Olberg et al v. Allstate Insurance Company et al, No. 2:2018cv00573 - Document 83 (W.D. Wash. 2019)
Court Description: ORDER granting parties' 81 Joint Motion for Protective Order Between Plaintiffs and Defendant CCC Information Services, Inc. Signed by U.S. District Judge John C Coughenour. (TH)
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Olberg et al v. Allstate Insurance Company et al Doc. 83 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 1 of 20 THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 JEFF OLBERG, an individual et al., 10 11 12 Plaintiffs, CASE NO. C18-0573-JCC ORDER v. ALLSTATE INSURANCE COMPANY, an Illinois corporation et al., 13 Defendants. 14 15 16 17 18 19 Pursuant to the parties’ stipulated motion for a protective order between Plaintiffs and Defendant CCC Information Services, Inc. (Dkt. No. 81), the Court hereby ORDERS as follows: 1. PURPOSES AND LIMITATIONS Discovery in the above-captioned action (the “Action”) is likely to involve production of 20 confidential, proprietary, or private information for which special protection may be warranted. 21 Accordingly, Plaintiffs Jeff Olberg, Cecilia Palao-Vargas, Michael Clothier, Jacob Thompson, 22 and Defendant CCC Information Services, Inc. (collectively, the “Parties”) hereby stipulate to 23 and petition the Court to enter the following stipulated protective order. 24 The Parties acknowledge that this agreement is consistent with Western District of 25 Washington Local Civil Rule 26(c). It does not confer blanket protection on all disclosures or 26 responses to discovery, the protection it affords from public disclosure and use extends only to ORDER C18-0573-JCC PAGE - 1 Dockets.Justia.com Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 2 of 20 1 the limited information or items that are entitled to confidential treatment under the applicable 2 legal principles, and it does not presumptively entitle the Parties to file such information and 3 items under seal. 4 The Parties held numerous conferrals over the course of several months including on 5 August 22, 2019, October 2, 2019 and October 29, 2019 with such conferences having been 6 attended generally by John DeStefano, Tory Beardsley, Jason Burt and Steven Pacini. 7 8 9 2. “PROTECTED” MATERIAL “Protected” material shall include all documents, electronically stored information, and tangible things (collectively, “Material”) properly designated as “CONFIDENTIAL” or 10 “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY,” as those terms are defined in the 11 subsections below, that is produced or otherwise exchanged in the Action: 12 2.1. CONFIDENTIAL Material. Material may be designated as “Confidential” if the 13 producing party reasonably believes such Material is not in the public domain and contains any 14 trade secret or other confidential, strategic, research, development, or commercially sensitive 15 information. This term includes, but is not limited to, for example, the following Material 16 produced or otherwise exchanged: 17 2.2. non-public financial records; 18 2.3. non-public revenue and profit records; 19 2.4. non-public Material relating to future products and/or services not yet 20 commercially released; 21 2.5. non-public Material relating to business, marketing, and/or product strategy; 22 2.6. non-public Material relating to commercial or settlement agreements; 23 2.7. non-public Material relating to market and/or competitive analyses; 24 2.8. non-public Material relating to any governmental or regulatory inquiry; and 25 2.9. the material of any third party which, if it were discovery material, would qualify 26 for treatment as CONFIDENTIAL Material under this order. ORDER C18-0573-JCC PAGE - 2 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 3 of 20 1 2.10. HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY Material. Material 2 may be designated as “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY” if the 3 producing party reasonably believes such Material: 4 (a) 5 is subject to federal, state, local, or foreign data protection laws or regulations, or other privacy obligations; or 6 (b) reflects CONFIDENTIAL Material (as defined above), but which also 7 reflects: (i) non-public Material relating to product design and testing; 8 (ii) non-public Material relating to trade secrets; or (iii) non-public 9 Material relating to other types of proprietary or highly confidential 10 business, financial, regulatory, or strategic information (e.g., business 11 plans, technical data, non-public designs), the disclosure of which would 12 create a substantial risk of competitive or business injury to the 13 designating Party or third parties associated therewith. 14 15 16 3. SCOPE The protections conferred by this agreement cover not only Protected Material (as defined above), but also: 17 (a) any information copied or extracted from Protected Material; 18 (b) all copies, excerpts, summaries, or compilations of Protected Material; and 19 any testimony, conversations, or presentations by the Parties or their counsel that might reveal 20 Protected Material. 