Racine v. P.H. Las Vegas, LLC

Filing 42

PROTECTIVE ORDER. Signed by Magistrate Judge Cam Ferenbach on 12/8/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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VANESSA RACINE,
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Plaintiff,
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v.
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PHW LAS VEGAS, LLC, et al.,
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Defendants.
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2:10-cv-01651-LDG -VCF
ORDER

Before the court is defendants PHW Las Vegas, LLC, et al’s proposed protective order (#37-2)
and plaintiff Vanessa Racine’s objections thereto (#38-1).

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Accordingly, and for good cause shown,

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IT IS ORDERED that this Protective Order shall govern the disclosure, handling and disposition

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of documents and information in this litigation as follows:
1.

Application.
1.1

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This Protective Order shall govern any document, information or other material

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that is designated as containing "Confidential Information" or "Attorney's Eyes Only Information" as

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defined herein, and is produced in connection with this litigation by any person or entity (the "producing

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party"), whether in response to a discovery request, subpoena or otherwise, to any other person or entity

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(the "receiving party") regardless of whether the person or entity producing or receiving such

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information is a party to this litigation.

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2.

Definitions.
2.1

Confidential Information. "Confidential Information" shall mean and include,

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without limitation, any non-public information that concerns or relates to the following areas:

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confidential proprietary information, trade secrets, security and surveillance policies, practices and

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procedures, commercial, financial, pricing, budgeting, and/or accounting information, information about

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existing and potential customers, marketing studies, performance projections, business strategies,

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decisions and/or negotiations, personnel compensation, evaluations and other employment information,

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and confidential proprietary information about affiliates, parents, subsidiaries and third-parties with

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whom the parties to this action have or have had business relationships. "Confidential information" may

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be contained in the following documents: manuals, contracts, correspondence (electronic or otherwise),

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blueprints, specifications, drawings, security records, security reports, security shift information and

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staffing levels, security patrols, security policies and procedures, locations of surveillance and security

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cameras, documents regarding surveillance and security camera capabilities, production documents,

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analytical reports, certification-related documents, meeting minutes, meeting notices, presentation

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documents, and other documents relating to the acquisition of Planet Hollywood Resort & Casino by

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Defendants.
2.2

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Attorney's Eyes Only Information. "Attorney's Eyes Only Information" is a subset

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of Confidential Information that includes any document or testimony that contains highly sensitive

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proprietary, security, surveillance, private, financial or trade secret information where the disclosing

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party reasonably believes that disclosure of such information to other parties in the litigation would

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cause severe competitive damage.

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2.3

Documents. As used herein, the term "documents" includes all writings, records,

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files, drawings, graphs, charts, photographs, e-mails, video tapes, audio tapes, compact discs, electronic

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messages, other data compilations from which information can be obtained and other tangible things

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subject to production under the Federal Rules of Civil Procedure.

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3.

Initial Designation.
3.1

Good Faith Claims. Claims of confidentiality will be made only with respect to

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documents, other tangible things and information that the asserting party has a good faith belief are

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within the definition set forth in subparagraph 2.1 of this Protective Order. Objections to such claims

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made pursuant to paragraph 5, below, shall also be made only in good faith.

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3.2

Produced Documents. A party producing documents that it believes constitute

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or contain Confidential Information shall produce copies bearing a label that contains or includes

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language substantially identical to the following:
CONFIDENTIAL

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This label shall be affixed in a manner that does not obliterate or obscure the contents of the

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copies. If any person or party makes copies of documents designated as containing Confidential

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Information, the copying person or party shall mark each such copy as containing Confidential

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Information in the same form as the Confidentiality notice on the original document.

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A party producing documents that are stored on electronic, magnetic, optical or other non-paper

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media, such as compact discs, DVD's, video tapes and audio tapes (collectively, "data storage devices")

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shall designate the data storage device as containing Confidential Information, by affixing a label or

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stamp to the data storage device in the manner described above at the time copies of such data storage

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devices are produced. If the receiving party or other persons or entities to whom disclosure is authorized

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pursuant to subparagraph 7.1 make a copy of any data storage device designated by the producing party

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as containing Confidential Information, the receiving party or other authorized person shall mark each

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such copy as containing Confidential Information in the same form as the confidentiality notice on the

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original data storage device produced. If the receiving party or other authorized person prints out or

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otherwise makes copies of the documents or information stored on such data storage device, the

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receiving party or other authorized person shall mark each page so copied with the label or stamp

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specified in subparagraph 3.2.

