Day v. W Operating Company LLC

Filing 18

STIPULATED PROTECTIVE ORDER. Signed by U.S. District Judge John C. Coughenour. (KRA)

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 Plaintiff, 11 12 13 No. 2:23-cv-02009-JCC GAGE DAY, STIPULATED PROTECTIVE ORDER v. W OPERATING COMPANY, LLC, a foreign for profit corporation, 14 Defendant. 15 16 1. PURPOSES AND LIMITATIONS 17 Discovery in this action is likely to involve production of confidential, proprietary, or 18 private information for which special protection may be warranted. Accordingly, the parties hereby 19 stipulate to and petition the court to enter the following Stipulated Protective Order. The parties 20 acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket 21 protection on all disclosures or responses to discovery, the protection it affords from public 22 disclosure and use extends only to the limited information or items that are entitled to confidential 23 treatment under the applicable legal principles, and it does not presumptively entitle parties to file 24 confidential information under seal. 25 2. “CONFIDENTIAL” MATERIAL 26 “Confidential” material shall include the following documents and tangible things 27 produced or otherwise exchanged: (1) personal identifying information, including Social Security 28 STIPULATED PROTECTIVE ORDER - 1 (Case No. 2:23-cv-02009-JCC) Jackson Lewis P.C. 520 Pike Street, Suite 2300 Seattle, Washington 98101 (206) 405-0404 1 or Taxpayer Identification numbers, birth dates, driver’s licenses, passports, personal addresses, 2 personal phone numbers, and email addresses; (2) wage records, compensation information, 3 income tax documents, bank account information, background check documents, medical 4 information or personal health records of Defendant’s employees, including but not limited to 5 Plaintiff; (3) non-public documents related to other litigation or complaints against Defendant; (4) 6 trade secrets and commercial information that could provide a competitive advantage to a non- 7 party; (5) confidential financial, business, or insurance information of the parties that is not 8 publicly available; and (6) information prohibited from disclosure by statute or regulation. 9 3. SCOPE 10 The protections conferred by this agreement cover not only confidential material (as 11 defined above), but also (1) any information copied or extracted from confidential material; (2) all 12 copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 13 conversations, or presentations by parties or their counsel that might reveal confidential material. 14 However, the protections conferred by this agreement do not cover information that is in 15 the public domain or becomes part of the public domain through trial or otherwise. 16 4. 17 ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 18 or produced by another party or by a non-party in connection with this case only for prosecuting, 19 defending, or attempting to settle this litigation. Confidential material may be disclosed only to the 20 categories of persons and under the conditions described in this agreement. Confidential material 21 must be stored and maintained by a receiving party at a location and in a secure manner that ensures 22 that access is limited to the persons authorized under this agreement. 23 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 24 by the court or permitted in writing by the designating party, a receiving party may disclose any 25 confidential material only to: 26 27 (a) the receiving party’s counsel of record in this action, as well as employees of counsel to whom it is reasonably necessary to disclose the information for this litigation; 28 STIPULATED PROTECTIVE ORDER - 2 (Case No. 2:23-cv-02009-JCC) Jackson Lewis P.C. 520 Pike Street, Suite 2300 Seattle, Washington 98101 (206) 405-0404 1 (b) the officers, directors, and employees (including in house counsel) of the 2 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties 3 agree that a particular document or material produced is for Attorney’s Eyes Only and is so 4 designated; 5 6 (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); 7 (d) the court, court personnel, and court reporters and their staff; 8 (e) copy or imaging services retained by counsel to assist in the duplication of 9 confidential material, provided that counsel for the party retaining the copy or imaging service 10 instructs the service not to disclose any confidential material to third parties and to immediately 11 return all originals and copies of any confidential material; (f) 12 during their depositions, witnesses in the action to whom disclosure is 13 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 14 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of 15 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 16 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 17 under this agreement; (g) 18 19 20 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 21 referencing such material in court filings, the filing party shall confer with the designating party, 22 in accordance with Local Civil Rule 5(g)(3)(A), to determine whether the designating party will 23 remove the confidential designation, whether the document can be redacted, or whether a motion 24 to seal or stipulation and proposed order is warranted. During the meet and confer process, the 25 designating party must identify the basis for