Frahm v United States of America

Filing 9

STIPULATED PROTECTIVE ORDER re Parties' 8 Stipulated MOTION for Protective Order. Signed by Judge Benjamin H. Settle. (MW)

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The Honorable Benjamin H. Settle 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 JOSHUA FRAHM, Case No. 3:24-cv-05896-BHS Plaintiff, 12 v. 13 14 UNITED STATES OF AMERICA, 15 Defendant. JOINT STIPULATION AND ORDER FOR ENTRY OF STIPULATED PROTECTIVE ORDER Noted for Consideration: Today 16 COMES NOW Plaintiff, by and through his counsel, Scott A. Staples, and Defendant, by 17 18 and through its counsel, Tessa M. Gorman, United States Attorney for the Western District of 19 Washington, and Kristin B. Johnson, Assistant United States Attorney for said District, pursuant 20 LCR 7(d)(1), 10(g), and 26(c)(2), and hereby jointly stipulate and request that the Court enter the 21 proposed Stipulated Protective Order to protect confidential, proprietary, or private information 22 that warrants special protection. The proposed Stipulated Protective Order departs slightly from 23 this District’s model protective order, thus, a redlined version identifying the departures from the 24 model is attached as Exhibit A. 25 1. PURPOSES AND LIMITATIONS 26 Discovery in this action is likely to involve production of confidential, proprietary, or 27 private information for which special protection may be warranted. Accordingly, the parties hereby JOINT STIPULATION AND ORDER FOR ENTRY OF STIPULATED PROTECTIVE ORDER [3:24-cv-05896-BHS] - 1 UNITED STATES ATTORNEY 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 206-553-7970 1 stipulate to and petition the court to enter the following Stipulated Protective Order. The parties 2 acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket 3 protection on all disclosures or responses to discovery, the protection it affords from public 4 disclosure and use extends only to the limited information or items that are entitled to confidential 5 treatment under the applicable legal principles, and it does not presumptively entitle parties to file 6 confidential information under seal. Discovery in this action is also likely to involve information that is subject to the Privacy 7 8 Act of 1974, 5 U.S.C. § 552a, or protected by other laws. Such documents may contain highly 9 personal information about parties and non-parties, which could result in unnecessary intrusion 10 upon their privacy interests. While disclosure of such information ordinarily is prohibited in civil 11 litigation, the Privacy Act provides, as an exception, that such records may be released “pursuant 12 to the order of a court of competent jurisdiction.” 5 U.S.C. § 552a(b)(11). An order of this Court, 13 therefore, would provide a basis for release of the requested information pursuant to the Privacy 14 Act and Fed. R. Civ. P. 26(c), as well as insulate Defendant from potential liability for improper 15 disclosure. See 5 U.S.C. § 552a(g)(1). 16 2. “CONFIDENTIAL” MATERIAL 17 “Confidential” material shall include the following documents and tangible things 18 produced or otherwise exchanged: 19 Plaintiff’s medical records; 20 Records from federal and state agencies including the United States Postal Service; 21 Other than protection of Privacy Act protected information, nothing in this order limits in 22 any way any other restrictions on the release of information, including restrictions on release of 23 confidential, classified, or privileged information, required or permitted by law. 24 3. SCOPE 25 The protections conferred by this agreement cover not only confidential material (as 26 defined above), but also (1) any information copied or extracted from confidential material; (2) all 27 copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, JOINT STIPULATION AND ORDER FOR ENTRY OF STIPULATED PROTECTIVE ORDER [3:24-cv-05896-BHS] - 2 UNITED STATES ATTORNEY 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 206-553-7970 1 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 2 3 the public domain or becomes part of the public domain through trial or otherwise. 4 4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 5 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 6 or produced by another party or by a non-party in connection with this case only for prosecuting, 7 defending, or attempting to settle this litigation. Confidential material may be disclosed only to the 8 categories of persons and under the conditions described in this agreement. Confidential material 9 must be stored and maintained by a receiving party at a location and in a secure manner that ensures 10 that access is limited to the persons authorized under this agreement. 11 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 12 by the court or permitted in writing by the designating party, a receiving party may disclose any 13 confidential material only to: (a) 14 the receiving party’s counsel of record in this action, as well as employees 15 of counsel to whom it is reasonably necessary to disclose the information for this litigation; (b) 16 the officers, directors, and employees (including in house counsel) of the 17 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties 18 agree that a particular document or material produced is for Attorney’s Eyes Only and is so 19 designated; 20 (c) experts and consultants to whom disclosure is reasonably necessary for this 21 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 22 (d) the court, court personnel, and court reporters and their staff; 23 (e) copy or imaging services retained by counsel to assist in the duplication of 24 confidential material, provided that counsel for the party retaining the copy or imaging service 25 instructs the service not to disclose any confidential material to third parties and to immediately 26 return all originals and copies of any confidential material; 27 JOINT STIPULATION AND ORDER FOR ENTRY OF STIPULATED PROTECTIVE ORDER [3:24-cv-05896-BHS] - 3 UNITED STATES ATTORNEY 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 206-553-7970 (f) 1 during their depositions, witnesses in the action to whom disclosure is 2 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 3 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of 4 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 5 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 6 under this agreement; (g) 7 the author or recipient of a document containing the information or a 8 custodian or other person who otherwise possessed or knew the information. 