Rolovich v. Washington State University et al, No. 2:2022cv00319 - Document 61 (E.D. Wash. 2023)
Court Description: ORDER granting 60 Stipulated Motion for Protective Order. Signed by Judge Thomas O. Rice.
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Rolovich v. Washington State University et al Doc. 61 1 THE HONORABLE THOMAS O. RICE 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON AT SPOKANE 9 10 NICHOLAS ROLOVICH, 13 14 15 v. WASHINGTON STATE UNIVERSITY, an agency of the State of Washington, Defendant. 16 17 18 STIPULATED MOTION AND PROTECTIVE ORDER Plaintiff, 11 12 NO. 2:22-cv-0319-TOR MOTION The parties, having so stipulated, hereby request the Court enter the following Stipulated Protective Order. 19 20 21 22 STIPULATED MOTION AND PROTECTIVE ORDER 1 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Dockets.Justia.com 1 STIPULATED PROTECTIVE ORDER 2 Plaintiff Nicholas Rolovich and Defendant Washington State University 3 (WSU) (the parties) anticipate that some materials produced in discovery will 4 contain confidential information, including material protected from disclosure by 5 statute, regulation, or court rule, including the Family Educational Rights and 6 Privacy Act (FERPA), 20 U.S.C. § 1232g and 34 C.F.R. Ch. 99 et seq.; the Health 7 Insurance Portability and Accountability Act (HIPAA), 42 U.S.C. § 1320d-6, and 8 its Privacy Standards, 45 C.F.R. §§ 160 & 164; and RCW 70.02.010(17). 9 Pursuant to Federal Rule of Civil Procedure 26 and the parties’ agreement, the 10 Court finds good cause for entry of this Stipulated Protective Order (Protective 11 Order or Order) to provide appropriate protections during the discovery process 12 while balancing the need for the flow of discovery, resolution of disputes over 13 confidentiality, and timely resolution of this case. Accordingly, it is hereby 14 ORDERED: 15 16 I. 1. SCOPE This Protective Order shall govern all discovery material produced 17 or disclosed during the above-captioned case, whether revealed in a document, 18 deposition, other testimony, discovery response, or otherwise. This Protective 19 Order is binding upon the parties, including their respective attorneys, principals, 20 agents, experts, consultants, and representatives. 21 22 2. The protections conferred by this Protective Order do not cover information that is in the public domain or becomes part of the public domain STIPULATED MOTION AND PROTECTIVE ORDER 2 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 through trial or otherwise, subject to the provisions regarding inadvertent 2 disclosures of confidential records and information in Part VIII of this Protective 3 Order. 3. 4 This Protective Order is intended, inter alia, to provide protection 5 sufficient to constitute a Qualified Protective Order under HIPAA and the 6 regulations promulgated under its aegis. See 45 C.F.R. § 164.512(e)(l)(ii). 4. 7 Unless otherwise noted, this Order is subject to the Federal Rules of 8 Civil Procedure and the Local Rules of the U.S. District Court for the Eastern 9 District of Washington. Unless otherwise stated, all periods of time provided for 10 in this Order are calculated as calendar days. This Protective Order does not 11 displace the requirement for parties to meet and confer before bringing a 12 discovery dispute to the Court. 5. 13 This Protective Order does not confer blanket protection on all 14 disclosures or responses to discovery and the protection it affords extends only 15 to the specific information or items that are entitled to protection under law or 16 regulation. 17 18 19 20 II. DOCUMENTS THAT MAY BE DESIGNATED CONFIDENTIAL 6. The following records shall be considered confidential and private and shall be marked as “CONFIDENTIAL,” or similar designation: a. Records containing Plaintiff’s tax returns. 21 22 STIPULATED MOTION AND PROTECTIVE ORDER 3 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 b. Records documenting Plaintiff’s compensation since his 2 termination from WSU or his post-termination employment 3 search. 4 c. All records produced by Plaintiff or Defendant to the other party, 5 or obtained directly from healthcare providers pursuant to an 6 executed release for medical records, that the producing or 7 obtaining party reasonably believes to be protected from 8 disclosure by HIPAA, 45 C.F.R. § 160.103, or RCW 9 70.02.010(17). The parties agree and confirm that they do not 10 intend to publicly disclose protected health information, even 11 without such designations, and that they will treat any document 12 containing patient health information as confidential, regardless 13 of whether it was so designated. Further, the parties agree that 14 any production of undesignated protected health information 15 shall be deemed inadvertent without need of further showing and 16 shall not constitute or be deemed a waiver of forfeiture of the 17 protections for such information in this litigation or in any other 18 judicial proceeding. This section shall be interpreted to provide 19 the maximum protection allowed for individual protected health 20 information. No party will argue that the mere production of such 21 documents in this Litigation is itself a waiver of such protections. 