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

Filing 49

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

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THE HONORABLE KYMBERLY K. EVANSON 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 UNITED STATES OF AMERICA, for the Use and Benefit of SCI INFRASTRUCTURES, LLC; AND SCI INFRASTRUCTURES, LLC, a Washington limited liability company, 11 Plaintiffs, 12 v. 13 CHEROKEE GENERAL CORPORATION, an Oregon corporation; and HARTFORD FIRE INSURANCE COMPANY, a Connecticut corporation, Defendants. 14 15 16 17 18 CHEROKEE GENERAL CORPORATION, an Oregon corporation, Counterclaim and Third-Party Plaintiff, 19 20 v. 21 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 22 23 24 25 Counterclaim Defendants. 26 MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:22−CV−00299−KKE - 1 CASE NO. 2:22−cv−00299−KKE PROTECTIVE ORDER STIPULATION 1 2 1. PURPOSES AND LIMITATIONS 3 Discovery in this action is likely to involve production of confidential, proprietary, or 4 private information for which special protection may be warranted. Accordingly, the parties hereby 5 stipulate to and petition the court to enter the following Stipulated Protective Order. The parties 6 acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket 7 protection on all disclosures or responses to discovery, the protection it affords from public 8 disclosure and use extends only to the limited information or items that are entitled to confidential 9 treatment under the applicable legal principles, and it does not presumptively entitle parties to file 10 confidential information under seal. 11 2. 12 “CONFIDENTIAL” AND “ATTORNEYS’ EYES ONLY” MATERIAL 2.1 Confidential Material. “Confidential” material shall include the following 13 documents and tangible things produced or otherwise exchanged: (i) the parties’ tax information, 14 financial 15 communications/documents and/or means/methods of production which are trade secrets and/or 16 would provide competitive advantage to third parties if disclosed; (iii) any materials disclosed by 17 a party or a third party in the United States Court of Federal Claims, Cherokee General 18 Corporation v. United States, Case No. 18-412C (“COC Action”) that was designated as 19 “Confidential”/”Protected Information,” pursuant to the Protective Order entered on or about 20 December 7, 2018 in the COC Action (herein “COC Protective Order"); and (iv) any materials 21 disclosed by a party or a third party in the United States District Court Western District Of 22 Washington, Case No. 2:17-cv-01908-JLR: Pinnacle Crushing and Construction LLC, Et Al., v. 23 Cherokee General Corporation Et Al., Case No. 2:17-cv-01908-JLR (herein “First Lawsuit”) that 24 was designated as “Confidential”/”Protected Information”, pursuant to the Protective Order 25 entered on or about November 15, 2018 in that action (herein “First Lawsuit Protective Order"). 26 2.2 information, bidding information; (ii) commercially sensitive Attorneys’ Eyes Only. “Attorneys’ Eyes Only” material shall include information MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:22−CV−00299−KKE - 2 1 or documents that a party or third-party in good faith reasonably believes contains, constitutes, or 2 includes highly confidential information or material that is believed in good faith to be not only 3 confidential, but also constitute trade secrets or commercial business information that could be 4 used to the detriment of the producing party’s business, including: information reflecting pricing, 5 profits, competitive analysis, strategies, marketing plans, operational plans, and unreleased 6 initiatives, services, and/or business deals. 7 3. SCOPE 8 The protections conferred by this agreement cover not only confidential material and 9 attorneys’ eyes only material (as defined above), but also: (1) any information copied or extracted 10 from confidential material; (2) all copies, excerpts, summaries, or compilations of confidential 11 material; and (3) any testimony, conversations, or presentations by parties or their counsel that 12 might reveal confidential or attorneys’ eyes only material. However, the protections conferred by this agreement do not cover information that is in 13 14 the public domain or becomes part of the public domain through trial or otherwise. 15 4. 16 MATERIAL 17 ACCESS TO AND USE OF CONFIDENTIAL OR ATTORNEYS’ EYES ONLY 4.1 Basic Principles. A receiving party may use confidential or attorneys’ eyes only 18 material that is disclosed or produced by another party or by a non-party in connection with this 19 case only for prosecuting, defending, or attempting to settle this litigation. Confidential or 20 attorneys’ eyes only material may be disclosed only to the categories of persons and under the 21 conditions described in this agreement. Confidential or attorneys’ eyes only material must be 22 stored and maintained by a receiving party at a location and in a secure manner that ensures that 23 access is limited to the persons authorized under this agreement. 24 4.2 Defendant, Counterclaimant, and Third-Party Plaintiff Cherokee General 25 Corporation (“Cherokee”), represents it is in possession of documents that may have been 26 designated as “Confidential”/”Privileged Information” in the COC Action and First Lawsuit by MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:22−CV−00299−KKE - 3 1 the parties to the same and/or other third parties (“COC/First Lawsuit Confidential Material”). The 2 parties to this dispute shall treat all such COC/First Lawsuit Confidential Material as Confidential 3 under this Protective Order. If a party to this lawsuit desires to remove a “Confidential”/”Privileged 4 Information” designation of a non-party to this Lawsuit, or otherwise handle/use COC/First 5 Lawsuit Confidential Material in a manner not authorized by this Protective Order, then that party 6 shall: (i) negotiate for the terms for treatment/use of the COC/First Lawsuit Confidential Material 7 with the third party who applied COC/First Lawsuit Confidential Material designation 8 “Confidential”/”Privileged Information” in the COC Action or First Lawsuit (Prior Designating 9 Party); and/or (ii) apply to this Court for relief from this Protective Order after providing 10 11 reasonable notice to that Prior Designating Party. 