United States of America et al v. Port of Benton County et al, No. 2:2017cv00191 - Document 130 (E.D. Wash. 2019)
Court Description: ORDER granting 126 Stipulated Motion for Protective Order. Signed by Chief Judge Thomas O. Rice. (BF, Paralegal)
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1 2 3 4 5 6 7 Nicholas D. Kovarik, WSBA #35462 Whitny L. Norton, WSBA #46485 PISKEL YAHNE KOVARIK, PLLC 522 W. Riverside Ave., Suite 700 Spokane, WA 99201 Telephone: (509) 321-5930 Facsimile: (509) 321-5935 Email: nick@pyklawyers.com Email: whitny@pyklawyers.com Attorneys for Plaintiffs 8 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 9 10 15 UNITED STATES OF AMERICA, ex rel., RANDOLPH PETERSON, individually and as relator; TRICITY RAILROAD COMPANY, LLC, a Washington limited liability company; as a Washington corporation and as relator; 16 Plaintiffs, 11 12 13 14 17 v. 18 19 20 21 22 23 24 25 PORT OF BENTON COUNTY, a Washington State Municipal Entity; SCOTT KELLER, individually and as Executive Director of Port of Benton; ROBERT LARSON, individually and as Commissioner of Port of Benton; ROY KECK, individually and as Commissioner of Port of Benton; JANE HAGERTY, individually and as STIPULATION AND PROTECTIVE ORDER - 1 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) NO. 2:17-cv-191-TOR STIPULATION AND PROTECTIVE ORDER RE: COMPANY AND INDIVIDUAL TAX RETURNS 1 2 3 4 5 6 7 8 9 Commissioner of the Port of Benton; JOHN DOES 1-99, employees, officers, directors, agents of the Port of Benton; CITY OF RICHLAND, a Washington State Municipal entity; PETER ROGALSKY, individually and as Public Works Director of the City of Richland; and JOHN DOES 1-99, employees, officers, directors, agents of the City of Richland. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) 10 Plaintiffs and Defendants, by and through their counsel of record, 11 hereby stipulate as follows pursuant to FRCP 29(b) and move the Court for 12 13 a Protective Order pursuant to FRCP 26(c). 14 Defendants have requested the tax returns of Plaintiff Tri-City 15 Railroad Company LLC and Plaintiff Randolph Peterson. It is anticipated 16 that Plaintiffs may request the tax returns of one or more of the Defendants 17 18 herein. Tax returns and related information may contain privileged, 19 private, confidential, proprietary, or commercially sensitive information, 20 and the parties could be seriously prejudiced by the disclosure of such 21 privileged, private, confidential, proprietary, or sensitive information to 22 23 24 25 third parties in the above-captioned matter (the “Litigation”). THE PARTIES HEREBY STIPULATE AND AGREE to the following terms and conditions, which shall apply to the Litigation. STIPULATION AND PROTECTIVE ORDER - 2 1 1. Purposes and Limitations. Disclosure and discovery activity in 2 this Litigation may involve production of tax returns which may contain 3 privileged, private, confidential, proprietary, or commercially sensitive 4 information for which special protection from public disclosure is 5 6 warranted. All tax returns or related documents designated “Confidential” 7 or “Attorney’s Eyes Only” under this Stipulated Protective Order 8 (“Protective Order”) shall be used solely for the purpose of prosecuting or 9 defending this Litigation and for no other purpose. 10 11 12 13 14 2. Definitions. a. Confidential. “Confidential” means all tax returns and related documents conveyed during this Litigation and designated in good faith by the producing and designating party as “Confidential” as of the time of 15 16 production or conveyance. Only those “Qualified Persons” as defined in 17 paragraph 6 shall have access to such information unless otherwise 18 provided by this Protective Order or other order of the Court. 19 b. Attorney’s Eyes Only. “Attorney’s Eyes Only” means all tax 20 21 returns and related documents conveyed during this Litigation and 22 designated in good faith by the producing party or designating party as 23 “Attorney’s Eyes Only” at the time of production. 24 25 STIPULATION AND PROTECTIVE ORDER - 3 1 3. Designating Material for Protection. The party producing tax 2 returns or related information that is not publicly available may designate 3 as “Confidential” or “Attorney’s Eyes Only” such information that it in good 4 faith believes embodies privileged, private, confidential, proprietary, or 5 6 commercially sensitive information (“Confidential Information”). 