Leonard v. McMenamins Inc

• Court: District Court, W.D. Washington
• Decided: May 15, 2023
• Docket: 2:22-cv-00094
• Status: Unknown

Opinion

1 HONORABLE BARBARA J. ROTHSTEIN 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 9 10 ANDREW LEONARD, NICHOLAS 11 || DEGRASSE, JAMES FRAZIER, AND 9-99 □□□ CHARLES FRYE, individually and on behalf of | “#¥S® N°-:22-ev-00094-BIR 12 |} all others similarly situated, STIPULATED PROTECTIVE ORDER 13 Plaintiffs, 14 v. 15 6 MCMENAMINS, INC., 7 Defendant. 18 1. PURPOSES AND LIMITATIONS 19 Discovery in this action is likely to involve production of confidential, proprietary, or 20 . . . . . . . . private information for which special protection may be warranted. Accordingly, the parties hereby 21 . □□ . . . . stipulate to and petition the court to enter the following Stipulated Protective Order. The parties 22 acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket 23 . . . . protection on all disclosures or responses to discovery, the protection it affords from public 24 . oe ge . . . . disclosure and use extends only to the limited information or items that are entitled to confidential 25 treatment under the applicable legal principles, and it does not presumptively entitle parties to file 26 Lae . confidential information under seal.

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1 2. “CONFIDENTIAL” MATERIAL 2 “Confidential” material shall include, but is not limited to, the following documents and 3 || tangible things produced or otherwise exchanged: any sensitive personal and/or proprietary 4 || information disclosed during litigation proceedings between the Parties, whether disclosed in or 5 || derived from an interrogatory answer, a document, during a deposition or other testimony, any 6 || other form otherwise, that any Party or third party designates as “Confidential,” irrespective of by 7 || whom or when produced, including any financial records, personally identifiable information 8 || (including but not limited to the information that was compromised as a result of the Data Breach 9 || that is the subject of this litigation), documents reflecting policies and/or procedures regarding 10 || McMenamins’s data security practices in place at the time of the Data Breach and soon thereafter, 11 || reports and findings of external cybersecurity consultants (or similar entities) regarding the Data 12 || Breach, and any insurance policies that may cover the dispute. If highly sensitive information 13 || (proprietary or otherwise) is requested, the Parties reserve the right to ask the Court for additional 14 || protections from disclosure, if necessary. 15 |} 3. SCOPE 16 The protections conferred by this agreement cover not only confidential material (as 17 || defined above), but also (1) any information copied or extracted from confidential material; (2) all 18 || copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, 19 || conversations, or presentations by parties or their counsel that might reveal confidential material. 20 || However, the protections conferred by this agreement do not cover information that is in the public 21 || domain or becomes part of the public domain through trial or otherwise. 22 || 4. | ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 23 4.1 Basic Principles. A receiving party may use confidential material that is disclosed 24 || or produced by another party or by a non-party in connection with this case only for prosecuting, 25 || defending, or attempting to settle this litigation. Confidential material may be disclosed only to the 26 || categories of persons and under the conditions described in this agreement. Confidential material

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1 || must be stored and maintained by a receiving party at a location and in a secure manner that ensures 2 || that access is limited to the persons authorized under this agreement. 3 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 4 || by the court or permitted in writing by the designating party, a receiving party may disclose any 5 || confidential material only to: 6 (a) the receiving party’s counsel of record in this action, as well as employees 7 || of counsel to whom it is reasonably necessary to disclose the information for this litigation; 8 (b) the officers, directors, and employees (including in house counsel) of the 9 || receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties 10 || agree that a particular document or material produced is for Attorney’s Eyes Only and is so 11 || designated; 12 (c) experts and consultants to whom disclosure is reasonably necessary for this 13 | litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (d) the court, court personnel, and court reporters and their staff; 15 (e) copy or imaging services retained by counsel to assist in the duplication of 16 || confidential material, provided that counsel for the party retaining the copy or imaging service 17 || instructs the service not to disclose any confidential material to third parties and to immediately 18 || return all originals and copies of any confidential material; 19 (f) during their depositions, witnesses in the action to whom disclosure is 20 || reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 21 || (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of 22 || transcribed deposition testimony or exhibits to depositions that reveal confidential material must 23 || be separately bound by the court reporter and may not be disclosed to anyone except as permitted 24 || under this agreement; 25 (g) the author or recipient of a document containing the information or a 26 || custodian or other person who otherwise possessed or knew the information.