4.3 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 12 by the court or permitted in writing by the designating party, a receiving party may disclose any 13 confidential material only to: (a) 14 15 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) 16 the officers, directors, and employees (including in house counsel) of the 17 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties 18 agree that a particular document or material produced is for Attorney’s Eyes Only and is so 19 designated; 20 21 (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); 22 (d) the court, court personnel, and court reporters and their staff; 23 (e) copy or imaging services retained by counsel to assist in the duplication of 24 confidential material, provided that counsel for the party retaining the copy or imaging service 25 instructs the service not to disclose any confidential material to third parties and to immediately 26 return all originals and copies of any confidential material; MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:22−CV−00299−KKE - 4 (f) 1 during their depositions, witnesses in the action to whom disclosure is 2 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 3 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of 4 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 5 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 6 under this agreement; (g) 7 8 9 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 10 or permitted in writing by the designating party, a receiving party may disclose materials 11 designated for attorneys’ eyes only to: (a) 12 Outside counsel for the parties in this litigation, and employees or contract 13 personnel retained by such attorneys’ offices (such as secretaries, legal assistants, and document 14 copying, coding, or imaging services) to whom it is necessary to disclose such information or 15 material in furtherance of the prosecution or defense of this action, any mediator selected to 16 mediate this matter, and any arbitrator selected to hear this matter; (b) 17 18 and other court papers and proceedings; (c) 19 20 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) 21 Experts and consultants retained by an attorney, to whom disclosure is 22 reasonably necessary for this litigation and who have signed the “Acknowledgement and 23 Agreement to Be Bound” (Exhibit A). 24 4.5 Filing Confidential or Attorneys’ Eyes Only Material. Before filing confidential or 25 attorneys’ eyes only material or discussing or referencing such material in court filings, the filing 26 party shall confer with the designating party, in accordance with Local Civil Rule 5(g)(3)(A), to MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:22−CV−00299−KKE - 5 1 determine whether the designating party will remove the confidential or attorneys’ eyes only 2 designation, whether the document can be redacted, or whether a motion to seal or stipulation and 3 proposed order is warranted. During the meet and confer process, the designating party must 4 identify the basis for sealing the specific confidential or attorneys’ eyes only information at issue, 5 and the filing party shall include this basis in its motion to seal, along with any objection to sealing 6 the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be followed and 7 the standards that will be applied when a party seeks permission from the court to file material 8 under seal. A party who seeks to maintain the confidentiality of its information must satisfy the 9 requirements of Local Civil Rule 5(g)(3)(B), even if it is not the party filing the motion to seal. 10 Failure to satisfy this requirement will result in the motion to seal being denied, in accordance with 11 the strong presumption of public access to the Court’s files. 12 5. 13 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 14 or non-party that designates information or items for protection under this agreement must take 15 care to limit any such designation to specific material that qualifies under the appropriate 16 standards. The designating party must designate for protection only those parts of material, 17 documents, items, or oral or written communications that qualify, so that other portions of the 18 material, documents, items, or communications for which protection is not warranted are not swept 19 unjustifiably within the ambit of this agreement. 20 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 21 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 22 unnecessarily encumber or delay the case development process or to impose unnecessary expenses 23 and burdens on other parties) expose the designating party to sanctions. 24 If it comes to a designating party’s attention that information or items that it designated for 25 protection do not qualify for protection, the designating party must promptly notify all other parties 26 that it is withdrawing the mistaken designation. MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:22−CV−00299−KKE - 6 1 5.2 Manner and Timing of Designations. Except as otherwise provided in this 2 agreement (see, e.g., second paragraph of section 5.2(b) below), or as otherwise stipulated or 3 ordered, disclosure or discovery material that qualifies for protection under this agreement must 4 be clearly so designated before or when the material is disclosed or produced. (a) 5 Information in documentary form: (e.g., paper or electronic documents and 6 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), 7 the designating party must affix the word “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” 8 to each page that contains confidential or attorneys’ eyes only material. If only a portion or portions 9 of the material on a page qualifies for protection, the producing party also must clearly identify 10 the protected portion(s) (e.g., by making appropriate markings in the margins). (b) 11 Testimony given in deposition or in other pretrial proceedings: the parties 12 and any participating non-parties must identify on the record, during the deposition or other pretrial 13 proceeding, all protected testimony, without prejudice to their right to so designate other testimony 14 after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the 15 transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or 16 exhibits thereto, as confidential or as attorneys’ eyes only. If a party or non-party desires to protect 17 confidential information at trial, the issue should be addressed during the pre-trial conference. (c) 18 Other tangible items: the producing party must affix in a prominent place 19 on the exterior of the container or containers in which the information or item is stored the word 20 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”. If only a portion or portions of the 21 information or item warrant protection, the producing party, to the extent practicable, shall identify 22 the protected portion(s). 