Carpenter v. Thrasher et al, No. 4:2015cv05012 - Document 16 (E.D. Wash. 2015)
Court Description: ORDER GRANTING PARTIES' JOINT MOTION FOR A PROTECTIVE ORDER granting 15 Motion for Protective Order Signed by Senior Judge Edward F. Shea. (AY, Case Administrator)
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Carpenter v. Thrasher et al Doc. 16 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 2 Oct 23, 2015 3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 No. TROY CARPENTER, 8 Plaintiff, 9 10 11 4:15-CV-05012-EFS ORDER GRANTING PARTIES’ JOINT MOTION FOR A PROTECTIVE ORDER v. TIMOTHY THRASHER, WILLIAM RILEY, JERRY SCHUMAKER, REUBEN RIVERA, AND DOES 1-20, Defendants. 12 13 14 Before the Court is the parties’ Joint Motion for a Protective 15 Order, ECF No. 15. For the reasons stated below, the Court grants the 16 parties’ motion under the terms requested. 17 Discovery and disclosures in this action are likely to involve 18 production of confidential, proprietary, or private information for 19 which special protections may be warranted. The parties acknowledge 20 that 21 Procedure 22 disclosures or discovery responses. The protection it affords from 23 public disclosure and use extends only to the limited information or 24 items that are entitled to confidential treatment under the applicable 25 legal principles. It does not presumptively entitle parties to file 26 confidential information under seal. Moreover, the stipulation does this stipulation 26(c). It is does consistent not confer with Federal blanket Rule protection of on Civil all ORDER - 1 Dockets.Justia.com 1 not waive a party’s right to object to production of any records 2 where: (1) the information is subject to an evidentiary privilege; or 3 (2) the information sought is not sufficiently material to overcome 4 the government’s compelling interests in inmate safety and prison 5 security. See U.S. v. Williams, 791 F.2d 1383, 1387 (9th Cir. 1986). 6 7 I. Confidential Material “Confidential” or Intelligence all and documents network of the Washington State Department of Corrections as part of 10 the network’s efforts to document the existence of and regulate the 11 activities of security threat groups operating within the State’s 12 institutions. 13 digital video and/or audio recordings captured by the Department of 14 Corrections’ institutional surveillance systems. See generally Fischer 15 v. State, 160 Wn. App. 722 (2011). Confidential material may also 16 include some or all of Carpenter’s medical records including mental 17 health, chemical dependency, or sexually transmitted disease records. 19 the some 9 Confidential by include created II. maintained may 8 18 and/or material material may also Investigations include some or all Scope The protections conferred by this agreement cover not only 20 confidential material (as defined above and agreed to by the parties), 21 but also (1) any information copied or extracted from confidential 22 material; (2) all copies, excerpts, summaries, or compilations of 23 confidential 24 presentations 25 confidential 26 ORDER - 2 material; by and parties material. (3) or However, any testimony, their counsel the protections conversations, that might conferred or reveal by this 1 agreement do not cover information that is in the public domain or 2 becomes part of the public domain through trial or otherwise. 3 III. Access and Use of Confidential Material A 4 receiving party may use confidential material that is 5 disclosed or produced by another party or by a non-party in connection 6 with 7 settle this litigation. Confidential material may be disclosed only to 8 the categories of persons and under the conditions described in this 9 agreement. Confidential material must be stored and maintained by a 10 receiving party at a location and in a secure manner that ensures that 11 access is limited to the persons authorized under this agreement. this case only for prosecuting, defending, or attempting to 12 Unless otherwise ordered by the court or permitted in writing by 13 the designating party, a receiving party may disclose any confidential 14 material only to: 15 16 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 information for this litigation; 17 18 19 20 21 22 23 b) the officers, directors, and employees (including in house counsel) of the receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties agree that a particular document or material produced is for Attorney’s Eyes Only and is so designated; c) experts and consultants to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); d) the court, court their staff; personnel, and court reporters and 24 25 26 e) copy or imaging services retained by counsel to assist in the duplication of confidential material, provided that counsel for the party retaining the copy or imaging service instructs the service not to disclose any ORDER - 3 confidential material immediately return all confidential material; 1 2 to third parties and originals and copies of to any f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal confidential material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this agreement; 3 4 5 6 7 g) and the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 8 9 Except 10 by advance written of the parties, may information agreement disclosed to any incarcerated be no 11 confidential 12 individual or individual identified with a security threat group, 13 including the Plaintiff Troy Carpenter, unless that individual is the 14 original source of the confidential information. 15 Before filing confidential material or discussing or referencing 16 such material in court filings, the filing party shall confer with the 17 designating party to determine whether the designating party will 18 remove 19 redacted, or whether a motion to seal or stipulation and proposed 20 order is warranted. 21 IV. the confidential designation, whether the document can be Designating Confidential Material 22 Each party or non-party that designates information or items for 23 protection under this agreement must take care to limit any such 24 designation to specific material that qualifies under the appropriate 25 standards. The designating party must designate for protection only 26 those parts ORDER - 4 of material, documents, items, or oral or written 1 communications that qualify, so that other portions of the material, 2 documents, 3 warranted 4 agreement. items, are or not communications swept for unjustifiably which within protection the ambit is of not this 5 Mass, indiscriminate, or routinized designations are prohibited. 