Davey et al v. Washington State Department of Social and Health Services et al

Filing 138

STIPULATED PROTECTIVE ORDER. Signed by Hon. S. Kate Vaughan. (MJV)

THE HONORABLE THOMAS S. ZILLY
THE HONORABLE S. KATE VAUGHAN

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

10
11
12
13

ECHOTA C. WOLFCLAN and ZAKERY
BONDS, on behalf of themselves and other
similarly situated individuals,
Plaintiffs,

14
15
16

CASE NO. C23-5399-TSZ-SKV
[PROPOSED] STIPULATED
PROTECTIVE ORDER

v.
PIERCE COUNTY, et al.,
Defendants.

17
18
19

1.

PURPOSES AND LIMITATIONS

20

Discovery in this action is likely to involve production of confidential, proprietary, or

21

private information for which special protection may be warranted. Accordingly, the parties hereby

22

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

23

acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket

24

protection on all disclosures or responses to discovery, the protection it affords from public

25

disclosure and use extends only to the limited information or items that are entitled to confidential

26
STIPULATED PROTECTIVE ORDER - 1
(C23-5399-TSZ-SKV)
126286307.3 0099820-01207

1

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

2

confidential information under seal.

3

2.

“CONFIDENTIAL” MATERIAL

4

“Confidential” material shall include the following documents and tangible things

5

produced or otherwise exchanged: medical records, social security numbers, driver’s license

6

numbers, passport numbers, dates of birth, home addresses, maps of Pierce County Jail (the “Jail”),

7

documents showing the layout of the Jail, and Jail design documents.

8

3.

SCOPE

9

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

10

defined above), but also (1) any information copied or extracted from confidential material; (2) all

11

copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony,

12

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

13

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

14

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

15

4.

16

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1

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

17

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

18

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

19

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

20

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

21

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

22

4.2

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

23

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

24

confidential material only to:

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;
STIPULATED PROTECTIVE ORDER - 2
(C23-5399-TSZ-SKV)
126286307.3 0099820-01207

(b)

1

the receiving party, when disclosure is reasonably necessary for this

2

litigation, unless the parties agree that a particular document or material produced is for Attorney’s

3

Eyes Only and is so designated;

4

(c)

5

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);

6

(d)

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

7

(e)

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

8

confidential material, provided that counsel for the party retaining the copy or imaging service

9

instructs the service not to disclose any confidential material to third parties and to immediately

10

return all originals and copies of any confidential material;
(f)

11

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

12

reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”

13

(Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of

14

transcribed deposition testimony or exhibits to depositions that reveal confidential material must

15

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

16

under this agreement;
(g)

17
18
19

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

Disclosure of “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Material or

20

items. If a producing party believes in good faith that, despite the provisions of this Protective

21

Order there is a substantial risk of identifiable harm to the producing party if particular documents

22

it designates as “Confidential” are disclosed to all other parties or non-parties to this action, the

23

producing party may designate those particular documents as “Confidential—Attorneys’ Eyes

24

Only.” Except with the prior written consent of the individual or entity designating a document or

25

portions of a document as “CONFIDENTIAL – ATTORNEYS EYES ONLY,” or pursuant to

26

prior Order after notice, any document, transcript or pleading given “CONFIDENTIAL –
STIPULATED PROTECTIVE ORDER - 3
(C23-5399-TSZ-SKV)
126286307.3 0099820-01207

1

ATTORNEYS’ EYES ONLY” treatment under this Order, and any information contained in, or

2

derived from any such materials (including but not limited to, all deposition testimony that refers

3

to, reflects, or otherwise discusses any information designated “CONFIDENTIAL –

4

ATTORNEYS’ EYES ONLY” hereunder) may not be disclosed other than in accordance with this

5

Order and may not be disclosed to any person other than:
(a)

6

A party’s retained outside counsel of record in this action, as well as

7

employees of said outside counsel to whom it is reasonably necessary to disclose the information

8

for this litigation and who have signed the “Acknowledgement and Agreement to be Bound”

9

(Exhibit A);
(b)

10

Experts specifically retained as consultants or expert witnesses in

11

connection with this litigation who have signed the “Acknowledgement and Agreement to be

12

Bound” (Exhibit A);

13

(c)

The Court and its personnel;

14

(d)

Court reporters, their staffs, and professional vendors to whom disclosure is

15

reasonably necessary for this litigation and who have signed the “Acknowledgement and

16

Agreement to be Bound” (Exhibit A);

17

(e)

Any mediator appointed by the court or jointly selected by the parties;

18

(f)

