Robertson v. Dorn et al, No. 2:2021cv00064 - Document 137 (E.D. Wash. 2022)
Court Description: ORDER GRANTING 136 STIPULATED MOTION FOR PROTECTIVE ORDER. Signed by Chief Judge Stanley A Bastian. (MRJ, Case Administrator)
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Robertson v. Dorn et al Doc. 137 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Mar 22, 2022 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 ALAN D. ROBERTSON, 10 Plaintiff, 11 v. 12 LORNE A. DORN; and KIM DORN, 13 Defendants. No. 2:21-CV-00064-SAB ORDER GRANTING STIPULATED MOTION FOR PROTECTIVE ORDER 14 15 Before the Court is the parties’ Stipulated Protective Order Re: Nonparty 16 Providence Sacred Heart Medical Center, ECF No. 136. Plaintiff is represented by 17 David Beninger; Mark Kamitomo; Patricia Anderson; and George Ahrend. 18 Defendants are represented by Patricia Buchanan; Megan Starks; and Sara Sutton. 19 Providence Sacred Heart Medical Center is represented by Andrew Wagley and 20 Stephen Lamberson. 21 Pursuant to the Court’s previous Order, ECF No. 132, the parties have 22 submitted their stipulated proposed protective order for the information sought 23 from Providence Sacred Heart Medical Center. The Court finds good cause to 24 grant the motion. 25 // 26 // 27 // 28 // ORDER GRANTING STIPULATED MOTION FOR PROTECTIVE ORDER # 1 Dockets.Justia.com 1 Accordingly, IT IS HEREBY ORDERED: 2 1. The parties’ Stipulated Protective Order Re: Nonparty Providence 3 Sacred Heart Medical Center, ECF No. 136, is GRANTED. 4 2. The Court enters the following into the record: 5 Stipulated Protective Order 6 1. PURPOSES AND LIMITATIONS 7 After the Court in the above-entitled case denied protection from discovery 8 but granted a protective order on dissemination based on allegations that certain 9 information sought from Nonparty Providence Sacred Heart Medical Center 10 (“Nonparty PSHMC”) through the Amended Subpoena served on or about January 11 28, 2022 and March 9, 2022 may include protected confidential commercial 12 information. As a result of that Order, Plaintiff, Defendants, and Nonparty PSHMC 13 hereby submit to and petition the Court to enter the following Stipulated Protective 14 Order in the form adopted in this Circuit. The parties acknowledge that this 15 agreement is consistent with the order in this case and LCR 26(c). It does not 16 confer blanket protection on all disclosures or responses to discovery, the 17 protection it affords from public disclosure and use extends only to the limited 18 information or items that the Court determined are entitled to confidential 19 treatment under the applicable legal principles, and it does not presumptively 20 entitle parties to file confidential information under seal. 21 2. “CONFIDENTIAL” MATERIAL 22 “Confidential” material shall include certain information, documents, and 23 testimony designated as such in accordance with the Court’s Order and obtained 24 from Nonparty PSHMC. 25 3. SCOPE 26 The protections conferred by this agreement cover not only confidential 27 material (as defined above), but also (1) any information copied or extracted from 28 confidential material; (2) all copies, excerpts, summaries, or compilations of ORDER GRANTING STIPULATED MOTION FOR PROTECTIVE ORDER # 2 1 confidential material; and (3) any testimony, conversations, or presentations by 2 parties or their counsel that might reveal confidential material. However, the protections conferred by this agreement do not cover 3 4 information that is in the public domain or becomes part of the public domain 5 through trial or otherwise. 6 4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 7 4.1 Basic Principles. A receiving party may use confidential material that 8 is disclosed or produced by another party or by a non-party in connection with this 9 case only for prosecuting, defending, or attempting to settle this litigation. 10 Confidential material may be disclosed only to the categories of persons and under 11 the conditions described in this agreement. Confidential material must be stored 12 and maintained by a receiving party at a location and in a secure manner that 13 ensures that access is limited to the persons authorized under this agreement. 14 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 15 otherwise ordered by the court or permitted in writing by the designating party, a 16 receiving party may disclose any confidential material only to: 17 (a) the receiving party’s counsel of record in this action, as well as 18 employees of counsel to whom it is reasonably necessary to disclose the 19 information for this litigation; 20 (b) the officers, directors, and employees (including in house 21 counsel) of the receiving party to whom disclosure is reasonably necessary 22 for this litigation, unless the parties agree that a particular document or 23 material produced is for Attorney’s Eyes Only and is so designated; 24 (c) experts and consultants to whom disclosure is reasonably 25 necessary for this litigation and who have signed the “Acknowledgment and 26 Agreement to Be Bound” (Exhibit A); 27 28 (d) the court, court personnel, and court reporters and their staff; (e) copy or imaging services retained by counsel to assist in the ORDER GRANTING STIPULATED MOTION FOR PROTECTIVE ORDER # 3 1 duplication of confidential material, provided that counsel for the party 2 retaining the copy or imaging