6 Designations that are shown to be clearly unjustified or that have 7 been made for an improper purpose (e.g., to unnecessarily encumber or 8 delay the case development process or to impose unnecessary expenses 9 and 10 burdens on other parties) expose the designating party to sanctions. If it comes to a designating party’s attention that information 11 12 or items that 13 protection, 14 parties that it is withdrawing the mistaken designation. the it designated designating for party protection must do promptly not qualify notify all for other 15 Except as otherwise provided in this agreement, or as otherwise 16 stipulated or ordered, disclosure or discovery material that qualifies 17 for protection under this agreement must be clearly so designated 18 before or when the material is disclosed or produced. 19 20 21 22 23 24 25 26 (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 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 appropriate markings in the margins). (b) Testimony given in deposition or in other pretrial or trial proceedings: the parties must identify on the record, during the deposition, hearing, or other proceeding, all protected testimony, without prejudice to their right to so designate other testimony after reviewing the transcript. ORDER - 5 Any party or non-party may, within fifteen days after receiving a deposition transcript, designate portions of the transcript, or exhibits thereto, as confidential. 1 2 6 (c) Other tangible items: the producing party must affix in a prominent place on the exterior of the container or containers in which the 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). 7 If 3 4 5 timely corrected, an inadvertent failure to designate 8 qualified information or items does not, standing alone, waive the 9 designating party’s right to secure protection under this agreement 10 for 11 receiving 12 material 13 agreement. 14 15 V. such material. party is Upon must timely make treated in correction reasonable accordance of efforts with the a to designation, the ensure the that provisions of this Challenging Confidentiality Designations Any party or foreseeable, substantial unfairness, unnecessary economic burdens, or 19 a significant disruption or delay of the litigation, a party does not 20 waive its right to challenge a confidentiality designation by electing 21 not to mount a challenge promptly after the original designation is 22 disclosed. designations attempt without to challenge resolve court any to a dispute 24 regarding 25 motion regarding confidential designations or for a protective order 26 must include a certification, in the motion or in a declaration or ORDER - 6 confidential every prompt of 18 make a designation designating party’s confidentiality designation is necessary to avoid must Unless a 17 parties time. challenge confidentiality The any may 16 23 at non-party involvement. Any 1 affidavit, that the movant has engaged in a good faith meet and confer 2 with 3 without court action. The certification must list the date, manner, 4 and participants to the conference. A good faith effort to confer 5 requires a face-to-face meeting or a telephone conference. other If 6 affected the parties parties cannot in an effort resolve a to resolve challenge the without dispute court 7 intervention, the designating party may file and serve a motion to 8 retain confidentiality under Local Civil Rule 7 (and in compliance 9 with Local Civil Rule 5(g), if applicable). The burden of persuasion 10 in 11 challenges, and those made for an improper purpose (e.g., to harass or 12 impose unnecessary expenses and burdens on other parties) may expose 13 the challenging party to sanctions. All parties shall continue to 14 maintain the material in question as confidential until the court 15 rules on the challenge. 16 any VI. such motion shall be on the designating party. Frivolous Protected Material Subpoenaed or Ordered Produced in Other Litigation 17 If a party is served with a subpoena or a court order issued in 18 other litigation that compels disclosure of any information or items 19 designated in this action as “CONFIDENTIAL,” that party must: 20 21 22 23 24 25 26 (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 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 a copy of this agreement; and, (c) cooperate with respect to all reasonable procedures sought to be pursued by the designating party whose confidential material may be affected. ORDER - 7 1 VII. Unauthorized Disclosure of Protected Material 2 If a receiving party learns that, by inadvertence or otherwise, 3 it has disclosed confidential material to any person or in any 4 circumstance not authorized under this agreement, the receiving party 5 must immediately: (a) notify in writing the designating party of the 6 unauthorized disclosures, (b) use its best efforts to retrieve all 7 unauthorized copies of the protected material, (c) inform the person 8 or persons to whom unauthorized disclosures were made of all the terms 9 of this agreement, and, (d) request that such person or persons 10 execute the “Acknowledgment and Agreement to Be Bound” that is 11 attached hereto as Exhibit A. 12 13 VIII. Inadvertent Production Protected Material of Privileged or Otherwise When a producing party gives notice to receiving parties that 14 15 certain 16 privilege 17 parties 18 26(b)(5)(B). 19 procedure may be established in an e-discovery order or agreement that 20 provides for production without prior privilege review. Parties shall 21 confer 22 Evidence 502. 23 IX. inadvertently or are on an other produced material protection, those set forth This provision appropriate in is the is obligations Federal not non-waiver subject Rule intended order to of a claim of the receiving of Civil Procedure to modify whatever under Federal Rule of Non-Termination and Return of Documents Within 60 days after the termination of this action, including 24 25 all appeals, 26 material to the producing party, including all copies, extracts and ORDER - 8 each receiving party must return all confidential 1 summaries thereof. Alternatively, 2 the parties may agree upon appropriate methods of destruction. Notwithstanding this provision, counsel are entitled to retain 3 4 one 5 deposition, and hearing transcripts, correspondence, deposition and 6 trial exhibits, expert reports, attorney work product, and consultant 7 and expert work product, even if such materials contain confidential 8 material. The confidentiality obligations imposed by this agreement 9 shall remain in effect until a designating party agrees otherwise in 10 11 12 13 14 15 16 17 18 archival copy of all documents filed with the court, trial, writing or a court orders otherwise. X. Summary Any disputes concerning the terms or implementation of this Protective Order are to be resolved by this Court. Accordingly, IT IS HEREBY ORDERED, the parties’ Joint Motion for a Protective Order, ECF No. 15, is GRANTED. IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 23rd day of October 2015. 19 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 20 21 22 23 24 25 26 Q:\EFS\Civil\2015\5012.ord.prot.lc2.docx ORDER - 9
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