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PROTECTIVE ORDER Page 1 Bullivant|Houser|Bailey PC

1601 Fifth Avenue, Suite 2300 

Seattle, Washington 98101-1618 

Telephone: 206.292.8930 

 THE HONORABLE JOHN C. COUGHENOUR 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON AT SEATTLE 

JOSE F. AYON, 

 Plaintiff, 

v. 

LINCARE INC., a Delaware corporation, 

QP3 Training Systems, Inc., a Florida 

corporation, and TED DOE, an individual, 

 Defendant. 

No.: C05-0808 

STIPULATED PROTECTIVE ORDER 

Pursuant to the stipulation of the parties, which is filed as Document Number 20, and 

pursuant to FED. R. CIV. P. 26(c), it is ordered that the following provisions shall apply to all 

discovery in this litigation. 

1. The parties in this litigation intend to produce in their initial disclosures, and in 

discovery, sensitive records that are necessary for use in this lawsuit but are private and 

confidential. Both parties have requested protection against improper disclosure. This 

Protective Order shall apply whether the materials or documents have been produced 

pursuant to initial disclosures, formal discovery, by subpoena, or by agreement. 

2. The term “documents” as used in this Protective Order includes, but is not 

limited to: written, photographic, or electronic media, and extracts, summaries thereof and 

attachments thereto, employment, medical and/or governmental agency records pertaining to 

either party, answers to interrogatories, requests for admission and answers thereto, 

Case 2:05-cv-00808-JCC Document 22 Filed 02/09/06 Page 1 of 9
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PROTECTIVE ORDER Page 2 Bullivant|Houser|Bailey PC

1601 Fifth Avenue, Suite 2300 

Seattle, Washington 98101-1618 

Telephone: 206.292.8930 

deposition transcripts and exhibits, answers to requests for production, and any portions of 

court papers which quote from or summarize any of the foregoing. 

3. Any document, information and/or similar materials produced in this 

litigation, or specific portions thereof, may be marked or otherwise designated by a party as 

“Confidential” if that party in good faith believes it contains confidential information, such 

as, but not limited to, the following: 

i. documents containing financial, private, or other proprietary information that 

is held confidential by either party; or 

ii. documents that are part of an individual’s personnel file, or similar file, 

including the individual’s identifying information such as name, address, telephone number 

and/or social security number, that a party treats as confidential, except that documents 

produced in this litigation prior to the entry of this Protective Order, including documents in 

Plaintiff’s personnel file, will be treated as confidential documents subject to this Protective 

Order if either party designates them as confidential as provided in this Protective Order; 

iii. documents that describe, contain or disclose internal business information that 

is legitimately held confidential or as proprietary within Lincare Inc. (“Lincare”) or; 

iv. the parties agree in writing that they are “Confidential.” 

The determination of whether materials fall into one of the above categories shall be 

made in the first instance by the party from whom discovery is sought. If there is a 

disagreement between the parties as to whether particular materials have been properly 

designated as “Confidential,” the dispute may be resolved by the Court. 

4. The parties recognize that experience may disclose that further categories of 

documents should also be treated as “Confidential.” Entry of this Protective Order does not 

foreclose further agreements by counsel to keep documents confidential or application to the 

Court for protection of other confidential information. 

5. If either party determines to mark information as “Confidential,” that shall be 

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PROTECTIVE ORDER Page 3 Bullivant|Houser|Bailey PC

1601 Fifth Avenue, Suite 2300 

Seattle, Washington 98101-1618 

Telephone: 206.292.8930 

done by stamping each confidential page of documents with the notice “Confidential” prior 

to its production, or, in the case of documents produced by nonparties to this litigation, 

within 30 days of their receipt by counsel of record, the party requesting protection under this 

Order shall notify opposing counsel in writing for which documents it is requesting a 

designation of “Confidential” under this Order. In the case of nondocumentary materials, 

“Confidential” shall be marked prominently on the item. 

6. Except as expressly provided for in this Protective Order, “Confidential” 

materials and documents, and any information contained therein, shall not be communicated 

or disclosed in any manner, either directly or indirectly, to any person or entity, and shall be 

used only for the prosecution and/or defense of this litigation and for no other purpose. 

Notwithstanding the preceding, nothing in this Protective Order shall in any way limit or 

preclude either party from using any of the files, records, information or materials that it has 

created or maintained for any of the business purposes for which they were created or 

maintained. In addition, this Protective Order does not preclude Lincare from using any 

“Confidential” documents or information produced by Lincare to defend the Company’s 

position in other litigation. 