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1 4.3 Filing Confidential Material. Before filing confidential material or discussing or 2 || referencing such material in court filings, the filing party shall confer with the designating party, 3 || in accordance with Local Civil Rule 5(g)(3)(A), to determine whether the designating party will 4 || remove the confidential designation, whether the document can be redacted, or whether a motion 5 || to seal or stipulation and proposed order is warranted. During the meet and confer process, the 6 || designating party must identify the basis for sealing the specific confidential information at issue, 7 || and the filing party shall include this basis in its motion to seal, along with any objection to sealing 8 || the information at issue. Local Civil Rule 5(g) sets forth the procedures that must be followed and 9 || the standards that will be applied when a party seeks permission from the court to file material 10 || under seal. A party who seeks to maintain the confidentiality of its information must satisfy the 11 || requirements of Local Civil Rule 5(g)(3)(B), even if it is not the party filing the motion to seal. 12 || Failure to satisfy this requirement will result in the motion to seal being denied, in accordance with 13 || the strong presumption of public access to the Court’s files. 14 || 5. DESIGNATING PROTECTED MATERIAL 15 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party 16 || or non-party that designates information or items for protection under this agreement must take 17 || care to limit any such designation to specific material that qualifies under the appropriate 18 || standards. The designating party must designate for protection only those parts of material, 19 || documents, items, or oral or written communications that qualify, so that other portions of the 20 || material, documents, items, or communications for which protection is not warranted are not swept 21 || unjustifiably within the ambit of this agreement. 22 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 23 || shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 24 || unnecessarily encumber or delay the case development process or to impose unnecessary expenses 25 || and burdens on other parties) expose the designating party to sanctions. 26

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1 If it comes to a designating party’s attention that information or items that it designated for 2 || protection do not qualify for protection, the designating party must promptly notify all other parties 3 || that it is withdrawing the mistaken designation. 4 5.2 Manner and Timing of Designations. Except as otherwise provided in this 5 || agreement (see, e.g., second paragraph of section 5.2(b) below), or as otherwise stipulated or 6 || ordered, disclosure or discovery material that qualifies for protection under this agreement must 7 || be clearly so designated before or when the material is disclosed or produced. 8 (a) Information in documentary form: (e.g., paper or electronic documents and 9 || deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), 10 || the designating party must affix the word “CONFIDENTIAL” to each page that contains 11 || confidential material. If only a portion or portions of the material on a page qualifies for protection, 12 || the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate 13 || markings in the margins). 14 (b) Testimony given in deposition or in other pretrial proceedings: the parties 15 || and any participating non-parties must identify on the record, during the deposition or other pretrial 16 || proceeding, all protected testimony, without prejudice to their right to so designate other testimony 17 || after reviewing the transcript. Any party or non-party may, within fifteen days after receiving the 18 || transcript of the deposition or other pretrial proceeding, designate portions of the transcript, or 19 || exhibits thereto, as confidential. If a party or non-party desires to protect confidential information 20 || at trial, the issue should be addressed during the pre-trial conference. 21 (c) Other tangible items: the producing party must affix in a prominent place 22 |! on the exterior of the container or containers in which the information or item is stored the word 23 || “CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, 24 || the producing party, to the extent practicable, shall identify the protected portion(s). 25 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 26 || designate qualified information or items does not, standing alone, waive the designating party’s

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1 || right to secure protection under this agreement for such material. Upon timely correction of a 2 || designation, the receiving party must make reasonable efforts to ensure that the material is treated 3 || in accordance with the provisions of this agreement. 4 || 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5 6.1 Timing of Challenges. Any party or non-party may challenge a designation of 6 |! confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality 7 || designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 8 || burdens, or a significant disruption or delay of the litigation, a party does not waive its right to 9 || challenge a confidentiality designation by electing not to mount a challenge promptly after the 10 || original designation is disclosed. 11 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute 12 || regarding confidential designations without court involvement. Any motion regarding confidential 13 || designations or for a protective order must include a certification, in the motion or in a declaration 14 || or affidavit, that the movant has engaged in a good faith meet and confer conference with other 15 || affected parties in an effort to resolve the dispute without court action. The certification must list 16 || the date, manner, and participants to the conference. A good faith effort to confer requires a face- 17 || to-face meeting or a telephone conference. 18 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court 19 || intervention, the designating party may file and serve a motion to retain confidentiality under Local 20 || Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of 21 || persuasion in any such motion shall be on the designating party. Frivolous challenges, and those 22 || made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 23 || other parties) may expose the challenging party to sanctions. All parties shall continue to maintain 24 || the material in question as confidential until the court rules on the challenge. 25 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 26 || LITIGATION