The author or recipient of the document (not including a person who

19

received the document in the course of the litigation);
(g)

20
21

other litigation services retained or employed specifically in connection with this litigation; and
(h)

22
23
24

Independent providers of document reproduction, electronic discovery, or

Other persons only upon consent of the producing party and on such

conditions as the parties may agree.
4.4

Filing Confidential Material. Before filing confidential material or discussing or

25

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

26

in accordance with Local Civil Rule 5(g)(3)(A), to determine whether the designating party will
STIPULATED PROTECTIVE ORDER - 4
(C23-5399-TSZ-SKV)
126286307.3 0099820-01207

1

remove the confidential designation, whether the document can be redacted, or whether a motion

2

to seal or stipulation and proposed order is warranted. During the meet and confer process, the

3

designating party must identify the basis for sealing the specific confidential information at issue,

4

and the filing party shall include this basis in its motion to seal, along with any objection to sealing

5

the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be followed and

6

the standards that will be applied when a party seeks permission from the court to file material

7

under seal. A party who seeks to maintain the confidentiality of its information must satisfy the

8

requirements of Local Civil Rule 5(g)(3)(B), even if it is not the party filing the motion to seal.

9

Failure to satisfy this requirement will result in the motion to seal being denied, in accordance with

10

the strong presumption of public access to the Court’s files.

11

5.

12

DESIGNATING PROTECTED MATERIAL
5.1

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

13

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

14

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

15

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

16

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

17

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

18

unjustifiably within the ambit of this agreement.

19

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

20

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

21

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

22

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

23

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

24

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

25

that it is withdrawing the mistaken designation.

26

5.2

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

STIPULATED PROTECTIVE ORDER - 5
(C23-5399-TSZ-SKV)
126286307.3 0099820-01207

1

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

2

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

3

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

4

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

5

deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings),

6

the designating party must affix the word “CONFIDENTIAL” or “CONFIDENTIAL –

7

ATTORNEYS’ EYES ONLY” to each page that contains confidential material. If only a portion

8

or portions of the material on a page qualifies for protection, the producing party also must clearly

9

identify the protected portion(s) (e.g., by making appropriate markings in the margins).
(b)

10

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

11

and any participating non-parties must identify on the record, during the deposition or other pretrial

12

proceeding, all protected testimony, without prejudice to their right to so designate other testimony

13

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

14

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

15

exhibits thereto, as confidential. If a party or non-party desires to protect confidential information

16

at trial, the issue should be addressed during the pre-trial conference.
(c)

17

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

18

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

19

“CONFIDENTIAL” or the phrase “CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a

20

portion or portions of the information or item warrant protection, the producing party, to the extent

21

practicable, shall identify the protected portion(s).

22

5.3

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

23

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

24

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

25

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

26

in accordance with the provisions of this agreement.
STIPULATED PROTECTIVE ORDER - 6
(C23-5399-TSZ-SKV)
126286307.3 0099820-01207

1

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

2

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

3

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

4

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

5

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

6

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

7

original designation is disclosed.
6.2

8

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

9

regarding confidential designations without court involvement. Any motion regarding confidential

10

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

11

or affidavit, that the movant has engaged in a good faith meet and confer conference with other

12

affected parties in an effort to resolve the dispute without court action. The certification must list

13

the date, manner, and participants to the conference. A good faith effort to confer requires a face-

14

to-face meeting or a telephone conference.
6.3

15

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

16

intervention, the designating party may file and serve a motion to retain confidentiality under Local

17

Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of

18

persuasion in any such motion shall be on the designating party. Frivolous challenges, and those

19

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

20

other parties) may expose the challenging party to sanctions. All parties shall continue to maintain

21

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

22

7.

23

LITIGATION

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

24

If a party is served with a subpoena or a court order issued in other litigation that compels

25

disclosure of any information or items designated in this action as “CONFIDENTIAL” or

26

“ATTORNEYS’ EYES ONLY,” that party must:
STIPULATED PROTECTIVE ORDER - 7
(C23-5399-TSZ-SKV)
126286307.3 0099820-01207

(a)

1
2

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

subpoena or court order;
(b)

3

promptly notify in writing the party who caused the subpoena or order to

4

issue in the other litigation that some or all of the material covered by the subpoena or order is

5

subject to this agreement. Such notification shall include a copy of this agreement; and
(c)

6

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

7

the designating party whose confidential material may be affected.