7. “Confidential” documents may be referred to in interrogatory answers, 

motions, and/or briefs, and may be used in depositions and marked as deposition exhibits in 

this action. However, no such document should be used for any of these purposes unless it, 

or the portion of the court paper wherein it is revealed, is appropriately marked and, if filed 

with the Court, is filed under seal. Nothing in this Protective Order shall limit or prevent the 

use of any “Confidential” document or material in open court at hearings in, or during the 

trial of, this action, provided that such use shall not relieve the parties from their obligations 

under this Order, including (without limitation) the obligation to file “Confidential” 

documents under seal. 

8. Except as provided above or pursuant to court order, “Confidential” 

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PROTECTIVE ORDER Page 4 Bullivant|Houser|Bailey PC

1601 Fifth Avenue, Suite 2300 

Seattle, Washington 98101-1618 

Telephone: 206.292.8930 

documents shall not be disclosed, to anyone except: 

a. the attorneys of record and their employees involved in the conduct of this 

litigation; 

b. any person who was an author or addressee of the document or who is shown 

on the document as having received a copy of it; 

c. the court, jury, court personnel, court reporters, and similar court personnel; 

d. any deposition witness in this litigation when shown to such witness before or 

during his or her testimony, provided the “Confidential” item shown to the witness has a 

reasonable and bona fide relationship to his or her testimony and subject to paragraph 10 

below; 

e. those current or former employees, officers and/or directors of Lincare Inc. 

legitimately assisting Lincare’s counsel in defending this claim; 

f. consultants and experts retained by any party for purposes of assisting in the 

preparation, investigation, or presentation of claims or defenses in this litigation; and 

g. Plaintiff, Joseph Ayon. 

9. Prior to being shown “Confidential” documents, any person described in 

paragraphs 8(d), (f) and/or (g) above shall agree in writing to be bound by the terms of this 

Order, by signing an agreement to be found in the form of Attachment A, which is attached. 

10. Either party may, during a deposition or within 30 days after receiving a 

deposition transcript, designate pages of that transcript (and exhibits thereto not already 

designated confidential) as “Confidential.” To the extent possible, the court reporter shall 

segregate into separate transcripts information designated as “Confidential Information,” 

with bland, consecutively numbered pages being provided in a non-designated main 

transcript. The separate transcript containing “Confidential Information” shall have page 

numbers that correspond to the blank pages in the main transcript. Until the expiration of the 

30-day period, the entire deposition will be treated as subject to protection against disclosure 

Case 2:05-cv-00808-JCC Document 22 Filed 02/09/06 Page 4 of 9
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PROTECTIVE ORDER Page 5 Bullivant|Houser|Bailey PC

1601 Fifth Avenue, Suite 2300 

Seattle, Washington 98101-1618 

Telephone: 206.292.8930 

under this order. In the event either counsel believes that any deposition passage so 

designated as confidential is not within the scope of this Protective Order, counsel for both 

parties shall confer in an effort to resolve the matter. If counsel are unable to resolve their 

differences, the party advocating confidentiality shall promptly apply to this Court for a 

resolution of the dispute. Disputed documents shall remain confidential pending 

determination of their status by the Court. If a party does not timely designate confidential 

information in a deposition, then none of the transcript or its exhibits not previously 

designated as confidential will be treated as confidential unless otherwise agreed by the 

parties or ordered by the Court. If a timely designation is made, the confidential portions and 

exhibits shall be filed under seal separate from the portions and exhibits not so marked. 

Nothing in this Protective Order shall limit the use of any deposition testimony or exhibits 

designated “Confidential” in open court at any hearing in, or during the trail of, this action, 

provided that such use shall not relieve the parties from their obligations under this Order, 

including (without limitation) the obligation to file “Confidential” documents under seal. 

11. In the event that any party to this litigation disagrees with the designation by the 

designating party of any information as “Confidential,” or the designation of any person as a 

Qualified Person, the parties shall first try to resolve such dispute in good faith on an 

informal basis, such as production of redacted copies. If a dispute with respect to the 

designation of documents or information as “Confidential” cannot be resolved, the objecting 

party may invoke this Protective Order by objecting within 60 days of the production of such 

documents in writing to the party who has designated the document or information as 

“Confidential.” If a dispute with respect to the designation of a “Qualified Person” cannot be 

resolved, the objecting party may invoke this Protective Order by objecting within 14 days of 

the service of the designation of the Qualified Person. The designating party shall then be 

required to move the Court for an Order preserving the designated status of such information 

within fourteen (14) days of receipt of the written objection, and failure to do so shall 

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PROTECTIVE ORDER Page 6 Bullivant|Houser|Bailey PC

1601 Fifth Avenue, Suite 2300 

Seattle, Washington 98101-1618 

Telephone: 206.292.8930 

constitute a termination of the restricted status of such item or the termination of the 

Qualified status of the individual. 