4.3 9 Filing Confidential Material. Before filing confidential material or discussing or 10 referencing such material in court filings, the filing party shall confer with the designating party, 11 in accordance with Local Civil Rule 5(g)(3)(A), to determine whether the designating party will 12 remove the confidential designation, whether the document can be redacted, or whether a motion 13 to seal or stipulation and proposed order is warranted. During the meet and confer process, the 14 designating party must identify the basis for sealing the specific confidential information at issue, 15 and the filing party shall include this basis in its motion to seal, along with any objection to sealing 16 the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be followed and 17 the standards that will be applied when a party seeks permission from the court to file material 18 under seal. A party who seeks to maintain the confidentiality of its information must satisfy the 19 requirements of Local Civil Rule 5(g)(3)(B), even if it is not the party filing the motion to seal. 20 Failure to satisfy this requirement will result in the motion to seal being denied, in accordance with 21 the strong presumption of public access to the Court’s files. 22 5. DESIGNATING PROTECTED MATERIAL 23 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 24 or non-party that designates information or items for protection under this agreement must take 25 care to limit any such designation to specific material that qualifies under the appropriate 26 standards. The designating party must designate for protection only those parts of material, 27 documents, items, or oral or written communications that qualify, so that other portions of the JOINT STIPULATION AND ORDER FOR ENTRY OF STIPULATED PROTECTIVE ORDER [3:24-cv-05896-BHS] - 4 UNITED STATES ATTORNEY 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 206-553-7970 1 material, documents, items, or communications for which protection is not warranted are not swept 2 unjustifiably within the ambit of this agreement. 3 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 4 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 5 unnecessarily encumber or delay the case development process or to impose unnecessary expenses 6 and burdens on other parties) expose the designating party to sanctions. 7 If it comes to a designating party’s attention that information or items that it designated for 8 protection do not qualify for protection, the designating party must promptly notify all other parties 9 that it is withdrawing the mistaken designation. 10 5.2 Manner and Timing of Designations. Except as otherwise provided in this 11 agreement (see, e.g., second paragraph of section 5.2(b) below), or as otherwise stipulated or 12 ordered, disclosure or discovery material that qualifies for protection under this agreement must 13 be clearly so designated before or when the material is disclosed or produced. 14 (a) Information in documentary form: (e.g., paper or electronic documents and 15 deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), 16 the designating party must affix the word “CONFIDENTIAL” to each page that contains 17 confidential material. If only a portion or portions of the material on a page qualifies for protection, 18 the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate 19 markings in the margins). 20 (b) Testimony given in deposition or in other pretrial proceedings: the parties 21 and any participating non-parties must identify on the record, during the deposition or other pretrial 22 proceeding, all protected testimony, without prejudice to their right to so designate other testimony 23 after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the 24 transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or 25 exhibits thereto, as confidential. If a party or non-party desires to protect confidential information 26 at trial, the issue should be addressed during the pre-trial conference. 27 JOINT STIPULATION AND ORDER FOR ENTRY OF STIPULATED PROTECTIVE ORDER [3:24-cv-05896-BHS] - 5 UNITED STATES ATTORNEY 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 206-553-7970 (c) 1 Other tangible items: the producing party must affix in a prominent place 2 on the exterior of the container or containers in which the information or item is stored the word 3 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 4 the producing party, to the extent practicable, shall identify the protected portion(s). 5.3 5 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 6 designate qualified information or items does not, standing alone, waive the designating party’s 7 right to secure protection under this agreement for such material. Upon timely correction of a 8 designation, the receiving party must make reasonable efforts to ensure that the material is treated 9 in accordance with the provisions of this agreement. 10 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 11 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 12 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 13 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 14 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 15 challenge a confidentiality designation by electing not to mount a challenge promptly after the 16 original designation is disclosed. 