McAndie v. Sequim School District et al

Filing 15

STIPULATED PROTECTIVE ORDER signed by Judge Benjamin H. Settle, re 14 Motion for Protective Order. (AMD)

Case 3:21-cv-05227-BHS Document 15 Filed 09/07/21 Page 1 of 9

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Judge Benjamin H. Settle

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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HANNA J. McANDIE,
Plaintiff(s),

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NO. 3:21-cv-05227

v.
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SEQUIM SCHOOL DISTRICT, ROBERT
14 CLARK, and his marital community,
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STIPULATED PROTECTIVE ORDER

Defendant(s).

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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 hereby

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stipulate to and petition the court to enter the following Stipulated Protective Order. The parties

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acknowledge that this agreement is consistent with FRCR 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 confidential

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treatment under the applicable legal principles, and it does not presumptively entitle parties to file
confidential information under seal.

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PREG O'DONNELL & GILLETT PLLC
901 FIFTH AVE., SUITE 3400
SEATTLE, WASHINGTON 98164-2026
TELEPHONE: [phone] • FACSIMILE: [phone]

Case 3:21-cv-05227-BHS Document 15 Filed 09/07/21 Page 2 of 9

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:
2.1 The records, names, and personal information of individuals from education records

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subject to the Family Educational Rights and Privacy Act (“FERPA”);

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2.2 The records, names, and personal information of individuals from education records

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subject to the Individuals with Disabilities Education Act (“IDEA”);

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2.3 The records, names, and personal information of employees of the Sequim School

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District subject to RCW 42.56.230(3), RCW 42.56.250(4); RCW 42.56.050; RCW
42.56.230 (7)(a);

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2.4 Applications for public employment of employees of the Sequim School District under

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RCW 42.56.250(2);

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2.5 Employee performance evaluations of employees of the Sequim School District under

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RCW 42.56.230(3);

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2.6 Medical, psychiatric, and independent medical examination evaluations records.

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3.

SCOPE
The protections conferred by this agreement cover not only confidential material (as

defined above), but also (1) any information copied or extracted from confidential material; (2) all
copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony,
conversations, or presentations by parties or their counsel that might reveal confidential material.
However, the protections conferred by this agreement do not cover information that is in
the public domain or becomes part of the public domain through trial or otherwise.
The parties understand and agree that Defendant Sequim School District will take a
reasonable opportunity to notify the parent or eligible student subject to this order in advance of

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PREG O'DONNELL & GILLETT PLLC
901 FIFTH AVE., SUITE 3400
SEATTLE, WASHINGTON 98164-2026
TELEPHONE: [phone] • FACSIMILE: [phone]

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production of any confidential FERPA information identified above and that such parent or eligible

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student may be entitled to seek protective action.
The parties further understand and agree that this order in itself does not determine what is

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relevant or subject to discovery under FRCR 26.
The parties further understand and agree to advise any and all experts of the existence of

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this order.

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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.
4.2

by the court or permitted in writing by the designating party, a receiving party may disclose any
confidential material only to:
(a)

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(b)

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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
agree that a particular document or material produced is for Attorney’s Eyes Only and is so
designated;
(c)

experts and consultants to whom disclosure is reasonably necessary for this

(d)

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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;

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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

the court, court personnel, and court reporters and their staff;

litigation;

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PREG O'DONNELL & GILLETT PLLC
901 FIFTH AVE., SUITE 3400
SEATTLE, WASHINGTON 98164-2026
TELEPHONE: [phone] • FACSIMILE: [phone]

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(e)

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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;
(f)

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during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary, unless otherwise agreed by the designating party or ordered by the court.

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Pages of transcribed deposition testimony or exhibits to depositions that reveal confidential

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material must be separately bound by the court reporter and may not be disclosed to anyone except

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as permitted under this agreement;
(g)

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custodian or other person who otherwise possessed or knew the information.
4.3

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the author or recipient of a document containing the information or a

Filing Confidential Material. Before filing confidential material or discussing or

referencing such material in court filings, the filing party shall confer with the designating party
to determine whether the designating party will remove the confidential designation, whether the
document can be redacted, or whether a motion to seal or stipulation and proposed order is
warranted. During the meet and confer process, the designating party must identify the basis for
sealing the specific confidential information at issue, and the filing party shall include this basis in
its motion to seal, along with any objection to sealing the information at issue.
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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each party

or non-party that designates information or items for protection under this agreement must take
care to limit any such designation to specific material that qualifies under the appropriate
standards. The designating party must designate for protection only those parts of material,
documents, items, or oral or written communications that qualify, so that other portions of the

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PREG O'DONNELL & GILLETT PLLC
901 FIFTH AVE., SUITE 3400
SEATTLE, WASHINGTON 98164-2026
TELEPHONE: [phone] • FACSIMILE: [phone]

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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.