21 22 23 24 However, the protections conferred by this agreement do not cover Material that is in the public domain or becomes part of the public domain through trial or otherwise. 4. ACCESS TO AND USE OF PROTECTED MATERIAL 4.1. Basic Principles. A receiving party may use Protected Material that is disclosed or 25 produced by another party or by a non-party in connection with this case only for prosecuting, 26 defending, or attempting to settle the Action. Protected Material may be disclosed only to the ORDER C18-0573-JCC PAGE - 3 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 4 of 20 1 categories of persons and under the conditions described in this agreement. Protected Material 2 must be stored and maintained by a receiving party at a location and in a secure manner that 3 ensures that access is limited to the persons authorized under this agreement. 4 4.2. Disclosure of “CONFIDENTIAL” Material. Unless otherwise ordered by the 5 Court or permitted in writing by the designating party, a receiving arty may disclose Protected 6 Material designated as CONFIDENTIAL only to: 7 (a) the receiving party’s attorneys of record who have entered an appearance 8 for a party in the Action and, if the attorney of record is a member of a law 9 firm, the attorneys, paralegals, and staff of the law firm to whom it is 10 reasonably necessary to disclose the Protected Material designated 11 CONFIDENTIAL for the Action (collectively, “Counsel”); 12 (b) 13 the officers, directors, and employees (including in-house counsel) of the receiving Party to whom disclosure is reasonably necessary for the Action; 14 (c) independent Experts or Consultants (defined infra in Part 7.1), whether 15 testifying or non-testifying, who have been retained by a party or by 16 Counsel for a party to assist with the technical, financial or other aspects 17 of the Action, and staff employed by such Experts or Consultants, but only 18 after the Expert or Consultant has executed the “Acknowledgment and 19 Agreement to Be Bound” (Exhibit A); 20 (d) the Court, court personnel, and court reporters and their staff; 21 (e) copy and clerical litigation, document management, and electronic data 22 support services working at the direction of Counsel, provided that the 23 Counsel retaining the copy or imaging service instructs the service not to 24 disclose any CONFIDENTIAL Material to third parties and to 25 immediately return all originals and copies of any CONFIDENTIAL 26 Material; ORDER C18-0573-JCC PAGE - 4 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 5 of 20 1 (f) graphics, translation, design, jury research consultants, and/or trial 2 consulting personnel working at the direction of Counsel, provided that 3 the Counsel retaining the copy or imaging service instructs the service not 4 to disclose any HIGHLY CONFIDENTIAL – ATTORNEY’S EYES 5 ONLY Material to any person or entity not authorized to receive it under 6 this Agreement, and to immediately return all originals and copies of any 7 HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY Material; 8 (g) during their depositions, witnesses in the Action to whom disclosure is 9 reasonably necessary and who have signed the “Acknowledgment and 10 Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the 11 designating Party or ordered by the Court. Pages of transcribed deposition 12 testimony or exhibits to depositions that reveal CONFIDENTIAL Material 13 must be separately bound by the Court reporter and may not be disclosed 14 to anyone except as permitted under this agreement; and 15 (h) the author or recipient of Material containing the CONFIDENTIAL 16 information or a custodian or other person who otherwise possessed or 17 knew the CONFIDENTIAL information. 18 4.3. Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY” 19 Material. Unless otherwise ordered by the Court or permitted in writing by the designating party, 20 a receiving party may only disclose Protected Material designated as HIGHLY 21 CONFIDENTIAL – ATTORNEY’S EYES ONLY to: 22 (a) the receiving party’s Counsel; 23 (b) independent Experts or Consultants (defined infra in Part 7.1), whether 24 testifying or non-testifying, who have been retained by a party or by 25 Counsel for a party to assist with the technical, financial, or other aspects 26 of the Action, and staff employed by such Experts or Consultants, but only ORDER C18-0573-JCC PAGE - 5 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 6 of 20 1 after the Expert or Consultant has executed the “Acknowledgment and 2 Agreement to Be Bound” (Exhibit A), and as to whom the procedures set 3 forth in Part 7 of this agreement have been followed; 4 (c) the Court, court personnel, and court reporters and their staff; 5 (d) copy and clerical litigation, document management, and electronic data 6 support services working at the direction of Counsel, provided that the 7 Counsel retaining the copy or imaging service instructs the service not to 8 disclose any HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY 9 Material to any person or entity not authorized to receive it under this 10 areement, and to immediately return all originals and copies of any 11 HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY Material; 