17 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute 18 regarding confidential designations without court involvement. Any motion regarding confidential 19 designations or for a protective order must include a certification, in the motion or in a declaration 20 or affidavit, that the movant has engaged in a good faith meet and confer conference with other 21 affected parties in an effort to resolve the dispute without court action. The certification must list 22 the date, manner, and participants to the conference. A good faith effort to confer requires a face23 to-face meeting or a telephone conference. 24 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court 25 intervention, the designating party may file and serve a motion to retain confidentiality under Local 26 Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 27 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those JOINT STIPULATION AND ORDER FOR ENTRY OF STIPULATED PROTECTIVE ORDER [3:24-cv-05896-BHS] - 6 UNITED STATES ATTORNEY 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 206-553-7970 1 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 2 other parties) may expose the challenging party to sanctions. All parties shall continue to maintain 3 the material in question as confidential until the court rules on the challenge. 4 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 5 LITIGATION If a party is served with a subpoena or a court order issued in other litigation that compels 6 7 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party 8 must: (a) 9 promptly notify the designating party in writing and include a copy of the 10 subpoena or court order; (b) 11 promptly notify in writing the party who caused the subpoena or order to 12 issue in the other litigation that some or all of the material covered by the subpoena or order is 13 subject to this agreement. Such notification shall include a copy of this agreement; and (c) 14 cooperate with respect to all reasonable procedures sought to be pursued by 15 the designating party whose confidential material may be affected. 16 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 17 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 18 material to any person or in any circumstance not authorized under this agreement, the receiving 19 party must immediately (a) notify in writing the designating party of the unauthorized disclosures, 20 (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the 21 person or persons to whom unauthorized disclosures were made of all the terms of this agreement, 22 and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be 23 Bound” that is attached hereto as Exhibit A. 24 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 25 MATERIAL 26 When a producing party gives notice to receiving parties that certain inadvertently 27 produced material is subject to a claim of privilege or other protection, the obligations of the JOINT STIPULATION AND ORDER FOR ENTRY OF STIPULATED PROTECTIVE ORDER [3:24-cv-05896-BHS] - 7 UNITED STATES ATTORNEY 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 206-553-7970 1 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 2 is not intended to modify whatever procedure may be established in an e-discovery order or 3 agreement that provides for production without prior privilege review. The parties agree to the 4 entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. 5 10. NON TERMINATION AND RETURN OF DOCUMENTS 6 Within 60 days after the termination of this action, including all appeals, each receiving 7 party must return all confidential material to the producing party, including all copies, extracts and 8 summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction. 9 Notwithstanding this provision, counsel are entitled to retain one archival copy of all 10 documents filed with the court, trial, deposition, and hearing transcripts, correspondence, 11 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work 12 product, even if such materials contain confidential material. 13 The confidentiality obligations imposed by this agreement shall remain in effect until a 14 designating party agrees otherwise in writing or a court orders otherwise. 15 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 16 17 DATED: January 27, 2025 18 19 20 21 22 s/ Scott A. Staples SCOTT A. STAPLES, WSBA 39325 Schauermann Thayer Jacobs Staples & Edwards, P.S. 1700 E Fourth Plain Blvd. Vancouver, WA 98661 Telephone: (360) 695-4244 Fax: (360) 696-0583 Email: scotts@stlaw.com Attorneys for Plaintiff DATED: January 27, 2025 26 s/ Kristin B. Johnson KRISTIN B. JOHNSON, WSBA #28189 Assistant United States Attorney United States Attorney’s Office 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 Telephone No. (206) 553-7970 Email: kristin.b.johnson@usdoj.gov 27 Attorneys for Defendant 23 24 25 JOINT STIPULATION AND ORDER FOR ENTRY OF STIPULATED PROTECTIVE ORDER [3:24-cv-05896-BHS] - 8 UNITED STATES ATTORNEY 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 206-553-7970 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: this 28th day of January, 2025. 16 A 17 18 BENJAMIN H. SETTLE United States District Judge 19 20 21 22 23 24 25 26 27 JOINT STIPULATION AND ORDER FOR ENTRY OF STIPULATED PROTECTIVE ORDER [3:24-cv-05896-BHS] - 9 UNITED STATES ATTORNEY 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 206-553-7970 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 _______________ [insert formal name of the case and the number and initials 8 assigned to it by the court]. I agree to comply with and to be bound by all the terms of this 9 Stipulated Protective Order and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will 11 not disclose in any manner any information or item that is subject to this Stipulated Protective 12 Order 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 15 Western District of Washington for the purpose of enforcing the terms of this Stipulated Protective 16 Order, even if such enforcement proceedings occur after termination of this action. 17 Date: 18 City and State where sworn and signed: 19 Printed name: 20 Signature: 21 22 23 24 25 26 27 JOINT STIPULATION AND ORDER FOR ENTRY OF STIPULATED PROTECTIVE ORDER [3:24-cv-05896-BHS] - 10 UNITED STATES ATTORNEY 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 206-553-7970

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