recognizing a long-held First Amendment right of access to court 3 proceedings and documents
How later courts described this case
- recognizing a long-held First Amendment right of access to court 3 proceedings and documents
Written by the judges who cited it.
The opinion
1 FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
2
Apr 30, 2021
3 SEAN F. MCAVOY, CLERK
4
5 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
6
7 HAITHAM ALMHANA, and A.H.
and the marital community comprised NO: 2:20-CV-399-RMP
8 thereof,
STIPULATED PROTECTIVE
9 Plaintiffs, ORDER
10 v.
11 TRESTLE CREEK, LLC;
GREYSTAR MANAGEMENT
12 SERVICES, LP; and REBEKAH
GIFFORD,
13
Defendants.
14
15 BEFORE THE COURT is a Stipulated Protective Order, ECF No. 25, by
16 Plaintiffs A.H. and Haitham Almhana and Defendants Trestle Creek LLC, et al. A
17 district court may issue protective orders regarding discovery upon a showing of
18 good cause. Fed. R. Civ. P. 26(c). Before issuing a stipulated protective order, a
19 district court judge should ensure that the protective order’s restrictions do not
20 infringe on the public’s general right to inspect and copy judicial records and
21 documents. See Kamakana v. City and Cty. of Honolulu, 447 F.3d 1172, 1178 (9th
1 Cir. 2006); see also Courthouse News Serv. v. Planet, 947 F.3d 581, 589 (9th Cir.
2 2020) (recognizing a long-held First Amendment right of access to court
3 proceedings and documents).
4 Having reviewed the protective order and the remaining record, the Court
5 finds good cause to grant the stipulated motion and enter the agreed-upon protective
6 order and exhibit. Accordingly, the parties’ stipulated protective order, ECF No. 25,
7 is ACCEPTED in the form set forth below.
8 PROTECTIVE ORDER
9
1. PURPOSES AND LIMITATIONS
10
Discovery in this action is likely to involve production of confidential,
11
proprietary, or private information for which special protection may be warranted.
12
Accordingly, the parties hereby stipulate to and petition the court to enter the
13
following Stipulated Protective Order. The parties acknowledge that this agreement
14
does not confer blanket protection on all disclosures or responses to discovery, the
15
protection it affords from public disclosure and use extends only to the limited
16
information or items that are entitled to confidential treatment under the applicable
17
legal principles, and it does not presumptively entitle parties to file confidential
18
information under seal.
19
20
21
1 2. “CONFIDENTIAL” MATERIAL
2 “Confidential” material shall include documents marked “confidential” by
3 one of the parties and shall also include the following documents and tangible things
4 produced or otherwise exchanged, regardless of whether or not the documents are
5 marked “confidential”: The medical records of A.H., one of the plaintiffs in this case,
6 and the name of A.H. A.H. must only be identified by the initials A.H.
7 3. SCOPE
8 The protections conferred by this agreement cover not only confidential
9 material (as defined above), but also (1) any information copied or extracted from
10 confidential material; (2) all copies, excerpts, summaries, or compilations of
11 confidential material; and (3) any testimony, conversations, or presentations by
12 parties or their counsel that might reveal confidential material.
13 However, the protections conferred by this agreement do not cover
14 information that is in the public domain or becomes part of the public domain
15 through trial or otherwise.
16 4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
17 4.1 Basic Principles. A receiving party may use confidential material that
18 is disclosed or produced by another party or by a non-party in connection with this
19 case only for prosecuting, defending, or attempting to settle this litigation.
20 Confidential material may be disclosed only to the categories of persons and under
21 the conditions described in this agreement. Confidential material must be stored and
1 maintained by a receiving party at a location and in a secure manner that ensures that
2 access is limited to the persons authorized under this agreement.
