Fisseha et al v. King County

Filing 14

STIPULATED PROTECTIVE ORDER re Parties' 13 Stipulated MOTION for Protective Order. Signed by Judge Robert S. Lasnik. (MJV)

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THE HONORABLE ROBERT S. LASNIK 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 9 10 11 DANIEL H. FISSEHA, et al., ) No. 2:23-cv-00430–RSL ) Plaintiffs,) STIPULATED PROTECTIVE ORDER ) vs. ) KING COUNTY, a home rule charter county ) ) of the State of Washington, ) Defendant.) 12 13 1. PURPOSES AND LIMITATIONS 14 Discovery in this action is likely to involve production of confidential, proprietary, or 15 private information for which special protection may be warranted. Accordingly, the parties hereby 16 stipulate to and petition the court to enter the following Stipulated Protective Order. The parties 17 acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket 18 protection on all disclosures or responses to discovery, the protection it affords from public 19 disclosure and use extends only to the limited information or items that are entitled to confidential 20 treatment under the applicable legal principles, and it does not presumptively entitle parties to file 21 confidential information under seal. 22 2. “CONFIDENTIAL” MATERIAL 23 “Confidential” material shall include the following documents and tangible things 24 produced or otherwise exchanged: plaintiffs’ medical records, plaintiffs’ financial records, job 25 application materials of non-parties, and contents of personnel files of non-parties. 26 JOINT STIPULATION AND [PROPOSED] ORDER Page 1 ROCKE | LAW Group, PLLC 500 Union Street, Suite 909 Seattle, WA 98101 (206) 652 8670 1 3. SCOPE 2 The protections conferred by this agreement cover not only confidential material (as 3 defined above), but also (1) any information copied or extracted from confidential material; (2) all 4 copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 5 conversations, or presentations by parties or their counsel that might reveal confidential material. 6 However, the protections conferred by this agreement do not cover information that is in 7 the public domain or becomes part of the public domain through trial or otherwise. 8 4. 9 ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 10 or produced by another party or by a non-party in connection with this case only for prosecuting, 11 defending, or attempting to settle this litigation. Confidential material may be disclosed only to the 12 categories of persons and under the conditions described in this agreement. Confidential material 13 must be stored and maintained by a receiving party at a location and in a secure manner that ensures 14 that access is limited to the persons authorized under this agreement. 15 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 16 by the court or permitted in writing by the designating party, a receiving party may disclose any 17 confidential material only to: (a) 18 19 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) 20 the officers, directors, and employees (including in house counsel) of the 21 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties 22 agree that a particular document or material produced is for Attorney’s Eyes Only and is so 23 designated; 24 25 26 (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); JOINT STIPULATION AND [PROPOSED] ORDER Page 2 ROCKE | LAW Group, PLLC 500 Union Street, Suite 909 Seattle, WA 98101 (206) 652 8670 1 (d) the court, court personnel, and court reporters and their staff; 2 (e) copy or imaging services retained by counsel to assist in the duplication of 3 confidential material, provided that counsel for the party retaining the copy or imaging service 4 instructs the service not to disclose any confidential material to third parties and to immediately 5 return all originals and copies of any confidential material; (f) 6 during their depositions, witnesses in the action to whom disclosure is 7 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 8 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of 9 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 10 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 11 under this agreement; (g) 12 13 14 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 15 referencing such material in court filings, the filing party shall confer with the designating party, 16 in accordance with Local Civil Rule 5(g)(3)(A), to determine whether the designating party will 17 remove the confidential designation, whether the document can be redacted, or whether a motion 18 to seal or stipulation and proposed order is warranted. During the meet and confer process, the 19 designating party must identify the basis for sealing the specific confidential information at issue, 20 and the filing party shall include this basis in its motion to seal, along with any objection to sealing 21 the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be followed and 22 the standards that will be applied when a party seeks permission from the court to file material 23 under seal. A party who seeks to maintain the confidentiality of its information must satisfy the 24 requirements of Local Civil Rule 5(g)(3)(B), even if it is not the party filing the motion to seal. 25 26 JOINT STIPULATION AND [PROPOSED] ORDER Page 3 ROCKE | LAW Group, PLLC 500 Union Street, Suite 909 Seattle, WA 98101 (206) 652 8670 1 Failure to satisfy this requirement will result in the motion to seal being denied, in accordance with 2 the strong presumption of public access to the Court’s files. 