22 STIPULATED MOTION AND PROTECTIVE ORDER 4 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 d. All student records of any student produced by either Plaintiff or 2 Defendant that the producing party reasonably believes to be 3 protected by FERPA (“student records”). Such confidential 4 records include, but are not limited to, WSU student records 5 containing personal, 6 disciplinary, and conduct information. WSU shall produce 7 documents and responses to requested discovery that are subject 8 to FERPA, to the extent that such information is otherwise 9 discoverable under applicable Federal Rules of Civil Procedure 10 and attendant caselaw. These records shall be produced with the 11 identities of students obscured or redacted unless otherwise 12 provided by FERPA or directed by this Court. The parties agree 13 and confirm that they do not intend to publicly disclose protected 14 student information, even without such designations, and that 15 they will treat any document containing protected student 16 information as confidential, regardless of whether it was so 17 designated. Further, the parties agree that any production of 18 undesignated protected student information shall be deemed 19 inadvertent without need of further showing and shall not 20 constitute or be deemed a waiver of forfeiture of the protections 21 for such information in this Litigation or in any other judicial 22 proceeding. This section shall be interpreted to provide the STIPULATED MOTION AND PROTECTIVE ORDER medical, 5 mental health, academic, ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 maximum protection allowed for individual protected student 2 information. No party will argue that the mere production of such 3 documents in this Litigation is itself a waiver of such protections. 4 5 III. 7. PROCEDURES FOR CONFIDENTIAL RECORDS Documents designated by a party as confidential (“confidential 6 records”) pursuant to Paragraphs 5–6 above shall not be released to third parties 7 except to the following individuals for purposes of this lawsuit and related 8 appeals, if any: 9 a. Attorneys, paralegals, assistants, or other staff working for the 10 law offices of the parties’ attorneys on this lawsuit, including the 11 Washington Attorney General’s Office; 12 b. Office of Risk Management; 13 14 Plaintiff, the WSU administration, and the Washington State c. Expert consultants and expert witnesses retained by the parties 15 and their attorneys for purposes of developing opinions 16 regarding this lawsuit, provided that the recipient agrees to be 17 bound by this Protective Order and completes the certification 18 contained in the attached Exhibit A, Acknowledgment and 19 Agreement to Be Bound; 20 21 d. Attorneys and support staff engaged by the parties’ counsel for the purpose of e-discovery or litigation consultation; 22 STIPULATED MOTION AND PROTECTIVE ORDER 6 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 e. Persons necessary to the preparation of records, and transcription of testimony; 2 f. 3 The author or prior recipient of the records who is or may be a 4 potential witness, provided that the recipient agrees to be bound 5 by this Protective Order and completes the certification 6 contained in the attached Exhibit A, Acknowledgment and 7 Agreement to Be Bound; 8 g. To a witness during a deposition or trial; and 9 h. This Court, any mediator engaged by the parties, or the jury. 10 8. Any confidential records shall only be used for purposes of this 11 Litigation and, except as provided herein, shall not be re-released in any form, 12 including by orally informing others of their content, to anyone for any purpose 13 other than this Litigation. 14 9. Confidential records and information contained therein, shall not be 15 disclosed to any other persons not specifically listed herein absent prior 16 agreement of the Parties or further order of this Court. 17 10. Confidential records will not be re-released to third parties, except 18 as specified herein or pursuant to a court order or valid subpoena or other 19 discovery request. 20 21 22 IV. 11. DEPOSITION TESTIMONY AND TRANSCRIPTS Information disclosed through testimony at a deposition taken in connection with this Litigation may be designated as “Confidential” by STIPULATED MOTION AND PROTECTIVE ORDER 7 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 designating the portions of the transcript in a letter to be served on the court 2 reporter and opposing counsel within thirty (30) calendar days of the Producing 3 Party’s receipt of the certified transcript of a deposition. The court reporter will 4 indicate the portions designated as Confidential and segregate them as 5 appropriate. Designations of transcripts will apply to audio, video, or other 6 recordings of the testimony. The court reporter shall clearly mark any transcript 7 released prior to the expiration of the 30-day period with a provisional 8 confidentiality 9 CONFIDENTIALITY REVIEW.” Such transcripts will be treated as confidential 10 until the expiration of the 30-day period. If no Party or non-Party serves a 11 designation letter within the 30-day period, then the entire transcript will be 12 deemed not to contain confidential information and the provisional 13 confidentiality legend described above shall be removed. 