Delmore v. Washington State Department of Corrections et al

Filing 23

STIPULATED PROTECTIVE ORDER re Parties' 22 Stipulated MOTION. Signed by Judge Robert S. Lasnik. (LH)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

8
9

JULIAN DELMORE, an individual,

10
11
12
13
14

Plaintiff,

NO. 3:21-cv-05625-RSL
STIPULATED PROTECTIVE ORDER

v.
WASHINGTON STATE
DEPARTMENT OF CORRECTIONS,
an agency of the State of Washington,
and LISA FLYNN, in individual
capacity and/or official capacity,

15

Defendants.

16
17
18
19
20
21
22
23
24

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 Court
enters the following Protective Order. The Order 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
applicable legal principles, and it does not presumptively entitle parties to file confidential
information under seal.

25
26
STIPULATED PROTECTIVE ORDER

1

ATTORNEY GENERAL OF WASHINGTON
Torts Division
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

1

2.

2.1

2
3

“CONFIDENTIAL” MATERIAL
“Confidential” material shall include the following documents and tangible

things produced or otherwise exchanged:
a.

4

Documents contained in party and non-party employment files which would
not otherwise be subject to public disclosure;

5
b.

6

Documents contained in party and non-party investigation or grievance files
that would not otherwise be subject to public disclosure;

7
8

c.

Financial records;

9

d.

Medical records; and

10

e.

Psychological or mental health records.

2.2

11

The parties are permitted to redact from all records produced:

12

a.

All social security numbers;

13

b.

Criminal background information of non-parties, except those confined at

14

Larch Corrections Center at any point between 5 January 2012 and 6

15

September 2017;
c.

16
2.4

17

Information and records covered by attorney-client privilege/work product.
A privilege log will be included in all productions noting documents

18

withheld/redacted and the reason for the withholding/redacting.

19

3.

SCOPE

20

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

21

defined above), but also (a) any information copied or extracted from confidential material; (b)

22

all copies, excerpts, summaries, or compilations of confidential material; and (c) any testimony,

23

conversations, or presentations by parties or their counsel that might reveal confidential material.

24

However, the protections conferred by this agreement do not cover information that is in

25

the public domain or becomes part of the public domain through trial or otherwise.

26

4.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
STIPULATED PROTECTIVE ORDER

2

ATTORNEY GENERAL OF WASHINGTON
Torts Division
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

1

4.1

Basic Principles. A receiving party may use confidential material that is disclosed

2

or produced by another party or by a non-party in connection with this case only for prosecuting,

3

defending, or attempting to settle this litigation. Confidential material may be disclosed only to

4

the categories of persons and under the conditions described in this agreement. Confidential

5

material must be stored and maintained by a receiving party at a location and in a secure manner

6

that ensures that access is limited to the persons authorized under this agreement.

7

4.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

8

ordered by the court or permitted in writing by the designating party, a receiving party may

9

disclose any confidential material only to:

10

a.

The receiving party’s counsel of record in this action, as well as employees

11

of counsel to whom it is reasonably necessary to disclose the information for

12

this litigation;

13

b.

The officers, directors, and employees (including in-house counsel) of the

14

receiving party to whom disclosure is reasonably necessary for this litigation,

15

unless the parties agree that a particular document or material produced is for

16

Attorney’s Eyes Only and is so designated;

17

c.

Experts and consultants to whom disclosure is reasonably necessary for this

18

litigation and who have signed the “Acknowledgment and Agreement to Be

19

Bound” (Exhibit A);

20

d.

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

21

e.

Copy or imaging services retained by counsel to assist in the duplication of

22

confidential material, provided that counsel for the party retaining the copy

23

or imaging service instructs the service not to disclose any confidential

24

material to third parties and to immediately return all originals and copies of

25

any confidential material;

26
STIPULATED PROTECTIVE ORDER

3

ATTORNEY GENERAL OF WASHINGTON
Torts Division
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

f.

1

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

2

reasonably necessary and who have signed the “Acknowledgment and

3

Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the

4

designating party or ordered by the court. Pages of transcribed deposition

5

testimony or exhibits to depositions that reveal confidential material must be

6

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

7

except as permitted under this agreement; or
g.