3 5. 4 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 5 or non-party that designates information or items for protection under this agreement must take 6 care to limit any such designation to specific material that qualifies under the appropriate 7 standards. The designating party must designate for protection only those parts of material, 8 documents, items, or oral or written communications that qualify, so that other portions of the 9 material, documents, items, or communications for which protection is not warranted are not swept 10 unjustifiably within the ambit of this agreement. 11 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 12 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 13 unnecessarily encumber or delay the case development process or to impose unnecessary expenses 14 and burdens on other parties) expose the designating party to sanctions. 15 If it comes to a designating party’s attention that information or items that it designated for 16 protection do not qualify for protection, the designating party must promptly notify all other parties 17 that it is withdrawing the mistaken designation. 18 5.2 Manner and Timing of Designations. Except as otherwise provided in this 19 agreement (see, e.g., second paragraph of section 5.2(b) below), or as otherwise stipulated or 20 ordered, disclosure or discovery material that qualifies for protection under this agreement must 21 be clearly so designated before or when the material is disclosed or produced. 22 (a) Information in documentary form: (e.g., paper or electronic documents and 23 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), 24 the designating party must affix the word “CONFIDENTIAL” to each page that contains 25 confidential material. If only a portion or portions of the material on a page qualifies for protection, 26 JOINT STIPULATION AND [PROPOSED] ORDER Page 4 ROCKE | LAW Group, PLLC 500 Union Street, Suite 909 Seattle, WA 98101 (206) 652 8670 1 the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate 2 markings in the margins). (b) 3 Testimony given in deposition or in other pretrial proceedings: the parties 4 and any participating non-parties must identify on the record, during the deposition or other pretrial 5 proceeding, all protected testimony, without prejudice to their right to so designate other testimony 6 after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the 7 transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or 8 exhibits thereto, as confidential. If a party or non-party desires to protect confidential information 9 at trial, the issue should be addressed during the pre-trial conference. (c) 10 Other tangible items: the producing party must affix in a prominent place 11 on the exterior of the container or containers in which the information or item is stored the word 12 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 13 the producing party, to the extent practicable, shall identify the protected portion(s). 5.3 14 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 15 designate qualified information or items does not, standing alone, waive the designating party’s 16 right to secure protection under this agreement for such material. Upon timely correction of a 17 designation, the receiving party must make reasonable efforts to ensure that the material is treated 18 in accordance with the provisions of this agreement. 19 6. 20 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 21 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 22 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 23 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 24 challenge a confidentiality designation by electing not to mount a challenge promptly after the 25 original designation is disclosed. 26 JOINT STIPULATION AND [PROPOSED] ORDER Page 5 ROCKE | LAW Group, PLLC 500 Union Street, Suite 909 Seattle, WA 98101 (206) 652 8670 1 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute 2 regarding confidential designations without court involvement. Any motion regarding confidential 3 designations or for a protective order must include a certification, in the motion or in a declaration 4 or affidavit, that the movant has engaged in a good faith meet and confer conference with other 5 affected parties in an effort to resolve the dispute without court action. The certification must list 6 the date, manner, and participants to the conference. A good faith effort to confer requires a face- 7 to-face meeting or a telephone conference. 6.3 8 Judicial Intervention. If the parties cannot resolve a challenge without court 9 intervention, the designating party may file and serve a motion to retain confidentiality under Local 10 Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 11 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 12 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 13 other parties) may expose the challenging party to sanctions. All parties shall continue to maintain 14 the material in question as confidential until the court rules on the challenge. 