Northwest Administrators Inc v. Del Monte Foods Inc, No. 2:2022cv01499 - Document 11 (W.D. Wash. 2022)
Court Description: ORDER granting Parties' 10 Joint Stipulated MOTION for Protective Order. Signed by U.S. District Judge John C. Coughenour. (SS)
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Northwest Administrators Inc v. Del Monte Foods Inc Doc. 11 Case 2:22-cv-01499-JCC Document 11 Filed 12/01/22 Page 1 of 9 Honorable Judge John C. Coughenour 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON SEATTLE DIVISION 6 7 8 9 NORTHWEST ADMINISTRATORS, INC., 10 Plaintiff, 13 DEL MONTE FOODS, INC., a Delaware corporation, Defendant. 14 15 1. 16 17 18 19 20 21 22 23 24 25 26 [PROPOSED] STIPULATED PROTECTIVE ORDER vs. 11 12 Case No. 2:22-cv-01499-JCC PURPOSES AND LIMITATIONS Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket protection on all disclosures or responses to discovery, the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles, and it does not presumptively entitle parties to file confidential information under seal. 2. “CONFIDENTIAL” MATERIAL “Confidential” material shall include the following documents and tangible things produced or otherwise exchanged: (a) personal information of any employee or other person, [PROPOSED] STIPULATED PROTECTIVE ORDER - 1 Case No. 2:22-cv-01499-JCC OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 1201 Third Avenue, Suite 5150 | Seattle, WA 98101 Phone: 206-693-7052 | Fax: 206-693-7058 Dockets.Justia.com Case 2:22-cv-01499-JCC Document 11 Filed 12/01/22 Page 2 of 9 1 including compensation information, tax records, discipline, policy violations, personally 2 identifying information, personnel files, and contact information; (b) information furnished to 3 the disclosing party in confidence by any third party, which information is not known or freely 4 accessible to the general public; (c) documents containing or disclosing confidential or 5 proprietary information regarding Defendant’s competitive strategic initiatives, business plans, 6 contracts with third-party providers, nonpublic litigation information, and/or analyses; (d) 7 internal communications related to confidential, proprietary, and/or trade secret information; and 8 (e) medical records of Plaintiff and/or other employees of Defendant. 9 3. SCOPE The protections conferred by this agreement cover not only confidential material (as 10 11 defined above), but also (1) any information copied or extracted from confidential material; (2) 12 all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 13 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 14 15 the public domain or becomes part of the public domain through trial or otherwise. 16 4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 17 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 18 or produced by another party or by a non-party in connection with this case only for prosecuting, 19 defending, or attempting to settle this litigation. Confidential material may be disclosed only to 20 the categories of persons and under the conditions described in this agreement. Confidential 21 material must be stored and maintained by a receiving party at a location and in a secure manner 22 that ensures that access is limited to the persons authorized under this agreement. 23 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 24 ordered by the court or permitted in writing by the designating party, a receiving party may 25 disclose any confidential material only to: 26 [PROPOSED] STIPULATED PROTECTIVE ORDER - 2 Case No. 2:22-cv-01499-JCC OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 1201 Third Avenue, Suite 5150 | Seattle, WA 98101 Phone: 206-693-7052 | Fax: 206-693-7058 Case 2:22-cv-01499-JCC Document 11 Filed 12/01/22 Page 3 of 9 (a) 1 the receiving party’s counsel of record in this action, as well as employees 2 of counsel to whom it is reasonably necessary to disclose the information for this litigation; (b) 3 the officers, directors, and employees (including in house counsel) of the 4 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties 5 agree that a particular document or material produced is for Attorney’s Eyes Only and is so 6 designated; (c) 7 experts and consultants to whom disclosure is reasonably necessary for 8 this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 9 A); 10 (d) the court, court personnel, and court reporters and their staff; 11 (e) copy or imaging services retained by counsel to assist in the duplication 12 of confidential material, provided that counsel for the party retaining the copy or imaging service 13 instructs the service not to disclose any confidential material to third parties and to immediately 14 return all originals and copies of any confidential material; (f) 15 during their depositions, witnesses in the action to whom disclosure is 16 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 17 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of 18 transcribed deposition testimony or exhibits to depositions that reveal confidential material must 19 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 20 under this agreement; (g) 21 the author or recipient of a document containing the information or a 22 custodian or other person who otherwise possessed or knew the information. 