TE Briggs Construction Co v. National Fire & Marine Insurance Company
Filing
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STIPULATED PROTECTIVE ORDER. Signed by Judge Robert S. Lasnik. (MJV)
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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
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T.E. BRIGGS CONSTRUCTION, CO., a
Washington corporation,
Plaintiff,
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No. 2:24-cv-01430-RSL
STIPULATED PROTECTIVE ORDER
v.
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NATIONAL FIRE & MARINE INSURANCE
COMPANY, a foreign insurance company,
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Defendant.
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1.
PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidential, proprietary, or
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private information for which special protection may be warranted. Accordingly, the parties
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hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The
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parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket
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protection on all disclosures or responses to discovery, the protection it affords from public
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disclosure and use extends only to the limited information or items that are entitled to
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confidential treatment under the applicable legal principles, and it does not presumptively entitle
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parties to file confidential information under seal.
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STIPULATED PROTECTIVE ORDER - 1
ROPERS MAJESKI PC
Attorneys at Law
800 Third Avenue
29th Floor
New York, New York 10022
212.668.5927
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2.
“CONFIDENTIAL” MATERIAL
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“Confidential” material shall include the following documents and tangible things
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produced or otherwise exchanged: Pleadings and other papers filed in the underlying arbitration
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proceeding that gives rise to this action; Defendant’s confidential and proprietary information
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concerning the insurance policy at issue in this action.
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3.
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SCOPE
The protections conferred by this agreement cover not only confidential material (as
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defined above), but also (1) any information copied or extracted from confidential material; (2)
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all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony,
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conversations, or presentations by parties or their counsel that might reveal confidential material.
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However, the protections conferred by this agreement do not cover information that is in
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the public domain or becomes part of the public domain through trial or otherwise.
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4.
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ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1
Basic Principles. A receiving party may use confidential material that is disclosed
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or produced by another party or by a non-party in connection with this case only for prosecuting,
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defending, or attempting to settle this litigation. Confidential material may be disclosed only to the
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categories of persons and under the conditions described in this agreement. Confidential material
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must be stored and maintained by a receiving party at a location and in a secure manner that ensures
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that access is limited to the persons authorized under this agreement.
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4.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
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by the court or permitted in writing by the designating party, a receiving party may disclose any
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confidential material only to:
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(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, and employees (including in house counsel) of the
receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties
STIPULATED PROTECTIVE ORDER - 2
ROPERS MAJESKI PC
Attorneys at Law
800 Third Avenue
29th Floor
New York, New York 10022
212.668.5927
1
agree that a particular document or material produced is for Attorney’s Eyes Only and is so
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designated;
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(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);
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(d)
the court, court personnel, and court reporters and their staff;
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(e)
copy or imaging services retained by counsel to assist in the duplication of
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confidential material, provided that counsel for the party retaining the copy or imaging service
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instructs the service not to disclose any confidential material to third parties and to immediately
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return all originals and copies of any confidential material;
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(f)
during their depositions, witnesses in the action to whom disclosure is
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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
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(Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of
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transcribed deposition testimony or exhibits to depositions that reveal confidential material must
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be separately bound by the court reporter and may not be disclosed to anyone except as permitted
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under this agreement;
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(g)
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
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referencing such material in court filings, the filing party shall confer with the designating party,
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in accordance with Local Civil Rule 5(g)(3)(A), to determine whether the designating party will
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remove the confidential designation, whether the document can be redacted, or whether a motion
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to seal or stipulation and proposed order is warranted. During the meet and confer process, the
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designating party must identify the basis for sealing the specific confidential information at issue,
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and the filing party shall include this basis in its motion to seal, along with any objection to sealing
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the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be followed and
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the standards that will be applied when a party seeks permission from the court to file material
STIPULATED PROTECTIVE ORDER - 3
ROPERS MAJESKI PC
Attorneys at Law
800 Third Avenue
29th Floor
New York, New York 10022
212.668.5927
1
under seal. A party who seeks to maintain the confidentiality of its information must satisfy the
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requirements of Local Civil Rule 5(g)(3)(B), even if it is not the party filing the motion to seal.
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Failure to satisfy this requirement will result in the motion to seal being denied, in accordance with
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the strong presumption of public access to the Court’s files.