7 4. Method of Designation. The producing party may designate 8 Confidential Information by stamping a document containing such 9 Confidential Information with the legend “Confidential” or “Attorney’s 10 11 Eyes Only.” Where possible, the producing party will seek to produce non- 12 confidential, redacted versions of confidential documents – so that 13 portions of the material, documents, items, or communications for which 14 confidential protection is not warranted are available in non-protected 15 16 17 18 19 form. With respect to depositions or other pre-trial testimony, the designation may be made by: (a) a statement on the record by counsel at the time of or immediately following the disclosure that such testimony shall be treated as Confidential 20 21 Information; or 22 (b) by written notice, sent by counsel, within five (5) business days 23 after receiving a copy of the transcript of such testimony, that such 24 testimony shall be treated as Confidential Information. In the event that 25 STIPULATION AND PROTECTIVE ORDER - 4 1 the designation comes after a transcript has been disclosed to clients or 2 third parties without such designations, the disclosing party shall use best 3 efforts to retrieve and replace the original transcript with the new one 4 containing the subsequently received designations. 5 6 5. Filing Confidential Material. Subject to the Federal Rules of 7 Evidence, documents containing Confidential Information may be offered 8 into evidence in the Litigation or as part of any hearing related thereto, only 9 on the following conditions: 10 11 a. Use in Any Motion/Pre-Trial Filing. The Parties agree that 12 when any party seeks to file a pleading, motion, or other pre-trial filing that 13 contains or attaches Confidential Information, the filing party shall confer 14 with the designating party to determine whether the designating party will 15 16 remove the confidential designation, whether the document can be 17 redacted, or whether a motion to seal or stipulation and proposed order is 18 warranted. During the meet and confer process, the designating party must 19 identify the basis for sealing the specific confidential information at issue, 20 21 22 and the filing party shall include this basis in its motion to seal, along with any objection to sealing the information at issue. 23 24 25 STIPULATION AND PROTECTIVE ORDER - 5 1 b. Use as an Exhibit at Trial. The parties will raise any disputes 2 over the confidential nature of particular exhibits to be used at trial or at 3 any evidentiary hearing with the Court as needed. 4 6. Persons Entitled to Review Confidential Information. 5 6 Except as permitted by further order or by subsequent written agreement 7 of the producing party, disclosure of Confidential Information documents 8 shall be limited to the following “Qualified Persons”: 9 a. The Court and employees thereof if filed under seal in 10 11 12 13 14 accordance with FRCP 5.2, unless the Court orders otherwise; b. Any party to the Litigation (including corporate officers, directors, and employees), but only including those employees of any party of the Litigation who are assisting with the prosecution or defense of the 15 16 17 18 19 Litigation, unless a particular document or material produced is designated as for Attorney’s Eyes Only; c. Outside counsel of record to any party to the Litigation including their staff who are assigned to and necessary to assist such 20 21 22 23 24 counsel in the preparation of this Litigation; d. In-house counsel and attorneys, paralegal, clerical, and other staff employed by such counsel for the parties who are assisting in the prosecution or defense of the Litigation; 25 STIPULATION AND PROTECTIVE ORDER - 6 1 2 3 4 e. Court reporters; f. Outside experts, advisors, or consultants retained by counsel of record in the Litigation who have signed the “Confidentiality Agreement” (Exhibit A); 5 6 g. Potential fact witnesses, to the extent reasonably necessary, in 7 connection with their testimony or in preparation thereof, who have signed 8 the “Confidentiality Agreement” (Exhibit A), unless a particular document 9 or material produced is designated as for Attorney’s Eyes Only; 10 11 h. copy or imaging services retained by counsel to assist in the 12 duplication of confidential material, provided that counsel for the party 13 retaining the copy or imaging service instructs the service not to disclose 14 any confidential material to third parties and to immediately return all 15 16 17 18 19 originals and copies of any confidential material; and i. Any other persons to whom the Plaintiffs and Defendants agree in writing. 