sealing the specific confidential information at issue, 26 and the filing party shall include this basis in its motion to seal, along with any objection to sealing 27 the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be followed and 28 STIPULATED PROTECTIVE ORDER - 3 (Case No. 2:23-cv-02009-JCC) Jackson Lewis P.C. 520 Pike Street, Suite 2300 Seattle, Washington 98101 (206) 405-0404 1 the standards that will be applied when a party seeks permission from the court to file material 2 under seal. A party who seeks to maintain the confidentiality of its information must satisfy the 3 requirements of Local Civil Rule 5(g)(3)(B), even if it is not the party filing the motion to seal. 4 Failure to satisfy this requirement will result in the motion to seal being denied, in accordance with 5 the strong presumption of public access to the Court’s files. 6 5. 7 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 8 or non-party that designates information or items for protection under this agreement must take 9 care to limit any such designation to specific material that qualifies under the appropriate 10 standards. The designating party must designate for protection only those parts of material, 11 documents, items, or oral or written communications that qualify, so that other portions of the 12 material, documents, items, or communications for which protection is not warranted are not swept 13 unjustifiably within the ambit of this agreement. 14 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 15 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 16 unnecessarily encumber or delay the case development process or to impose unnecessary expenses 17 and burdens on other parties) expose the designating party to sanctions. 18 If it comes to a designating party’s attention that information or items that it designated for 19 protection do not qualify for protection, the designating party must promptly notify all other parties 20 that it is withdrawing the mistaken designation. 21 5.2 Manner and Timing of Designations. Except as otherwise provided in this 22 agreement (see, e.g., second paragraph of section 5.2(b) below), or as otherwise stipulated or 23 ordered, disclosure or discovery material that qualifies for protection under this agreement must 24 be clearly so designated before or when the material is disclosed or produced. 25 (a) Information in documentary form: (e.g., paper or electronic documents and 26 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), 27 the designating party must affix the word “CONFIDENTIAL” to each page that contains 28 STIPULATED PROTECTIVE ORDER - 4 (Case No. 2:23-cv-02009-JCC) Jackson Lewis P.C. 520 Pike Street, Suite 2300 Seattle, Washington 98101 (206) 405-0404 1 confidential material. If only a portion or portions of the material on a page qualifies for protection, 2 the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate 3 markings in the margins). 4 (b) Testimony given in deposition or in other pretrial proceedings: the parties 5 and any participating non-parties must identify on the record, during the deposition or other pretrial 6 proceeding, all protected testimony, without prejudice to their right to so designate other testimony 7 after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the 8 transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or 9 exhibits thereto, as confidential. If a party or non-party desires to protect confidential information 10 at trial, the issue should be addressed during the pre-trial conference. (c) 11 Other tangible items: the producing party must affix in a prominent place 12 on the exterior of the container or containers in which the information or item is stored the word 13 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 14 the producing party, to the extent practicable, shall identify the protected portion(s). 15 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 16 designate qualified information or items does not, standing alone, waive the designating party’s 17 right to secure protection under this agreement for such material. Upon timely correction of a 18 designation, the receiving party must make reasonable efforts to ensure that the material is treated 19 in accordance with the provisions of this agreement. 20 6. 21 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 22 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 23 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 24 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 25 challenge a confidentiality designation by electing not to mount a challenge promptly after the 26 original designation is disclosed. 27 28 STIPULATED PROTECTIVE ORDER - 5 (Case No. 2:23-cv-02009-JCC) Jackson Lewis P.C. 520 Pike Street, Suite 2300 Seattle, Washington 98101 (206) 405-0404 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. 8 6.3 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 (c) cooperate with respect to all reasonable procedures sought to be pursued by the designating party whose confidential material may be affected. 27 28 STIPULATED PROTECTIVE ORDER - 6 (Case No. 2:23-cv-02009-JCC) Jackson Lewis P.C. 520 Pike Street, Suite 2300 Seattle, Washington 98101 (206) 405-0404 1 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 3 material to any person or in any circumstance not authorized under this agreement, the receiving 4 party must immediately (a) notify in writing the designating party of the unauthorized disclosures, 5 (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the 6 person or persons to whom unauthorized disclosures were made of all the terms of this agreement, 7 and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be 8 Bound” that is attached hereto as Exhibit A. 9 9. 