[00:00:00] Speaker 05:
And that will lead us to our final argument for today, which is Stemlet AG Services LLC versus Columbia Legal Services case number 23-3548.

[00:01:00] Speaker 05:
Oh, let's see.

[00:01:08] Speaker 05:
Miss Schmidt?

[00:01:11] Speaker 05:
OK.

[00:01:38] Speaker 03:
Good morning.

[00:01:39] Speaker 03:
I wanted to, before I start, make the court aware that I wear hearing aids.

[00:01:43] Speaker 03:
I have a hearing impairment, and I usually do.

[00:01:45] Speaker 05:
We'll be sure to speak up.

[00:01:46] Speaker 05:
If you have a problem hearing us, just let us know.

[00:01:48] Speaker 03:
OK, I will.

[00:01:49] Speaker 03:
And I've been observing this morning, and I have had a little bit of difficulty, Judge Berzon, in particular, with your questions.

[00:01:59] Speaker 03:
And I think if everybody could endeavor to speak directly into the microphone.

[00:02:05] Speaker 01:
Well, Judge Fletcher and I have hearing aids as well.

[00:02:07] Speaker 03:
OK, well, we're in the club.

[00:02:10] Speaker 03:
Yeah, we're sympathetic.

[00:02:11] Speaker 03:
I appreciate that.

[00:02:12] Speaker 03:
It's going to be most difficult for me when my colleague is speaking, and I'm not able to say that I wasn't able to understand.

[00:02:19] Speaker 03:
So when my colleague is speaking, that'll be the most important time to speak into the microphone.

[00:02:24] Speaker 03:
I really appreciate that.

[00:02:30] Speaker 03:
May it please the court, I'm Andrea Schmidt on behalf of Appellant Columbia Legal Services, which is a nonprofit law firm that represented the farm worker plaintiffs in the district court.

[00:02:39] Speaker 03:
And here, CLS challenges a ruling granting blanket discovery protection that binds CLS itself, and that contradicts the presumption that discovery materials are public, and that was made, first, without a valid basis in law, and second, without a valid basis in fact.

[00:02:58] Speaker 05:
I don't want to oversimplify this case, but in my mind, as long as you can answer this question correctly, you're well on your way to winning.

[00:03:08] Speaker 05:
As I understand it, there was a lot of protected material that was produced.

[00:03:14] Speaker 05:
Washington state employee records, employment files of third parties, domestic worker payroll data, worker medical records, some stemlet financial data.

[00:03:25] Speaker 05:
even if we vacated or the blanket protective order, those records would still be protected.

[00:03:34] Speaker 05:
Is that correct?

[00:03:35] Speaker 03:
That's correct, Your Honor.

[00:03:36] Speaker 03:
Absolutely.

[00:03:38] Speaker 03:
The ruling that is not at issue here is that validly granted protective order, which was a ruling that happened earlier in that same document.

[00:03:49] Speaker 00:
Let me ask you then, pursuing the same line of questioning,

[00:03:53] Speaker 00:
What is it that we should now do should we remand to the district court so that the district court can now Sort out what is protected and what is not because we don't yet have a district court order doing that That's that's correct your honor no that the court should strike the first sentence on the top of one er 18 and

[00:04:15] Speaker 03:
Vacate that sentence.

[00:04:16] Speaker 03:
So that is the challenge ruling.

[00:04:18] Speaker 03:
That's the first Part of the of the remedy and and I'd argue that that is all that's needed here And that's for two reasons The first is that it would be futile to do otherwise and the second is that the equities don't point in that direction but if we don't remand to the district court to sort out what's protected and what is not protected to

[00:04:38] Speaker 00:
Doesn't that leave your client free to use whatever's in the record of discovery that's not been submitted into the record of the court?

[00:04:50] Speaker 00:
I mean, what constrains you then?

[00:04:51] Speaker 00:
What keeps you from using information that is protected or should be?

[00:04:58] Speaker 03:
Two things, Your Honor.

[00:04:59] Speaker 03:
First, there was a validly granted protective order that protected certain categories of confidential information, as Judge Nelson noted.

[00:05:07] Speaker 00:
Well, does that extend to all of the protected information that's now in the discovery record?

[00:05:14] Speaker 03:
The anything that qualified as that medical information or sensitive financial information under that protective order is protected and has been destroyed, actually.

[00:05:25] Speaker 00:
No, no, I get that.

[00:05:26] Speaker 00:
But is there anything else in the information that is protected that is not yet subject to a protective order?

[00:05:34] Speaker 03:
I suppose the best answer is that we don't know, and that's because Stemilt had numerous opportunities to articulate what other documents were in need of protection and what harm would result from the release of those documents in the trial court and at this court, and it hasn't done that.

[00:05:56] Speaker 01:
Isn't it also true that the

[00:06:00] Speaker 01:
sentence you're talking about pertains only to using the information in litigation.

[00:06:08] Speaker 03:
It says in other advocacy, Your Honor.

[00:06:11] Speaker 01:
Right.

[00:06:11] Speaker 01:
So if, for example, you wanted to give it all to the newspaper, it doesn't seem to be covered.

[00:06:17] Speaker 03:
It's not protected.

[00:06:18] Speaker 03:
We have read the order to restrict all other use of the documents.

[00:06:23] Speaker 01:
But it doesn't say that.

[00:06:24] Speaker 03:
Well, it says the another advocacy and so we've read it in the most conservative possible way in order to avoid violating the order.

[00:06:31] Speaker 03:
So we have not shared the information with the media.