14 12. legend: “CONFIDENTIAL—SUBJECT TO FURTHER Only the persons identified under Paragraph 7, along with the 15 witness and the witness’s counsel, may be present if any questions regarding 16 confidential information are asked. This paragraph shall not be deemed to 17 authorize disclosure of any document or information to any person to whom 18 disclosure is prohibited under this Protective Order. 19 20 V. 13. FILING CONFIDENTIAL RECORDS Only confidential portions of documents are subject to potential 21 sealing or redaction in the Court file. Where one party wishes to file with the 22 Court a motion or other papers supported by exhibits, which exhibits include STIPULATED MOTION AND PROTECTIVE ORDER 8 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 confidential records or information, that party (“the filing party”) will make 2 reasonable efforts to provide the party who has designated such records or 3 information as confidential (“the designating party”) with prior notice of the 4 intent to file such documents and request that the designating party identify what 5 portion of the supporting documents require redaction or filing under seal. 6 14. Where the parties are unable to agree as to the treatment of a 7 particular document prior to the filing, the parties will proceed as follows: The 8 filing party shall file a motion for leave to file under seal or redact any such 9 documents or any portion of the motion that explicitly discloses the contents of 10 such documents, at the same time as it files its motion. The filing party may, but 11 is not required to, take a position on the merits of the motion to seal. The 12 designating party, if it is not the filing party, may file a response explicating the 13 need to file the documents under seal or redact them, and the filing party may file 14 a reply. If the designating party is not the filing party and fails to respond to the 15 motion to seal in the time period provided, the motion to seal may be stricken and 16 the filing party may publicly file the materials. If the designating party is the 17 filing party, any party may file a response to the motion, and the filing party may 18 file a reply. The Court may thereafter make such orders as are necessary to govern 19 the filing of documents under seal or the redaction of documents in the Court file. 20 21 15. If a designating party attaches in its entirety or otherwise wholly discloses the substance of its own protected material in its own public court 22 STIPULATED MOTION AND PROTECTIVE ORDER 9 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 filings, any other party may refer to that publicly disclosed confidential 2 information without need for prior consultation. 3 4 VI. 16. NOTIFICATION OF AFFECTED PERSONS In such circumstances where a confidential record contains 5 confidential student or health information, the affected person (or the affected 6 person’s parent, if they are a minor), or their counsel, shall be notified at least ten 7 (10) days in advance of the filing or other public release of any such confidential 8 record so that they may make any objection concerning the release before the 9 release of the confidential record occurs. 10 17. Upon any objection from a parent or student, not a party to this 11 Litigation, regarding the filing or public release of student records, the parties 12 will reasonably cooperate to resolve any such dispute. 13 18. Should WSU be required to respond to a complaint from the Family 14 Policy Compliance Office of the U.S. Department of Education (FPCO) for 15 anything related to the release of student records, the parties and the parties’ 16 attorneys will cooperate with FPCO in resolving any such complaint. 17 18 VII. PROTECTION OF CONFIDENTIAL RECORDS 19. Persons receiving or having knowledge of confidential records by 19 virtue of their participation in the litigation, or by virtue of obtaining any 20 documents or other protected material produced or disclosed pursuant to this 21 Protective Order, shall use those confidential records only as permitted by this 22 Protective Order. Counsel shall take reasonable steps to assure the security of any STIPULATED MOTION AND PROTECTIVE ORDER 10 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 confidential records and will limit access to such material to those persons 2 authorized by this Protective Order. 