8

The author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.

9
4.3

10

Filing Confidential Material. Before filing confidential material or discussing or

11

referencing such material in court filings, the filing party shall confer with the designating party

12

to determine whether the designating party will remove the confidential designation, whether the

13

document can be redacted, or whether a motion to seal or stipulation and proposed order is

14

warranted. During the meet and confer process, the designating party must identify the basis for

15

sealing the specific confidential information at issue, and the filing party shall include this basis

16

in its motion to seal, along with any objection to sealing the information at issue.

17

5.

18

DESIGNATING PROTECTED MATERIAL
5.1

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

19

or non-party that designates information or items for protection under this agreement must take

20

care to limit any such designation to specific material that qualifies under the appropriate

21

standards. The designating party must designate for protection only those parts of material,

22

documents, items, or oral or written communications that qualify, so that other portions of the

23

material, documents, items, or communications for which protection is not warranted are not

24

swept unjustifiably within the ambit of this agreement.

25

Mass, indiscriminate, or routinized designations are prohibited. Designations that are

26

shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
STIPULATED PROTECTIVE ORDER

4

ATTORNEY GENERAL OF WASHINGTON
Torts Division
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

1

unnecessarily encumber or delay the case development process or to impose unnecessary

2

expenses and burdens on other parties) may expose the designating party to sanctions.

3

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

4

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

5

parties that it is withdrawing the mistaken designation.

6

5.2

Manner and Timing of Designations. Except as otherwise provided in this

7

agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or

8

ordered, disclosure or discovery material that qualifies for protection under this agreement must

9

be clearly so designated before or when the material is disclosed or produced.

10

a.

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

11

deposition exhibits, but excluding transcripts of depositions or other pretrial

12

or trial proceedings) The designating party must affix the word

13

“CONFIDENTIAL” to each page that contains confidential material.

14

b.

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

15

and any participating non-parties must identify on the record, during the

16

deposition or other pretrial proceeding, all protected testimony, without

17

prejudice to their right to so designate other testimony after reviewing the

18

transcript. Any party or non-party may, within fifteen days after receiving the

19

transcript of the deposition or other pretrial proceeding, designate portions of

20

the transcript, or exhibits thereto, as confidential. If a party or non-party

21

desires to protect confidential information at trial, the issue should be

22

addressed during the pretrial conference.

23

c.

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

24

the exterior of the container or containers in which the information or item is

25

stored the word “CONFIDENTIAL.”

26
STIPULATED PROTECTIVE ORDER

5

ATTORNEY GENERAL OF WASHINGTON
Torts Division
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

5.3

1

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

2

designate qualified information or items does not, standing alone, waive the designating party’s

3

right to secure protection under this agreement for such material. Upon timely correction of a

4

designation, the receiving party must make reasonable efforts to ensure that the material is

5

treated in accordance with the provisions of this agreement.

6

6.

7

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any party or non-party may challenge a designation of

8

confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality

9

designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

10

burdens, or a significant disruption or delay of the litigation, a party does not waive its right to

11

challenge a confidentiality designation by electing not to mount a challenge promptly after the

12

original designation is disclosed.

13

6.2

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

14

regarding confidential designations without court involvement. Any motion regarding

15

confidential designations or for a protective order must include a certification, in the motion or

16

in a declaration or affidavit, that the movant has engaged in a good faith meet and confer

17

conference with other affected parties in an effort to resolve the dispute without court action.

18

The certification must list the date, manner, and participants to the conference. A good faith

19

effort to confer requires a face-to-face meeting or a telephone conference.

20

6.3

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

21

intervention, the designating party may file and serve a motion to retain confidentiality. The

22

burden of persuasion in any such motion shall be on the designating party. Frivolous challenges

23

and those made for an improper purpose (e.g., to harass or impose unnecessary expenses and

24

burdens on other parties) may expose the challenging party to sanctions. All parties shall

25

continue to maintain the material in question as confidential until the court rules on the challenge.

26
STIPULATED PROTECTIVE ORDER

6

ATTORNEY GENERAL OF WASHINGTON
Torts Division
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

1

7.