[00:06:34] Speaker 03:
We have not shared the information with legislators on behalf of our retained legislative clients.

[00:06:40] Speaker 03:
We have not shared the information in other litigation either.

[00:06:43] Speaker 01:
I say this only to suggest that the

[00:06:48] Speaker 01:
original order doesn't seem to have been concerned about whether there was other information that was protectable, but only with the use of litigation or advocacy, but not what a broad protective order usually covers, which would be, you could give it to your daughter to read for school or something.

[00:07:11] Speaker 03:
Yes.

[00:07:12] Speaker 03:
I think, I mean, a couple of things there.

[00:07:17] Speaker 03:
We know that the confidential materials that are already protected have been destroyed and are not at issue.

[00:07:24] Speaker 05:
Wait, but do we know that?

[00:07:27] Speaker 05:
How was this stuff produced?

[00:07:29] Speaker 05:
Because usually when documents were produced under a protective order, you mark them as protected under the protective order.

[00:07:35] Speaker 05:
Did that happen here?

[00:07:36] Speaker 05:
When Stemlip produced documents, did they mark them as protected under the protective order?

[00:07:43] Speaker 03:
Stemilt, it depends on at what point in production.

[00:07:48] Speaker 03:
Some production happened before there was the order at all.

[00:07:54] Speaker 03:
And then subsequent to the order, Stemilt marked everything confidential.

[00:07:59] Speaker 05:
But then that's your duty to go in and challenge it.

[00:08:02] Speaker 03:
except for that the burden is on Stemilt.

[00:08:06] Speaker 05:
Well, that's true, but if they mark it as, well, true, you could take your risk and violate, potentially violate it and fight it out that way.

[00:08:15] Speaker 05:
But it seems to me that if it's marked protected, then you need to go into the court and say, these are not protected.

[00:08:22] Speaker 03:
The blanket protective order that would have allowed them to mark everything confidential.

[00:08:27] Speaker 05:
That's when they started doing it.

[00:08:28] Speaker 03:
Yes.

[00:08:29] Speaker 03:
It was invalidly entered, because it was entered without an analysis of good cause.

[00:08:35] Speaker 05:
And I think we're back to Judge Fletcher's question, which is don't we need the district court to take some

[00:08:40] Speaker 03:
Yes, so a couple of things there.

[00:08:43] Speaker 03:
So I suppose that after the court vacates the improperly granted order, Stemilt could go to the district court and properly identify documents that are in need of protection as its burden and seek a protective order under the proper standard.

[00:09:02] Speaker 05:
Well, back up, because you said anything that is covered by the protective order is already destroyed.

[00:09:09] Speaker 05:
But that's just what you view as under the protective order.

[00:09:12] Speaker 03:
The things that were protected by the validly granted protective order that were in certain categories.

[00:09:18] Speaker 05:
You don't know, but there's no, there's been no agreement between the parties and I get

[00:09:24] Speaker 05:
I don't get but my assumption is that that's going to be hard to get is agreement between the parties.

[00:09:32] Speaker 05:
But you have taken your own crack at a whole bunch of documents that either were not marked protected or were marked protected.

[00:09:39] Speaker 05:
and you've destroyed them, but you are also holding a number of documents that are marked protected that you don't think are protected.

[00:09:46] Speaker 05:
You may well be right on that.

[00:09:48] Speaker 05:
But it seems to me that the district court has to work that out.

[00:09:50] Speaker 05:
We've got to, I mean, you would want the district court to work that out.

[00:09:54] Speaker 05:
You don't want to go out there and then be accused after the fact of having violated the protective order.

[00:10:01] Speaker 03:
Your honor, if the district court is tasked with working this out on remand, it should be utterly clear that the burden is on Stemilt to articulate which documents are in need of protection, not the other way around.

[00:10:16] Speaker 03:
And it should... Well, I think our law is clear on that point.

[00:10:18] Speaker 03:
Is there a burden?

[00:10:20] Speaker 05:
And there has to be good cause, and it has to be a

[00:10:24] Speaker 05:
It has to be document by document determination, effectively.

[00:10:27] Speaker 03:
Right.

[00:10:27] Speaker 05:
And with the balancing of- How many documents were we talking about here that had not been destroyed?

[00:10:33] Speaker 05:
Thousands?

[00:10:33] Speaker 05:
Tens of thousands?

[00:10:34] Speaker 05:
Hundreds of thousands?

[00:10:35] Speaker 03:
Yes.

[00:10:36] Speaker 03:
I mean, tens of thousands of documents, probably.

[00:10:40] Speaker 00:
Although, it's going to be by category.

[00:10:43] Speaker 00:
I don't have to go document A, document B, document C in a category.

[00:10:49] Speaker 00:
So it's going to be how many categories really are there, not how many individual documents.

[00:10:54] Speaker 03:
Yes, it's certainly valid good cause can be.

[00:10:59] Speaker 03:
But valid good cause can be found as the category.

[00:11:02] Speaker 01:
In the original order, the district court essentially found that they had not met their burden of identifying, or they only met their burden of identifying specific discovery for which a protective order is needed as to the material that he actually protected.

[00:11:21] Speaker 01:
And he didn't say as to the remainder, well, there may be more material in there that should be generically protected.

[00:11:33] Speaker 01:
He seemed to be concerned about you using the information in litigation or advocacy, but not because he didn't say anything about the fact that there was any attempt to meet the burden as to anything else.

[00:11:46] Speaker 03:
That's correct, Your Honor.

[00:11:47] Speaker 01:
So if we remand it, we're now giving them a second shot at something they didn't do before.

