Zolotovitski v. HERE North America LLC, No. 2:2019cv01964 - Document 30 (W.D. Wash. 2020)
Court Description: ORDER GRANTING STIPULATED PROTECTIVE ORDER by Hon. Brian A Tsuchida, re: 28 Stipulated MOTION for Protective Order(TF)
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Zolotovitski v. HERE North America LLC Doc. 30 Case 2:19-cv-01964-RAJ-BAT Document 30 Filed 10/30/20 Page 1 of 9 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 ALEXANDRE B. ZOLOTOVITSKI, Plaintiff, 9 10 11 12 13 14 CASE NO. 2:19-cv-01964-RAJ-BAT ORDER GRANTING STIPULATED PROTECTIVE ORDER v. HERE NORTH AMERICA LLC, Defendant. Based in the Stipulation of the parties for entry of a protective order to govern the production of confidential, proprietary, or private information, it is ORDERED: 15 1. PURPOSES AND LIMITATIONS 16 Discovery in this action is likely to involve production of confidential, proprietary, or 17 private information for which special protection may be warranted. Accordingly, the parties 18 hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The 19 parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket 20 protection on all disclosures or responses to discovery, the protection it affords from public 21 disclosure and use extends only to the limited information or items that are entitled to 22 confidential treatment under the applicable legal principles, and it does not presumptively entitle 23 parties to file confidential information under seal. ORDER GRANTING STIPULATED PROTECTIVE ORDER - 1 Dockets.Justia.com Case 2:19-cv-01964-RAJ-BAT Document 30 Filed 10/30/20 Page 2 of 9 1 2. “CONFIDENTIAL” MATERIAL 2 “Confidential” material shall include the following documents and tangible things 3 produced or otherwise exchanged: (a) information prohibited from disclosure by statute; (b) 4 information that reveals trade secrets; (c) research, technical, commercial, proprietary, sensitive, 5 or financial information that the party has maintained as confidential; (d) medical information 6 concerning any individual; (e) personal identity information; (f) income tax returns (including 7 attached schedules and forms), W-2 forms and 1099 forms; (g) personnel or employment records 8 of a person who is not a party to the case; or (h) investigation documents including information 9 about employees and other individuals not party to this case. Information or documents that are 10 available to the public may not be designated as Confidential Information. 11 3. SCOPE 12 The protections conferred by this agreement cover not only confidential material (as 13 defined above), but also (1) any information copied or extracted from confidential material; (2) 14 all copies, excerpts, summaries or compilations of confidential material; and (3) any testimony, 15 conversations, or presentations by parties or their counsel that might reveal confidential 16 information. 17 18 However, the protections conferred by this agreement do not cover information that is in the public domain or becomes part of the public domain through trial or otherwise. 19 4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 20 4.1 Basic Principles. A receiving party may use confidential material that is disclosed or 21 produced by another party or by a non-party in connection with this case only for prosecuting, 22 defending, or attempting to settle this litigation. Confidential material may be disclosed only to 23 the categories of persons and under the conditions described in this agreement. Confidential ORDER GRANTING STIPULATED PROTECTIVE ORDER - 2 Case 2:19-cv-01964-RAJ-BAT Document 30 Filed 10/30/20 Page 3 of 9 1 material must be stored and maintained by a receiving party at a location and in a secure manner 2 that ensures that access is limited to the persons authorized under this agreement. 3 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by 4 the court or permitted in writing by the designating party, a receiving party may disclose any 5 confidential material only to: 6 7 8 9 10 11 12 (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’ (b) the officers, directors, and employees (including in house counsel) of the receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties agree that a particular document or material produced is for Attorney’s Eyes Only and is so designated; (c) experts and consultants to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgement and Agreement to Be Bound” (Exhibit A); 13 (d) the court, court personnel, and court reporters and their staff; 14 (e) copying or imaging services retained by counsel to assist in the duplication of 15 confidential material, provided that counsel for the party retaining the copy or imaging service 16 instructs the service not to disclose any confidential material to third parties and to immediately 17 return all originals and copies of any confidential material; 18 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 19 necessary and who have signed the “Acknowledgement and Agreement to Be Bound” (Exhibit 20 A), unless otherwise agreed to by the designating party or ordered by the court. Pages of 