23 4.3 Filing Confidential Material. Before filing confidential material or discussing or 24 referencing such material in court filings, the filing party shall confer with the designating party, 25 in accordance with Local Civil Rule 5(g)(3)(A), to determine whether the designating party will 26 remove the confidential designation, whether the document can be redacted, or whether a motion [PROPOSED] STIPULATED PROTECTIVE ORDER - 3 Case No. 2:22-cv-01499-JCC OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 1201 Third Avenue, Suite 5150 | Seattle, WA 98101 Phone: 206-693-7052 | Fax: 206-693-7058 Case 2:22-cv-01499-JCC Document 11 Filed 12/01/22 Page 4 of 9 1 to seal or stipulation and proposed order is warranted. During the meet and confer process, the 2 designating party must identify the basis for sealing the specific confidential information at issue, 3 and the filing party shall include this basis in its motion to seal, along with any objection to 4 sealing the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be 5 followed and the standards that will be applied when a party seeks permission from the court to 6 file material under seal. A party who seeks to maintain the confidentiality of its information 7 must satisfy the requirements of Local Civil Rule 5(g)(3)(B), even if it is not the party filing the 8 motion to seal. Failure to satisfy this requirement will result in the motion to seal being denied, 9 in accordance with the strong presumption of public access to the Court’s files. 10 5. DESIGNATING PROTECTED MATERIAL 11 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 12 or non-party that designates information or items for protection under this agreement must take 13 care to limit any such designation to specific material that qualifies under the appropriate 14 standards. The designating party must designate for protection only those parts of material, 15 documents, items, or oral or written communications that qualify, so that other portions of the 16 material, documents, items, or communications for which protection is not warranted are not 17 swept unjustifiably within the ambit of this agreement. 18 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 19 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 20 unnecessarily encumber or delay the case development process or to impose unnecessary 21 expenses and burdens on other parties) expose the designating party to sanctions. 22 If it comes to a designating party’s attention that information or items that it designated 23 for protection do not qualify for protection, the designating party must promptly notify all other 24 parties that it is withdrawing the mistaken designation. 25 5.2 Manner and Timing of Designations. Except as otherwise provided in this 26 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or [PROPOSED] STIPULATED PROTECTIVE ORDER - 4 Case No. 2:22-cv-01499-JCC OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 1201 Third Avenue, Suite 5150 | Seattle, WA 98101 Phone: 206-693-7052 | Fax: 206-693-7058 Case 2:22-cv-01499-JCC Document 11 Filed 12/01/22 Page 5 of 9 1 ordered, disclosure or discovery material that qualifies for protection under this agreement must 2 be clearly so designated before or when the material is disclosed or produced. (a) 3 Information in documentary form: (e.g., paper or electronic documents 4 and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial 5 proceedings), the designating party must affix the word “CONFIDENTIAL” to each page that 6 contains confidential material. If only a portion or portions of the material on a page qualifies 7 for protection, the producing party also must clearly identify the protected portion(s) (e.g., by 8 making appropriate markings in the margins). (b) 9 Testimony given in deposition or in other pretrial proceedings: the parties 10 and any participating non-parties must identify on the record, during the deposition or other 11 pretrial proceeding, all protected testimony, without prejudice to their right to so designate other 12 testimony after reviewing the transcript. Any party or non-party may, within fifteen days after 13 receiving the transcript of the deposition or other pretrial proceeding, designate portions of the 14 transcript, or exhibits thereto, as confidential. If a party or non-party desires to protect 15 confidential information at trial, the issue should be addressed during the pre-trial conference. (c) 16 Other tangible items: the producing party must affix in a prominent place 17 on the exterior of the container or containers in which the information or item is stored the word 18 “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 19 the producing party, to the extent practicable, shall identify the protected portion(s). 20 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 21 designate qualified information or items does not, standing alone, waive the designating party’s 22 right to secure protection under this agreement for such material. Upon timely correction of a 23 designation, the receiving party must make reasonable efforts to ensure that the material is treated 24 in accordance with the provisions of this agreement. 