[00:11:52] Speaker 03:
That's right.

[00:11:53] Speaker 03:
And Stemilt, I would say as to the equities, Stemilt has unclean hands here.

[00:11:57] Speaker 03:
It used falsehoods to get the protective order in the first place and finally admitted that in its briefing in this court.

[00:12:05] Speaker 03:
And it's inequitable to give Stemilt more benefit from that.

[00:12:08] Speaker 03:
We've been harmed by this protective order for almost four years now.

[00:12:11] Speaker 05:
Here's my concern.

[00:12:13] Speaker 05:
I mean, I'm with you on a lot of this, but my concern is

[00:12:17] Speaker 05:
We don't have a defined universe of documents that we know.

[00:12:23] Speaker 05:
And I just don't know why you would want to take the risk.

[00:12:28] Speaker 05:
You either got to do it on the front end or the back end.

[00:12:31] Speaker 05:
And I understand why you don't want to do it on a, hey, we want to use these, you know, of these tens of thousands, these are the only hundred that we want to use.

[00:12:37] Speaker 05:
You tried that.

[00:12:38] Speaker 05:
It backfired.

[00:12:39] Speaker 05:
I get that.

[00:12:40] Speaker 05:
But it does seem like you need to go through whatever universe has not been destroyed

[00:12:46] Speaker 05:
and get some agreement on what's protected or not.

[00:12:49] Speaker 05:
Now, you may have an argument that they can't raise new, I mean, I listed the six categories.

[00:12:55] Speaker 05:
You may have an argument that it has to fall within one of those six categories.

[00:12:59] Speaker 05:
They can't come up with a seventh and an eighth and a ninth.

[00:13:02] Speaker 05:
But it seems to me that it's in your interest to allow the district court to do that at this point.

[00:13:07] Speaker 03:
You could be right, Your Honor, and I think the important thing on a remand would be to carefully define whose burden it is and what the limits are of the new arguments that are allowed to be made.

[00:13:16] Speaker 03:
We would suggest that... One thing I don't understand.

[00:13:20] Speaker 01:
Nothing else is subject to a protective order.

[00:13:23] Speaker 01:
So what danger could you be in?

[00:13:25] Speaker 01:
There is no protective order.

[00:13:29] Speaker 01:
except, I mean, there's the broad one, but there's none that is specifically targeted, except the one that already exists and that you abide by.

[00:13:38] Speaker 01:
So the fact that they mark something as protected doesn't mean it's subject to a protective order.

[00:13:45] Speaker 03:
If the order is vacated by this court, that's probably true.

[00:13:50] Speaker 05:
Wait, hold on.

[00:13:51] Speaker 05:
I thought if the blanket protective order is

[00:13:56] Speaker 05:
vacated, there still is a protective order that protects those documents.

[00:14:00] Speaker 03:
There is perhaps.

[00:14:03] Speaker 05:
Oh, well, we better clarify that.

[00:14:04] Speaker 03:
OK.

[00:14:05] Speaker 05:
That's where I started.

[00:14:06] Speaker 05:
And I thought you said, no, those are still protected.

[00:14:09] Speaker 03:
They still marked everything confidential.

[00:14:13] Speaker 03:
I don't know.

[00:14:14] Speaker 05:
Let's back up.

[00:14:14] Speaker 05:
Yeah.

[00:14:15] Speaker 05:
Let's step away from what's marked.

[00:14:17] Speaker 05:
What is there a district court order that already protects those six categories of documents separate and apart from the blanket?

[00:14:25] Speaker 03:
Yes.

[00:14:26] Speaker 03:
And that order exists in the same document as the challenge rule.

[00:14:30] Speaker 01:
And that order has been abided by, and that's not what we're talking about.

[00:14:33] Speaker 01:
Yes, indeed.

[00:14:34] Speaker 01:
And whatever is subject to the blanket order that's left was never declared protected by the district court.

[00:14:43] Speaker 01:
Except as far as the blanket order said, you can't use it for litigation and advocacy, and you have to come to me.

[00:14:49] Speaker 03:
Yes.

[00:14:49] Speaker 01:
But it didn't say it's confidential.

[00:14:51] Speaker 01:
It didn't say it didn't make any

[00:14:53] Speaker 01:
Indeed.

[00:14:54] Speaker 03:
Right.

[00:14:54] Speaker 03:
Yes.

[00:14:55] Speaker 03:
Yes.

[00:14:55] Speaker 03:
I now understand the gist of the question.

[00:14:57] Speaker 03:
Thank you very much.

[00:14:58] Speaker 03:
And I'll reserve the rest of my time for rebuttal if there aren't other questions.

[00:15:01] Speaker 03:
Thank you.

[00:15:19] Speaker 04:
Good morning, Your Honors.

[00:15:23] Speaker 04:
colleague that I make a better door than window, so I'll try not to stand directly in her line of sight to see you all.

[00:15:30] Speaker 04:
My name is who Stokes Gonzalez of the Stokes Lawrence firm representing Stemilt Ag Services.

[00:15:36] Speaker 04:
May it please the court.

[00:15:39] Speaker 04:
I had intended to begin with a jurisdictional issue, but I'm sensing the court is not really going down that path.

[00:15:46] Speaker 04:
What I will begin with then is my agreement with where I heard the courts questioning taking this case, which is where it should have been in the first place before the district court, for the district court to make findings about what exactly it is Columbia Legal Services is asking for.

[00:16:05] Speaker 04:
Today, at oral argument, is the very first time Stemilt has heard that it's tens of thousands of its documents that are at issue in this appeal.