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5.
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DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection. Each party
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or non-party that designates information or items for protection under this agreement must take
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care to limit any such designation to specific material that qualifies under the appropriate
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standards. The designating party must designate for protection only those parts of material,
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documents, items, or oral or written communications that qualify, so that other portions of the
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material, documents, items, or communications for which protection is not warranted are not swept
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unjustifiably within the ambit of this agreement.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that are
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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
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unnecessarily encumber or delay the case development process or to impose unnecessary
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expenses and burdens on other parties) expose the designating party to sanctions.
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If it comes to a designating party’s attention that information or items that it designated
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for protection do not qualify for protection, the designating party must promptly notify all other
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parties that it is withdrawing the mistaken designation.
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5.2
Manner and Timing of Designations. Except as otherwise provided in this
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agreement (see, e.g., second paragraph of section 5.2(b) below), or as otherwise stipulated or
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ordered, disclosure or discovery material that qualifies for protection under this agreement must
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be clearly so designated before or when the material is disclosed or produced.
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(a)
Information in documentary form: (e.g., paper or electronic documents and
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deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings),
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the designating party must affix the word “CONFIDENTIAL” to each page that contains
STIPULATED PROTECTIVE ORDER - 4
ROPERS MAJESKI PC
Attorneys at Law
800 Third Avenue
29th Floor
New York, New York 10022
212.668.5927
1
confidential material. If only a portion or portions of the material on a page qualifies for protection,
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the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate
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markings in the margins).
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(b)
Testimony given in deposition or in other pretrial proceedings: the parties
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and any participating non-parties must identify on the record, during the deposition or other pretrial
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proceeding, all protected testimony, without prejudice to their right to so designate other testimony
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after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the
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transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or
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exhibits thereto, as confidential. If a party or non-party desires to protect confidential information
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at trial, the issue should be addressed during the pre-trial conference.
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(c)
Other tangible items: the producing party must affix in a prominent place
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on the exterior of the container or containers in which the information or item is stored the word
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“CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection,
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the producing party, to the extent practicable, shall identify the protected portion(s).
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5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
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designate qualified information or items does not, standing alone, waive the designating party’s
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right to secure protection under this agreement for such material. Upon timely correction of a
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designation, the receiving party must make reasonable efforts to ensure that the material is treated
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in accordance with the provisions of this agreement.
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6.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any party or non-party may challenge a designation of
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confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality
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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
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burdens, or a significant disruption or delay of the litigation, a party does not waive its right to
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challenge a confidentiality designation by electing not to mount a challenge promptly after the
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original designation is disclosed.
STIPULATED PROTECTIVE ORDER - 5
ROPERS MAJESKI PC
Attorneys at Law
800 Third Avenue
29th Floor
New York, New York 10022
212.668.5927
1
6.2
Meet and Confer. The parties must make every attempt to resolve any dispute
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regarding confidential designations without court involvement. Any motion regarding confidential
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designations or for a protective order must include a certification, in the motion or in a declaration
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or affidavit, that the movant has engaged in a good faith meet and confer conference with other
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affected parties in an effort to resolve the dispute without court action. The certification must list
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the date, manner, and participants to the conference. A good faith effort to confer requires a face-
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to-face meeting or a telephone conference.
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6.3
Judicial Intervention. If the parties cannot resolve a challenge without court
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intervention, the designating party may file and serve a motion to retain confidentiality under Local
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Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of
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persuasion in any such motion shall be on the designating party. Frivolous challenges, and those
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made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
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other parties) may expose the challenging party to sanctions. All parties shall continue to maintain
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the material in question as confidential until the court rules on the challenge.
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7.
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LITIGATION
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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
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disclosure of any information or items designated in this action as “CONFIDENTIAL,” that
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party must:
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(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
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issue in the other litigation that some or all of the material covered by the subpoena or order is
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subject to this agreement. Such notification shall include a copy of this agreement; and
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(c)
cooperate with respect to all reasonable procedures sought to be pursued by
the designating party whose confidential material may be affected.