7. Preservation of Confidential Information. All qualified 20 21 Persons who have received “Confidential Information” and “Attorney’s 22 Eyes Only” documents pursuant to this Protective Order shall safeguard 23 such information so as to prevent its disclosure to persons who are not 24 Qualified Persons entitled to see such Confidential Information. 25 STIPULATION AND PROTECTIVE ORDER - 7 1 8. Inadvertent Disclosures. Inadvertent failure to designate 2 material as “Confidential” or “Attorney’s Eyes Only” shall not be deemed a 3 waiver of any claim of confidentiality as to such matter, and the same 4 thereafter may be corrected by supplemental written notice. When a 5 6 “Confidential” or “Attorney’s Eyes Only” designation is subsequently made 7 with respect to any material, the receiving party shall treat such material as 8 confidential and shall promptly inform any persons to whom the receiving 9 party transmitted copies of such material that the material has been 10 11 designated “Confidential” or “Attorney’s Eyes Only.” If Confidential 12 Information is disclosed to any person other than in the manner authorized 13 by this Protective Order, the person responsible for the disclosure shall 14 immediately bring all pertinent facts relating to such disclosure to the 15 16 attention of counsel for all parties, without prejudice to other rights and 17 remedies of any party, and shall make every effort to prevent further 18 disclosure by it or by the person who was the recipient of such Confidential 19 Information. 20 21 9. Limitations on Application. Nothing in the Protective Order 22 shall preclude any party to this Litigation or their attorneys from disclosing 23 or using, in any manner or for any purpose, any information or documents 24 25 STIPULATION AND PROTECTIVE ORDER - 8 1 2 3 4 from that party’s own files which the party itself has designated as “Confidential” or “Attorney’s Eyes Only.” 10. Resolution of Disputes. If any party to this Protective Order objects to the designation of any materials as “Confidential” or “Attorney’s 5 6 Eyes Only” the party shall first state the objection by letter to the party that 7 produced the materials. The parties agree to confer in good faith by 8 telephone or in person to resolve any dispute respecting the terms or 9 operation of this Protective Order. If the parties are unable to resolve such 10 11 dispute, the party who objects to the designation of the materials as 12 “Confidential” or “Attorney’s Eyes Only” may file a motion with the Court, 13 in which case the materials shall be submitted to the Court for an in camera 14 inspection to determine whether the materials justify the designation. Until 15 16 17 18 19 the Court rules on the motion, the materials in question shall continue to be treated as so designated. 11. Return or Destruction. All Confidential Information and all copies thereof shall be destroyed and certified to the producing party as 20 21 having been destroyed, or alternatively returned to counsel for the 22 producing party within sixty (60) days after the final conclusion of the 23 Litigation. Notwithstanding this provision, counsel are entitled to retain 24 one archival copy of all documents filed with the court, trial, deposition, 25 STIPULATION AND PROTECTIVE ORDER - 9 1 and hearing transcripts, correspondence, deposition and trial exhibits, 2 expert reports, attorney work product, and consultant and expert work 3 product, even if such materials contain confidential information. 4 12. Application Following Termination of Litigation. After the 5 6 termination of this Litigation, this Protective Order shall continue to be 7 binding upon the parties hereto, and upon all persons to whom 8 Confidential Information has been disclosed or communicated. 9 13. Notice. Any notice required or permitted herein shall be made to 10 11 12 13 14 the parties’ counsel of record. Notice may be by email, letter, or telephone with email confirmation so as to provide timely notice as appropriate. 14. Non-Waiver. Nothing herein shall prevent the parties from seeking an order from the Court further restricting the use or access to 15 16 information. 17 15. Amendments. Notwithstanding anything herein to the contrary, 18 this Protective Order shall not prevent any party from applying for relief 19 therefrom, or from agreeing among themselves to modify or vacate this 20 21 Protective Order, subject to the approval of the Court. The parties agree 22 that the purpose of this Protective Order is to expedite the production and 23 protection of potentially Confidential Information for the purposes of this 24 25 STIPULATION AND PROTECTIVE ORDER - 10 1 2 3 4 lawsuit, and that it may later be appropriate to modify this order as reasonably needed to litigate and try these disputes. 