Poole v. Estate of Craig Figley et al, No. 2:2023cv00079 - Document 12 (E.D. Wash. 2023)

Court Description: ORDER granting ECF No. 11 Motion for Protective Order. Signed by Judge Thomas O. Rice.

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Poole v. Estate of Craig Figley et al Doc. 12 The Honorable Thomas O. Rice 1 2 3 4 5 6 7 8 MICHAEL E. McFARLAND, JR., #23000 Evans, Craven & Lackie, P.S. 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 Attorneys for Defendants Colville School District No. 115, Richard D. Cole, Charles V. Salina and Michael Cashion 9 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON 10 11 12 13 MICHAEL POOLE, 14 EUGENE JOSEPH Plaintiff, Case No. 2:23-cv-00079-TOR 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. STIPULATED PROTECTIVE ORDER ESTATE OF CRAIG FIGLEY and KATHERINE E. KIPP, Personal Representative of the Estate of Craig Figley, as liable for decedent Defendant CRAIG FIGLEY, COLVILLE SCHOOL DISTRICT NO. 115, RICHARD D. COLE, CHARLES V. SALINA, and MICHAEL CASHION, Defendants. 1. 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. 29 30 STIPULATED PROTECTIVE ORDER - page 1 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 Dockets.Justia.com 1 2 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this 3 4 5 agreement does not confer blanket protection on all disclosures or responses to discovery, the protection it affords from public disclosure and use extends only to 6 7 8 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 9 10 11 confidential information under seal. 2. “CONFIDENTIAL” MATERIAL 12 13 14 “Confidential” material shall include the following documents and tangible things produced or otherwise exchanged: 15 (a) 16 17 All medical and mental health records of Plaintiff that would otherwise be confidential under the Health Insurance Portability and 18 19 20 Accountability Act of 1996 (HIPAA), including medical and mental health records generated through the course of this litigation; 21 (b) 22 23 All educational records of Plaintiff that would otherwise be confidential under the Family Education Records Privacy Act, Family Education 24 25 Records Privacy Act (FERPA); 26 (c) 27 28 All records that include the social security numbers of the Plaintiff; 29 30 STIPULATED PROTECTIVE ORDER - page 2 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 1 2 (d) All records that contain private financial information of the Plaintiff, including bank account information; and 3 4 5 (e) Any records or communication maintained by Colville School District about Plaintiff that contain information about other Colville School 6 7 8 District students that would not be subject to disclosure to third parties under either FERPA or the Washington Public Records Act, Chapter 42.56 of the 9 10 11 Revised Code of Washington; and (f) Any portions of personnel files (as that term is used in Revised 12 13 14 15 16 17 18 19 Code of Washington Sections 49.12.240 through 49.12.260) of current or former Colville School District staff that would not be subject to disclosure to third parties under the Washington Public Records Act, Chapter 42.56 of the Revised Code of Washington. (g) Records maintained by any entity or agency, including but not 20 21 22 limited to the Stevens County Sheriff’s Office, the Stevens County Superior Court, the Stevens County Prosecutor’s Office and the State of Washington that 23 24 25 26 27 28 identify any alleged victims of Craig Figley or other minors. 3. SCOPE The protections conferred by this agreement cover not only confidential material (as defined above), but also (1) any information copied or extracted from 29 30 STIPULATED PROTECTIVE ORDER - page 3 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 1 2 confidential material; (2) all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, conversations, or presentations by 3 4 5 parties or their counsel that might reveal confidential material. However, the protections conferred by this agreement do not cover 6 7 8 information that is in the public domain or becomes part of the public domain through trial or otherwise. 9 10 11 4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that 12 13 14 15 16 17 18 19 is disclosed or produced by another party or by a non-party in connection with this case only for prosecuting, defending, or attempting to settle this litigation. Confidential material may be disclosed only to the categories of persons and under the conditions described in this agreement. Confidential material must be stored and maintained by a receiving party at a location and in a secure manner that 20 21 22 ensures that access is limited to the persons authorized under this agreement. 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 23 24 25 otherwise ordered by the court or permitted in writing by the designating party, a receiving party may disclose any confidential material only to: 26 27 28 29 30 STIPULATED PROTECTIVE ORDER - page 4 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 1 2 (a) 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 3 4 5 information for this litigation; (b) the officers, directors, and employees (including in house counsel) 6 7 8 of the receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties agree that a particular document or material produced 9 10 11 is for Attorney’s Eyes Only and is so designated; (c) experts and consultants to whom disclosure is reasonably 12 13 14 15 16 17 18 19 necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (d) the court, court personnel, and court reporters and their staff; (e) copy or imaging services retained by counsel to assist in the duplication of confidential material, provided that counsel for the party retaining 20 21 22 the copy or imaging service instructs the service not to disclose any confidential material to third parties and to immediately return all originals and copies of any 23 24 25 confidential material; (f) during their depositions, witnesses in the action to whom 26 27 28 disclosure is reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the 29 30 STIPULATED PROTECTIVE ORDER - page 5 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 1 2 designating party or ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal confidential material must be 3 4 5 separately bound by the court reporter and may not be disclosed to anyone except as permitted under this agreement; 6 (g) 7 8 the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the 9 10 11 information. 