15 7. 16 LITIGATION PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 17 If a party is served with a subpoena or a court order issued in other litigation that compels 18 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party 19 must: 20 21 22 (a) promptly notify the designating party in writing and include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to 23 issue in the other litigation that some or all of the material covered by the subpoena or order is 24 subject to this agreement. Such notification shall include a copy of this agreement; and 25 26 JOINT STIPULATION AND [PROPOSED] ORDER Page 6 ROCKE | LAW Group, PLLC 500 Union Street, Suite 909 Seattle, WA 98101 (206) 652 8670 1 (c) cooperate with respect to all reasonable procedures sought to be pursued by 2 the designating party whose confidential material may be affected. 3 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 4 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 5 material to any person or in any circumstance not authorized under this agreement, the receiving 6 party must immediately (a) notify in writing the designating party of the unauthorized disclosures, 7 (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the 8 person or persons to whom unauthorized disclosures were made of all the terms of this agreement, 9 and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be 10 Bound” that is attached hereto as Exhibit A. 11 9. 12 MATERIAL INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 13 When a producing party gives notice to receiving parties that certain inadvertently 14 produced material is subject to a claim of privilege or other protection, the obligations of the 15 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 16 is not intended to modify whatever procedure may be established in an e-discovery order or 17 agreement that provides for production without prior privilege review. The parties agree to the 18 entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. 19 10. NON TERMINATION AND RETURN OF DOCUMENTS 20 Within 60 days after the termination of this action, including all appeals, each receiving 21 party must return all confidential material to the producing party, including all copies, extracts and 22 summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction. 23 Notwithstanding this provision, counsel are entitled to retain one archival copy of all 24 documents filed with the court, trial, deposition, and hearing transcripts, correspondence, 25 26 JOINT STIPULATION AND [PROPOSED] ORDER Page 7 ROCKE | LAW Group, PLLC 500 Union Street, Suite 909 Seattle, WA 98101 (206) 652 8670 1 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work 2 product, even if such materials contain confidential material. 3 4 The confidentiality obligations imposed by this agreement shall remain in effect until a designating party agrees otherwise in writing or a court orders otherwise. 5 6 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 7 8 DATED this 9th day of November, 2023. 9 10 ROCKE | LAW Group, PLLC LEESA MANION (she/her) King County Prosecuting Attorney 11 12 13 14 15 Aaron V. Rocke, WSBA No. 31525 Rocke Law Group, PLLC 500 Union Street, Suite 909 Seattle, WA 98101 (206) 652-8670 Attorney for Plaintiffs ____________________________________ Dana Tumenova, WSBA No. 33996 Senior Deputy Prosecuting Attorney 701 5th Avenue, Suite 600 Seattle, WA 98104 (206) 477-1120 Attorney for Defendant King County 16 17 18 19 20 21 22 23 24 25 26 JOINT STIPULATION AND [PROPOSED] ORDER Page 8 ROCKE | LAW Group, PLLC 500 Union Street, Suite 909 Seattle, WA 98101 (206) 652 8670 1 PURSUANT TO STIPULATION, IT IS SO ORDERED 2 IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any 3 documents in this proceeding shall not, for the purposes of this proceeding or any other federal or 4 state proceeding, constitute a waiver by the producing party of any privilege applicable to those 5 documents, including the attorney-client privilege, attorney work-product protection, or any other 6 privilege or protection recognized by law. 7 8 DATED: November 13, 2023 9 10 THE HONORABLE ROBERT S. LASNIK United States District Court Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 JOINT STIPULATION AND [PROPOSED] ORDER Page 9 ROCKE | LAW Group, PLLC 500 Union Street, Suite 909 Seattle, WA 98101 (206) 652 8670 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 Daniel H. Fisseha, et al., v. King County, Case No. 2:23-cv-00430-RSL. I agree to comply 8 with and to be bound by all the terms of this Stipulated Protective Order and I understand and 9 acknowledge that failure to so comply could expose me to sanctions and punishment in the nature 10 of contempt. I solemnly promise that I will not disclose in any manner any information or item 11 that is subject to this Stipulated Protective Order to any person or entity except in strict compliance 12 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 JOINT STIPULATION AND [PROPOSED] ORDER Page 10 ROCKE | LAW Group, PLLC 500 Union Street, Suite 909 Seattle, WA 98101 (206) 652 8670

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