23 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 24 designate qualified information or items does not, standing alone, waive the designating party’s 25 right to secure protection under this agreement for such material. Upon timely correction of a 26 designation, the receiving party must make reasonable efforts to ensure that the material is treated MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:22−CV−00299−KKE - 7 1 in accordance with the provisions of this agreement. 2 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 3 Timing of Challenges. Any party or non-party may challenge a designation of 4 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality or 5 attorneys’ eyes only designation is necessary to avoid foreseeable, substantial unfairness, 6 unnecessary economic burdens, or a significant disruption or delay of the litigation, a party does 7 not waive its right to challenge a confidentiality designation by electing not to mount a challenge 8 promptly after the original designation is disclosed. 6.2 9 Meet and Confer. The parties must make every attempt to resolve any dispute 10 regarding confidential or attorneys’ eyes only designations without court involvement. Any motion 11 regarding confidential or attorneys’ eyes only designations or for a protective order must include 12 a certification, in the motion or in a declaration or affidavit, that the movant has engaged in a good 13 faith meet and confer conference with other affected parties in an effort to resolve the dispute 14 without court action. The certification must list the date, manner, and participants to the 15 conference. A good faith effort to confer requires a face-to-face meeting or a telephone conference. 6.3 16 Judicial Intervention. If the parties cannot resolve a challenge without court 17 intervention, the designating party may file and serve a motion to retain confidentiality or 18 attorneys’ eyes only status under Local Civil Rule 7 (and in compliance with Local Civil Rule 19 5(g), if applicable). The burden of persuasion in any such motion shall be on the designating party. 20 Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 21 unnecessary expenses and burdens on other parties) may expose the challenging party to sanctions. 22 All parties shall continue to maintain the material in question as confidential or attorneys’ eyes 23 only material until the court rules on the challenge. 24 7. 25 LITIGATION 26 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 MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:22−CV−00299−KKE - 8 1 disclosure of any information or items designated in this action as “CONFIDENTIAL” or as 2 “ATTORNEYS’ EYES ONLY”, that party must: (a) 3 4 promptly notify the designating party in writing and include a copy of the subpoena or court order; (b) 5 promptly notify in writing the party who caused the subpoena or order to 6 issue in the other litigation that some or all of the material covered by the subpoena or order is 7 subject to this agreement. Such notification shall include a copy of this agreement; and (c) 8 9 10 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 11 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 12 or attorneys’ eyes only material to any person or in any circumstance not authorized under this 13 agreement, the receiving party must immediately (a) notify in writing the designating party of the 14 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected 15 material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 16 terms of this agreement, and (d) request that such person or persons execute the “Acknowledgment 17 and Agreement to Be Bound” that is attached hereto as Exhibit A. 18 9. 19 MATERIAL INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 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 agreement that provides for production without prior privilege review. The parties agree to the 25 entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. 26 10. NON TERMINATION AND RETURN OF DOCUMENTS MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:22−CV−00299−KKE - 9 1 Within 60 days after the termination of this action, including all appeals, each receiving 2 party must return all confidential or attorneys’ eyes only material to the producing party, including 3 all copies, extracts and summaries thereof. Alternatively, the parties may agree upon appropriate 4 methods of destruction. 5 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 or attorneys’ eyes only material. 9 10 The confidentiality obligations imposed by this agreement shall remain in effect until a designating party agrees otherwise in writing or a court orders otherwise. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:22−CV−00299−KKE - 10 1 2 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 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER CASE NUMBER 2:22−CV−00299−KKE - 11 1 ORDER 2 PURSUANT TO THE PARTIES’ STIPULATION (DKT. NO. 48), IT IS SO ORDERED. 3 IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any 4 documents, electronically stored information (ESI) or information, whether inadvertent or 5 otherwise, in this proceeding shall not, for the purposes of this proceeding or any other federal or 6 state proceeding, constitute a waiver by the producing party of any privilege applicable to those 7 documents, including the attorney-client privilege, attorney work-product protection, or any other 8 privilege or protection recognized by law. This Order shall be interpreted to provide the maximum 9 protection allowed by Fed. R. Evid. 502(d). The provisions of Fed. R. Evid. 502(b) do not apply. 10 Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a review 11 of documents, ESI or information (including metadata) for relevance, responsiveness and/or 12 segregation of privileged and/or protected information before production. Information produced 13 in discovery that is protected as privileged or work product shall be immediately returned to the 14 producing party. 15 16 DATED: November 14, 2023 17 A 18 19 Kymberly K. Evanson United States District Judge 20 21 22 23 24 25 26 MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:22−CV−00299−KKE - 12 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, 3 ____________________________________ [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 _______________ [insert formal name of the case and the number and initials 8 assigned to it by the court]. I agree to comply with and to be bound by all the terms of this 9 Stipulated Protective Order and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will 11 not disclose in any manner any information or item that is subject to this Stipulated Protective 12 Order to any person or entity 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: 20 21 22 23 24 25 26 MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:22−CV−00299−KKE - 13

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