Kwik Loc Corporation v. Matthews International Corporation, No. 1:2022cv03014 - Document 29 (E.D. Wash. 2022)

Court Description: ORDER GRANTING 28 CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER. Signed by Judge Mary K. Dimke. (REM, Case Administrator)

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Kwik Loc Corporation v. Matthews International Corporation Case 1:22-cv-03014-MKD ECF No. 29 1 Doc. 29 filed 12/16/22 PageID.262 Page 1 of 16 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Dec 16, 2022 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 KWIK LOK CORP., a Washington Corporation, 8 Plaintiff/Counterclaim Defendant, 9 vs. No. 1:22-cv-03014-MKD ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER 10 11 12 MATTHEWS INTERNATIONAL CORP., D/B/A MATTHEWS AUTOMATION SOLUTIONS, a Pennsylvania Corporation, 13 ECF No. 28 Defendant/Counterclaim Plaintiff, 14 vs. 15 MATTHEW INTERNATIONAL CORP., a Pennsylvania corporation, 16 Third-Party Plaintiff, 17 18 19 20 vs. SOLARIS LASER, S.A., a Polish entity, Third-Party Defendant. ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 1 Dockets.Justia.com Case 1:22-cv-03014-MKD 1 ECF No. 29 filed 12/16/22 PageID.263 Page 2 of 16 Before the Court is the Parties’ Stipulated Protective Order, ECF No. 28, 2 which the Court construes as a stipulated motion for a protective order. This 3 Court finds good cause, under Federal Rule of Civil Procedure 26(c), to issue an 4 order to protect certain categories of information produced by a party in 5 discovery in this matter to prevent annoyance, embarrassment, oppression, or 6 undue burden or expense. 7 8 9 Accordingly, IT IS ORDERED: 1. The Parties’ Stipulated Motion for Protective Order, ECF No. 28, is GRANTED. 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 2 Case 1:22-cv-03014-MKD filed 12/16/22 PageID.264 Page 3 of 16 PROTECTIVE ORDER 1 2 ECF No. 29 1. PURPOSES AND LIMITATIONS 3 Discovery in this action is likely to involve production of confidential, 4 proprietary, or private information for which special protection may be warranted. 5 The parties acknowledge that this agreement is consistent with Federal Rule of Civil 6 Procedure 26(c). Accordingly, it does not confer blanket protection on all disclosures 7 or responses to discovery, the protection it affords from public disclosure and use 8 extends only to the limited information or items that are entitled to confidential 9 treatment under the applicable legal principles, and it does not presumptively entitle 10 parties to file confidential information under seal. 11 2. 12 13 CONFIDENTIAL MATERIAL For the purposes of this Order, “confidential” material shall include the following documents and tangible things produced or otherwise exchanged: 14 • Any agreement to which Matthews International Corporation 15 (“Matthews”), Kwik Lok Corporation (“Kwik Lok”), and/or Solaris Laser, S.A. 16 (“Solaris”) is a party. 17 • Documents and communications relating to testing, evaluations, and/or 18 investigations of Kwik Lok’s 909A Machines and/or Solaris’ eMark ECO CO2 19 lasers (“eMark Lasers”). 20 • Documents and communications relating to purchasing, pricing, costs, ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 3 Case 1:22-cv-03014-MKD ECF No. 29 filed 12/16/22 PageID.265 Page 4 of 16 1 expenses, and/or sales data, including, but not limited to, negotiations over pricing, 2 between Matthews, Kwik Lok, and/or Solaris. 3 • Documents and communications containing or relating to confidential 4 research and development, production, manufacturing processes and/or formulae, 5 source code, technical designs, financial, technical, marketing, customer, sales, 6 strategic, and/or any other sensitive information. 7 • Documents and communications containing or relating to any party’s 8 intellectual property, trade secrets, marketing material, negotiations over pricing, 9 sales agreements, or other sensitive information with its clients and/or any end users. 10 Documents and communications containing or relating to any investigation or 11 testing of the eMark Lasers between Kwik Lok and its clients and/or any end users. 12 • Documents and communications containing or relating to any 13 compensation or replacement of eMark Lasers between Kwik Lok and its clients 14 and/or any end users. 15 3. SCOPE 16 The protections conferred by this agreement cover not only confidential 17 material (as defined above), but also (1) any information copied or extracted from 18 confidential material; (2) all copies, excerpts, summaries, or compilations of 19 confidential material; and (3) any testimony, conversations, or presentations by 20 parties or their counsel that might reveal confidential material. ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 4 Case 1:22-cv-03014-MKD ECF No. 29 filed 12/16/22 PageID.266 Page 5 of 16 1 However, the protections conferred by this agreement do not cover 2 information that is in the public domain or becomes part of the public domain 3 through trial or otherwise. 4 4. 