[00:16:14] Speaker 04:
Before today, we did not know that.

[00:16:16] Speaker 05:
Stemilt did not know that.

[00:16:20] Speaker 05:
I mean, maybe it's been a while.

[00:16:22] Speaker 05:
It's been a few years since I've done, you know, discovery.

[00:16:26] Speaker 05:
But my recollection is when you produce documents, you mark them as confidential or not.

[00:16:32] Speaker 05:
And so I guess I'm confused why there's a lot of confusion here because I mean, it sounds like part of the confusion is because some documents were produced before there was a protective order in place.

[00:16:44] Speaker 04:
So the history of this case, and that's a good question just to give you that ground, give the court this grounding.

[00:16:50] Speaker 04:
The history of this case began before a complaint had been filed.

[00:16:54] Speaker 04:
A complaint had been delivered to Stemilt through its counsel, and Stemilt's reaction was to agree to engage in mediation.

[00:17:06] Speaker 04:
It produced, in connection with that mediation, an exchange of thousands and thousands and thousands of documents, which by statute in Washington are privileged.

[00:17:16] Speaker 04:
They are confidential by nature.

[00:17:18] Speaker 00:
Because you're in this informal proceeding?

[00:17:22] Speaker 04:
Because of the mediation privilege that is statutory in Washington.

[00:17:26] Speaker 04:
I believe it's RCW 7.07.

[00:17:29] Speaker 04:
So that is the genesis of so many materials having been produced with a confidential designation.

[00:17:37] Speaker 05:
And mediation failed.

[00:17:39] Speaker 05:
Mediation failed.

[00:17:40] Speaker 05:
A complaint was filed.

[00:17:42] Speaker 05:
Those documents were reproduced, or you just said, hey, those are part of the production?

[00:17:47] Speaker 04:
Those documents were not reproduced because what they comprised was thousands and thousands and thousands of lines of financial data, wage information that identified individual employees by their employee ID number,

[00:18:04] Speaker 04:
their rate of compensation and production, if it was a piece rate production as opposed to hourly production.

[00:18:10] Speaker 04:
All of that data, which is not public, which has a legitimate basis for protection under the law, was produced.

[00:18:17] Speaker 05:
It would be protected as financial data that apparently is protected under a current protective order.

[00:18:25] Speaker 04:
We don't know if that falls within the categories of information that Columbia Legal Services believes is confidential.

[00:18:33] Speaker 04:
And that's one of the central challenges that Stamilt has had with this appeal.

[00:18:38] Speaker 04:
Obviously, the existence of the appeal when it believed it had purchased peace with dismissal with prejudice and a waiver of a right to appeal.

[00:18:49] Speaker 04:
It certainly thought this case was over at that point, and no party had standing to appeal.

[00:18:55] Speaker 04:
And we maintain that none does.

[00:18:57] Speaker 04:
However, after the complaint was filed, the parties agreed.

[00:19:03] Speaker 04:
The parties are going to enter a protective order, one that is tailored to this case.

[00:19:09] Speaker 04:
Stemilt's attorneys offered a form of protective order based on the Western District model, one that identified categories of documents, since it would be not feasible to go through every employee's employee file, identifying page by page.

[00:19:24] Speaker 04:
We're talking about over a couple thousand employees.

[00:19:29] Speaker 04:
Stemilt engaged in what is commonly referred to in litigation as over the fence productions.

[00:19:34] Speaker 04:
It made every employee's

[00:19:37] Speaker 04:
employee file and every file at Every ranch office and there are multiple ranch locations with hundreds of employees with hundreds and hundreds of employee files It opened the doors There was there was no prior review Any any documents that and nothing was marked confidential?

[00:19:58] Speaker 04:
No, these were this was raw files from the company's electronically

[00:20:04] Speaker 04:
No, these are paper files.

[00:20:06] Speaker 04:
And this gets to the other reason that the district court entered the form of order that it did.

[00:20:12] Speaker 04:
These are files that are maintained in the orchard offices and the ranch offices.

[00:20:20] Speaker 04:
Most of them are handwritten files.

[00:20:23] Speaker 04:
They are not electronic.

[00:20:25] Speaker 04:
They're not maintained in electronic format.

[00:20:27] Speaker 04:
They're handwritten in, handnotated, often in Spanish.

[00:20:32] Speaker 04:
That's how they're maintained.

[00:20:34] Speaker 04:
So there is no way to easily and electronically run an algorithm in an e-discovery tool and redact, for example, or identify specific content that either Stemilt or the plaintiffs were looking for to advance their claims or advance their defenses.

[00:20:54] Speaker 04:
So that is the universe of material that we're looking at.

[00:20:58] Speaker 04:
Stemilt doesn't know if that is what is at issue here and what

[00:21:03] Speaker 04:
Columbia Legal Services, the law firm, the appellant law firm believes should not be confidential.

[00:21:09] Speaker 04:
Are they employee files?

[00:21:10] Speaker 04:
They were never redacted.

[00:21:12] Speaker 04:
They need to be protected.

[00:21:13] Speaker 05:
We can ask for clarification in the rebuttal.

[00:21:16] Speaker 05:
What I heard, I read six or five categories, one of which included employment files of third parties.

[00:21:22] Speaker 05:
And what I was told was that those documents have already been destroyed.

[00:21:27] Speaker 05:
Now, I don't know whether that's accurate or not.

[00:21:29] Speaker 05:
And we'll ask for clarification.

[00:21:31] Speaker 04:
That's not in the record.

[00:21:32] Speaker 04:
I will make that clarification in an argument to the court.