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If it comes to a designating party’s attention that information or items that it designated for

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protection do not qualify for protection, the designating party must promptly notify all other parties

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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(a) 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.
(a)

Information in documentary form: (e.g., paper or electronic documents and

deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings),
the designating party must affix the word “CONFIDENTIAL” to each page that contains
confidential material. If only a portion or portions of the material on a page qualifies for protection,
the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate
markings in the margins).
(b)

Testimony given in deposition or in other pretrial proceedings: the parties

and any participating non-parties must identify on the record, during the deposition or other pretrial
proceeding, all protected testimony, without prejudice to their right to so designate other testimony
after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the
transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or
exhibits thereto, as confidential. If a party or non-party desires to protect confidential information
at trial, the issue should be addressed during the pre-trial conference.
(c)

Other tangible items: the producing party must affix in a prominent place

on the exterior of the container or containers in which the information or item is stored the word

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Order.docx
NO. 3:21-cv-05227

PREG O'DONNELL & GILLETT PLLC
901 FIFTH AVE., SUITE 3400
SEATTLE, WASHINGTON 98164-2026
TELEPHONE: [phone] • FACSIMILE: [phone]

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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).
5.3

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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
original designation is disclosed.
6.2

Meet and Confer. The parties must make every attempt to resolve any dispute

regarding confidential designations without court involvement. Any motion regarding confidential
designations or for a protective order must include a certification, in the motion or in a declaration
or affidavit, that the movant has engaged in a good faith meet and confer conference with other
affected parties in an effort to resolve the dispute without court action. The certification must list
the date, manner, and participants to the conference. A good faith effort to confer requires a faceto-face meeting or a telephone conference.
6.3

Judicial Intervention. If the parties cannot resolve a challenge without court

intervention, the designating party may file and serve a motion to retain confidentiality. The burden
of persuasion in any such motion shall be on the designating party. Frivolous challenges, and those
made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on

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Order.docx
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PREG O'DONNELL & GILLETT PLLC
901 FIFTH AVE., SUITE 3400
SEATTLE, WASHINGTON 98164-2026
TELEPHONE: [phone] • FACSIMILE: [phone]

Case 3:21-cv-05227-BHS Document 15 Filed 09/07/21 Page 7 of 9

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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

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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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 party

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must:
(a)

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promptly notify the designating party in writing and include a copy of the

subpoena or court order;
(b)

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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
(c)

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the designating party whose confidential material may be affected.
8.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential

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cooperate with respect to all reasonable procedures sought to be pursued by

material to any person or in any circumstance not authorized under this agreement, the receiving
party must immediately (a) notify in writing the designating party of the unauthorized disclosures,
(b) use its best efforts to retrieve all unauthorized copies of the protected material, and (c) inform
the person or persons to whom unauthorized disclosures were made of all the terms of this
agreement.
9.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

MATERIAL
When a producing party gives notice to receiving parties that certain inadvertently
produced material is subject to a claim of privilege or other protection, the obligations of the

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Order.docx
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PREG O'DONNELL & GILLETT PLLC
901 FIFTH AVE., SUITE 3400
SEATTLE, WASHINGTON 98164-2026
TELEPHONE: [phone] • FACSIMILE: [phone]

Case 3:21-cv-05227-BHS Document 15 Filed 09/07/21 Page 8 of 9

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receiving parties are those set forth in FRCR 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order or agreement that provides for

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production without prior privilege review. The parties agree to the entry of a non-waiver order

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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 and

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summaries thereof. Alternatively, the parties may agree upon appropriate methods of 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 work

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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
designating party agrees otherwise in writing or a court orders otherwise.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED this 7th day of September, 2021.

A

BENJAMIN H. SETTLE
United States District Judge

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PREG O'DONNELL & GILLETT PLLC
901 FIFTH AVE., SUITE 3400
SEATTLE, WASHINGTON 98164-2026
TELEPHONE: [phone] • FACSIMILE: [phone]

Case 3:21-cv-05227-BHS Document 15 Filed 09/07/21 Page 9 of 9

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GALLAGHER LAW OFFICE, P.S.

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By: /s/Daniel Gallagher
Daniel C. Gallagher, WSBA #21940
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Email: [e-mail]
10611 Battle Point Drive NE
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Bainbridge Island, Washington 98110-1493
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Tel and Fax: [phone]
Attorneys for Plaintiff
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PREG O’DONNELL & GILLETT PLLC
By: /s/Emma Gillespie
Emma Gillespie, WSBA No. 33255
Aaron D. Kelley, WSBA No. 49574
901 Fifth Ave., Suite 3400
Seattle, WA 98164-2026
Phone: [phone]
Email: [e-mail]
Email: [e-mail]
Attorney for Defendant Sequim School District

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McGAVICK GRAVES, P.S.

By: /s/Lori Bemis
Lori M. Bemis, WSBA No. 32921
1102 Broadway, Suite 500
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Tacoma, WA 98402
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Phone: [phone]
Email: [e-mail]
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Attorney for Defendant Robert Clark
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NO. 3:21-cv-05227

PREG O'DONNELL & GILLETT PLLC
901 FIFTH AVE., SUITE 3400
SEATTLE, WASHINGTON 98164-2026
TELEPHONE: [phone] • FACSIMILE: [phone]