McNae et al v. ARAG Insurance Company

Filing 21


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1 THE HONORABLE TANA LIN 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 11 12 13 14 15 ) WILLIAM MCNAE and RONDA MCNAE, ) ) Plaintiffs, ) ) v. ) ) ARAG INSURANCE COMPANY, ) ) Defendant. ) ) Case No. 2:24-cv-00211-TL [PROPOSED] MODEL STIPULATED PROTECTIVE ORDER 16 17 18 19 20 21 22 23 24 25 26 1. PURPOSES AND LIMITATIONS Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket protection on all disclosures or responses to discovery, the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles, and it does not presumptively entitle parties to file confidential information under seal. [PROPOSED] MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:24-CV-00211-TL P. - 1 1 2. “Confidential” material shall include the following documents and tangible things 2 3 “CONFIDENTIAL” MATERIAL produced or otherwise exchanged: 1 • 4 Personal financial or sensitive identifying information of Plaintiffs or any other persons; 5 • 6 Documents concerning the lawsuit captioned Fitzgerald v. McNae, Case No. 1:22- 7 cv-22171-JEM in the U.S. District Court for the Southern District of Florida (the 8 “Fitzgerald Federal Court Litigation”), which are not part of the publicly available 9 record in that case; • 10 Documents concerning the lawsuit captioned Fitzgerald v. McNae, Case No. 2023- 11 025855-CA-01 in the Circuit Court of the 11th Judicial Circuit for Miami Dade 12 County, Florida (the “Fitzgerald State Court Litigation”), which are not part of the 13 publicly available record in that case; • 14 Documents contained within the claim file(s) regarding the Fitzgerald Federal 15 Court Litigation and the Fitzgerald State Court Litigation (collectively, the 16 “Underlying Cases”) maintained by ARAG Insurance Company (“ARAG”); • 17 Documents related to the underwriting and issuance of the insurance certificates and underlying policies at issue in this case; 18 • 19 Documents relating to ARAG’s claims handling processes, policies, and procedures; 20 • 21 Documents relating to ARAG’s processes, policies, and procedures surrounding employee review, compensation, and discipline; 22 • 23 Documents relating to ARAG’s credentialing of Network Attorneys; 24 25 26 1 Neither the inclusion of a category here nor any other aspect of this stipulated protective order is intended by the parties to concede that any particular document or information, or category of documents or information, is discoverable pursuant to Fed. R. Civ. P. 26(b). [PROPOSED] MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:24-CV-00211-TL P. - 2 1 • Documents related to ARAG’s compensation of Network Attorneys; 2 • Non-public information concerning ARAG employees or other individuals involved in this case, such as employee reviews, compensation, and discipline; and 3 • 4 sensitive or confidential information. 5 6 ARAG’s trade secrets, non-public financial information, and other commercially 3. SCOPE 7 The protections conferred by this agreement cover not only confidential material (as 8 defined above), but also (1) any information copied or extracted from confidential material; (2) all 9 copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 10 conversations, or presentations by parties or their counsel that might reveal confidential material. 11 However, the protections conferred by this agreement do not cover information that is in 12 the public domain or becomes part of the public domain through trial or otherwise. 13 4. 14 ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 15 or produced by another party or by a non-party in connection with this case only for prosecuting, 16 defending, or attempting to settle this litigation. Confidential material may be disclosed only to the 17 categories of persons and under the conditions described in this agreement. Confidential material 18 must be stored and maintained by a receiving party at a location and in a secure manner that ensures 19 that access is limited to the persons authorized under this agreement. 20 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 21 by the court or permitted in writing by the designating party, a receiving party may disclose any 22 confidential material only to: 23 24 25 26 (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; (b) the officers, directors, claims administrators, and employees (including in house counsel) of the receiving party to whom disclosure is reasonably necessary for this litigation, [PROPOSED] MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:24-CV-00211-TL P. - 3 1 unless the parties agree that a particular document or material produced is for Attorney’s Eyes 2 Only and is so designated; (c) 3 4 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); 5 (d) the court, court personnel, and court reporters and their staff; 6 (e) copy or imaging services retained by counsel to assist in the duplication of 7 confidential material, provided that counsel for the party retaining the copy or imaging service 8 instructs the service not to disclose any confidential material to third parties and to immediately 9 return all originals and copies of any confidential material; (f) 10 during their depositions, witnesses in the action to whom disclosure is 11 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 12 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of 13 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 14 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 15 under this agreement; (g) 16 17 custodian or other person who otherwise possessed or knew the information; and (h) 18 19 20 the author or recipient of a document containing the information or a auditors and government or administrative agencies upon request or demand from such auditors or government or administrative agencies. 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 [PROPOSED] MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:24-CV-00211-TL P. - 4 1 the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be followed and 2 the standards that will be applied when a party seeks permission from the court to file material 3 under seal. A party who seeks to maintain the confidentiality of its information must satisfy the 4 requirements of Local Civil Rule 5(g)(3)(B), even if it is not the party filing the motion to seal. 5 Failure to satisfy this requirement will result in the motion to seal being denied, in accordance with 6 the strong presumption of public access to the Court’s files. 7 5. 8 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 9 or non-party that designates information or items for protection under this agreement must take 10 care to limit any such designation to specific material that qualifies under the appropriate 11 standards. The designating party must designate for protection only those parts of material, 12 documents, items, or oral or written communications that qualify, so that other portions of the 13 material, documents, items, or communications for which protection is not warranted are not swept 14 unjustifiably within the ambit of this agreement. 15 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 16 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 17 unnecessarily encumber or delay the case development process or to impose unnecessary expenses 18 and burdens on other parties) expose the designating party to sanctions. 