[00:21:36] Speaker 04:
What has been destroyed and what Columbia Legal Services, the appellant law firm here, believes is not subject to valid protection, is not validly subject to protection under Rule 26C or the protective order that they advance to the court.

[00:21:51] Speaker 04:
That is not in the record.

[00:21:53] Speaker 04:
We don't know what categories of materials they don't think deserve protection.

[00:21:58] Speaker 04:
We certainly don't know which documents, which individual documents, don't deserve protection.

[00:22:03] Speaker 04:
It's nowhere in the record.

[00:22:04] Speaker 04:
And that's why to the extent this appeal isn't dismissed for lack of jurisdiction, I agree the appropriate course is to remand for further proceedings so that both

[00:22:18] Speaker 04:
the appellant law firm and Stemilt are able to make the record of what is contested, what is not.

[00:22:25] Speaker 00:
Let me ask you this based on what you just said.

[00:22:28] Speaker 00:
I think I just heard you say that you're conceding that the order entered by the district court is overbroad.

[00:22:36] Speaker 04:
We do concede that, Your Honor, because it's not the order we ask the court to enter either.

[00:22:42] Speaker 04:
We think it is over prod.

[00:22:44] Speaker 04:
But it is understandable, and we actually don't.

[00:22:48] Speaker 05:
It sounds like, I mean, I'm trying to retro-engineer this, but the district court may have been worried, may have been trying to say, look, there's just too much to get into here.

[00:22:57] Speaker 05:
Come back to me with what you want to use, and then we'll figure it out.

[00:23:01] Speaker 05:
But that, of course, has its own problem.

[00:23:04] Speaker 04:
We agree that that's what

[00:23:07] Speaker 04:
where we were getting at and we address this and in our response briefing your honors.

[00:23:14] Speaker 04:
This case at the district court level was incredibly contentious and as the district court phrased it and remark.

[00:23:23] Speaker 04:
discovery was especially litigious.

[00:23:25] Speaker 04:
There were 15 discovery-related motions, five hearings that lasted well more than five hours in total.

[00:23:32] Speaker 04:
There was a lot of court time dedicated to discovery disputes.

[00:23:36] Speaker 04:
There were four discovery orders.

[00:23:38] Speaker 04:
The appellant law firm was sanctioned in one instance for its discovery abuse.

[00:23:44] Speaker 04:
That order is not on appeal here.

[00:23:46] Speaker 04:
However, that is the context on this second attempt to

[00:23:52] Speaker 04:
on the party's second attempt to have a protective order entered in the case that would retroactively cover what both parties assumed would be confidential as productions were made and going forward.

[00:24:09] Speaker 05:
I'm just trying to figure out that you say you turned over all these documents.

[00:24:14] Speaker 05:
They came in and they looked through them and then they made copies of what they wanted and they took that.

[00:24:20] Speaker 05:
I mean do you even have a record of what you produced and what you didn't produce?

[00:24:23] Speaker 04:
We do have a record.

[00:24:24] Speaker 04:
We do have an index of what was produced and what was not.

[00:24:27] Speaker 05:
Is there any way you can go through that index?

[00:24:31] Speaker 05:
And I mean, look, I don't see any way to do this without a lot of pain.

[00:24:36] Speaker 05:
But I mean, whether you do it by category or document, there's got to be some agreement between the parties on what's protected and what's not.

[00:24:44] Speaker 05:
But ultimately, you have a burden, which I think you agree with,

[00:24:48] Speaker 05:
to show that documents that are protected should be protected.

[00:24:53] Speaker 04:
So under Rule 26C, yes, Stemilt has the burden to make that showing.

[00:24:58] Speaker 04:
I would argue by category of documents in this case.

[00:25:01] Speaker 01:
Can I clarify?

[00:25:03] Speaker 01:
You're claiming these things are confidential.

[00:25:06] Speaker 01:
You're not claiming they're protected, because there's no protected order that applies to them.

[00:25:11] Speaker 04:
We believe they are, they are, these, most of Stemilt's production falls under the categories of information that were identified and included in the protective order that was proposed by Columbia Legal Services.

[00:25:28] Speaker 01:
That's fine, it's protected.

[00:25:29] Speaker 01:
Then they can't use it, and if you have a dispute about anything they use, you say it's covered by the protective order.

[00:25:35] Speaker 01:
But I thought we were only talking about what's not covered by the protective order.

[00:25:42] Speaker 04:
And that is what required.

[00:25:43] Speaker 01:
But was more confidential by you.

[00:25:46] Speaker 04:
And that is what requires a record to be developed at the district court level because that record was never developed.

[00:25:54] Speaker 04:
That conversation was never had.

[00:25:56] Speaker 01:
But to go back to what I said before, the district court said that you didn't make the record that you needed to make to get a specific protective order beyond what he issued.

[00:26:09] Speaker 04:
The district court's concern, as expressed in the order that is challenged, was that the form of protective order, he read, the court read, and I don't agree with this characterization, but the court read that draft protective order, that proposal, as requiring every piece of material in the case to be filed under seal.

[00:26:33] Speaker 04:
That is why, turn back to the order itself,

[00:26:38] Speaker 04:
the district court remarked.

[00:26:40] Speaker 04:
Well, Stemilt's concern is that Columbia Legal Services says they are entitled to use discovery from this case anywhere they want in any other context they want.

[00:26:53] Speaker 04:
However, their solution, Stemilt's solution, which is this confidential, this proposed order with this confidentiality provision that requires filing under seal, is equally burdensome, impractical.