3 20. Nothing herein shall restrict a person qualified to receive 4 confidential records pursuant to this Protective Order from making working 5 copies, abstracts, digests, and analyses of such information for use in connection 6 with this Litigation and such working copies, abstracts digests, and analyses shall 7 be deemed to have the same level of protection under the terms of this Protective 8 Order. Further, nothing herein shall restrict a qualified recipient from converting 9 or translating such information into machine-readable form for incorporation in 10 a date retrieval system used in connection with this Litigation, provided that 11 access to such information, in whatever form stored or reproduced, shall be 12 deemed to have the same level of protection under the terms of this Protective 13 Order. 14 15 VIII. INADVERTENT DISCLOSURES 21. If a party learns that, by inadvertence or otherwise, it has disclosed 16 confidential records to any person or in any circumstance not authorized under 17 this agreement, that party must immediately (a) notify the providing party’s 18 attorneys of the unauthorized disclosures, (b) use its best efforts to retrieve all 19 unauthorized copies of the confidential records, and (c) inform the person or 20 persons to whom unauthorized disclosure were made of the terms of this Order. 21 22 22. If a receiving party learns of any unauthorized disclosure of confidential information, it shall immediately (a) inform the designating party in STIPULATED MOTION AND PROTECTIVE ORDER 11 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 writing of all pertinent facts relating to such disclosure; (b) make its best effort 2 to retrieve all copies of the confidential information; (c) inform the person or 3 persons to whom unauthorized disclosures were made of all the terms of this 4 Protective Order; and (d) request such person or persons execute the 5 Acknowledgment that is attached hereto as Exhibit A. 6 23. If a party through inadvertence or otherwise produces any 7 confidential information without labeling or marking or otherwise designating it 8 as such, the producing party may give written notice to the receiving party that 9 the document is confidential and should be treated as such in accordance with the 10 provisions of this Protective Order, and provide replacement images, media, and 11 any associated production information to conform the document to the 12 appropriate designation and facilitate use of the revised designation in the 13 production. The receiving party must treat such documents with the noticed level 14 of confidentiality protection from the date such notice is received. 15 24. In the event any party receives discovery material it reasonably 16 believes includes confidential information, but which is not designed as 17 confidential, it shall notify the other party promptly and treat the material as 18 though it were designated confidential. The producing party will then comply 19 with the preceding Paragraph of this Protective Order, as necessary. 20 21 22 IX. 25. CHALLENGING CONFIDENTIALITY DESIGNATIONS In designating discovery materials as confidential, the producing party shall do so in good faith consistent with the provisions of this Protective STIPULATED MOTION AND PROTECTIVE ORDER 12 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 Order, the other rulings of the Court, and the Federal Rules of Civil Procedure. 2 Nothing herein shall be construed to allow for blanket designations of all 3 documents as confidential. 26. 4 If any party objects to the other party’s designation of records or 5 information as confidential under the provisions above, the objecting party will 6 identify the specific record or information that it believes is improperly 7 designated and notify the designating party. Within two days of such notification, 8 the designating party shall review the designated material, reconsider the 9 circumstances and, if no change in designation is offered, to explain the basis of 10 the designation. If the objecting party is not satisfied by the justification, the 11 parties shall meet and confer to resolve any such dispute. If the parties are unable 12 to resolve the dispute, the objecting party shall promptly contact chambers to 13 schedule a telephonic conference to obtain an expedited ruling on the dispute, 14 consistent with subsection 5.D of the Scheduling Order in this case. ECF No. 44 15 at 5. The burden shall be on the party who designated the material as confidential, 16 as if the party were seeking a protective order in the first instance. 17 18 X. DESTRUCTION OR RETURN OF CONFIDENTIAL RECORDS 27. At the conclusion of this Litigation, the parties and persons (other 19 than this Court) to whom disclosure is permitted under Paragraph 7 of this Order 20 shall either return the confidential records to the attorney for the producing party, 21 or destroy the confidential records, within sixty (60) days after dismissal or entry 22 of final judgment not subject to further appeal, except that records or information STIPULATED MOTION AND PROTECTIVE ORDER 13 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 designated as confidential pursuant to subparagraph 6.b above need not be 2 destroyed or returned to the producing party following dismissal or entry of final 3 judgment and shall no longer be designated as or considered confidential after 4 December 31, 2026. 