19 If it comes to a designating party’s attention that information or items that it designated for 20 protection do not qualify for protection, the designating party must promptly notify all other parties 21 that it is withdrawing the mistaken designation. 22 5.2 Manner and Timing of Designations. Except as otherwise provided in this 23 agreement (see, e.g., second paragraph of section 5.2(b) below), or as otherwise stipulated or 24 ordered, disclosure or discovery material that qualifies for protection under this agreement must 25 be clearly so designated before or when the material is disclosed or produced. 26 (a) Information in documentary form: (e.g., paper or electronic documents and [PROPOSED] MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:24-CV-00211-TL P. - 5 1 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), 2 the designating party must affix the word “CONFIDENTIAL” to each page that contains 3 confidential material. If only a portion or portions of the material on a page qualifies for protection, 4 the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate 5 markings in the margins). (b) 6 Testimony given in deposition or in other pretrial proceedings: the parties 7 and any participating non-parties must identify on the record, during the deposition or other pretrial 8 proceeding, all protected testimony, without prejudice to their right to so designate other testimony 9 after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the 10 transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or 11 exhibits thereto, as confidential. If a party or non-party desires to protect confidential information 12 at trial, the issue should be addressed during the pre-trial conference. (c) 13 Other tangible items: the producing party must affix in a prominent place 14 on the exterior of the container or containers in which the information or item is stored the word 15 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 16 the producing party, to the extent practicable, shall identify the protected portion(s). 5.3 17 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 18 designate qualified information or items does not, standing alone, waive the designating party’s 19 right to secure protection under this agreement for such material. Upon timely correction of a 20 designation, the receiving party must make reasonable efforts to ensure that the material is treated 21 in accordance with the provisions of this agreement. 22 6. 23 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 24 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 25 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 26 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to [PROPOSED] MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:24-CV-00211-TL P. - 6 1 challenge a confidentiality designation by electing not to mount a challenge promptly after the 2 original designation is disclosed. 6.2 3 Meet and Confer. The parties must make every attempt to resolve any dispute 4 regarding confidential designations without court involvement. Any motion regarding confidential 5 designations or for a protective order must include a certification, in the motion or in a declaration 6 or affidavit, that the movant has engaged in a good faith meet and confer conference with other 7 affected parties in an effort to resolve the dispute without court action. The certification must list 8 the date, manner, and participants to the conference. A good faith effort to confer requires a face- 9 to-face meeting or a telephone conference. 6.3 10 Judicial Intervention. If the parties cannot resolve a challenge without court 11 intervention, the designating party may file and serve a motion to retain confidentiality under Local 12 Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 13 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 14 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 15 other parties) may expose the challenging party to sanctions. All parties shall continue to maintain 16 the material in question as confidential until the court rules on the challenge. 17 7. 18 LITIGATION PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 19 If a party is served with a subpoena or a court order issued in other litigation that compels 20 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party 21 must: 22 23 24 (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 25 issue in the other litigation that some or all of the material covered by the subpoena or order is 26 subject to this agreement. Such notification shall include a copy of this agreement; and [PROPOSED] MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:24-CV-00211-TL P. - 7 (c) 1 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 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work 26 product, even if such materials contain confidential material. Furthermore, ARAG may retain a [PROPOSED] MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:24-CV-00211-TL P. - 8 1 2 3 copy of any documents that it is required to maintain by any regulatory authority. The confidentiality obligations imposed by this agreement shall remain in effect until a designating party agrees otherwise in writing or a court orders otherwise. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 [PROPOSED] MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:24-CV-00211-TL P. - 9 1 2 3 4 5 6 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. Dated this 5th day of, June2024. Dated this 5th day June 2024. RUIZ & SMART LLP. JENSEN MORSE BAKER PLLC /s/ David Fadduol Isaac Ruiz, WSBA #35237 David Fadduol, WSBA#61126 Attorney for Plaintiffs /s/ Benjamin Roesch Gabriel Baker, WSBA# 28473 Benjamin Roesch, WSBA #39960 7 520 Pike Street STE 2375 Seattle, WA 98101 8 9 SQUIRE PATTON BOGGS LLP 10 /s/ Michael Mullaly Michael Mullaly, (pro hac vice) 41 South High Street Columbus, OH 43215 11 12 13 Attorneys for Defendant Arag Insurance Company 14 15 16 17 18 19 20 21 22 23 24 25 26 MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER - 10 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: June 5, 2024 16 17 18 19 A Tana Lin United States District Judge 20 21 22 23 24 25 26 [PROPOSED] MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:24-CV-00211-TL P. - 11 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 1 2 I, ____________________________________ [print or type full name], of 3 ___________________________________ [print or type full address], declare under penalty 4 of perjury that I have read in its entirety and understand the Stipulated Protective Order that 5 was issued by the United States District Court for the Western District of Washington on 6 _______________ [date] in the case of William McNae and Ronda McNae v. ARAG Insurance 7 Company, Case No. 2:24-cv-00211-TL in the U.S. District Court for the Western District of 8 Washington. I agree to comply with and to be bound by all the terms of this Stipulated 9 Protective Order and I understand and acknowledge that failure to so comply could expose me 10 to sanctions and punishment in the nature of contempt. I solemnly promise that I will not 11 disclose in any manner any information or item that is subject to this Stipulated Protective Order 12 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 15 Protective 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 [PROPOSED] MODEL STIPULATED PROTECTIVE ORDER CASE NUMBER 2:24-CV-00211-TL P. - 12

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