Forte v. Convergent Outsourcing Inc, No. 2:2021cv00128 - Document 22 (W.D. Wash. 2021)
Court Description: ORDER GRANTING STIPULATED PROTECTIVE ORDER by Hon. Brian A Tsuchida, re 21 Stipulated MOTION for Protective Order. (TF)
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Forte v. Convergent Outsourcing Inc Doc. 22 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 SELENA FORTE, Plaintiff, 9 11 ORDER GRANTING STIPULATED PROTECTIVE ORDER v. 10 CASE NO. 2:21-cv-00128-BAT CONVERGENT OUTSOURCING INC, Defendant. 12 13 Pursuant to the parties’ Stipulated Motion for Protective Order (Dkt. 21), it is 14 ORDERED that the following Stipulated Protective Order shall govern the parties’ production 15 of documents or information that at least one party considers to be or to contain confidential 16 information, and that is subject to protection under Federal Rule of Civil Procedure 26(c): 17 1. 18 PURPOSES AND LIMITATIONS Discovery in this action is likely to involve production of confidential, proprietary, or 19 private information for which special protection may be warranted. Accordingly, the parties have 20 stipulated and petitioned the Court to enter this Protective Order. Dkt. 21. The parties 21 acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket 22 protection on all disclosures or responses to discovery, the protection it affords from public 23 disclosure and use extends only to the limited information or items that are entitled to ORDER GRANTING STIPULATED PROTECTIVE ORDER - 1 Dockets.Justia.com 1 confidential treatment under the applicable legal principles, and it does not presumptively entitle 2 parties to file confidential information under seal. 3 2. “CONFIDENTIAL” AND “HIGHLY CONFIDENTIAL” MATERIAL “Confidential” material shall include the following documents and tangible things 4 5 produced or otherwise exchanged: (1) sensitive and/or non-public contractual terms with third- 6 parties; (2) protected personal information (including contact information) and other information 7 subject to privacy laws; and (3) other non-public business information that is treated 8 confidentially by the producing party in the ordinary course of business, the disclosure of which 9 may cause the producing party to be commercially disadvantaged or prejudiced. “Highly Confidential” material means any Confidential material which the producing 10 11 party reasonably believes to be so competitively sensitive that it is entitled to additional 12 protection via an “Attorneys’ Eyes Only” designation. 13 3. SCOPE The protections conferred by this agreement cover not only confidential material (as 14 15 defined above), but also (1) any information copied or extracted from confidential material; (2) 16 all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 17 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 18 19 the public domain or becomes part of the public domain through trial or otherwise. 20 4. 21 ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 22 or produced by another party or by a non-party in connection with this case only for prosecuting, 23 defending, or attempting to settle this litigation. Confidential material may be disclosed only to ORDER GRANTING STIPULATED PROTECTIVE ORDER - 2 1 the categories of persons and under the conditions described in this agreement. Confidential 2 material must be stored and maintained by a receiving party at a location and in a secure manner 3 that ensures that access is limited to the persons authorized under this agreement. 4 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 5 ordered by the court or permitted in writing by the designating party, a receiving party may 6 disclose any confidential material only to: (a) 7 8 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) 9 the officers, directors, and employees (including in house counsel) of the 10 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties 11 agree that a document or material produced is for Attorney’s Eyes Only and is so designated; (c) 12 experts and consultants to whom disclosure is reasonably necessary for 13 this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 14 A); 15 (d) the court, court personnel, and court reporters and their staff; 16 (e) copy or imaging services retained by counsel to assist in the duplication of 17 confidential material, provided that counsel for the party retaining the copy or imaging service 18 instructs the service not to disclose any confidential material to third parties and to immediately 19 return all originals and copies of any confidential material; 20 (f) during their depositions, witnesses in the action to whom disclosure is 21 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 22 (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of 23 transcribed deposition testimony or exhibits to depositions that reveal confidential material must ORDER GRANTING STIPULATED PROTECTIVE ORDER - 3 1 be separately bound by the court reporter and may not be disclosed to anyone except as permitted 2 under this agreement; 3 4 (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 5 Filing Confidential Material. Before filing confidential 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 document 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 identify the basis for sealing the specific confidential information at issue, 11 and the filing party shall include this basis in its motion to seal, along with any objection to 12 sealing the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be 13 followed and the standards that will be applied when a party seeks permission from the court to 14 file material under seal. A party who seeks to maintain the confidentiality of its information must 15 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 5. 19 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 20 or non-party that designates information or items for protection under this agreement must take 21 care to limit any such designation to specific material that qualifies under the appropriate 22 standards. The designating party must designate for protection only those parts of material, 23 documents, items, or oral or written communications that qualify, so that other portions of the ORDER GRANTING STIPULATED PROTECTIVE ORDER - 4 1 material, documents, items, or communications for which protection is not warranted are not 2 swept unjustifiably within the ambit of this agreement. 3 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 4 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 5 unnecessarily encumber or delay the case development process or to impose unnecessary 6 expenses and burdens on other parties) expose the designating party to sanctions. 7 If it comes to a designating party’s attention that information or items that it designated 8 for protection do not qualify for protection, the designating party must promptly notify all other 9 parties that it is withdrawing the mistaken designation. 10 5.2 Manner and Timing of Designations. Except as otherwise provided in this 11 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 12 ordered, disclosure or discovery material that qualifies for protection under this agreement must 13 be clearly so designated before or when the material is disclosed or produced. 14 (a) Information in documentary form: (e.g., paper or electronic documents 15 and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial 16 proceedings), the designating party must affix the words “CONFIDENTIAL” or “HIGHLY 17 CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” to each page that contains confidential 18 material. If only a portion or portions of the material on a page qualifies for protection, the 19 producing party also must clearly identify the protected portion(s) (e.g., by making appropriate 20 markings in the margins). 