4.3 Filing Confidential Material. Before filing confidential 12 13 14 15 16 17 18 19 material or discussing or referencing such material in court filings, the filing party shall confer with the designating party to determine whether the designating party will remove the confidential designation, whether the document can be redacted, or whether a motion to seal or stipulation and proposed order is warranted. During the meet and confer process, the designating party must identify the basis for 20 21 22 sealing the specific confidential information at issue, and the filing party shall include this basis in its motion to seal, along with any objection to sealing the 23 24 25 information at issue. Failure to satisfy this requirement will result in the motion to seal being denied, in accordance with the strong presumption of public access 26 27 to the Court’s files. 28 29 30 STIPULATED PROTECTIVE ORDER - page 6 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 4.4 1 2 Parties may file documents marked as confidential without conferring with the other parties so long as the documents are redacted such that 3 4 5 all personally identifiable information and/or confidential information has been redacted. 6 7 8 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 9 10 11 Each party or non-party that designates information or items for protection under this agreement must take care to limit any such designation to specific material 12 13 14 15 16 17 18 19 that qualifies under the appropriate standards. The designating party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify, so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this agreement. 20 21 22 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for 23 24 25 an improper purpose (e.g., to unnecessarily encumber or delay the case development process or to impose unnecessary expenses and burdens on other 26 27 parties) expose the designating party to sanctions. 28 29 30 STIPULATED PROTECTIVE ORDER - page 7 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 1 2 If it comes to a designating party’s attention that information or items that it designated for protection do not qualify for protection, the designating party 3 4 5 must promptly notify all other parties that it is withdrawing the mistaken designation. 6 7 8 5.2 Manner and Timing of Designations. Except as otherwise provided in this agreement (see, e.g., second paragraph of section 5.2(a) below), or as 9 10 11 otherwise stipulated or ordered, disclosure or discovery material that qualifies for protection under this agreement must be clearly so designated before or when the 12 13 14 15 16 17 18 19 material is disclosed or produced. (a) Information in documentary form: (e.g., paper or electronic documents and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), the designating party must affix the word “CONFIDENTIAL” to each page that contains confidential material. If only a 20 21 22 portion or portions of the material on a page qualifies for protection, the producing party also must clearly identify the protected portion(s) (e.g., by making 23 24 25 appropriate markings in the margins). (b) Testimony given in deposition or in other pretrial proceedings: 26 27 28 the parties and any participating non-parties must identify on the record, during the deposition or other pretrial proceeding, all protected testimony, without 29 30 STIPULATED PROTECTIVE ORDER - page 8 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 1 2 prejudice to their right to so designate other testimony after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the 3 4 5 transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or exhibits thereto, as confidential. If a party or non-party desires to 6 7 8 protect confidential information at trial, the issue should be addressed during the pre-trial conference. 9 (c) 10 11 Other tangible items: the producing party must affix in a prominent place on the exterior of the container or containers in which the 12 13 14 15 16 information or item is stored the word “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, the producing party, to the extent practicable, shall identify the protected portion(s). 17 5.3 18 19 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive 20 21 22 the designating party’s right to secure protection under this agreement for such material. Upon timely correction of a designation, the receiving party must make 23 24 25 reasonable efforts to ensure that the material is treated in accordance with the provisions of this agreement. 26 27 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 28 29 30 STIPULATED PROTECTIVE ORDER - page 9 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 1 2 6.1 Timing of Challenges. Any party or non-party may challenge a designation of confidentiality at any time. Unless a prompt challenge to a 3 4 5 designating party’s confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption 6 7 8 or delay of the litigation, a party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the 9 10 11 original designation is disclosed. 6.2 Meet and Confer. The parties must make every attempt to resolve any 12 13 14 15 16 17 18 19 dispute regarding confidential designations without court involvement. Any motion regarding confidential designations or for a protective order must include a certification, in the motion or in a declaration or affidavit, that the movant has engaged in a good faith meet and confer conference with other affected parties in an effort to resolve the dispute without court action. The certification must list the 20 21 22 date, manner, and participants to the conference. A good faith effort to confer requires a face-to-face meeting or a telephone conference. 23 24 25 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court intervention, the designating party may file and serve a motion to retain 26 27 28 confidentiality. The burden of persuasion in any such motion shall be on the designating party. Frivolous challenges, and those made for an improper purpose 29 30 STIPULATED PROTECTIVE ORDER - page 10 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 1 2 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose the challenging party to sanctions. All parties shall continue to maintain 3 4 5 the material in question as confidential until the court rules on the challenge. 