[00:27:08] Speaker 04:
That's not what Stemilt, as I read it, was proposing in their proposed form of protective order.

[00:27:13] Speaker 04:
But this was the balance.

[00:27:16] Speaker 04:
These were the concerns that the district court was balancing.

[00:27:19] Speaker 01:
But when he says plaintiff's counsel does not have free reign to utilize the information and documents discovered in this action in other advocacies in which plaintiffs are not involved, is that correct law under the Ninth Circuit?

[00:27:33] Speaker 04:
That is the correct application of Foltz, because what the district court was doing there was saying, Foltz tells me if someone, a collateral litigant, for example, wants to use discovery that was produced in a case that was not filed with the court,

[00:27:50] Speaker 04:
you, the party wishing access and use of that discovery, needs to come to the court that issued the protective order and make the showing.

[00:27:58] Speaker 01:
Those are collateral people, but this is not a collateral person.

[00:28:01] Speaker 04:
Well, Columbia Legal Services is a collateral person.

[00:28:03] Speaker 01:
It is not a party to the underlying case.

[00:28:05] Speaker 01:
But he was right about it or not right about it.

[00:28:06] Speaker 01:
That was the premise on which he was operating, not because he thought there was anything protected or confidential in this

[00:28:17] Speaker 01:
group of documents.

[00:28:20] Speaker 01:
He said his position was if it was produced in the case and they wouldn't have had it otherwise, they can't use it unless they come to me.

[00:28:29] Speaker 01:
And he didn't say anything about there might be material there that's entitled to be sealed.

[00:28:36] Speaker 04:
Well, he was not making that determination at that point because no party was asking him to make that determination.

[00:28:44] Speaker 04:
No party was making the request to seal.

[00:28:48] Speaker 04:
The request was to enter a protective order for exactly the categories of information that Rule 26... Protective order, meaning they didn't have to produce it?

[00:28:57] Speaker 04:
No, a protective order along the lines of Rule 26C that permits protection of, for example, sensitive financial information and trade secret information.

[00:29:06] Speaker 01:
What's the difference between sealing and a protective order?

[00:29:10] Speaker 04:
The protective order that Stemilt asked to be imposed would protect its discovery productions, especially since they were made in this kind of over-the-fence fashion where they weren't being reviewed first for relevance, for privilege issues, for privacy issues, statutory privacy issues.

[00:29:33] Speaker 04:
and they were just being opened because a document by document review and redaction would have been incredibly expensive.

[00:29:42] Speaker 01:
The protective order is you can't use it, you can't have it, you have to give it back.

[00:29:47] Speaker 01:
What does it mean?

[00:29:49] Speaker 04:
Well, that the discovery be had, either not be had, or that it be had under certain conditions, under certain limitations.

[00:29:56] Speaker 05:
And then it had to be destroyed at the end of the case.

[00:29:58] Speaker 04:
Right.

[00:29:58] Speaker 04:
And both forms of protective order offered by the parties provided for destruction at the end of the case.

[00:30:04] Speaker 04:
So then they wouldn't be able to be used.

[00:30:05] Speaker 05:
So the question before us now is, this universe that was over stamped, are any of them protected under these five categories?

[00:30:16] Speaker 05:
And how do we determine that?

[00:30:18] Speaker 04:
Absolutely, yes.

[00:30:20] Speaker 04:
And the way to determine that is to send this back to the district court so that the parties can develop that record and have that conversation.

[00:30:28] Speaker 04:
That's what Rule 60 provides for.

[00:30:31] Speaker 04:
That's the procedure that the district court invited the parties to engage in if there were issues that would come up with either party wanting to use material in some other context.

[00:30:43] Speaker 04:
That never happened in this case.

[00:30:45] Speaker 04:
That record was never developed, and that's another one of the reasons why either the appeal needs to be denied and dismissed or, and we agree this is the proper outcome, if Columbia Legal Services really thinks there's a legitimate need in some of their context for Stemilt's property, for its sensitive financial information or employee files,

[00:31:06] Speaker 05:
If that is an issue.

[00:31:09] Speaker 05:
Let's be clear.

[00:31:09] Speaker 05:
They can't keep that because that's already covered by a protective order and should have been destroyed.

[00:31:14] Speaker 04:
And neither Stamilt nor I nor this court knows whether that has happened.

[00:31:19] Speaker 01:
But why does there have to be a need to use it if it's not objectively protectable?

[00:31:27] Speaker 04:
I'm sorry, Your Honor.

[00:31:27] Speaker 01:
If it's not objectively protectable, why does there have to be a need to use it?

[00:31:31] Speaker 01:
You keep coming back to that.

[00:31:34] Speaker 01:
And that's where you went before the district court.

[00:31:37] Speaker 01:
But isn't the question whether there is material that they shouldn't, that because it's confidential, not because you'd prefer they don't use it, but because it's actually objectively impairs some interest of yours that you can demonstrate that they can't use.

[00:31:59] Speaker 01:
If it doesn't meet that standard, they can use it, even if you'd rather they didn't.

[00:32:04] Speaker 04:
Instamilk met that standard on a category by category basis.

[00:32:07] Speaker 04:
What now is being challenged is whether there needs to be some analysis on a document by document level, and that has never happened.

[00:32:15] Speaker 00:
Let me ask you this way, and you may or may not be able to answer this with any precision.

[00:32:19] Speaker 00:
So what kind of information are we talking about that's not already protected by specific protective orders?

[00:32:27] Speaker 04:
That is a question properly addressed to the appellant law firm.

[00:32:32] Speaker 04:
We don't know what they are challenging.