3 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
4 otherwise ordered by the court or permitted in writing by the designating party, a
5 receiving party may disclose any confidential material only to:
6 (a) the receiving party’s counsel of record in this action, as well as
7 employees of counsel to whom it is reasonably necessary to disclose the information
8 for this litigation;
9 (b) the officers, directors, and employees (including in house
10 counsel) of the receiving party to whom disclosure is reasonably necessary for this
11 litigation, unless the parties agree that a particular document or material produced is
12 for Attorney’s Eyes Only and is so designated;
13 (c) experts and consultants to whom disclosure is reasonably
14 necessary for this litigation and who have signed the “Acknowledgment and
15 Agreement to Be Bound” (Exhibit A);
16 (d) the court, court personnel, and court reporters and their staff;
17 (e) copy or imaging services retained by counsel to assist in the
18 duplication of confidential material, provided that counsel for the party retaining the
19 copy or imaging service instructs the service not to disclose any confidential material
20 to third parties and to immediately return all originals and copies of any confidential
21 material;
1 (f) during their depositions, witnesses in the action to whom
2 disclosure is reasonably necessary and who have signed the “Acknowledgment and
3 Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the designating
4 party or ordered by the court. Pages of transcribed deposition testimony or exhibits
5 to depositions that reveal confidential material must be separately bound by the court
6 reporter and may not be disclosed to anyone except as permitted under this
7 agreement;
8 (g) the author or recipient of a document containing the information
9 or a custodian or other person who otherwise possessed or knew the information.
10 4.3 Filing Confidential Material. Before filing confidential material or
11 discussing or referencing such material in court filings, the filing party shall confer
12 with the designating party to determine whether the designating party will remove
13 the confidential designation, whether the document can be redacted, or whether a
14 motion to seal or stipulation and proposed order is warranted. During the meet and
15 confer process, the designating party must identify the basis for sealing the specific
16 confidential information at issue, and the filing party shall include this basis in its
17 motion to seal, along with any objection to sealing the information at issue. Failure
18 to satisfy this requirement will result in the motion to seal being denied, in
19 accordance with the strong presumption of public access to the Court’s files.
20
21
1 5. DESIGNATING PROTECTED MATERIAL
2 5.1 Exercise of Restraint and Care in Designating Material for Protection.
3 Each party or non-party that designates information or items for protection under
4 this agreement must take care to limit any such designation to specific material that
5 qualifies under the appropriate standards. The designating party must designate for
6 protection only those parts of material, documents, items, or oral or written
7 communications that qualify, so that other portions of the material, documents,
8 items, or communications for which protection is not warranted are not swept
9 unjustifiably within the ambit of this agreement.
10 Mass, indiscriminate, or routinized designations are prohibited. Designations
11 that are shown to be clearly unjustified or that have been made for an improper
12 purpose (e.g., to unnecessarily encumber or delay the case development process or
13 to impose unnecessary expenses and burdens on other parties) expose the
14 designating party to sanctions.
15 If it comes to a designating party’s attention that information or items that it
16 designated for protection do not qualify for protection, the designating party must
17 promptly notify all other parties that it is withdrawing the mistaken designation.
18 5.2 Manner and Timing of Designations. Except as otherwise provided in
19 this agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
20
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1 stipulated or ordered, disclosure or discovery material that qualifies for protection
2 under this agreement must be clearly so designated before or when the material is
3 disclosed or produced.
4 (a) Information in documentary form: (e.g., paper or electronic
5 documents and deposition exhibits, but excluding transcripts of depositions or other
6 pretrial or trial proceedings), the designating party must affix the word
7 “CONFIDENTIAL” to each page that contains confidential material. If only a
8 portion or portions of the material on a page qualifies for protection, the producing
9 party also must clearly identify the protected portion(s) (e.g., by making appropriate
10 markings in the margins). Notwithstanding the foregoing, any medical records
11 related to A.H., a plaintiff in this case, and the name of A.H. shall be deemed
12 confidential regardless of whether it is marked “confidential.” A.H. must only be
13 identified by the initials A.H.
14 (b) Testimony given in deposition or in other pretrial proceedings:
15 the parties and any participating non-parties must identify on the record, during the
16 deposition or other pretrial proceeding, all protected testimony, without prejudice to
17 their right to so designate other testimony after reviewing the transcript. Any party
18 or non-party may, within fifteen days after receiving the transcript of the deposition
19 or other pretrial proceeding, designate portions of the transcript, or exhibits thereto,
20 as confidential. If a party or non-party desires to protect confidential information at
21 trial, the issue should be addressed during the pre-trial conference.
1 (c) Other tangible items: the producing party must affix in a
2 prominent place on the exterior of the container or containers in which the
3 information or item is stored the word “CONFIDENTIAL.” If only a portion or
4 portions of the information or item warrant protection, the producing party, to the
5 extent practicable, shall identify the protected portion(s).