The parties may, by stipulation, provide for exceptions to this order and any party 

may seek an order of this Court modifying this Protective Order. 

12. Upon request by opposing counsel, within sixty (60) days following the 

“conclusion of these proceedings” as defined below, counsel for each party shall return to 

counsel for the other party all “Confidential” materials produced by the other party, together 

with all abstracts, copies, and other documents containing any information in the confidential 

material. However, confidential documents or other materials produced by plaintiff that are 

the property of Lincare or whose original source was Lincare are not subject to the 

provisions of paragraph 10. “Conclusion of these proceedings” refers to the conclusion of 

this matter by motion, trial or settlement and, if concluded by motion or trial, the exhaustion 

of available appeals, or the running of time for taking such appeals, as provided by 

applicable law. 

Each party’s outside counsel shall maintain a log of all copies of “Confidential” 

documents which are delivered to any one or more of the persons described in paragraph 3, 

above. 

14. The inadvertent or unintentional production of documents containing, or other 

disclosure of, “Confidential Information,” without being designated as “Confidential 

Information” at the time of the production or disclosure, shall not be deemed a waiver in 

whole or in part of a party’s claim of confidentiality, either as to specific information 

discussed or as to any information relating thereto or on the same or related subject matter. 

The production of documents or other tangible things pursuant to a request for production by 

Defendant shall not be deemed a waiver of any right by the producing party to object to 

admissibility of such document at a later time. Documents unintentionally produced without 

designation as “Confidential” may be retroactively designated in the same manner and shall 

Case 2:05-cv-00808-JCC Document 22 Filed 02/09/06 Page 6 of 9
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PROTECTIVE ORDER Page 7 Bullivant|Houser|Bailey PC

1601 Fifth Avenue, Suite 2300 

Seattle, Washington 98101-1618 

Telephone: 206.292.8930 

be treated appropriately from the date written notice of the designation is provided to the 

receiving party. 

15. This order shall not bar any attorney, in the course of rendering advice to her 

client, with respect to this litigation from conveying to any party client her evaluation in a 

general way of “Confidential Information” produced or exchanged herein: provided, 

however that in rendering such advice and otherwise communicating with her client, the 

attorney shall not disclose the specific contents of any “Confidential Information” Produced 

by another party herein, which disclosure would be contrary to the terms of this Protective 

Order. 

16. The parties expressly acknowledge and agree that all remedies under Rule 37 

will be available to the Court, in its discretion, to sanction any violation of this Order. 

DATED this 9th day of February 2006. 

A 

HONORABLE JOHN C. COUGHENOUR 

Presented By: 

Bullivant Houser Bailey PC 

By: 

Gretchen Herbison, WSBA #26310 

E-mail: gretchen.herbison@bullivant.com

Attorneys for Defendant Lincare Inc. 

BULLIVANT HOUSER BAILEY PC 

1601 Fifth Avenue, Suite 2300 

Seattle, WA 98101 

Telephone: 206.292.8930 

Facsimile: 206.386.5130 

ZENDER THURSTON PS 

By: 

Deborra Garrett, WSBA #9505 

E-mail: dgarrett@vztlaw.com

Attorneys for Plaintiff Jose F. Ayon 

ZENDER THURSTON PS 

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PROTECTIVE ORDER Page 8 Bullivant|Houser|Bailey PC

1601 Fifth Avenue, Suite 2300 

Seattle, Washington 98101-1618 

Telephone: 206.292.8930 

1700 D Street 

Bellingham, WA 98227 

Telephone: 360.647.1500 

Facsimile: 360.647.1501 

Case 2:05-cv-00808-JCC Document 22 Filed 02/09/06 Page 8 of 9
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PROTECTIVE ORDER Page 9 Bullivant|Houser|Bailey PC

1601 Fifth Avenue, Suite 2300 

Seattle, Washington 98101-1618 

Telephone: 206.292.8930 

ATTACHMENT A

I, , have been advised by counsel of record 

for plaintiff or defendant (circle one) in Jose F. Ayon v. Lincare Inc., QP3 Training Systems, 

Inc. and Ted Doe, United States District Court for the Western District of Washington, Case 

No. C05-0808, of the protective order governing delivery, exhibition, publication, or 

disclosure to me of confidential documents and information produced in this litigation, 

together with the information contained therein. I have read a copy of said protective order 

and agree to abide by its terms, including its limitation on any further delivery, exhibition, 

publication, or disclosure of documents and information subject to the order. 

 

 Signed 

 

 Printed Name 

 Date 

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