys’ eyes only material must be

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stored and maintained by a receiving party at a location and in a secure manner that ensures that

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access is limited to the persons authorized under this agreement.

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4.2

Defendant, Counterclaimant, and Third-Party Plaintiff Cherokee General

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Corporation (“Cherokee”), represents it is in possession of documents that may have been

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designated as “Confidential”/”Privileged Information” in the COC Action and First Lawsuit by
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the parties to the same and/or other third parties (“COC/First Lawsuit Confidential Material”). The

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parties to this dispute shall treat all such COC/First Lawsuit Confidential Material as Confidential

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under this Protective Order. If a party to this lawsuit desires to remove a “Confidential”/”Privileged

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Information” designation of a non-party to this Lawsuit, or otherwise handle/use COC/First

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Lawsuit Confidential Material in a manner not authorized by this Protective Order, then that party

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shall: (i) negotiate for the terms for treatment/use of the COC/First Lawsuit Confidential Material

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with the third party who applied COC/First Lawsuit Confidential Material designation

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“Confidential”/”Privileged Information” in the COC Action or First Lawsuit (Prior Designating

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Party); and/or (ii) apply to this Court for relief from this Protective Order after providing

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reasonable notice to that Prior Designating Party.
4.3

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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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)

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

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receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties

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agree that a particular document or material produced is for Attorney’s Eyes Only and is so

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designated;

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(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);

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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

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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)

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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

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be separately bound by the court reporter and may not be disclosed to anyone except as permitted

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under this agreement;
(g)

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

custodian or other person who otherwise possessed or knew the information.
4.4

Disclosure of Attorneys’ Eyes Only Material. Unless otherwise ordered by the court

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or permitted in writing by the designating party, a receiving party may disclose materials

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designated for attorneys’ eyes only to:
(a)

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Outside counsel for the parties in this litigation, and employees or contract

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personnel retained by such attorneys’ offices (such as secretaries, legal assistants, and document

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copying, coding, or imaging services) to whom it is necessary to disclose such information or

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material in furtherance of the prosecution or defense of this action, any mediator selected to

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mediate this matter, and any arbitrator selected to hear this matter;
(b)

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and other court papers and proceedings;
(c)

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The Court and its personnel, as necessary in support of motions, pleadings,

Court reporters and videographers and their assistants, to the extent

reasonably necessary for reporting of depositions and hearings; or
(d)

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Experts and consultants retained by an attorney, to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Acknowledgement and

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Agreement to Be Bound” (Exhibit A).

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4.5

Filing Confidential or Attorneys’ Eyes Only Material. Before filing confidential or

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attorneys’ eyes only material or discussing or referencing such material in court filings, the filing

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party shall confer with the designating party, in accordance with Local Civil Rule 5(g)(3)(A), to
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determine whether the designating party will remove the confidential or attorneys’ eyes only

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designation, whether the document can be redacted, or whether a motion to seal or stipulation and

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proposed order is warranted. During the meet and confer process, the designating party must

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identify the basis for sealing the specific confidential or attorneys’ eyes only 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(b) 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

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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” or “ATTORNEYS’ EYES ONLY”

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to each page that contains confidential or attorneys’ eyes only material. If only a portion or portions

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of the material on a page qualifies for protection, the producing party also must clearly identify

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the protected portion(s) (e.g., by making appropriate markings in the margins).
(b)

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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 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 or as attorneys’ eyes only. If a party or non-party desires to protect

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confidential information 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

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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” or “ATTORNEYS’ EYES ONLY”. If only a portion or portions of the

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information or item warrant protection, the producing party, to the extent practicable, shall identify

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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.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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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 or

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attorneys’ eyes only designation is necessary to avoid foreseeable, substantial unfairness,

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unnecessary economic burdens, or a significant disruption or delay of the litigation, a party does

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not waive its right to challenge a confidentiality designation by electing not to mount a challenge

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promptly after the original designation is disclosed.
6.2

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

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regarding confidential or attorneys’ eyes only designations without court involvement. Any motion

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regarding confidential or attorneys’ eyes only designations or for a protective order must include

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a certification, in the motion or in a declaration or affidavit, that the movant has engaged in a good

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faith meet and confer conference with other affected parties in an effort to resolve the dispute

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without court action. The certification must list the date, manner, and participants to the

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conference. A good faith effort to confer requires a face-to-face meeting or a telephone conference.
6.3

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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 or

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attorneys’ eyes only status under Local Civil Rule 7 (and in compliance with Local Civil Rule

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5(g), if applicable). The burden of persuasion in any such motion shall be on the designating party.

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Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose

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unnecessary expenses and burdens on other parties) may expose the challenging party to sanctions.

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All parties shall continue to maintain the material in question as confidential or attorneys’ eyes

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only material until the court rules on the challenge.

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7.

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LITIGATION

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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” or as

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“ATTORNEYS’ EYES ONLY”, that party must:
(a)

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

subpoena or court order;
(b)

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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

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If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential

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or attorneys’ eyes only material to any person or in any circumstance not authorized under this

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agreement, the receiving party must immediately (a) notify in writing the designating party of the

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unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected

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material, (c) inform the person or persons to whom unauthorized disclosures were made of all the

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terms of this agreement, and (d) request that such person or persons execute the “Acknowledgment

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and Agreement to Be Bound” that is attached hereto as Exhibit A.

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9.

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MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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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 parties agree to the

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entry 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 all confidential or attorneys’ eyes only material to the producing party, including

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all copies, extracts and summaries thereof. Alternatively, the parties may agree upon appropriate

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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 or attorneys’ eyes only material.

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The confidentiality obligations imposed by this agreement shall remain in effect until a
designating party agrees otherwise in writing or a court orders otherwise.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: 11/13/23_____

s/ Khalid Aziz
Attorneys for Plaintiff and Counterclaim
Defendant SCI Infrastructures LLC

DATED: 11/13/23_____

s/ David Vaz
Attorneys for Defendant and Third-Party and
Counterclaim Plaintiff Cherokee General
Corporation

DATED: 11/13/23_____

s/ Paul Friedrich
Attorneys for Counterclaim
Defendant Swiss Re Corporate Solutions
American Insurance Corporation f/k/a North
American Specialty Insurance Company

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ORDER
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ORDER

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PURSUANT TO THE PARTIES’ STIPULATION (DKT. NO. 48), 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, electronically stored information (ESI) or information, whether inadvertent or

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otherwise, 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. This Order shall be interpreted to provide the maximum

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protection allowed by Fed. R. Evid. 502(d). The provisions of Fed. R. Evid. 502(b) do not apply.

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Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a review

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of documents, ESI or information (including metadata) for relevance, responsiveness and/or

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segregation of privileged and/or protected information before production. Information produced

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in discovery that is protected as privileged or work product shall be immediately returned to the

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producing party.

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DATED: November 14, 2023

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A

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Kymberly K. Evanson
United States District Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,

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____________________________________

[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 _______________ [insert formal name of the case and the number and initials

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assigned to it by the court]. I agree to comply with and to be bound by all the terms of this

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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.

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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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