2
3
4

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION
If a party is served with a subpoena or a court order issued in other litigation that compels

disclosure of any information or items designated in this action as “CONFIDENTIAL,” that
party must:

5

a.

6

subpoena or court order;

7

b.

8

or order is subject to this agreement. Such notification shall include a copy of

10

this agreement; and

11

c.

12

16
17
18
19
20
21

Cooperate with respect to all reasonable procedures sought to be pursued by
the designating party whose confidential material may be affected.

8.

14
15

Promptly notify in writing the party who caused the subpoena or order to issue
in the other litigation that some or all of the material covered by the subpoena

9

13

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

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

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,
(c) inform the person or persons to whom unauthorized disclosures were made of all the terms
of this agreement, and (d) request that such person or persons execute the “Acknowledgment
and Agreement to Be Bound” that is attached hereto as Exhibit A.
9.

22

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL

23

When a producing party gives notice to receiving parties that certain inadvertently

24

produced material is subject to a claim of privilege or other protection, the obligations of the

25

receiving parties are those set forth in Fed. R. Civ. P. 26(b)(5). This provision is not intended to

26

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

STIPULATED PROTECTIVE ORDER

7

ATTORNEY GENERAL OF WASHINGTON
Torts Division
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

1

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

2

waiver order under Fed. R. Evid. 502(d) as set forth herein.

3

10.

NON-TERMINATION AND RETURN OF DOCUMENTS

4

Within 60 days after the termination of this action, including all appeals, each receiving

5

party must return all confidential material to the producing party, including all copies, extracts

6

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

7

destruction.

8

Notwithstanding this provision, counsel are entitled to retain one archival copy of all

9

documents filed with the court, trial, deposition, and hearing transcripts, correspondence,

10

deposition and trial exhibits, expert reports, attorney work product, and consultant and expert

11

work product, even if such materials contain confidential material.

12
13
14

The confidentiality obligations imposed by this agreement shall remain in effect until a
designating party agrees otherwise in writing or a court orders otherwise.
Pursuant to the parties’ stipulation, it is so ORDERED.

15
16

Dated this 18th day of November, 2022.

17

Robert S. Lasnik
United States District Judge

18
19
20
21
22
23
24
25
26
STIPULATED PROTECTIVE ORDER

8

ATTORNEY GENERAL OF WASHINGTON
Torts Division
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

1
2

Presented By:
BRESKIN, JOHNSON & TOWNSEND

ROBERT W. FERGUSON
Attorney General

/s Cynthia Heidelberg
Cynthia J. Heidelberg, WSBA No. 44121
Attorney for Plaintiff

s/ Mark J. Rachel
Mark J. Rachel, WSBA No. 54395
Assistant Attorney General
Attorney for Defendants

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
STIPULATED PROTECTIVE ORDER

9

ATTORNEY GENERAL OF WASHINGTON
Torts Division
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3
4
5
6
7
8
9
10

I,
[print or type full name], of
[print or type full address], declare under penalty of perjury that I have read in its entirety
and understand the protective order that was issued by the United States District Court for the
Western District of Washington on
, 2022, in the case of Delmore v.
Washington State Department of Corrections et al., Case No. 3:21-CV-05625. I agree to comply
with and to be bound by all the terms of that court order and I understand and acknowledge that
failure to so comply could expose me to sanctions and punishment in the nature of contempt. I
solemnly promise that I will not disclose in any manner any information or item that is subject
to the protective order to any person or entity except in strict compliance with the provisions of
the order.
I further agree to submit to the jurisdiction of the United States District Court for the
Western District of Washington for the purpose of enforcing the terms of the protective order,
even if such enforcement proceedings occur after termination of the lawsuit.

12

[print or type full name] of
[print or type full address and telephone
number] as my agent for service of process in connection with this action or any proceedings
related to enforcement of the protective order.

13

Date:

14

City and State where sworn and signed:

15

Signature:

16

Printed name:

11

I hereby appoint

17
18
19
20
21
22
23
24
25
26
STIPULATED PROTECTIVE ORDER

10

ATTORNEY GENERAL OF WASHINGTON
Torts Division
800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
[phone]