STIPULATED PROTECTIVE ORDER - 6
ROPERS MAJESKI PC
Attorneys at Law
800 Third Avenue
29th Floor
New York, New York 10022
212.668.5927
1
8.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential
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material to any person or in any circumstance not authorized under this agreement, the receiving
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party must immediately (a) notify in writing the designating party of the unauthorized
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disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material,
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(c) inform the person or persons to whom unauthorized disclosures were made of all the terms of
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this agreement, and (d) request that such person or persons execute the “Acknowledgment and
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Agreement to Be Bound” that is attached hereto as Exhibit A.
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9.
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MATERIAL
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
When a producing party gives notice to receiving parties that certain inadvertently
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produced material is subject to a claim of privilege or other protection, the obligations of the
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receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
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provision is not intended to modify whatever procedure may be established in an e-discovery
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order or agreement that provides for production without prior privilege review. The parties agree
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to the entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein.
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10.
NON TERMINATION AND RETURN OF DOCUMENTS
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Within 60 days after the termination of this action, including all appeals, each receiving
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party must return all confidential material to the producing party, including all copies, extracts
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and summaries thereof. Alternatively, the parties may agree upon appropriate methods of
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destruction.
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Notwithstanding this provision, counsel are entitled to retain one archival copy of all
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documents filed with the court, trial, deposition, and hearing transcripts, correspondence,
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deposition and trial exhibits, expert reports, attorney work product, and consultant and expert
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work product, even if such materials contain confidential material.
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The confidentiality obligations imposed by this agreement shall remain in effect until a
STIPULATED PROTECTIVE ORDER - 7
ROPERS MAJESKI PC
Attorneys at Law
800 Third Avenue
29th Floor
New York, New York 10022
212.668.5927
1
designating party agrees otherwise in writing or a court orders otherwise.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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DATED: January 25, 2025
/s/ Thomas M. Williams
Attorneys for Plaintiff
DATED: January 25, 2025
/s/ Andrew L. Margulis
Attorneys for Defendant
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STIPULATED PROTECTIVE ORDER - 8
ROPERS MAJESKI PC
Attorneys at Law
800 Third Avenue
29th Floor
New York, New York 10022
212.668.5927
1
PURSUANT TO STIPULATION, IT IS SO ORDERED
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IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any
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documents, electronically stored information (ESI) or information, whether inadvertent or
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otherwise, in this proceeding shall not, for the purposes of this proceeding or any other federal or
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state proceeding, constitute a waiver by the producing party of any privilege applicable to those
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documents, including the attorney-client privilege, attorney work-product protection, or any
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other privilege or protection recognized by law. This Order shall be interpreted to provide the
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maximum protection allowed by Fed. R. Evid. 502(d). The provisions of Fed. R. Evid. 502(b)
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do not apply. Nothing contained herein is intended to or shall serve to limit a party’s right to
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conduct a review of documents, ESI or information (including metadata) for relevance,
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responsiveness and/or segregation of privileged and/or protected information before production.
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Information produced in discovery that is protected as privileged or work product shall be
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immediately returned to the producing party.
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Dated this 27th day of January, 2025.
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ROBERT S. LASNIK
United States District Judge
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STIPULATED PROTECTIVE ORDER - 9
ROPERS MAJESKI PC
Attorneys at Law
800 Third Avenue
29th Floor
New York, New York 10022
212.668.5927
1
EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, ____________________________________ [print or type full name], of
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___________________________________ [print or type full address], declare under penalty of
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perjury that I have read in its entirety and understand the Stipulated Protective Order that was
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issued by the United States District Court for the Western District of Washington on [date] in the
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case of _______________ [insert formal name of the case and the number and initials
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assigned to it by the court]. I agree to comply with and to be bound by all the terms of this
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Stipulated Protective Order and I understand and acknowledge that failure to so comply could
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expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will
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not disclose in any manner any information or item that is subject to this Stipulated Protective
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Order to any person or entity except in strict compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court for the
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Western District of Washington for the purpose of enforcing the terms of this Stipulated
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Protective Order, even if such enforcement proceedings occur after termination of this action.
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Date:
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City and State where sworn and signed:
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Printed name:
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Signature:
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STIPULATED PROTECTIVE ORDER - 10
ROPERS MAJESKI PC
Attorneys at Law
800 Third Avenue
29th Floor
New York, New York 10022
212.668.5927
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