21 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 22 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 23 under this agreement; ORDER GRANTING STIPULATED PROTECTIVE ORDER - 3 Case 2:19-cv-01964-RAJ-BAT Document 30 Filed 10/30/20 Page 4 of 9 1 2 3 (g) 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 Filing Confidential Material. Before filing confidential material or discussing or 4 referencing such material in court filings, the filing party shall confer with the designating party, 5 in accordance with Local Civil Rule 5(g)(3)(A), to determine whether the designating party will 6 remove the confidential designation, whether the document can be redacted, or whether a motion 7 to seal or stipulation and proposed order is warranted. During the meet and confer process, the 8 designating party must identify the basis for sealing the specific confidential information at issue, 9 and the filing party shall include this basis in its motion to deal, along with any objection to 10 sealing the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be 11 followed and the standards that will be applied when a party seeks permission from the court to 12 file material under seal. A party who seeks to maintain the confidentiality of its information must 13 satisfy the requirements of Local Civil Rule 5(g)(3)(B), even if it is not the party filing the 14 motion to seal. Failure to satisfy this requirement will result in the motion to seal being denied, 15 in accordance with the strong presumption of public access to the Court’s files. 16 5. DESIGNATING PROTECTED MATERIAL 17 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party or 18 non-party that designates information or items for protection under this agreement must take care 19 to limit any such designation to specific material that qualifies under the appropriate standards. 20 The designating party must designate for protection only those parts of material, documents, 21 items, or oral or written communications that qualify, so that other portions of the material, 22 documents, items, or communications for which protection is not warranted are not swept 23 unjustifiably within the ambit of this agreement. ORDER GRANTING STIPULATED PROTECTIVE ORDER - 4 Case 2:19-cv-01964-RAJ-BAT Document 30 Filed 10/30/20 Page 5 of 9 1 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 2 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 3 unnecessarily encumber or delay the case development process or to impose unnecessary 4 expenses and burdens on other parties) expose the designating party to sanctions. 5 If it comes to a designating party’s attention that information or items that it designated 6 for protection do not qualify for protection, the designating party must promptly notify all other 7 parties that it is withdrawing the mistaken designation. 8 5.2 Manner and Timing of Designations. Except as otherwise provided in this agreement 9 (see, e.g., second paragraph of 5.2(a) below), or as otherwise stipulated or ordered, disclosure or 10 discovery material that qualifies for protection under this agreement must be clearly so 11 designated before or when the material is disclosed or produced. 12 (a) Information in documentary form: (e.g., paper or electronic documents and deposition 13 exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), the 14 designating party must affix the word “CONFIDENTAL” to each page that contains confidential 15 material. If only a portion of the material on a page qualifies for protection, the producing party 16 also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 17 margins). 18 (b) Testimony given in deposition or in other pretrial proceedings: the parties and any 19 participating non-parties must identify on the record, during the deposition or other pretrial 20 proceeding, all protected testimony, without prejudice to their right to so designate other 21 testimony after reviewing the transcript. Any party or non-party may, within fifteen (15) days 22 after receiving the transcript of the deposition or other pretrial proceedings, designate portions of 23 the transcript, or exhibits thereto, as confidential. If a party or non-party desires to protect ORDER GRANTING STIPULATED PROTECTIVE ORDER - 5 Case 2:19-cv-01964-RAJ-BAT Document 30 Filed 10/30/20 Page 6 of 9 1 2 confidential information at trial, the issue should be addressed during the pre-trial conference. (c) Other tangible items: the producing party must affix in a prominent place on the 3 exterior of the container or containers in which the information or item is stored the word 4 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 5 the producing party, to the extent practicable, shall identify the protected portion(s). 6 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 7 designate qualified information or items does not, standing along, waive the designating party’s 8 right to secure protection under this agreement for such material. Upon timely correction of a 9 designation, the receiving party must make reasonable efforts to ensure that the material is 10 treated in accordance with the provisions of this agreement. 