Vanderbrug v. MaxSold Inc

Filing 24

STIPULATED PROTECTIVE ORDER. Signed by Judge Barbara J. Rothstein. (SB)

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1 THE HONORABLE BARBARA J. ROTHSTEIN 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 KAY ANNE VANDERBRUG, on behalf of herself and all others similarly situated, Plaintiff, 11 12 13 Case No. 2:22-cv-01707-BJR STIPULATED PROTECTIVE ORDER v. MAXSOLD INC., Defendant. 14 15 16 Plaintiff Kay Anne Vanderbrug and Defendant MaxSold, Inc. hereby stipulate to all 17 provisions of this Stipulated Protective Order and request that the Court enter the order. 18 1. PURPOSES AND LIMITATIONS 19 Discovery in this action is likely to involve production of confidential, proprietary, or 20 private information for which special protection may be warranted. Accordingly, the parties hereby 21 stipulate to and petition the court to enter the following Stipulated Protective Order. The parties 22 acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket 23 protection on all disclosures or responses to discovery, the protection it affords from public 24 disclosure and use extends only to the limited information or items that are entitled to confidential 25 treatment under the applicable legal principles, and it does not presumptively entitle parties to file 26 confidential information under seal. 27 STIPULATED PROTECTIVE ORDER - 1 CASE NO. 2:22-cv-01707 BJR 135041.0001/9337374.1 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 1 2 2. “CONFIDENTIAL” MATERIAL 3 “Confidential” material shall include the following documents and tangible things 4 produced or otherwise exchanged: (1) personal and private information regarding Plaintiff and 5 proposed class members; (2) confidential business and financial information, including call 6 protocols and scripts; (3) detailed financial information; (4) information concerning marketing 7 plans, business plans, forecasts, and business strategies; (5) any information deriving actual or 8 potential economic value from not being generally known by other persons who can obtain 9 economic value from its disclosure or use. 10 3. SCOPE 11 The protections conferred by this agreement cover not only confidential material (as 12 defined above), but also (1) any information copied or extracted from confidential material; (2) all 13 copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 14 conversations, or presentations by parties or their counsel that might reveal confidential material. 15 However, the protections conferred by this agreement do not cover information that is in 16 the public domain or becomes part of the public domain through trial or otherwise. 17 4. 18 ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 19 or produced by another party or by a non-party in connection with this case only for prosecuting, 20 defending, or attempting to settle this litigation. Confidential material may be disclosed only to the 21 categories of persons and under the conditions described in this agreement. Confidential material 22 must be stored and maintained by a receiving party at a location and in a secure manner that ensures 23 that access is limited to the persons authorized under this agreement. 24 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 25 by the court or permitted in writing by the designating party, a receiving party may disclose any 26 confidential material only to: 27 STIPULATED PROTECTIVE ORDER - 2 CASE NO. 2:22-cv-01707 BJR 135041.0001/9337374.1 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 (a) 1 2 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) 3 the officers, directors, and employees (including in house counsel) of the 4 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties 5 agree that a particular document or material produced is for Attorney’s Eyes Only and is so 6 designated; (c) 7 8 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); 9 (d) the court, court personnel, and court reporters and their staff; 10 (e) copy or imaging services retained by counsel to assist in the duplication of 11 confidential material, provided that counsel for the party retaining the copy or imaging service 12 instructs the service not to disclose any confidential material to third parties and to immediately 13 return all originals and copies of any confidential material; (f) 14 during their depositions, witnesses in the action to whom disclosure is 15 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 16 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of 17 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 18 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 19 under this agreement; (g) 20 21 22 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 23 referencing such material in court filings, the filing party shall confer with the designating party, 24 in accordance with Local Civil Rule 5(g)(3)(A), to determine whether the designating party will 25 remove the confidential designation, whether the document can be redacted, or whether a motion 26 to seal or stipulation and proposed order is warranted. During the meet and confer process, the 27 STIPULATED PROTECTIVE ORDER - 3 CASE NO. 2:22-cv-01707 BJR 135041.0001/9337374.1 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 1 designating party must identify the basis for sealing the specific confidential information at issue, 2 and the filing party shall include this basis in its motion to seal, along with any objection to sealing 3 the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be followed and 4 the standards that will be applied when a party seeks permission from the court to file material 5 under seal. A party who seeks to maintain the confidentiality of its information must satisfy the 6 requirements of Local Civil Rule 5(g)(3)(B), even if it is not the party filing the motion to seal. 7 Failure to satisfy this requirement will result in the motion to seal being denied, in accordance with 8 the strong presumption of public access to the Court’s files. 