12 (e) graphics, translation, design, jury research consultants, and/or trial 13 consulting personnel working at the direction of Counsel, provided that 14 the Counsel retaining the copy or imaging service instructs the service not 15 to disclose any HIGHLY CONFIDENTIAL – ATTORNEY’S EYES 16 ONLY Material to any person or entity not authorized to receive it under 17 this agreement, and to immediately return all originals and copies of any 18 HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY Material; 19 (f) during their depositions, witnesses in the Action to whom disclosure is 20 reasonably necessary and who have signed the “Acknowledgment and 21 Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the 22 designating party or ordered by the Court. Pages of transcribed deposition 23 testimony or exhibits to depositions that reveal HIGHLY 24 CONFIDENTIAL – ATTORNEY’S EYES ONLY Material must be 25 separately bound by the Court reporter and may not be disclosed to anyone 26 except as permitted under this agreement; and ORDER C18-0573-JCC PAGE - 6 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 7 of 20 1 (g) the author or recipient of Material containing the HIGHLY 2 CONFIDENTIAL – ATTORNEY’S EYES ONLY information or a 3 custodian or other person who otherwise possessed or knew the HIGHLY 4 CONFIDENTIAL – ATTORNEY’S EYES ONLY information. 5 4.4. Filing Protected Material. Before filing Protected Material or discussing or 6 referencing such Material in Court filings, the filing party shall confer with the designating party, 7 in accordance with Local Civil Rule 5(g)(3)(A), to determine whether the designating party will 8 remove the confidential designation, whether the Material can be redacted, or whether a motion 9 to seal or stipulation and proposed order is warranted. During the meet and confer process, the 10 designating party must provide the basis for sealing the specific Protected Material at issue and 11 the filing party shall include this basis in its motion to seal, along with any objection to sealing 12 the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be followed 13 and the standards that will be applied when a party seeks permission from the Court to file 14 Material under seal. A party who seeks to maintain the confidentiality of its Protected Material 15 must satisfy the requirements of Local Civil Rule 5(g)(3)(B), even if it is not the party filing the 16 motion to seal. Failure to satisfy this requirement will result in the motion to seal being denied, 17 in accordance with the strong presumption of public access to the Court’s files. 18 19 5. DESIGNATING PROTECTED MATERIAL 5.1. Exercise of Restraint and Care in Designating Material for Protection. Each party 20 or non-party that designates Material for protection under this agreement will make reasonable 21 efforts to limit any such designation to specific information that qualifies under the appropriate 22 standards. The designating party may, after performing a linear review of any document or ESI, 23 apply the highest-level confidentiality designation that properly applies to any information found 24 therein. Document-level confidentiality designations in the first instance are reasonable and 25 appropriate where, as in the Action, the Parties will likely need to collect, review, and produce a 26 large volume of ESI. If the receiving party reasonably anticipates that it will attach such ORDER C18-0573-JCC PAGE - 7 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 8 of 20 1 documents or ESI to any filing, or use those documents or ESI at a deposition, hearing, or trial, 2 then the receiving party may request that the producing party reproduce the documents and/or 3 ESI with designations applied to only those parts of the Material that qualifies, so that other 4 portions of the Material for which protection is not warranted are not swept unjustifiably within 5 the ambit of this agreement. 6 If it comes to a designating party’s attention that information or items that it designated 7 for protection do not qualify for protection, the designating party must promptly notify all other 8 parties that it is withdrawing the mistaken designation. 9 5.2. Manner and Timing of Designations. Except as otherwise provided in this 10 agreement (see, e.g., Part 5.2(c) below), or as otherwise stipulated or ordered, disclosure of 11 discovery Material that qualifies for protection under this agreement (i.e., Protected Material) 12 must be clearly so designated before or when the Material is disclosed or produced. 13 (a) Information in Documentary Form. With respect to information in 14 documentary form (e.g., paper or electronic documents and deposition 15 exhibits, but excluding transcripts of depositions or other pretrial or trial 16 proceedings), the designating party must affix, as appropriate, the word 17 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEY’S 18 EYES ONLY” to each page that contains Protected Material. 