11 6. CHALLEGING CONFIDENTIALITY DESIGNATIONS 12 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 13 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 14 designation is necessary to avoid foreseeable substantial unfairness, unnecessary economic 15 burdens, or a significant disruption or delay by electing not to mount a challenge promptly after 16 the 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 19 confidential designations or for a protective order must include a certification, in the motion or in 20 a declaration or affidavit, that the movant has engaged in a good faith meet and confer 21 conference with the other affected parties in an effort to resolve the dispute without court action. 22 The certification must list the date, manner, and participants to the conference. A good faith 23 effort to confer requires a face-to-face meeting or telephone conference. ORDER GRANTING STIPULATED PROTECTIVE ORDER - 6 Case 2:19-cv-01964-RAJ-BAT Document 30 Filed 10/30/20 Page 7 of 9 1 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court 2 intervention, the designating party may file and serve a motion to retain confidentiality under 3 Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 4 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 5 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 6 other parties) may expose the challenging party to sanctions. All parties shall continue to 7 maintain the material in questions as confidential until the court rules on the challenge. 8 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 9 If a party is served with a subpoena or a court order issued in other litigation that compels 10 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that 11 party must: 12 (a) promptly notify the designating party in writing and include a copy of the subpoena or 13 court order; 14 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 15 other litigation that some or all of the material covered by the subpoena or order is subject to this 16 agreement. Such notification shall include a copy of this agreement; and 17 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 18 designating party whose confidential material may be affected. 19 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 20 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 21 material to any person or in any circumstance not authorized under this agreement, the receiving 22 party must immediately (a) notify in writing the designating party of the unauthorized 23 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material, ORDER GRANTING STIPULATED PROTECTIVE ORDER - 7 Case 2:19-cv-01964-RAJ-BAT Document 30 Filed 10/30/20 Page 8 of 9 1 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of 2 this agreement, and (d) request that such person or persons execute the “Acknowledgement and 3 Agreement to be Bound” that is attached hereto as Exhibit A. 4 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 5 When a producing party gives notice to receiving parties that certain inadvertently 6 produced material is subject to a claim of privilege or other protection, the obligations of the 7 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 8 provision is not intendent to modify whatever procedure may be established in an e-discovery 9 order or agreement that provides for production without prior privilege review. The parties agree 10 to the entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. 11 10. NON TERMINATION AND RETURN OF DOCUMENTS 12 Within 60 days after the termination of this action, including all appeals, each receiving 13 party must return all confidential material to the producing party, including all copies, extracts 14 and summaries thereof. Alternatively, the parties may agree upon appropriate methods of 15 destruction. 16 Notwithstanding this provision, counsel are entitled to retain one archival copy of all 17 documents filed with the court, trial, deposition, and hearing transcripts, correspondence, 18 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert 19 work product, even if such material contain confidential material. 20 The confidential obligations imposed by this agreement shall remain in effect until a 21 designating party agrees otherwise in writing or a court orders otherwise. 22 IT IS FUTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any 23 documents in this proceeding shall not, for the purposes of this proceeding or any other federal ORDER GRANTING STIPULATED PROTECTIVE ORDER - 8 Case 2:19-cv-01964-RAJ-BAT Document 30 Filed 10/30/20 Page 9 of 9 1 or state proceeding, constitute waiver by the producing party of any privilege applicable to those 2 documents, including the attorney-client privilege, attorney work-product protection, or any 3 other privilege or protection recognized by law. 4 DATED this 30th day of October, 2020. 5 A 6 BRIAN A. TSUCHIDA Chief United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER GRANTING STIPULATED PROTECTIVE ORDER - 9
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