9 5. 10 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 11 or non-party that designates information or items for protection under this agreement must take 12 care to limit any such designation to specific material that qualifies under the appropriate 13 standards. The designating party must designate for protection only those parts of material, 14 documents, items, or oral or written communications that qualify, so that other portions of the 15 material, documents, items, or communications for which protection is not warranted are not swept 16 unjustifiably within the ambit of this agreement. 17 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 18 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 19 unnecessarily encumber or delay the case development process or to impose unnecessary expenses 20 and burdens on other parties) expose the designating party to sanctions. 21 If it comes to a designating party’s attention that information or items that it designated for 22 protection do not qualify for protection, the designating party must promptly notify all other parties 23 that it is withdrawing the mistaken designation. 24 5.2 Manner and Timing of Designations. Except as otherwise provided in this 25 agreement (see, e.g., second paragraph of section 5.2(b) below), or as otherwise stipulated or 26 ordered, disclosure or discovery material that qualifies for protection under this agreement must 27 STIPULATED PROTECTIVE ORDER - 4 CASE NO. 2:22-cv-01707 BJR 135041.0001/9337374.1 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 1 be clearly so designated before or when the material is disclosed or produced. (a) 2 Information in documentary form: (e.g., paper or electronic documents and 3 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), 4 the designating party must affix the word “CONFIDENTIAL” to each page that contains 5 confidential material. If only a portion or portions of the material on a page qualifies for protection, 6 the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate 7 markings in the margins). Documents produced in native format, including .csv and Excel files, 8 may be designated as Confidential by including the word “CONFIDENTIAL” in all capital letters 9 in the file name and/or by labeling a production slip sheet as Confidential. (b) 10 Testimony given in deposition or in other pretrial proceedings: the parties 11 and any participating non-parties must identify on the record, during the deposition or other pretrial 12 proceeding, all protected testimony, without prejudice to their right to so designate other testimony 13 after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the 14 transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or 15 exhibits thereto, as confidential. If a party or non-party desires to protect confidential information 16 at trial, the issue should be addressed during the pre-trial conference. (c) 17 Other tangible items: the producing party must affix in a prominent place 18 on the exterior of the container or containers in which the information or item is stored the word 19 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 20 the producing party, to the extent practicable, shall identify the protected portion(s). 5.3 21 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 22 designate qualified information or items does not, standing alone, waive the designating party’s 23 right to secure protection under this agreement for such material. Upon timely correction of a 24 designation, the receiving party must make reasonable efforts to ensure that the material is treated 25 in accordance with the provisions of this agreement. 26 6. 27 STIPULATED PROTECTIVE ORDER - 5 CASE NO. 2:22-cv-01707 BJR CHALLENGING CONFIDENTIALITY DESIGNATIONS 135041.0001/9337374.1 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 6.1 1 Timing of Challenges. Any party or non-party may challenge a designation of 2 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 3 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 4 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 5 challenge a confidentiality designation by electing not to mount a challenge promptly after the 6 original designation is disclosed. 6.2 7 Meet and Confer. The parties must make every attempt to resolve any dispute 8 regarding confidential designations without court involvement. Any motion regarding confidential 9 designations or for a protective order must include a certification, in the motion or in a declaration 10 or affidavit, that the movant has engaged in a good faith meet and confer conference with other 11 affected parties in an effort to resolve the dispute without court action. The certification must list 12 the date, manner, and participants to the conference. A good faith effort to confer requires a face- 13 to-face meeting or a telephone conference, so long as the designating parties participates in one 14 within 21 days of the notice of the challenge. 6.3 15 Judicial Intervention. If the parties cannot resolve a challenge without court 16 intervention, the designating party may file and serve a motion to retain confidentiality under Local 17 Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 18 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 19 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 20 other parties) may expose the challenging party to sanctions. All parties shall continue to maintain 21 the material in question as confidential until the court rules on the challenge. 