19 (b) Testimony Given in Deposition or in Other Pretrial Proceedings. With 20 respect to testimony given in depositions or other pretrial proceedings, the 21 Parties and any participating non-parties must identify on the record, 22 during the deposition or other pretrial proceeding, all testimony that 23 qualifies as Protected Material, without prejudice to their right to so 24 designate other testimony after reviewing the transcript. Any party or non- 25 party may, within 15 days after receiving the transcript of the deposition 26 or other pretrial proceeding, designate portions of the transcript, or ORDER C18-0573-JCC PAGE - 8 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 9 of 20 1 exhibits thereto, as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 2 ATTORNEY’S EYES ONLY.” If a party or non-party desires to limit the 3 disclosure of Protected Material at trial, the issue should be addressed 4 during the pre-trial conference. 5 (c) Other tangible items. With respect to other tangible items, the producing 6 party must affix in a prominent place on the exterior of the container or 7 containers in which the information or item is stored the words 8 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEY’S 9 EYES ONLY.” If only a portion or portions of the Material warrants 10 protection, the producing party, to the extent practicable, shall identify the 11 protected portion(s). 12 5.3. Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 13 designate Protected Material does not, standing alone, waive the designating party’s right to 14 secure protection under this agreement for such Material. Upon timely correction of a 15 designation, the receiving party must make reasonable efforts to ensure that the Material is 16 treated in accordance with the provisions of this agreement. 17 18 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1. Timing of Challenges. Any party or non-party may challenge a designation of 19 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 20 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 21 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 22 challenge a confidentiality designation by electing not to mount a challenge promptly after the 23 original designation is disclosed. 24 6.2. Meet and Confer. The Parties must make every attempt to resolve any dispute 25 regarding confidentiality designations without court involvement. Any motion regarding 26 confidential designations or for a protective order must include a certification, in the motion or in ORDER C18-0573-JCC PAGE - 9 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 10 of 20 1 a declaration or affidavit, that the movant has engaged in a good faith meet-and-confer 2 conference with other affected parties in an effort to resolve the dispute without court action. The 3 certification must list the date, manner, and participants to the conference. A good faith effort to 4 confer requires a face-to-face meeting or a telephone conference. 5 6.3. Judicial Intervention. If the Parties cannot resolve a challenge without court 6 intervention, the designating party may file and serve a motion to retain confidentiality under 7 Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 8 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 9 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 10 other parties) may expose the challenging party to sanctions. The Parties shall continue to 11 maintain the Material in question as confidential until the Court rules on the challenge. 12 13 7. INDEPENDENT EXPERTS AND CONSULTANTS 7.1. Defining “Experts” and “Consultants”. The terms “Experts” and “Consultants,” as 14 used throughout this agreement, whether in the singular or plural form, shall mean persons with 15 specialized knowledge and experience in a matter pertinent to the Action who have been retained 16 by a party or its counsel to serve as an expert witness or as a consultant in the Action; 17 7.2. Transmission of HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY 18 Material to Experts and Consultants. Unless otherwise ordered by the Court or agreed to in 19 writing by the designating party, a party that seeks to disclose to an Expert or Consultant any 20 Material that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 21 first must make a written request to the designating party that: 22 (a) identifies the general categories of “HIGHLY CONFIDENTIAL – 23 ATTORNEYS’ EYES ONLY” Material that the receiving party seeks 24 permission to disclose to the Expert or Consultant; 25 (b) 26 sets forth the full name of the Expert or Consultant and the city and state of his or her primary residence; ORDER C18-0573-JCC PAGE - 10 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 11 of 20 1 (c) attaches a copy of the Expert or Consultant’s current resume; 2 (d) identifies each person or entity from whom the Expert or Consultant has 3 received compensation or funding for work in his or her areas of expertise 4 or to whom the Expert or Consultant has provided professional services, 5 including in connection with any litigation, at any time during the 6 preceding five years and the party to the litigation for whom such work 7 was done; and 8 (e) 9 with regard to the information sought above in Parts 7.2 (a)-(d), if the Expert or Consultant believes any of this information is subject to a 10 confidentiality obligation to a third party, then the Expert or Consultant 11 should provide whatever information the Expert or Consultant believes 12 can be disclosed without violating any confidentiality agreements, and the 13 party seeking to disclose HIGHLY CONFIDENTIAL – ATTORNEY’S 14 EYES ONLY Material to the Expert shall be available to meet and confer 15 with the designating party regarding any such engagement. 