service instructs the service not to disclose any 3 confidential material to third parties and to immediately return all originals 4 and copies of any confidential material; 5 (f) during their depositions, witnesses in the action to whom 6 disclosure is reasonably necessary and who acknowledged they will treat 7 Confidential material as confidential consistent with this Protective Order, 8 and subsequently sign the “Acknowledgment and Agreement to Be Bound” 9 (Exhibit A), unless otherwise agreed by the designating party or ordered by 10 the court. Pages of transcribed deposition testimony or exhibits to 11 depositions that reveal confidential material must be separately bound by the 12 court reporter and may not be disclosed to anyone except as permitted under 13 this agreement; 14 (g) the author or recipient of a document containing the 15 information or a custodian or other person who otherwise possessed the 16 information. 17 4.3 Filing Confidential Material. Before filing confidential material or 18 discussing or referencing such material in court filings, the filing party shall confer 19 with the designating party to determine whether the designating party will remove 20 the confidential designation, whether the document can be redacted, or whether a 21 motion to seal or stipulation and proposed order is warranted. During the meet and 22 confer process, the designating party must identify the basis for sealing the specific 23 confidential information at issue, and the filing party shall include this basis in its 24 motion to seal, along with any objection to sealing the information at issue. A party 25 who seeks to maintain the confidentiality of its information must satisfy the 26 requirements of the applicable law even if it is not the party filing the motion to 27 seal. Failure to satisfy this requirement will result in the motion to seal being 28 denied, in accordance with the presumption of public access to the Court’s files. ORDER GRANTING STIPULATED MOTION FOR PROTECTIVE ORDER # 4 1 5. DESIGNATING PROTECTED MATERIAL 2 5.1 Exercise of Restraint and Care in Designating Material for Protection. 3 Each party or non-party that designates information or items for protection 4 under this agreement must take care to limit any such designation to specific 5 material that qualifies under the appropriate standards. The designating party must 6 designate for protection only those parts of material, documents, items, or oral or 7 written communications that qualify, so that other portions of the material, 8 documents, items, or communications for which protection is not warranted are not 9 swept unjustifiably within the ambit of this agreement. 10 Mass, indiscriminate, or routinized designations are prohibited. Designations 11 that are shown to be clearly unjustified or that have been made for an improper 12 purpose (e.g., to unnecessarily encumber or delay the case development process or 13 to impose unnecessary expenses and burdens on other parties) expose the 14 designating party to sanctions. 15 If it comes to a designating party’s attention that information or items that it 16 designated for protection do not qualify for protection, the designating party must 17 promptly notify all other parties that it is withdrawing the mistaken designation. 18 5.2 Manner and Timing of Designations. Except as otherwise provided in 19 this agreement (see, e.g., second paragraph of section 5.2(a) below), or as 20 otherwise stipulated or ordered, disclosure or discovery material that qualifies for 21 protection under this agreement must be clearly so designated before or when the 22 material is disclosed or produced. 23 (a) Information in documentary form: (e.g., paper or electronic 24 documents and deposition exhibits, but excluding transcripts of depositions 25 or other pretrial or trial proceedings), the designating party must affix the 26 word “CONFIDENTIAL” to each page that contains confidential material. If 27 only a portion or portions of the material on a page qualifies for protection, 28 the producing party also must clearly identify the protected portion(s) (e.g., ORDER GRANTING STIPULATED MOTION FOR PROTECTIVE ORDER # 5 1 by making appropriate markings in the margins). 2 (b) Testimony given in deposition or in other pretrial proceedings: 3 the parties and any participating non-parties must identify on the record, 4 during the deposition or other pretrial proceeding, all protected testimony, 5 without prejudice to their right to so designate other testimony after 6 reviewing the transcript. Any party or non-party may, within fifteen days 7 after receiving the transcript of the deposition or other pretrial proceeding, 8 designate portions of the transcript, or exhibits thereto, as confidential. If a 9 party or non-party desires to protect confidential information at trial, the 10 11 issue should be addressed during the pre-trial conference. (c) Other tangible items: the producing party must affix in a 12 prominent place on the exterior of the container or containers in which the 13 information or item is stored the word “CONFIDENTIAL.” If only a portion 14 or portions of the information or item warrant protection, the producing 15 party, to the extent practicable, shall identify the protected portion(s). 