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1 If a party is served with a subpoena or a court order issued in other litigation that compels 2 || disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party 3 || must: 4 (a) promptly notify the designating party in writing and include a copy of the 5 || subpoena or court order; 6 (b) — promptly notify in writing the party who caused the subpoena or order to 7 || issue in the other litigation that some or all of the material covered by the subpoena or order is 8 || subject to this agreement. Such notification shall include a copy of this agreement; and 9 (c) cooperate with respect to all reasonable procedures sought to be pursued by 10 || the designating party whose confidential material may be affected. 11 || 8 = UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 12 If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential 13 || material to any person or in any circumstance not authorized under this agreement, the receiving 14 || party must immediately (a) notify in writing the designating party of the unauthorized disclosures, 15 || (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the 16 || person or persons to whom unauthorized disclosures were made of all the terms of this agreement, 17 || and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be 18 || Bound” that is attached hereto as Exhibit A. 19 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 20 || MATERIAL 21 When a producing party gives notice to receiving parties that certain inadvertently 22 || produced material is subject to a claim of privilege or other protection, the obligations of the 23 || receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 24 || is not intended to modify whatever procedure may be established in an e-discovery order or 25 || agreement that provides for production without prior privilege review. The parties agree to the 26 |! entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein.

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1 10. NON TERMINATION AND RETURN OF DOCUMENTS 2 Within 60 days after the termination of this action, including all appeals, each receiving 3 || party must return all confidential material to the producing party, including all copies, extracts and 4 || summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction. 5 || Notwithstanding this provision, counsel are entitled to retain one archival copy of all documents 6 || filed with the court, trial, deposition, and hearing transcripts, correspondence, deposition and trial 7 || exhibits, expert reports, attorney work product, and consultant and expert work product, even if 8 || such materials contain confidential material. 9 The confidentiality obligations imposed by this agreement shall remain in effect until a 10 || designating party agrees otherwise in writing or a court orders otherwise. 11 12 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 13 14 STOEL RIVES LLP BRESKIN JOHNSON & TOWNSEND, PLLC 15 By: s/ Christopher Wall By: /s Cynthia Heidelberg Christopher T. Wall, WSBA No. 45873 — Cynthia Heidelberg, WSBA No. 44121 16 Jacqueline Middleton, WSBA No. 52636 1000 Second Avenue, Suite 3670 600 University Street, Suite 3600 Seattle, WA 98104 17 Seattle, WA 98101-4109 (206) 652-8660 Fax (206) 652-8290 18 Tel: (206) 624-0900 cheidelberg@bjtlegal.com Christopher.wall@stoel.com 19 Jacqueline.middleton@stoel.com 20 STOEL RIVES LLP MIGLIACCIO & RATHOD LLP 21 By: s/Karen O’Connor By: s/ Nicholas A. Migliaccio Karen O’Connor, WSBA No. 27012 Nicholas A. Migliaccio, pro hac vice 760 SW 9" Avenue, Suite 3000 Jason S. Rathod, pro hac vice 23 Portland, OR 97205-2587 Tyler Bean, pro hac vice Tel: (503) 294-9291 412 H Street NE 24 Karen.oconnor@stoel.com Washington, DC 20002 Tel: (202) 470-3520 25 nmigliaccio@classlawdc.com jrathod@classlawdc.com 26 tbean@classlawdc.com

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Counsel for Defendant Counsel for Plaintiff 2 3 PURSUANT TO STIPULATION, IT IS SO ORDERED 4 IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any 5 documents, electronically stored information (ESI) or information, whether inadvertent or 6 otherwise, in this proceeding shall not, for the purposes of this proceeding or any other federal or 7 state proceeding, constitute a waiver by the producing party of any privilege applicable to those 8 documents, including the attorney-client privilege, attorney work-product protection, or any other 9 privilege or protection recognized by law. This Order shall be interpreted to provide the maximum 10 protection allowed by Fed. R. Evid. 502(d). The provisions of Fed. R. Evid. 502(b) do not apply. i Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a review 12 of documents, ESI or information (including metadata) for relevance, responsiveness and/or 13 segregation of privileged and/or protected information before production. Information produced 14 in discovery that is protected as privileged or work product shall be immediately returned to the Is producing party. 16 7 DATED this 15th day of May, 2023. 18

20 Barbara Jacobs Rothstein U.S. District Court Judge 22 23 24 25 26

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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 5 || perjury that I have read in its entirety and understand the Stipulated Protective Order that was 6 || issued by the United States District Court for the Western District of Washington on [date] in the 7 |I case of [insert formal name of the case and the number and initials assigned to 8 || it by the court]. lagree to comply with and to be bound by all the terms of this Stipulated Protective 9 || Order and I understand and acknowledge that failure to so comply could expose me to sanctions 10 || and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner 11 || any information or item that is subject to this Stipulated Protective Order to any person or entity 12 || except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 || Western District of Washington for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. 16 || Date: 17 || City and State where sworn and signed: 18 || Printed name: 19 || Signature: 20 21 22 23 24 25 26

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