16 (f) Fourteen Day Period for Objections to Disclosure. A party that discloses 17 an Expert or Consultant and seeks to provide the information specified in 18 Part 2.10 may disclose the subject Protected Material to the identified 19 Expert or Consultant unless, within 14 days of identifying the Expert or 20 Consultant to the designating Party, the designating party provides written 21 objections to the party seeking to make the disclosure. No Material 22 designated HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY 23 shall be disclosed to such Expert(s) or Consultant(s) until after the 24 expiration of the foregoing notice period or the resolution of any timely 25 objections. If an objection is lodged, it shall state with particularity the 26 ground(s) of the objection and the specific categories of documents that ORDER C18-0573-JCC PAGE - 11 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 12 of 20 1 are the subject of the objection. 2 (g) Objections to Experts or Consultants Employed by Competitors: The 3 producing party reserves all rights to object to Experts or Consultants 4 who: 5 (1) are a current employee of a party or of a party’s competitor; 6 (2) have been employed by a party or a party’s competitor for the past 7 ten years; or 8 (3) 9 at the time of retention, are anticipated to become an employee of a party or of a party’s competitor. 10 (h) Resolution of Timely Written Objections. If the producing party lodges a 11 timely written objection to disclosure of HIGHLY CONFIDENTIAL – 12 ATTORNEY’S EYES ONLY Material pursuant to Part 7.2(f), then the 13 Parties should meet and confer via teleconference or in person within 10 14 days of the written objection. If no agreement is reached, the party seeking 15 to make the disclosure to the Expert or Consultant may file a motion as 16 provided for in Local Civil Rule 7 seeking permission from the court to do 17 so. Any motion filed pursuant to Part 7.2(h) must describe the 18 circumstances with specificity, set forth in detail the reasons why the 19 disclosure to the Expert or Consultant is reasonably necessary, assess the 20 risk of harm that the disclosure would entail, and suggest any additional 21 means that could be used to reduce that risk. In addition, any such motion 22 must be accompanied by a competent declaration describing the Parties’ 23 efforts to resolve the matter by agreement (i.e., the extent and the content 24 of the meet and confer discussions) and setting forth the reasons advanced 25 by the designating party for its refusal to approve the disclosure. In any 26 such proceeding, the party opposing disclosure to the Expert or Consultant ORDER C18-0573-JCC PAGE - 12 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 13 of 20 1 shall bear the burden of proving that the risk of harm that the disclosure 2 would entail (under the safeguards proposed) outweighs the receiving 3 party’s need to disclose the Protected Material to its Expert or Consultant. 4 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 5 OTHER LITIGATION 6 If a party is served with a subpoena or a court order issued in other litigation that compels 7 disclosure of any information or items designated in the Action as “CONFIDENTIAL” or 8 “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY” then that party must: 9 (a) notify the designating party in writing, and include a copy of the subpoena 10 or court order forthwith but no later than 72 hours of receiving the 11 subpoena or court order; 12 (b) promptly notify in writing the party who caused the subpoena or order to 13 issue in the other litigation that some or all of the Material covered by the 14 subpoena or order is subject to this agreement, with such notification 15 including a copy of this agreement; 16 (c) timely serve an objection to the subpoena under Federal Rule of Civil 17 Procedure 45 if the request is for the production of documents marked 18 CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEY’S 19 EYES ONLY.” and 20 (d) 21 22 cooperate with respect to all reasonable procedures sought to be pursued by the designating party whose Protected Material may be affected. If the designating party timely seeks a protective order, the party served with the 23 subpoena or court order shall not produce any information designated in the Action as 24 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a 25 determination by the court from which the subpoena or order issued, unless the party has 26 obtained the designating party’s permission. The designating party shall bear the burden and ORDER C18-0573-JCC PAGE - 13 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 14 of 20 1 expense of seeking protection in that court of its confidential material – and nothing in these 2 provisions should be construed as authorizing or encouraging a receiving party in the Action to 3 disobey a lawful directive from another court. 