16 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 17 failure to designate qualified information or items does not, standing alone, waive 18 the designating party’s right to secure protection under this agreement for such 19 material. Upon timely correction of a designation, the receiving party must make 20 reasonable efforts to ensure that the material is treated in accordance with the 21 provisions of this agreement. 22 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 23 6.1 Timing of Challenges. Any party or non-party may challenge a 24 designation of confidentiality at any time. Unless a prompt challenge to a 25 designating party’s confidentiality designation is necessary to avoid foreseeable, 26 substantial unfairness, unnecessary economic burdens, or a significant disruption 27 or delay of the litigation, a party does not waive its right to challenge a 28 confidentiality designation by electing not to mount a challenge promptly after the ORDER GRANTING STIPULATED MOTION FOR PROTECTIVE ORDER # 6 1 original designation is disclosed. 6.2 Meet and Confer. The parties must make every attempt to resolve any 2 3 dispute regarding confidential designations without court involvement. Any motion 4 regarding confidential designations or for a protective order must include a 5 certification, in the motion or in a declaration or affidavit, that the movant has 6 engaged in a good faith meet and confer conference with other affected parties in 7 an effort to resolve the dispute without court action. The certification must list the 8 date, manner, and participants to the conference. A good faith effort to confer 9 requires a face-to-face meeting or a telephone conference. 6.3 Judicial Intervention. If the parties cannot resolve a challenge without 10 11 court intervention, the designating party may file and serve a motion to retain 12 confidentiality pursuant to the applicable law. The burden of persuasion in any 13 such motion shall be on the designating party. Frivolous challenges, and those 14 made for an improper purpose (e.g., to harass or impose unnecessary expenses and 15 burdens on other parties) may expose the challenging party to sanctions. All parties 16 shall continue to maintain the material in question as confidential until the court 17 rules on the challenge. 18 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 19 IN OTHER LITIGATION 20 If a party is served with a subpoena or a court order issued in other litigation 21 that compels disclosure of any information or items designated in this action as 22 “CONFIDENTIAL,” that party must: 23 24 25 (a) promptly notify the designating party in writing and include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena 26 or order to issue in the other litigation that some or all of the material 27 covered by the subpoena or order is subject to this agreement. Such 28 notification shall include a copy of this agreement; and ORDER GRANTING STIPULATED MOTION FOR PROTECTIVE ORDER # 7 1 (c) cooperate with respect to all reasonable procedures sought to be 2 pursued by the designating party whose confidential material may be 3 affected. 4 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 5 If a receiving party learns that, by inadvertence or otherwise, it has disclosed 6 confidential material to any person or in any circumstance not authorized under 7 this agreement, the receiving party must immediately (a) notify in writing the 8 designating party of the unauthorized disclosures, (b) use its best efforts to retrieve 9 all unauthorized copies of the protected material, (c) inform the person or persons 10 to whom unauthorized disclosures were made of all the terms of this agreement, 11 and (d) request that such person or persons execute the “Acknowledgment and 12 Agreement to Be Bound” that is attached hereto as Exhibit A. 13 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 14 PROTECTED MATERIAL 15 When a producing party gives notice to receiving parties that certain 16 inadvertently produced material is subject to a claim of privilege or other 17 protection, the obligations of the receiving parties are those set forth in Federal 18 Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 19 whatever procedure may be established in an e-discovery order or agreement that 20 provides for production without prior privilege review. The parties agree to the 21 entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. 22 10. NON TERMINATION AND RETURN OF DOCUMENTS 23 Within 60 days after the termination of this action, including all appeals, 24 each receiving party must return all confidential material to the producing party, 25 including all copies, extracts and summaries thereof. Alternatively, the parties may 26 agree upon appropriate methods of destruction. 27 Notwithstanding this provision, counsel are entitled to retain one archival 28 copy of the file, even if such materials contain confidential material. ORDER GRANTING STIPULATED MOTION FOR PROTECTIVE ORDER # 8 1 The confidentiality obligations imposed by this agreement shall remain in 2 effect until a designating party agrees otherwise in writing or a court orders 3 otherwise. 4 IT IS SO ORDERED. The District Court Clerk is directed to enter this 5 Order and provide copies to counsel. 6 DATED this 22nd day of March 2022. 7 8 9 10 11 12 Stanley A. Bastian Chief United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING STIPULATED MOTION FOR PROTECTIVE ORDER # 9
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