8

8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

9

If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential

10

material to any person or in any circumstance not authorized under this agreement, the receiving

11

party must immediately (a) notify in writing the designating party of the unauthorized disclosures,

12

(b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the

13

person or persons to whom unauthorized disclosures were made of all the terms of this agreement,

14

and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be

15

Bound” that is attached hereto as Exhibit A.

16

9.

17

MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

18

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

19

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

20

receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision

21

is not intended to modify whatever procedure may be established in an e-discovery order or

22

agreement that provides for production without prior privilege review. The parties agree to the

23

entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein.

24

10.

NON-TERMINATION AND RETURN OF DOCUMENTS

25

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

26

party must return all confidential material to the producing party, including all copies, extracts and
STIPULATED PROTECTIVE ORDER - 8
(C23-5399-TSZ-SKV)
126286307.3 0099820-01207

1

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

2

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

3

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

4

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

5

product, even if such materials contain confidential material.

6
7

The confidentiality obligations imposed by this agreement shall remain in effect until a
designating party agrees otherwise in writing or a court orders otherwise.

8

///

9

///

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
STIPULATED PROTECTIVE ORDER - 9
(C23-5399-TSZ-SKV)
126286307.3 0099820-01207

1

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

2
3

STOEL RIVES LLP
DATED: October 22, 2024

4
5
6
7
8
9
10

/s/ Michael Rubin
Scott Pritchard, WSBA No. 50761
Michael P. Rubin, WSBA No. 59598
Alissa N. Harris, WSBA No. 59368
STOEL RIVES LLP
600 University Street, Suite 3600
Seattle, WA 98101
Telephone: [phone]
Facsimile: 206-386-7500
Email: [e-mail];
Email: [e-mail]
Email: [e-mail]
LOWE GRAHAM JONES PLLC

11

/s/ Mark P. Walters
Mark P. Walters, WSBA No. 30819
Mitchell D. West, WSBA No. 53103
1325 Fourth Avenue, Suite 1130
Seattle, WA 98101
Telephone: [phone]
Facsimile: 206-381-3301
Email: [e-mail]
Email: [e-mail]

12
13
14
15
16
17

THE LAW OFFICES OF LISA R. ELLIOTT
Lisa Elliott, WSBA 41803
11120 NE 2nd St, Suite 100
Bellevue, Washington 98004
[phone]
Email: [e-mail]

18
19
20
21

Attorneys for Plaintiffs Echota Wolfclan and Zakery
Bonds

22
23
24

DATED: October 22, 2024

25
26
STIPULATED PROTECTIVE ORDER - 10
(3:23-CV-05399-TSZ-SKV)
126286307.3 0099820-01207

/s/ Frank Cornelius
Frank Cornelius, WSBA No. 29590
Jana Hartman, WSBA No. 35524
Pierce County Prosecuting Attorney’s Office (Civil)

1

Civil Division
930 Tacoma Ave. S, Ste 946
Tacoma, WA 98402-2160
P: 253-798-6514
F: 253-798-6713
Email: [e-mail]
[e-mail]

2
3
4
5

Attorneys for Defendants

6
7

PURSUANT TO STIPULATION, IT IS SO ORDERED

8

IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any

9

documents, electronically stored information (ESI) or information, whether inadvertent or

10

otherwise, in this proceeding shall not, for the purposes of this proceeding or any other federal or

11

state proceeding, constitute a waiver by the producing party of any privilege applicable to those

12

documents, including the attorney-client privilege, attorney work-product protection, or any other

13

privilege or protection recognized by law. This Order shall be interpreted to provide the maximum

14

protection allowed by Fed. R. Evid. 502(d). The provisions of Fed. R. Evid. 502(b) do not apply.

15

Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a review

16

of documents, ESI or information (including metadata) for relevance, responsiveness and/or

17

segregation of privileged and/or protected information before production. Information produced

18

in discovery that is protected as privileged or work product shall be immediately returned to the

19

producing party.

20

Dated this 23rd day of October, 2024.

21

A

22
23
24

///

25

///

26
STIPULATED PROTECTIVE ORDER - 11
(C23-5399-TSZ-SKV)
126286307.3 0099820-01207

S. KATE VAUGHAN
United States Magistrate Judge

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,

3

____________________________________

[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 Echota C. Wolfclan, et al. v. Pierce County, et al., Case No. 3:23-cv-05399-TSZ-SKV. I

8

agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I

9

understand and acknowledge that failure to so comply could expose me to sanctions and

10

punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner

11

any information or item that is subject to this Stipulated Protective Order to any person or entity

12

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 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
STIPULATED PROTECTIVE ORDER - 12
(C23-5399-TSZ-SKV)
126286307.3 0099820-01207