6 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
7 failure to designate qualified information or items does not, standing alone, waive
8 the designating party’s right to secure protection under this agreement for such
9 material. Upon timely correction of a designation, the receiving party must make
10 reasonable efforts to ensure that the material is treated in accordance with the
11 provisions of this agreement.
12 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
13 6.1 Timing of Challenges. Any party or non-party may challenge a
14 designation of confidentiality at any time. Unless a prompt challenge to a
15 designating party’s confidentiality designation is necessary to avoid foreseeable,
16 substantial unfairness, unnecessary economic burdens, or a significant disruption or
17 delay of the litigation, a party does not waive its right to challenge a confidentiality
18 designation by electing not to mount a challenge promptly after the original
19 designation is disclosed.
20 6.2 Meet and Confer. The parties must make every attempt to resolve any
21 dispute regarding confidential designations without court involvement. Any motion
1 regarding confidential designations or for a protective order must include a
2 certification, in the motion or in a declaration or affidavit, that the movant has
3 engaged in a good faith meet and confer conference with other affected parties in an
4 effort to resolve the dispute without court action. The certification must list the date,
5 manner, and participants to the conference. A good faith effort to confer requires a
6 face-to-face meeting or a telephone conference.
7 6.3 Judicial Intervention. If the parties cannot resolve a challenge without
8 court intervention, the designating party may file and serve a motion to retain
9 confidentiality. The burden of persuasion in any such motion shall be on the
10 designating party. Frivolous challenges, and those made for an improper purpose
11 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
12 expose the challenging party to sanctions. All parties shall continue to maintain the
13 material in question as confidential until the court rules on the challenge.
14 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
15 IN OTHER LITIGATION
16 If a party is served with a subpoena or a court order issued in other litigation
17 that compels disclosure of any information or items designated in this action as
18 “CONFIDENTIAL,” that party must:
19 (a) promptly notify the designating party in writing and include a
20 copy of the subpoena or court order;
21 (b) promptly notify in writing the party who caused the subpoena or
1 order to issue in the other litigation that some or all of the material covered by the
2 subpoena or order is subject to this agreement. Such notification shall include a copy
3 of this agreement; and
4 (c) cooperate with respect to all reasonable procedures sought to be
5 pursued by the designating party whose confidential material may be affected.
6 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
7 If a receiving party learns that, by inadvertence or otherwise, it has disclosed
8 confidential material to any person or in any circumstance not authorized under this
9 agreement, the receiving party must immediately (a) notify in writing the designating
10 party of the unauthorized disclosures, (b) use its best efforts to retrieve all
11 unauthorized copies of the protected material, (c) inform the person or persons to
12 whom unauthorized disclosures were made of all the terms of this agreement, and
13 (d) request that such person or persons execute the “Acknowledgment and
14 Agreement to Be Bound” that is attached hereto as Exhibit A.
15 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
16 PROTECTED MATERIAL
17 When a producing party gives notice to receiving parties that certain
18 inadvertently produced material is subject to a claim of privilege or other protection,
19 the obligations of the receiving parties are those set forth in Federal Rule of Civil
20 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
21 may be established in an e-discovery order or agreement that provides for production
1 without prior privilege review. The parties agree to the entry of a non-waiver order
2 under Fed. R. Evid. 502(d) as set forth herein.
3 10. NON-TERMINATION AND RETURN OF DOCUMENTS
4 Within 60 days after the termination of this action, including all appeals, each
5 receiving party must return all confidential material to the producing party, including
6 all copies, extracts and summaries thereof. Alternatively, the parties may agree upon
7 appropriate methods of destruction.
8 Notwithstanding this provision, counsel are entitled to retain one archival
9 copy of all documents filed with the court, trial, deposition, and hearing transcripts,
10 correspondence, deposition and trial exhibits, expert reports, attorney work product,
11 and consultant and expert work product, even if such materials contain confidential
12 material.
13 The confidentiality obligations imposed by this agreement shall remain in
14 effect until a designating party agrees otherwise in writing or a court orders
15 otherwise.
16 IT IS SO ORDERED. The District Court Clerk is directed to enter this
17 Order and Exhibit and provide copies to counsel.
18 DATED April 30, 2021.
19
s/ Rosanna Malouf Peterson
20 ROSANNA MALOUF PETERSON
United States District Judge
21