21 (b) Testimony given in deposition or in other pretrial proceedings: the parties 22 and any participating non-parties must identify on the record, during the deposition or other 23 pretrial proceeding, all protected testimony, without prejudice to their right to so designate other ORDER GRANTING STIPULATED PROTECTIVE ORDER - 5 1 testimony after reviewing the transcript. Any party or non-party may, within fifteen days after 2 receiving the transcript of the deposition or other pretrial proceeding, designate portions of the 3 transcript, or exhibits thereto, as confidential. If a party or non-party desires to protect 4 confidential information at trial, the issue should be addressed during the pre-trial conference. (c) 5 Other tangible items: the producing party must affix in a prominent place 6 on the exterior of the container or containers in which the information or item is stored the word 7 “CONFIDENTIAL,” and as appropriate, “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 8 ONLY.” If only a portion or portions of the information or item warrant protection, the 9 producing party, to the extent practicable, shall identify the protected portion(s). 5.3 10 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 11 designate qualified information or items does not, standing alone, waive the designating party’s 12 right to secure protection under this agreement for such material. Upon timely correction of a 13 designation, the receiving party must make reasonable efforts to ensure that the material is 14 treated in accordance with the provisions of this agreement. 15 6. 16 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 17 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 18 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 19 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 20 challenge a confidentiality designation by electing not to mount a challenge promptly after the 21 original designation is disclosed. 22 23 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute regarding confidential designations without court involvement. Any motion regarding ORDER GRANTING STIPULATED PROTECTIVE ORDER - 6 1 confidential designations or for a protective order must include a certification, in the motion or in 2 a declaration or affidavit, that the movant has engaged in a good faith meet and confer 3 conference with other affected parties in an effort to resolve the dispute without court action. The 4 certification must list the date, manner, and participants to the conference. A good faith effort to 5 confer requires a face-to-face meeting or a telephone conference. 6.3 6 Judicial Intervention. If the parties cannot resolve a challenge without court 7 intervention, the designating party may file and serve a motion to retain confidentiality under 8 Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 9 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 10 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 11 other parties) may expose the challenging party to sanctions. All parties shall continue to 12 maintain the material in question as confidential until the court rules on the challenge. 13 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 14 If a party is served with a subpoena or a court order issued in other litigation that compels 15 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that 16 party must: 17 (a) promptly notify the designating party in writing and include a copy of the 18 subpoena or court order; 19 (b) promptly notify in writing the party who caused the subpoena or order to issue in 20 the other litigation that some or all of the material covered by the subpoena or order is subject to 21 this agreement. Such notification shall include a copy of this agreement; and 22 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 23 designating party whose confidential material may be affected. ORDER GRANTING STIPULATED PROTECTIVE ORDER - 7 1 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 3 material to any person or in any circumstance not authorized under this agreement, the receiving 4 party must immediately (a) notify in writing the designating party of the unauthorized 5 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material, 6 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of 7 this agreement, and (d) request that such person or persons execute the “Acknowledgment and 8 Agreement to Be Bound” that is attached hereto as Exhibit A. 9 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 10 When a producing party gives notice to receiving parties that certain inadvertently 11 produced material is subject to a claim of privilege or other protection, the obligations of the 12 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 13 provision is not intended to modify whatever procedure may be established in an e-discovery 14 order or agreement that provides for production without prior privilege review. The parties agree 15 to the entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. 16 10. NON TERMINATION AND RETURN OF DOCUMENTS 17 Within 60 days after the termination of this action, including all appeals, each receiving 18 party must return all confidential material to the producing party, including all copies, extracts 19 and summaries thereof. Alternatively, the parties may agree upon appropriate methods of 20 destruction. 21 Notwithstanding this provision, counsel are entitled to retain one archival copy of all 22 documents filed with the court, trial, deposition, and hearing transcripts, correspondence, 23 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert ORDER GRANTING STIPULATED PROTECTIVE ORDER - 8 1 2 3 4 work product, even if such materials contain confidential material. The confidentiality obligations imposed by this agreement shall remain in effect until a designating party agrees otherwise in writing or a court orders otherwise. IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of 5 any documents in this proceeding shall not, for the purposes of this proceeding or any other 6 federal or state proceeding, constitute a waiver by the producing party of any privilege applicable 7 to those documents, including the attorney-client privilege, attorney work-product protection, or 8 any other privilege or protection recognized by law. 9 DATED this 14th day of June, 2021. 10 A 11 BRIAN A. TSUCHIDA United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 ORDER GRANTING STIPULATED PROTECTIVE ORDER - 9 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ____________________________________ [print or type full name], of 4 _______________________ [print or type full address], declare under penalty of perjury that I have 5 read in its entirety and understand the Stipulated Protective Order that was issued by the United 6 7 8 9 10 States District Court for the Western District of Washington on June 14, 2021, in the case of Selena Forte v. Convergent Outsourcing Inc., Case No. 2:21-cv-00128-BAT. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of 11 this Order. 12 I further agree to submit to the jurisdiction of the United States District Court for the Western 13 District of Washington for the purpose of enforcing the terms of this Stipulated Protective Order, 14 even if such enforcement proceedings occur after termination of this action. 15 16 17 Date: ____________________________ City and State where sworn and signed: ____________________________ Printed name: _____________________ 18 19 Signature: ________________________ 20 21 22 23 ORDER GRANTING STIPULATED PROTECTIVE ORDER - 10
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