5 ACCESS TO AND USE OF CONFIDENTIAL MATERIAL 4.1 Basic Principles. A receiving party may use confidential material that 6 is disclosed or produced by another party or by a non-party in connection with this 7 case only for prosecuting, defending, or attempting to settle this litigation. 8 Confidential material may be disclosed only to the categories of persons and under 9 the conditions described in this agreement. Confidential material must be stored and 10 maintained by a receiving party at a location and in a secure manner that ensures that 11 access is limited to the persons authorized under this agreement. 12 4.2 Disclosure of Confidential Information or Items.r Unless otherwise 13 ordered by the court or permitted in writing by the designating party, a receiving 14 party may disclose any confidential material only to: 15 (a) the receiving party’s counsel of record in this action, as well as 16 employees of counsel to whom it is reasonably necessary to disclose the information 17 for this litigation; 18 (b) the officers, directors, and employees (including in house 19 counsel) of the receiving party to whom disclosure is reasonably necessary for this 20 litigation, unless the parties agree that a particular document or material produced is ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 5 Case 1:22-cv-03014-MKD 1 ECF No. 29 filed 12/16/22 PageID.267 Page 6 of 16 for Attorney’s Eyes Only and is so designated; 2 (c) experts and consultants to whom disclosure is reasonably 3 necessary for this litigation and who have signed the “Acknowledgment and 4 Agreement to Be Bound” (Exhibit A); 5 (d) the court, court personnel, and court reporters and their staff; 6 (e) copy or imaging services retained by counsel to assist in the 7 duplication of confidential material, provided that counsel for the party retaining the 8 copy or imaging service instructs the service not to disclose any confidential material 9 to third parties and to immediately return all originals and copies of any confidential 10 material; 11 (f) during their depositions, witnesses in the action to whom 12 disclosure is reasonably necessary and who have signed the “Acknowledgment and 13 Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the designating 14 party or ordered by the court. Pages of transcribed deposition testimony or exhibits 15 to depositions that reveal confidential material must be separately bound by the court 16 reporter and may not be disclosed to anyone except as permitted under this 17 agreement; 18 19 20 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 4.3 Filing Confidential Material. Before filing confidential material or ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 6 Case 1:22-cv-03014-MKD ECF No. 29 filed 12/16/22 PageID.268 Page 7 of 16 1 discussing or referencing such material in court filings, the filing party shall confer 2 with the designating party, in accordance with Federal Rule of Civil Procedure 3 5.2(e), to determine whether the designating party will remove the confidential 4 designation, whether the document can be redacted, or whether a motion to seal or 5 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 7 information at issue, and the filing party shall include this basis in its motion to seal, 8 along with any objection to sealing the information at issue. Federal Rule of Civil 9 Procedure 5.2 sets forth the procedures that must be followed and the standards that 10 will be applied when a party seeks permission from the court to file material under 11 seal. A party who seeks to maintain the confidentiality of its information must 12 satisfy the requirements of Federal Rule of Civil Procedure 5.2 even if it is not the 13 party filing the motion to seal. Failure to satisfy this requirement will result in the 14 motion to seal being denied, in accordance with the strong presumption of public 15 access to the Court’s files. 16 5. 17 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 18 Each party or non-party that designates information or items for protection under 19 this agreement must take care to limit any such designation to specific material that 20 qualifies under the appropriate standards. The designating party must designate for ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 7 Case 1:22-cv-03014-MKD ECF No. 29 filed 12/16/22 PageID.269 Page 8 of 16 1 protection only those parts of material, documents, items, or oral or written 2 communications that qualify, so that other portions of the material, documents, 3 items, or communications for which protection is not warranted are not swept 4 unjustifiably within the ambit of this agreement. 5 Mass, indiscriminate, or routinized designations are prohibited. Designations 6 that are shown to be clearly unjustified or that have been made for an improper 7 purpose (e.g., to unnecessarily encumber or delay the case development process or 8 to impose unnecessary expenses and burdens on other parties) expose the 9 designating party to sanctions. 10 If it comes to a designating party’s attention that information or items that it 11 designated for protection do not qualify for protection, the designating party must 12 promptly notify all other parties that it is withdrawing the mistaken designation. 