4 Nothing in this order shall prevent the party from complying with a lawfully issued 5 subpoena unless the designating party timely obtains a protective order or moves to quash the 6 subpoena. However, if the subpoena designates a time of compliance of less than seven days 7 after receipt, then the subpoenaed party will object to afford the designating party an adequate 8 opportunity to seek a temporary stay of the subpoena and/or to obtain a protective order. The 9 non-designating party shall cooperate in the submission of the motion to stay. 10 11 12 13 The provisions set forth herein are not intended to, and do not, restrict in any way the procedures set forth in Federal Rules of Civil Procedure 45(d)(3) or (f). 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a receiving party learns that, by inadvertence or otherwise, it has disclosed Protected 14 Material to any person or in any circumstance not authorized under this agreement, the receiving 15 party must immediately: 16 (a) notify in writing the designating party of the unauthorized disclosures; 17 (b) use its best efforts to retrieve all unauthorized copies of the Protected 18 Material; 19 (c) 20 made of all the terms of this agreement, and 21 (d) 22 23 inform the person or persons to whom unauthorized disclosures were request that such person or persons execute the “Acknowledgment and Agreement to Be Bound” (Exhibit A). 10. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 24 PROTECTED MATERIAL 25 When a producing party gives notice to receiving parties that certain inadvertently 26 produced Material is subject to a claim of privilege or other protection, the obligations of the ORDER C18-0573-JCC PAGE - 14 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 15 of 20 1 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 2 provision is not intended to modify whatever procedure may be established in an e-discovery 3 order or agreement that provides for production without prior privilege review. The Parties agree 4 to the entry of a non-waiver order under Federal Rule of Evidence 502(d) as set forth herein. 5 6 11. NON-TERMINATION AND RETURN OF DOCUMENTS Within 60 days after the termination of the Action, including all appeals, each receiving 7 party must return all Protected Material to the producing party, including all copies, extracts and 8 summaries thereof with the exception of inaccessible flat files stored on encrypted, offsite 9 backup systems, provided the receiving party represents that such files will be destroyed in the 10 normal course of business, no later than 90 days after the termination of the Action, including all 11 appeals. Alternatively, the Parties may agree upon appropriate methods of destruction of 12 materials excepting inaccessible flat files stored on encrypted, offsite backup systems. 13 Notwithstanding this provision, Counsel are entitled to retain one archival copy of all 14 documents filed with the Court, trial, deposition, and hearing transcripts, correspondence, 15 deposition and trial exhibits, expert reports, attorney work product, and Consultant and Expert 16 work product, even if such Material contains Protected Material. 17 18 The confidentiality obligations imposed by this agreement shall remain in effect until a designating party agrees otherwise in writing or a court orders otherwise. 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // ORDER C18-0573-JCC PAGE - 15 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 16 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. Dated November 8, 2019 By: s/ Steve W. Berman By: s/ Jason R. Burt Steve W. Berman, WSBA #12536 Jason R. Burt (pro hac vice) HAGENS BERMAN SOBOL SHAPIRO LLP LATHAM & WATKINS LLP 1301 Second Avenue, Suite 2000 555 11th Street NW, Suite 1000 Seattle, WA 98101 Washington, DC 20004 Telephone: (206) 623-7292 Telephone: (202) 637-2200 Facsimile: (206) 623-0594 Facsimile: (202) 637-2201 steve@hbsslaw.com jason.burt@lw.com Robert B. Carey (pro hac vice) John M. DeStefano (pro hac vice) HAGENS BERMAN SOBOL SHAPIRO LLP 11 West Jefferson Street, Suite 1000 Phoenix, AZ 85003 Telephone: (602) 224-2628 Facsimile: (602) 840-3012 rob@hbsslaw.com johnd@hbsslaw.com Marc A. Goldich (pro hac vice) AXLER GOLDICH LLC 1520 Locust Street, Suite 301 Philadelphia, PA 19102 Telephone: (267) 534-7400 mgoldich@axgolaw.com 21 22 Attorneys for Plaintiffs 18 19 20 Kathleen P. Lally (pro hac vice) LATHAM & WATKINS LLP 330 North Wabash Avenue, Suite 2800 Chicago, IL 60611 Telephone: (312) 876-7700 Facsimile: (312) 993-9767 kathleen.lally@lw.com Attorneys for Defendant CCC David Woloshin (pro hac vice) Dina S. Ronsayro (pro hac vice) ASTOR WEISS KAPLAN & MANDEL LLP 200 South Broad Street, Suite 600 Philadelphia, PA 19102 Telephone: (215) 790-0100 dwoloshin@astorweiss.com dronsayro@astorweiss.com 17 Kathleen M. O’Sullivan, WSBA No. 27850 PERKINS COIE LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101 Telephone: (206) 359-8000 Facsimile: (206) 369-9000 KOSullivan@perkinscoie.com 23 24 25 26 ORDER C18-0573-JCC PAGE - 16 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 17 of 20 1 PURSUANT TO STIPULATION, IT IS SO ORDERED. 