The opinion
1 HONORABLE BARBARA J. ROTHSTEIN
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8 IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WASHINGTON
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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
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Plaintiffs,
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v.
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6 MCMENAMINS, INC.,
7 Defendant.
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1. PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidential, proprietary, or
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private information for which special protection may be warranted. Accordingly, the parties hereby
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stipulate to and petition the court to enter the following Stipulated Protective Order. The parties
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acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket
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protection on all disclosures or responses to discovery, the protection it affords from public
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disclosure and use extends only to the limited information or items that are entitled to confidential
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treatment under the applicable legal principles, and it does not presumptively entitle parties to file
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confidential information under seal.
STIPULATED PROTECTIVE ORDER - 1 BRESKIN | JOHNSON | TOWNSEND □□□□
Cause No.: 2:22-cv-00094-BJR 1000 Second Avenue, Suite 3670
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
STIPULATED PROTECTIVE ORDER - 2 BRESKIN | JOHNSON | TOWNSEND □□□□
Cause No.: 2:22-cv-00094-BJR 1000 Second Avenue, Suite 3670
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.
STIPULATED PROTECTIVE ORDER - 3 BRESKIN | JOHNSON | TOWNSEND □□□□
Cause No.: 2:22-cv-00094-BJR 1000 Second Avenue, Suite 3670
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.
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STIPULATED PROTECTIVE ORDER - 4 BRESKIN | JOHNSON | TOWNSEND □□□□
Cause No.: 2:22-cv-00094-BJR 1000 Second Avenue, Suite 3670
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
STIPULATED PROTECTIVE ORDER - 5 BRESKIN | JOHNSON | TOWNSEND □□□□
Cause No.: 2:22-cv-00094-BJR 1000 Second Avenue, Suite 3670
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
STIPULATED PROTECTIVE ORDER - 6 BRESKIN | JOHNSON | TOWNSEND □□□□
Cause No.: 2:22-cv-00094-BJR 1000 Second Avenue, Suite 3670
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.
STIPULATED PROTECTIVE ORDER - 7 BRESKIN | JOHNSON | TOWNSEND □□□□
Cause No.: 2:22-cv-00094-BJR 1000 Second Avenue, Suite 3670
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.
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12 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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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
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tbean@classlawdc.com
STIPULATED PROTECTIVE ORDER - 8 BRESKIN | JOHNSON | TOWNSEND □□□□
Cause No.: 2:22-cv-00094-BJR 1000 Second Avenue, Suite 3670
Counsel for Defendant Counsel for Plaintiff
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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.
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7 DATED this 15th day of May, 2023.
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20 Barbara Jacobs Rothstein
U.S. District Court Judge
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STIPULATED PROTECTIVE ORDER - 9 BRESKIN | JOHNSON | TOWNSEND □□□□
Cause No.: 2:22-cv-00094-BJR 1000 Second Avenue, Suite 3670
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:
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STIPULATED PROTECTIVE ORDER - 10 BRESKIN | JOHNSON | TOWNSEND □□□□
Cause No.: 2:22-cv-00094-BJR 1000 Second Avenue, Suite 3670