13 5.2 Manner and Timing of Designations. Except as otherwise provided in 14 this agreement (see, e.g., second paragraph of section 5.2(b) below), or as otherwise 15 stipulated or ordered, disclosure or discovery material that qualifies for protection 16 under this agreement must be clearly so designated before or when the material is 17 disclosed or produced. 18 (a) Information in documentary form: (e.g., paper or electronic 19 documents and deposition exhibits, but excluding transcripts of depositions or other 20 pretrial or trial proceedings), the designating party must affix the word ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 8 Case 1:22-cv-03014-MKD ECF No. 29 filed 12/16/22 PageID.270 Page 9 of 16 1 “CONFIDENTIAL” to each page that contains confidential material. If only a 2 portion or portions of the material on a page qualifies for protection, the producing 3 party also must clearly identify the protected portion(s) (e.g., by making appropriate 4 markings in the margins). (b) 5 Testimony given in deposition or in other pretrial proceedings: 6 the parties and any participating non-parties must identify on the record, during the 7 deposition or other pretrial proceeding, all protected testimony, without prejudice to 8 their right to so designate other testimony after reviewing the transcript. Any party 9 or non-party may, within fifteen days after receiving the transcript of the deposition 10 or other pretrial proceeding, designate portions of the transcript, or exhibits thereto, 11 as confidential. If a party or non-party desires to protect confidential information at 12 trial, the issue should be addressed during the pre-trial conference. 13 (c) Other tangible items: the producing party must affix in a 14 prominent place on the exterior of the container or containers in which the 15 information or item is stored the word “CONFIDENTIAL.” If only a portion or 16 portions of the information or item warrant protection, the producing party, to the 17 extent practicable, shall identify the protected portion(s). 18 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 19 failure to designate qualified information or items does not, standing alone, waive 20 the designating party’s right to secure protection under this agreement for such ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 9 Case 1:22-cv-03014-MKD ECF No. 29 filed 12/16/22 PageID.271 Page 10 of 16 1 material. Upon timely correction of a designation, the receiving party must make 2 reasonable efforts to ensure that the material is treated in accordance with the 3 provisions of this agreement. 4 6. 5 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any party or non-party may challenge a 6 designation of confidentiality at any time. Unless a prompt challenge to a 7 designating party’s confidentiality designation is necessary to avoid foreseeable, 8 substantial unfairness, unnecessary economic burdens, or a significant disruption or 9 delay of the litigation, a party does not waive its right to challenge a confidentiality 10 designation by electing not to mount a challenge promptly after the original 11 designation is disclosed. 12 6.2 Meet and Confer. The parties must make every attempt to resolve any 13 dispute regarding confidential designations without court involvement. Any motion 14 regarding confidential designations or for a protective order must include a 15 certification, in the motion or in a declaration or affidavit, that the movant has 16 engaged in a good faith meet and confer conference with other affected parties in an 17 effort to resolve the dispute without court action. The certification must list the date, 18 manner, and participants to the conference. A good faith effort to confer requires a 19 face-to-face meeting or a telephone conference. 20 6.3 Judicial Intervention. If the parties cannot resolve a challenge without ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 10 Case 1:22-cv-03014-MKD ECF No. 29 filed 12/16/22 PageID.272 Page 11 of 16 1 court intervention, the designating party may file and serve a motion to retain 2 confidentiality. The burden of persuasion in any such motion shall be on the 3 designating party. Frivolous challenges, and those made for an improper purpose 4 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 5 expose the challenging party to sanctions. All parties shall continue to maintain the 6 material in question as confidential until the court rules on the challenge. 7 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 8 IN OTHER LITIGATION 9 If a party is served with a subpoena or a court order issued in other litigation 10 that compels disclosure of any information or items designated in this action as 11 “CONFIDENTIAL,” that party must: 12 13 14 (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 15 order to issue in the other litigation that some or all of the material covered by the 16 subpoena or order is subject to this agreement. Such notification shall include a copy 17 of this agreement; and 18 19 (c) cooperate with respect to all reasonable procedures sought to be pursued by the designating party whose confidential material may be affected. 