5 6 7 28. Nothing in this Protective Order requires the any party’s counsel to disclose or destroy work product at the conclusion of the case. 29. Nothing contained in this Protective Order shall preclude any party 8 from using its own confidential information or records in any manner it sees fit, 9 without prior consent of the other party or the Court. 10 11 XI. 30. GENERAL PROVISIONS This Order is entered based on the representations and agreements 12 of the Parties and for the purpose of facilitating discovery. Nothing herein shall 13 be construed or presented as a judicial determination that any documents or 14 information designated as confidential by the parties or their counsel is subject to 15 protection until such time as the Court may rule on a specific document or issue. 16 31. Nothing in this Protective Order shall abridge the right of any person 17 to seek judicial review or to pursue other appropriate judicial action to seek a 18 modification or amendment of this protective order. 19 32. In the event anyone shall violate or threaten to violate the terms of 20 this Protective Order, any party may seek injunctive relief against any person 21 violating or threatening to violate any of the terms of this Protective Order. The 22 STIPULATED MOTION AND PROTECTIVE ORDER 14 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 parties agree that, in the event of a breach or threatened breach of this Protective 2 Order, injunctive relief is appropriate. 3 33. This Protective Order shall not be construed as waiving any 4 objection to producing Discovery Material called for, including but not limited 5 to objections concerning privilege, relevance, or burden. 6 34. This Protective Order shall continue in force until amended or 7 superseded by express order of the Court, and shall survive and remain in effect 8 after the termination of this Litigation. 9 DATED this 6th day of December 2023. 10 ROBERT W. FERGUSON Attorney General 11 /s/ Spencer W. Coates SPENCER W. COATES, WSBA #49683 Assistant Attorney General 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 Spencer.Coates@atg.wa.gov 12 13 14 15 ZACHARY J. PEKELIS, WSBA #44557 W. SCOTT FERRON, WSBA #61154 Special Assistant Attorneys General PACIFICA LAW GROUP LLP 1191 2nd Avenue, Suite 2000 Seattle, WA 98101-3404 (206) 245-1700 Zach.Pekelis@PacificaLawGroup.com Scott.Ferron@PacificaLawGroup.com 16 17 18 19 20 Attorneys for Defendant Washington State University 21 22 STIPULATED MOTION AND PROTECTIVE ORDER 15 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 LEWIS ROCA ROTHGERBER CHRISTIE LLP 2 /s/ E. Job Seese E. Job Seese, CO Bar # 48379 1601 19th Street, Suite 1000 Tele: 303.623.9000 Email: jseese@lewisroca.com Denver, CO 80202 (303) 623-9000 3 4 5 6 BRIAN FAHLING, WSBA #18894 LAW OFFICE OF BRIAN FAHLING 8124 NE 166th St Kenmore, WA 98028 (425) 802-7326 bfahling@fahlinglaw.com 7 8 9 ERIC KNIFFIN, Colo. Bar #48016 KNIFFIN LAW PLLC 102 South Tejon Street, Suite 1100 Colorado Springs, CO 80903 (719) 246-8889 eric@kniffin.law 10 11 12 13 Attorneys for Plaintiff Nicholas Rolovich 14 15 16 17 18 19 20 21 22 STIPULATED MOTION AND PROTECTIVE ORDER 16 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 ORDER 2 Pursuant to the Parties’ Stipulation, IT IS SO ORDERED. 3 DATED this 8th day of December 2023. 4 5 THE HONORABLE THOMAS O. RICE UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 STIPULATED MOTION AND PROTECTIVE ORDER 17 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744 1 EXHIBIT A TO STIPULATED PROTECTIVE ORDER 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY PROTECTIVE ORDER 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 The undersigned agrees: I declare under penalty of perjury that I have read in its entirety and understand the Protective Order that was issued by the United State District Court for the Eastern District of Washington on ____________, ______ in Rolovich v. Washington State University, No. 2:22-cv-00319-TOR (the “Protective Order”). I agree to comply with and to be bound by all the terms of the 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 the Protective Order to any person or entity except in strict compliance with the provisions of the Protective Order. I further agree to submit to the jurisdiction of the United State District Court for the Eastern District of Washington for the purposes of enforcing terms of the Protective Order, even if such enforcement proceedings occur after termination of these proceedings. Date: City & State Where Signed: Printed Name: Signature: 22 STIPULATED MOTION AND PROTECTIVE ORDER 18 ATTORNEY GENERAL OF WASHINGTON Complex Litigation Division 800 Fifth Avenue, Suite 2000 Seattle, WA 98104-3188 (206) 464-7744
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