16. Other Lawsuits. In the event anyone covered by this Order (a) is subpoenaed in another action, or (b) is served with a demand in another 5 6 action to which he or it is a party, or (c) is served with any other legal 7 process by a person not a party to this Litigation, and is requested to 8 produce or otherwise disclose discovery material, including material that 9 was designated “Confidential” or “Attorney’s Eyes Only” they shall give 10 11 prompt written notice to the person who designated the material as 12 “Confidential” or “Attorney’s Eyes Only” and object to production on the 13 grounds of this Protective Order. Should the person seeking access to the 14 discovery material take action against anyone covered by this Protective 15 16 Order to enforce such a subpoena, demand or legal process, the party 17 covered by this Protective Order shall respond by setting forth the existence 18 of this Protective Order. Nothing in this Protective Order shall be construed 19 as requiring anyone covered by this Protective Order to resist a motion to 20 21 22 23 24 compel production other than giving notice and filing the objections referenced in this paragraph. 17. Third Party Information. If discovery is sought of a person not a party to this Litigation (“Third Party”) requiring disclosure of such Third 25 STIPULATION AND PROTECTIVE ORDER - 11 1 Party’s tax returns or related documents, the Confidential Information 2 disclosed by such Third Party will be accorded the same protection as the 3 parties’ Confidential Information, and will be subject to the same 4 procedures as those governing disclosure of the parties’ Confidential 5 6 7 8 9 Information pursuant to this Protective Order. Pursuant to the foregoing Stipulation, the following Protective Order is hereby approved and notice of presentment waived. DATED this 12th day of July 2019. DATED this 12th day of July 2019. 10 11 12 13 14 15 PISKEL YAHNE KOVARIK, PLLC KELLER ROHRBACK LLP s/ Whitny L. Norton NICHOLAS D. KOVARIK, WSBA #35462 WHITNY L. NORTON, WSBA #46485 Attorneys for Plaintiffs s/ Rob J. Crichton ROB J. CRICHTON, WSBA #20471 HOLLY LYNCH, WSBA #37281 ERIC R. LALIBERTE, WSBA #44840 Attorneys for Port of Benton Defendants 16 17 18 19 DATED this 12th day of July 2019. CALFO EAKES & OSTROVSKY, PLLC 20 21 22 23 24 s/ Emily D. Powell ANGELO J. CALFO, WSBA #27079 EMILY DODDS POWELL, WSBA #49351 Attorneys for City of Richland and Peter Rogalsky 25 STIPULATION AND PROTECTIVE ORDER - 12 II. 1 PROTECTIVE ORDER 2 Pursuant to the foregoing STIPULATION between the Parties, 3 Plaintiffs and Defendants are bound by the terms of the foregoing 4 Stipulation; 5 6 7 IT IS SO ORDERED. DONE this 16th day of July 2019. 8 ____________________________ HONORABLE THOMAS O. RICE 9 10 11 Presented by: 12 PISKEL YAHNE KOVARIK, PLLC 13 s/ Whitny L. Norton NICHOLAS D. KOVARIK, WSBA#35462 WHITNY L. NORTON, WSBA #46485 Attorneys for Plaintiffs 14 15 16 Approved as to Form, notice of presentment waived: 17 18 19 20 21 KELLER ROHRBACK LLP s/ Rob J. Crichton ROB J. CRICHTON, WSBA #20471 HOLLY LYNCH, WSBA #37281 ERIC R. LALIBERTE, WSBA #44840 22 CALFO EAKES & OSTROVSKY, PLLC 23 s/ Emily D. Powell ANGELO J. CALFO, WSBA #27079 EMILY DODDS POWELL, WSBA #49351 Attorneys for City of Richland and Peter Rogalsky 24 25 STIPULATION AND PROTECTIVE ORDER - 13 1 EXHIBIT A TO THE STIPULATION AND PROTECTIVE ORDER 2 Confidentiality Agreement 3 4 I, ____________________, of ____________________, 5 declare under penalty of perjury that I have read in its entirety and 6 understand the Stipulated Protective Order that was issued by the United 7 States District Court for the Eastern District of Washington on [date] in 8 Case No. 2:17-cv-191-TOR. I agree to comply with and to be bound by all 9 the terms of this Stipulated Protective Order and I understand and 10 acknowledge that failure to so comply could expose me to sanctions and 11 punishment in the nature of contempt. I solemnly promise that I will not 12 disclose in any manner any information or item that is subject to this 13 Stipulated Protective Order to any person or entity except in strict 14 compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States 16 District Court for the Eastern District of Washington for the purpose of 17 enforcing the terms of this Stipulated Protective Order, even if such 18 enforcement proceedings occur after termination of this action. 19 20 21 Signed this ___ day of _________, 20 __, ____________ County, __________. 22 _________________________ 23 24 25 STIPULATION AND PROTECTIVE ORDER - 14
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