[00:32:35] Speaker 01:
What do you mean?

[00:32:35] Speaker 01:
You produced it.

[00:32:36] Speaker 01:
You should know what it is.

[00:32:38] Speaker 04:
Yes, but we don't know what they're challenging as not confidential or not subject to the protective order.

[00:32:44] Speaker 05:
Anything that's not within these five categories.

[00:32:46] Speaker 04:
But those categories are broad, and we don't know how they're interpreting it.

[00:32:49] Speaker 04:
That's why the procedure is set in place.

[00:32:52] Speaker 05:
Admittedly, something has to be done, and that's my point.

[00:32:57] Speaker 05:
You've either got to do it on the front end or the back end.

[00:33:00] Speaker 05:
I mean, to a certain degree, I think you're better off doing this on the front end, because otherwise, my sense for the parties is you're going to have litigation

[00:33:11] Speaker 05:
for years to come.

[00:33:12] Speaker 05:
And so I think you're going to have to figure out what they still have and whether you think any of it's protected.

[00:33:19] Speaker 05:
And it may be that you're limited.

[00:33:21] Speaker 05:
I'm not sure I hear you disagreeing with this, that you would be limited to these five categories.

[00:33:25] Speaker 05:
You're not looking to make up new categories of protected information, are you?

[00:33:30] Speaker 05:
We're not looking to revise the protective order at all To the the problem is how do you go back and refashion a production that was over designated because the protective order was overbroad Such that you both have an understanding of what's protected or not.

[00:33:51] Speaker 04:
So I think it begins as with the district court and I think it

[00:33:58] Speaker 04:
to get two steps removed now from where we are today.

[00:34:02] Speaker 04:
I think it begins with Columbia Legal Services having a conversation with the lawyers for Stemilt and telling them, we don't think these materials fall under any of the categories that are in the protective order.

[00:34:17] Speaker 04:
And then if there's disagreement, we can take that before the district court.

[00:34:21] Speaker 05:
Are they at least Bates numbered?

[00:34:22] Speaker 04:
Everything is base numbers, yes.

[00:34:24] Speaker 05:
They could at least say, look, here's 10 categories that are not protected.

[00:34:30] Speaker 05:
Here's the base numbers.

[00:34:32] Speaker 05:
And then you would be able to go back and check that and say, we agree on these.

[00:34:36] Speaker 05:
Inevitably, you're probably going to have some disputes.

[00:34:39] Speaker 05:
And then you go back to the district court and figure that out.

[00:34:42] Speaker 00:
Right.

[00:34:42] Speaker 00:
And when you say stimulus lawyers, you mean not you.

[00:34:47] Speaker 00:
Is that what you mean when you say they need to have a conversation with Stemilt lawyers?

[00:34:50] Speaker 04:
That could include me, Your Honor.

[00:34:53] Speaker 04:
I was trial counsel as well.

[00:34:55] Speaker 00:
Oh.

[00:34:57] Speaker 00:
You were clear on that point.

[00:34:59] Speaker 01:
Here's me being very dense.

[00:35:01] Speaker 01:
What five categories are we talking about?

[00:35:04] Speaker 01:
Where are they?

[00:35:04] Speaker 01:
I see two types of material require protection, health data and medical records, data concerning their sales profits and revenues generated by Stemilt or his parent company.

[00:35:14] Speaker 01:
That's what he says requires protection.

[00:35:16] Speaker 01:
What else are we talking about?

[00:35:20] Speaker 05:
Well, the ones I had, and maybe I didn't go back to the actual order, Washington State employees security division documents.

[00:35:28] Speaker 05:
which may or not all be protected, but employment files, that seems to be protected.

[00:35:36] Speaker 05:
Domestic worker payroll data, that seems to be protected.

[00:35:39] Speaker 05:
Worker medical records, that seems to be protected.

[00:35:42] Speaker 05:
And STEM financial data, I assume it's a private company.

[00:35:49] Speaker 05:
So I assume almost all of that's going to be protected.

[00:35:52] Speaker 04:
That is our view.

[00:35:53] Speaker 04:
And the production was very large.

[00:35:57] Speaker 04:
Like I said, it was about 150,000 or so documents, including some really large Excel spreadsheets that contain financial data that is not public.

[00:36:09] Speaker 04:
So it is a lot.

[00:36:11] Speaker 04:
And I see I'm very over, but I appreciate this dialogue.

[00:36:16] Speaker 04:
And I do think the correct way forward, if the appeal is not dismissed,

[00:36:21] Speaker 04:
is for the parties to engage in that interactive process that the civil rules assume you're going to engage in at the front end.

[00:36:29] Speaker 04:
And if we can't reach agreement, if they can't reach agreement, then it needs to go before the district court.

[00:36:33] Speaker 00:
You don't seem to have a very good record of reaching an agreement on your own so far in this case.

[00:36:39] Speaker 04:
There was quite a bit of motions practiced, but that may conceal a lot more agreement than it.

[00:36:45] Speaker 01:
Would it make sense to refer this case to a mediator in the Ninth Circuit?

[00:36:50] Speaker 01:
We have wonderful mediators.

[00:36:51] Speaker 01:
Maybe they can get all this straightened out as to what's going to happen and a way of proceeding.

[00:36:58] Speaker 05:
I mean, I don't want to shortchange that if you want to mediate, but I'm not sure what a mediator would do that a district court couldn't do, and these seem like district court functions.

[00:37:09] Speaker 01:
Well, they can get in there and talk to each other.

[00:37:11] Speaker 05:
Well, maybe.