7. 6 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 7 If a party is served with a subpoena or a court order issued in other litigation 8 9 that compels disclosure of any information or items designated in this action as 10 11 “CONFIDENTIAL,” that party must: 12 (a) promptly notify the designating party in writing and include a 13 14 copy of the subpoena or court order; 15 (b) promptly notify in writing the party who caused the subpoena 16 17 18 or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this agreement. Such notification shall include 19 20 a copy of this agreement; and 21 (c) cooperate with respect to all reasonable procedures sought to 22 23 24 be pursued by the designating party whose confidential material may be affected. 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 25 26 27 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential material to any person or in any circumstance not authorized under 28 29 30 this agreement, the receiving party must immediately (a) notify in writing the STIPULATED PROTECTIVE ORDER - page 11 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 1 2 designating party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the person or persons 3 4 5 to whom unauthorized disclosures were made of all the terms of this agreement, and (d) request that such person or persons execute the “Acknowledgment and 6 7 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 11 12 inadvertently produced material is subject to a claim of privilege or other 13 14 15 protection, the obligations of the receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify 16 17 18 whatever procedure may be established in an e-discovery order or agreement that provides for production without prior privilege review. The parties agree to the 19 20 entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein. 21 10. NON-TERMINATION AND RETURN OF DOCUMENTS 22 23 24 Within 60 days after the termination of this action, including all appeals, each receiving party must return all confidential material to the producing party, 25 26 27 including all copies, extracts and summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction. 28 29 30 STIPULATED PROTECTIVE ORDER - page 12 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 1 2 Notwithstanding this provision, counsel are entitled to retain one archival copy of all documents filed with the court, trial, deposition, and hearing 3 4 5 transcripts, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials 6 7 8 contain confidential material. The confidentiality obligations imposed by this agreement shall remain in 9 10 11 effect until a designating party agrees otherwise in writing or a court orders otherwise. 12 13 14 15 16 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. DATED this 4th day of May, 2023. By: 17 18 19 EVANS, CRAVEN & LACKIE, P.S. s/Michael E. McFarland, Jr. MICHAEL E. McFARLAND, JR., #23000 Attorneys for CSD Defendants ETTER, MCMAHAN, LAMBERSON, VAN WERT & ORESKOVICH, P.C. 20 21 22 By: 23 24 25 BUZZARD O’ROURKE, P.S. 26 27 28 29 30 s/Robert Greer ROBERT GREER, #15619 ANDREW WAGLEY, #50007 Attorneys for Defendant Estate of Figley/Kipp By: s/Shane O’Rourke SHANE O’ROURKE, #39927 Attorneys for Plaintiff STIPULATED PROTECTIVE ORDER - page 13 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 1 2 PURSUANT TO STIPULATION, IT IS SO ORDERED IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the 3 4 5 production of any documents in this proceeding shall not, for the purposes of this proceeding or any other federal or state proceeding, constitute a waiver by the 6 7 8 producing party of any privilege applicable to those documents, including the attorney-client privilege, attorney work-product protection, or any other privilege 9 10 11 or protection recognized by law. DATED: May 5, 2023. 12 13 14 15 _______________________________ The Honorable Thomas O. Rice United States District Court Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 STIPULATED PROTECTIVE ORDER - page 14 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 1 2 3 4 I, __________________________________________________________________ [print or type full name], of _____________________________________________________ 5 6 7 _______________________[print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the 8 United States District Court for the Eastern District of Washington on ____________________ 9 in the case of Michael Eugene Joseph Poole v. Colville School District, et al., Cause No. 2:23- 10 cv-00079-TOR. 11 12 13 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 14 15 16 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 this Order. 17 I further agree to submit to the jurisdiction of the United States District Court for the 18 Eastern District of Washington for the purpose of enforcing the terms of this Stipulated 19 Protective Order, even if such enforcement proceedings occur after termination of this action. 20 21 Date: City and State where sworn and signed: 22 23 24 Printed name: Signature: 25 26 27 28 29 30 STIPULATED PROTECTIVE ORDER - page 15 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632 1 CERTIFICATE OF SERVICE 2 3 I hereby certify that on May 4, 2023, I electronically filed the foregoing with 4 the Clerk of the Court using the CM/ECF System which will send notification of 5 such filing to the following: 6 7 8 9 10 11 Counsel for Plaintiff Shane M. O’Rourke’ Marissa Jay Buzzard O’Rourke, P.S. shane@buzzardlaw.com Email Email: marissa@buzzardlaw.com Email: brooke@buzzardlaw.com Email: fallyn@buzzardlaw.com 12 13 14 15 16 17 18 19 Counsel for Figley Estate & Katherine Kipp Robert Greer Andrew Wagley Etter, McMahon, Lamberson, Van Wert & Oreskovich, P.C. Email: robg@ettermcmahon.com Email: awagley@ettermcmahon.com Email: bonita@ettermcmahon.com Email: jdineen@ettermcmahon.com 20 21 22 23 24 25 26 27 28 By: s/Michael E. McFarland, Jr. MICHAEL E. MCFARLAND, JR. #23000 Attorney for Colville SD Defendants Evans, Craven & Lackie, P.S. 818 W. Riverside Ave., Suite 250 Spokane, Washington 99201 (509) 455-5200 (509) 455-3632 Facsimile mmcfarland@ecl-law.com 29 30 STIPULATED PROTECTIVE ORDER - page 16 818 W. Riverside, Suite 250 Spokane, WA 99201-0910 (509) 455-5200; fax (509) 455-3632

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