22 7. 23 LITIGATION PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 24 If a party is served with a subpoena or a court order issued in other litigation that compels 25 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party 26 must: 27 STIPULATED PROTECTIVE ORDER - 6 CASE NO. 2:22-cv-01707 BJR 135041.0001/9337374.1 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 (a) 1 2 promptly notify the designating party in writing and include a copy of the subpoena or court order; (b) 3 promptly notify in writing the party who caused the subpoena or order to 4 issue in the other litigation that some or all of the material covered by the subpoena or order is 5 subject to this agreement. Such notification shall include a copy of this agreement; and (c) 6 cooperate with respect to all reasonable procedures sought to be pursued by 7 the designating party whose confidential material may be affected. 8 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 9 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 10 material to any person or in any circumstance not authorized under this agreement, the receiving 11 party must immediately (a) notify in writing the designating party of the unauthorized disclosures, 12 (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the 13 person or persons to whom unauthorized disclosures were made of all the terms of this agreement, 14 and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be 15 Bound” that is attached hereto as Exhibit A. 16 9. 17 MATERIAL INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 18 When a producing party gives notice to receiving parties that certain inadvertently 19 produced material is subject to a claim of privilege or other protection, the obligations of the 20 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 21 is not intended to modify whatever procedure may be established in an e-discovery order or 22 agreement that provides for production without prior privilege review. The parties agree to the 23 entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. 24 10. NON TERMINATION AND RETURN OF DOCUMENTS 25 26 27 STIPULATED PROTECTIVE ORDER - 7 CASE NO. 2:22-cv-01707 BJR 135041.0001/9337374.1 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 1 Within 60 days after the termination of this action, including all appeals, each receiving 2 party must return all confidential material to the producing party, including all copies, extracts and 3 summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction. 4 Notwithstanding this provision, counsel are entitled to retain archival copies of all 5 documents filed with the court, trial, deposition, and hearing transcripts, correspondence, 6 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work 7 product, even if such materials contain confidential material. Further, nothing in this section 8 requires the parties or counsel to search for confidential materials in emails. 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 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: May 17, 2023 LANE POWELL PC TURKE & STRAUSS LLP By: s/Devon J. McCurdy Devon J. McCurdy, WSBA No. 52663 1420 Fifth Avenue, Suite 4200 P.O. Box 91302 Seattle, Washington 98111-9402 Telephone: (206) 223-7000 By: s/Samuel J. Strauss Samuel J. Strauss, WSBA No. 46971 613 Williams Street, Suite 201 Madison, WI 53703 618-237-1775 23 Jillian M. Searles, admitted pro hac vice HODGSON RUSS LLP 605 Third Avenue, Suite 2300 New York, NY 10158 Telephone: (212) 751-4300 24 Attorneys for Defendant MaxSold Inc 20 21 22 Anthony Paronich, Admitted pro hac vice PARONICH LAW PC 350 Lincoln Street, Suite 2400 Hingham, MA 02043 617-485-0018 Attorneys for Plaintiff 25 26 27 STIPULATED PROTECTIVE ORDER - 8 CASE NO. 2:22-cv-01707 BJR 135041.0001/9337374.1 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 PURSUANT TO STIPULATION, IT IS SO ORDERED IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any documents, electronically stored information (ESI) or information, whether inadvertent or otherwise, in this proceeding shall not, for the purposes of this proceeding or any other federal or state proceeding, constitute a waiver by the producing party of any privilege applicable to those documents, including the attorney-client privilege, attorney work-product protection, or any other privilege or protection recognized by law. This Order shall be interpreted to provide the maximum protection allowed by Fed. R. Evid. 502(d). The provisions of Fed. R. Evid. 502(b) do not apply. Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a review of documents, ESI or information (including metadata) for relevance, responsiveness and/or segregation of privileged and/or protected information before production. Information produced in discovery that is protected as privileged or work product shall be immediately returned to the producing party. DATED this 19th day of May, 2023. 16 17 A 18 Barbara Jacobs Rothstein U.S. District Court Judge 19 20 21 22 23 24 25 26 27 STIPULATED PROTECTIVE ORDER - 9 CASE NO. 2:22-cv-01707 BJR 135041.0001/9337374.1 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107 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 [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 27 STIPULATED PROTECTIVE ORDER - 10 CASE NO. 2:22-cv-01707 BJR 135041.0001/9337374.1 LANE POWELL PC 1420 FIFTH AVENUE, SUITE 4200 P.O. BOX 91302 SEATTLE, WASHINGTON 98111-9402 206.223.7000 FAX: 206.223.7107

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