10 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 11 When a producing party gives notice to receiving parties that certain inadvertently 12 produced material is subject to a claim of privilege or other protection, the obligations of the 13 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 14 is not intended to modify whatever procedure may be established in an e-discovery order or 15 agreement that provides for production without prior privilege review. The parties agree to the 16 entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. 17 10. NON TERMINATION AND RETURN OF DOCUMENTS 18 Within 60 days after the termination of this action, including all appeals, each receiving 19 party must return all confidential material to the producing party, including all copies, extracts and 20 summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction. 21 Notwithstanding this provision, counsel are entitled to retain one archival copy of all 22 documents filed with the court, trial, deposition, and hearing transcripts, correspondence, 23 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work 24 product, even if such materials contain confidential material. 25 26 The confidentiality obligations imposed by this agreement shall remain in effect until a designating party agrees otherwise in writing or a court orders otherwise. 27 28 STIPULATED PROTECTIVE ORDER - 7 (Case No. 2:23-cv-02009-JCC) Jackson Lewis P.C. 520 Pike Street, Suite 2300 Seattle, Washington 98101 (206) 405-0404 1 2 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED: May 31, 2024 3 4 5 6 7 s/ Favian Valencia Favian Valencia, WSBA #43802 402 E Yakima Avenue, Suite 730 Yakima, WA 98901 Telephone: (509) 388-0231 Attorney for Plaintiff DATED: May 31, 2024 8 9 10 11 12 s/ Daniel P. Crowner Bryan P. O’Connor, WSBA #23867 Daniel P. Crowner, WSBA #37136 520 Pike Street, Suite 2300 Seattle, WA 98101 Telephone: (206) 405-0404 Facsimile: (206) 405-4450 Attorneys for Defendant 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER - 8 (Case No. 2:23-cv-02009-JCC) Jackson Lewis P.C. 520 Pike Street, Suite 2300 Seattle, Washington 98101 (206) 405-0404 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, electronically stored information (ESI) or information, whether inadvertent or 4 otherwise, in this proceeding shall not, for the purposes of this proceeding or any other federal or 5 state proceeding, constitute a waiver by the producing party of any privilege applicable to those 6 documents, including the attorney-client privilege, attorney work-product protection, or any other 7 privilege or protection recognized by law. This Order shall be interpreted to provide the maximum 8 protection allowed by Fed. R. Evid. 502(d). The provisions of Fed. R. Evid. 502(b) do not apply. 9 Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a review 10 of documents, ESI or information (including metadata) for relevance, responsiveness and/or 11 segregation of privileged and/or protected information before production. Information produced 12 in discovery that is protected as privileged or work product shall be immediately returned to the 13 producing party. 14 15 DATED this 5th day of June 2024. 16 A 17 18 19 John C. Coughenour UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER - 9 (Case No. 2:23-cv-02009-JCC) Jackson Lewis P.C. 520 Pike Street, Suite 2300 Seattle, Washington 98101 (206) 405-0404 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 Gage Day v. W Operating Company, LLC, Case No. 2:23-CV-02009-JCC. I agree to 8 comply with and to be bound by all the terms of this Stipulated Protective Order and I understand 9 and acknowledge that failure to so comply could expose me to sanctions and punishment in the 10 nature of contempt. I solemnly promise that I will not disclose in any manner any information or 11 item that is subject to this Stipulated Protective Order to any person or entity except in strict 12 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 28 STIPULATED PROTECTIVE ORDER - 10 (Case No. 2:23-cv-02009-JCC) Jackson Lewis P.C. 520 Pike Street, Suite 2300 Seattle, Washington 98101 (206) 405-0404 DECLARATION OF SERVICE 1 2 The undersigned declares under penalty of perjury under the laws of the United States of 3 America that a true and accurate copy of the document to which this declaration is affixed was 4 electronically filed with the Clerk of the Court using the CM/ECF System, and sent to the 5 following: 6 7 8 9 10 11 12 13 Favian Valencia, WSBA #43802 SUNLIGHT LAW, PLLC 306 Holton Avenue Yakima, WA 98902 Telephone: (509) 388-0231 Email: ☒ via CM/ECF System ☒ via Electronic Mail ☒ via USPS Mail ☐ via Federal Express ☐ via Hand-delivery ☐ Other: Attorney for Plaintiff Courtesy copies to: DATED this 31st day of May, 2024. 14 _______________________________________ Tanya Stewart 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER - 11 (Case No. 2:23-cv-02009-JCC) Jackson Lewis P.C. 520 Pike Street, Suite 2300 Seattle, Washington 98101 (206) 405-0404

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