2 IT IS FURTHER ORDERED that pursuant to Federal Rule of Evidence 502(d), the 3 production of any material in this proceeding shall not, for the purposes of this proceeding or any 4 other federal or state proceeding, constitute a waiver by the producing party of any privilege 5 applicable to such material, including the attorney-client privilege, attorney work-product 6 protection, or any other privilege or protection recognized by law. 7 DATED this 12th day of November 2019. A 8 9 10 John C. Coughenour UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER C18-0573-JCC PAGE - 17 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 18 of 20 1 EXHIBIT A 2 SUBSCRIPTION TO PROTECTIVE ORDER— 3 INDEPENDENT EXPERT OR CONSULTANT 4 I, _____________________________, declare that: 5 1. 6 My address is _________________________________ and the name and address of my present employer is _______________________________________________________. 7 2. My present occupation or job description is ______________________________. 8 3. In addition to other job functions, I am working as a consultant to ____________. 9 4. My relationship to ________________ is _______________________________. 10 5. I declare under penalty of perjury that I have read in its entirety and understand 11 the Stipulated Protective Order Between Plaintiffs and Defendant CCC Information Services Inc. 12 (the “Protective Order”) that was issued by the U.S. District Court for the Western District of 13 Washington on ________________________ in the case of Olberg, et al. v. Allstate Ins. Co., et 14 al., C18-0573-JCC (W.D. Wash. 2018) (the “Action”). 15 6. I agree to be bound by the all the terms of the Protective Order and I understand 16 and acknowledge that failure to so comply could expose me to sanctions and punishment in the 17 nature of contempt. 18 7. I agree that I will not disclose any Documents or ESI that I receive designated 19 CONFIDENTIAL, or the contents thereof, to anyone other than those persons listed in Part 4.2 20 of the Protective Order. 21 8. I agree that I will not disclose any Documents or ESI that I receive designated 22 HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY, or the contents thereof, to anyone 23 other than those persons listed in Part 4.3 of the Protective Order. 24 9. I agree that I will not use any Documents or ESI that I receive designated 25 CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY, or the 26 contents thereof, except as expressly authorized by the Protective Order. ORDER C18-0573-JCC PAGE - 18 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 19 of 20 1 10. I agree that, to the extent that my employees are provided with Documents or ESI 2 that I receive designated CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEY’S 3 EYES ONLY, or the contents thereof, I will instruct such employees regarding the terms of the 4 Protective Order and will ensure that such employees do not disclose or use such Protected 5 Material, except as expressly authorized by the Protective Order. 6 11. I agree to maintain all information designated CONFIDENTIAL and HIGHLY 7 CONFIDENTIAL – ATTORNEY’S EYES ONLY, and any other Documents or ESI reflecting 8 such information, that comes into my possession in a separate and identifiable file, access to 9 which is appropriately restricted, and all copies are to remain in my custody until I have 10 11 completed my assigned or legal duties. 12. I will return all CONFIDENTIAL or HIGHLY CONFIDENTIAL – 12 ATTORNEY’S EYES ONLY information that comes into my possession or that I have prepared 13 relating thereto, to counsel for the party by whom I am retained. I acknowledge that such return 14 or the subsequent destruction of such materials shall not relieve me from any of the continuing 15 obligations imposed upon me by the Protective Order. 16 13. I consent to the exercise of personal jurisdiction by the U.S. District Court for the 17 Western District of Washington in connection with this declaration and my obligations under the 18 Protective Order, even if such enforcement proceedings occur after termination of the Action. 19 14. I agree that any disclosure or use of Documents or ESI designated 20 CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY, or the 21 contents thereof, in violation of the Protective Order will cause irreparable harm to the producing 22 Party, and therefore agree that the producing Party may pursue a temporary restraining order, 23 preliminary injunction, permanent injunction, and/or other forms of injunctive relief as a remedy. 24 // 25 // 26 // ORDER C18-0573-JCC PAGE - 19 Case 2:18-cv-00573-JCC Document 83 Filed 11/12/19 Page 20 of 20 1 I declare under penalty of perjury that the foregoing is true and correct. 2 Executed this ____ day of ________________, 20__ at __________________________ 3 in the State of __________________________. 4 5 (Signature) 6 (Print Name) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER C18-0573-JCC PAGE - 20
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