25 26 [PROPOSED] STIPULATED PROTECTIVE ORDER - 5 Case No. 2:22-cv-01499-JCC OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 1201 Third Avenue, Suite 5150 | Seattle, WA 98101 Phone: 206-693-7052 | Fax: 206-693-7058 Case 2:22-cv-01499-JCC Document 11 Filed 12/01/22 Page 6 of 9 1 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 2 6.1 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 10 confidential designations or for a protective order must include a certification, in the motion or 11 in a declaration or affidavit, that the movant has engaged in a good faith meet and confer 12 conference with other affected parties in an effort to resolve the dispute without court action. 13 The certification must list the date, manner, and participants to the conference. A good faith 14 effort to confer requires a face-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 17 Local 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 21 maintain the material in question as confidential until the court rules on the challenge. 22 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 23 LITIGATION 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,” that 26 party must: [PROPOSED] STIPULATED PROTECTIVE ORDER - 6 Case No. 2:22-cv-01499-JCC OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 1201 Third Avenue, Suite 5150 | Seattle, WA 98101 Phone: 206-693-7052 | Fax: 206-693-7058 Case 2:22-cv-01499-JCC Document 11 Filed 12/01/22 Page 7 of 9 (a) 1 promptly notify the designating party in writing and include a copy of the 2 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 7 by 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 12 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material, 13 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms 14 of this agreement, and (d) request that such person or persons execute the “Acknowledgment 15 and Agreement to Be Bound” that is attached hereto as Exhibit A. 16 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 17 MATERIAL When a producing party gives notice to receiving parties that certain inadvertently 18 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 21 provision is not intended to modify whatever procedure may be established in an e-discovery 22 order or agreement that provides for production without prior privilege review. The parties agree 23 to the 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 [PROPOSED] STIPULATED PROTECTIVE ORDER - 7 Case No. 2:22-cv-01499-JCC OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 1201 Third Avenue, Suite 5150 | Seattle, WA 98101 Phone: 206-693-7052 | Fax: 206-693-7058 Case 2:22-cv-01499-JCC Document 11 Filed 12/01/22 Page 8 of 9 1 and summaries thereof. Alternatively, the parties may agree upon appropriate methods of 2 destruction. 3 Notwithstanding this provision, counsel are entitled to retain one archival copy of all 4 documents filed with the court, trial, deposition, and hearing transcripts, correspondence, 5 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert 6 work product, even if such materials contain confidential material. 7 The confidentiality obligations imposed by this agreement shall remain in effect until a 8 designating party agrees otherwise in writing or a court orders otherwise. 9 10 11 12 13 14 15 16 17 18 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. Respectfully submitted this 30th day of November, 2022. REID, MCCARTHY, BALLEW & LEAHY, LLP OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Russell J. Reid Russell J. Reid, WSBA #2560 100 West Harrison Street North Tower, Suite 300 Seattle, WA 98119 Telephone: (206) 285-0464 Facsimile: (206) 285-8925 Email: RJR@rmbllaw.com By: /s/ Russell S. Buhite Russell S. Buhite, WSBA #41257 1201 Third Avenue, Suite 5150 Seattle, WA 98101 Telephone: (206) 693-7057 Facsimile: (206) 693-7058 Email: russell.buhite@ogletree.com Attorneys for Plaintiff Northwest Administrators, Inc. Attorneys for Defendant Del Monte Foods, Inc. 19 20 21 22 23 24 25 26 [PROPOSED] STIPULATED PROTECTIVE ORDER - 8 Case No. 2:22-cv-01499-JCC OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 1201 Third Avenue, Suite 5150 | Seattle, WA 98101 Phone: 206-693-7052 | Fax: 206-693-7058 Case 2:22-cv-01499-JCC Document 11 Filed 12/01/22 Page 9 of 9 1 PURSUANT TO STIPULATION, IT IS SO ORDERED, 2 IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of 3 any documents in this proceeding shall not, for the purposes of this proceeding or any other 4 federal or state proceeding, constitute a waiver by the producing party of any privilege applicable 5 to those documents, including the attorney-client privilege, attorney work-product protection, or 6 any other privilege or protection recognized by law. 7 8 DATED: December 1, 2022 9 A 10 11 12 JOHN C. COUGHENOUR United States District Court Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 [PROPOSED] STIPULATED PROTECTIVE ORDER - 9 Case No. 2:22-cv-01499-JCC OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 1201 Third Avenue, Suite 5150 | Seattle, WA 98101 Phone: 206-693-7052 | Fax: 206-693-7058
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