20 ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 11 Case 1:22-cv-03014-MKD 1 8. ECF No. 29 filed 12/16/22 PageID.273 Page 12 of 16 UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a receiving party learns that, by inadvertence or otherwise, it has disclosed 3 confidential material to any person or in any circumstance not authorized under this 4 agreement, the receiving party must immediately (a) notify in writing the designating 5 party of the unauthorized disclosures, (b) use its best efforts to retrieve all 6 unauthorized copies of the protected material, (c) inform the person or persons to 7 whom unauthorized disclosures were made of all the terms of this agreement, and 8 (d) request that such person or persons execute the “Acknowledgment and 9 Agreement to Be Bound” that is attached hereto as Exhibit A. 10 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 11 PROTECTED MATERIAL 12 When a producing party gives notice to receiving parties that certain 13 inadvertently produced material is subject to a claim of privilege or other protection, 14 the obligations of the receiving parties are those set forth in Federal Rule of Civil 15 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure 16 may be established in an e-discovery order or agreement that provides for production 17 without prior privilege review. The parties agree to the entry of a non-waiver order 18 under Fed. R. Evid. 502(d) as set forth herein. 19 10. 20 NON-TERMINATION AND RETURN OF DOCUMENTS Within 60 days after the termination of this action, including all appeals, each ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 12 Case 1:22-cv-03014-MKD ECF No. 29 filed 12/16/22 PageID.274 Page 13 of 16 1 receiving party must return all confidential material to the producing party, including 2 all copies, extracts and summaries thereof. Alternatively, the parties may agree upon 3 appropriate methods of destruction. 4 Notwithstanding this provision, counsel are entitled to retain one archival 5 copy of all documents filed with the court, trial, deposition, and hearing transcripts, 6 correspondence, deposition and trial exhibits, expert reports, attorney work product, 7 and consultant and expert work product, even if such materials contain confidential 8 material. 9 The confidentiality obligations imposed by this agreement shall remain in 10 effect until a designating party agrees otherwise in writing or a court orders 11 otherwise. 12 11. NON-WAIVER OF CERTAIN PRIVILEGES 13 Pursuant to Fed. R. Evid. 502(d), the production of any documents in this 14 proceeding shall not, for the purposes of this proceeding or any other federal or state 15 proceeding, constitute a waiver by the producing party of any privilege applicable 16 to those documents, including the attorney-client privilege, attorney work-product 17 protection, or any other privilege or protection recognized by law. 18 19 20 ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 13 Case 1:22-cv-03014-MKD 1 2 3 ECF No. 29 filed 12/16/22 PageID.275 Page 14 of 16 IT IS SO ORDERED. The District Court Executive is directed to file this order and provide copies to the parties. DATED December 16, 2022. 4 5 s/Mary K. Dimke MARY K. DIMKE UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 14 Case 1:22-cv-03014-MKD ECF No. 29 filed 12/16/22 PageID.276 Page 15 of 16 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 5 under penalty of perjury that I have read in its entirety and understand the Stipulated 6 Protective Order that was issued by the United States District Court for the Eastern 7 District of Washington on _________________ [date] in the case of KWIK LOK 8 CORP., a Washington Corporation, Plaintiff/Counterclaim Defendant, vs. 9 MATTHEWS INTERNATIONAL CORP., D/B/A MATTHEWS AUTOMATION 10 SOLUTIONS, a Pennsylvania Corporation, Defendant/Counterclaim Plaintiff, vs. 11 MATTHEW INTERNATIONAL CORP., a Pennsylvania corporation, Third-Party 12 Plaintiff, vs. SOLARIS LASER, S.A., a Polish entity, Third-Party Defendant in Case 13 No. 1:22-cv-03014-MKD. I agree to comply with and to be bound by all the terms 14 of this Stipulated Protective Order and I understand and acknowledge that failure to 15 so comply could expose me to sanctions and punishment in the nature of contempt. 16 I solemnly promise that I will not disclose in any manner any information or item 17 that is subject to this Stipulated Protective Order to any person or entity except in 18 strict compliance with the provisions of this Order. 19 I further agree to submit to the jurisdiction of the United States District Court 20 for the Eastern District of Washington for the purpose of enforcing the terms of this ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 15 Case 1:22-cv-03014-MKD ECF No. 29 filed 12/16/22 PageID.277 Page 16 of 16 1 Stipulated Protective Order, even if such enforcement proceedings occur after 2 termination of this action. 3 Date: 4 City and State where sworn and signed: 5 Printed name: 6 Signature: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING CONSTRUED STIPULATED MOTION FOR PROTECTIVE ORDER; AND PROTECTIVE ORDER - 16

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