[00:37:13] Speaker 04:
I appreciate that, but I do think a district and Article III judge will help the process.

[00:37:25] Speaker 01:
Just one last question.

[00:37:29] Speaker 01:
The order I read, which says there are two types of materials requiring protection, health data and medical records data concerning sales profits and revenue, is that the only protective order there is other than the one that's being challenged now?

[00:37:41] Speaker 04:
There are actually two.

[00:37:43] Speaker 04:
one that was entered earlier in the case that is not being challenged by any party, that was covered, a production made by the Employment Security Department.

[00:37:56] Speaker 04:
The second later one is, I believe it's ECF 87, the challenged order.

[00:38:01] Speaker 01:
So that's where some of the other categories that Judge Nelson's for reading come from?

[00:38:06] Speaker 04:
The challenged order.

[00:38:09] Speaker 04:
The order that is on appeal.

[00:38:12] Speaker 05:
Well, I think that's what Judge Berzon was reading from.

[00:38:14] Speaker 01:
I was reading from the order on appeal.

[00:38:17] Speaker 01:
But Judge Nelson was reading other things that— And maybe I made this list— Well, we'll figure this out.

[00:38:24] Speaker 01:
We'll figure it out.

[00:38:25] Speaker 01:
Okay.

[00:38:25] Speaker 01:
Thank you.

[00:38:26] Speaker 04:
Judge, you may have been— Judge Nelson, you may have been reading from Stumilt's proposed form of protective order.

[00:38:32] Speaker 04:
I see.

[00:38:33] Speaker 05:
Yes.

[00:38:34] Speaker 05:
Although everything I read is— I think is protected even under—

[00:38:39] Speaker 05:
what's actually in the protective order.

[00:38:40] Speaker 04:
I mean, that's the mills view of it.

[00:38:43] Speaker 05:
All right.

[00:38:43] Speaker 05:
Well, and that's what we heard from appellant.

[00:38:46] Speaker 05:
They agreed.

[00:38:47] Speaker 05:
Anyway.

[00:38:48] Speaker 05:
Yep.

[00:38:49] Speaker 05:
Thank you.

[00:38:50] Speaker 05:
Thank you.

[00:38:50] Speaker 05:
Thank you for your patience.

[00:38:59] Speaker 03:
Nope.

[00:39:08] Speaker 03:
I can speak to what is protected really quickly.

[00:39:11] Speaker 03:
I think we got back to the correct answer.

[00:39:15] Speaker 03:
There was a previous protective order that spoke specifically to employment security documents and to redactions and employment files.

[00:39:23] Speaker 03:
The protective order under which the information was destroyed, however, was the protective order that was granted in the same document as the contested ruling here.

[00:39:35] Speaker 01:
Because the other material just wasn't produced, is that right?

[00:39:41] Speaker 03:
uh... know that what other mature climate security know that that material was produced and it's protected it will it was destroyed it we didn't destroy the employment security uh... information required that wasn't required under that protective order what what that protective order that was imposed validly by the court as just a milk documents covers is health data and medical records and

[00:40:08] Speaker 03:
data concerning Stemilt sales, profits, and revenue generated by Stemilt or its parent company.

[00:40:14] Speaker 01:
So not employment records?

[00:40:16] Speaker 03:
No.

[00:40:17] Speaker 05:
So employment records are protected but not destroyed?

[00:40:20] Speaker 05:
Yes.

[00:40:20] Speaker 05:
But you can't use them, but that's what you used to make some anonymized data charts or something at one point.

[00:40:30] Speaker 05:
Am I making that up?

[00:40:31] Speaker 03:
I suppose in theory, yes.

[00:40:36] Speaker 03:
I'll remind the court that, well the court may not know, Stemilt received a letter about the documents that were destroyed.

[00:40:46] Speaker 03:
We destroyed the documents and sent them a letter about which documents had been destroyed.

[00:40:51] Speaker 05:
Well, yeah, and so- Well, maybe we're getting into what we would have a district court or a mediator do.

[00:40:57] Speaker 05:
What about your response to Judge Berzon's question about getting a mediator involved?

[00:41:04] Speaker 03:
Your Honor, I don't think that it would be ... I think that we need a ruling from this court that the protective order was invalid and was overbought, for starters.

[00:41:15] Speaker 03:
And then I think it is quite likely

[00:41:20] Speaker 03:
that the parties can agree about what needs to be protected.

[00:41:25] Speaker 03:
I want to remind the court that this blanket protective order covered information from a number of other third parties who produced documents as well.

[00:41:36] Speaker 01:
The broad protective order.

[00:41:38] Speaker 03:
Yes.

[00:41:39] Speaker 03:
Right.

[00:41:40] Speaker 05:
And I think that.

[00:41:40] Speaker 05:
And what's going to happen when this goes back down?

[00:41:42] Speaker 05:
Have any of those third parties expressed concerns?

[00:41:46] Speaker 03:
No, Your Honor, they haven't, except for ESD, which has a protective order.

[00:41:57] Speaker 03:
Well, I think I'll stop there.

[00:41:59] Speaker 03:
I think the court sufficiently understands that the protective order didn't meet the standard, and I think we're asking the court for a very clear ruling as to that effect.

[00:42:07] Speaker 05:
Thank you very much.

[00:42:08] Speaker 05:
Well, thank you.

[00:42:08] Speaker 05:
Thank you to both parties for your cooperation and argument today.

[00:42:12] Speaker 05:
We hope that that continues into the future.

[00:42:14] Speaker 05:
And this case is now submitted and we are done for the day.

[00:42:17] Speaker 05:
Thank you.