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A party producing documents that it believes constitute or contain Attorney's Eyes Only

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Information shall follow the procedures set forth above with respect to Confidential Information, except

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that the copies shall be produced bearing a label that contains or includes language substantially

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identical to the following:

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ATTORNEY'S EYES ONLY
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3.3

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Interrogatory Answers. If a party answering an interrogatory or other discovery

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demand believes that its answer contains Confidential Information or Attorney's Eyes Only Information,

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it shall set forth that answer in a separate document that is produced and designated in the same manner

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as a produced document under subparagraph 3.2. Such answers should make reference to the

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separately-produced document containing the answer, but such document should not be attached to the

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response.
3.4

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Inspection of Documents. In the event a party elects to produce files and records

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for inspection and the requesting party elects to inspect them, no designation of Confidential

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Information or Attorney's Eyes Only Information needs to be made in advance of the inspection. For

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purposes of such inspection, all material produced shall be considered as Confidential Information. If

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the inspecting party selects specified documents to be copied, the producing party shall designate

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Confidential Information or Attorney's Eyes Only Information in accordance with subparagraph 3.2 at

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the time the copies are produced.

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3.5

Deposition Transcripts. Within twenty-one (21) days after the receipt of a

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deposition transcript, a party may inform the other parties to the action of the portions of the transcript

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that it wishes to designate as Confidential Information or Attorney's Eyes Only Information. Until such

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time has elapsed, deposition transcripts in their entirety are to be considered as Confidential

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Information. All parties in possession of a copy of a designated deposition transcript shall mark it

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appropriately.

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3.6

Multi-page Documents. A party may designate all pages of an integrated, multi-

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page document, including a deposition transcript and interrogatory answers, as Confidential Information

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or Attorney's Eyes Only Information by placing the label specified in subparagraph 3.2 on the first page

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of the document or on each page of the document. If a party wishes to designate only certain portions

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of an integrated, multi-page document as Confidential Information or Attorney's Eyes Only Information,

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it should designate such portions immediately below the label on the first page of the document and

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place the label specified in subparagraph 3.2 on each page of the document containing Confidential

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Information or Attorney's Eyes Only Information.

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4.

Designations by Another Party.
4.1

Notification of Designation. If a party other than the producing party believes that

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a producing party has produced a document that contains or constitutes Confidential Information or

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Attorney's Eyes Only Information of the non-producing party, the non-producing party may designate

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the document as Confidential Information or Attorney's Eyes Only Information by so notifying all

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parties in writing within fourteen (14) days of service of the document.

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4.2

Return of Documents; Non-disclosure. Whenever a party other than the producing

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party designates a document produced by a producing party as Confidential Information or Attorney's

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Eyes Only Information in accordance with subparagraph 4.1, each party receiving the document shall

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either add the Confidential Information or Attorney's Eyes Only Information designation in accordance

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with subparagraph 3.2 or substitute a copy of the document bearing such designation for each copy of

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the document produced by the producing party. Each party shall destroy all undesignated copies of the

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document or return those copies to the producing party, at the direction of the producing party. No party

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shall disclose a produced document to any person, other than the persons authorized to receive

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Confidential Information or Attorney's Eyes Only Information under subparagraph 7.1, until after the

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expiration of the fourteen (14) day designation period specified in subparagraph 4.1. If during the

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fourteen (14) day designation period a party discloses a produced document to a person authorized to

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receive Confidential Information or Attorney's Eyes Only Information under subparagraph 7.1, and that

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document is subsequently designated as Confidential Information or Attorney's Eyes Only Information

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in accordance with subparagraph 4.1, the disclosing party shall cause all copies of the document to be

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destroyed or returned to the producing party, at the direction of the producing party. The party may

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thereafter disclose a copy of the document that has been marked as Confidential Information or

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Attorney's Eyes Only Information by the designating party, in accordance with subparagraphs 3.2 and

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7.1.
5.

Objections to Designations. Any party objecting to a designation of Confidential

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Information or Attorney's Eyes Only Information, including objections to portions of designations of

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multi-page documents, shall notify the designating party and all other parties of the objection in writing

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within thirty (30) days of such designation. If a document is first produced less than sixty (60) days

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before the then-pending trial date, such notification shall occur within half of the time remaining before

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trial. This notice must specifically identify each document that the objecting party in good faith believes

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should not be designated as Confidential Information or Attorney's Eyes Only Information and provide

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a brief statement of the grounds for such belief. In accordance with the Nevada Rules of Civil Procedure

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governing discovery disputes, the objecting and the designating parties thereafter shall confer within

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ten (10) days after the date of such objection in an attempt to resolve their differences. If the parties are

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unable to resolve their differences, the objecting party shall have twenty-one (21) days after the

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conference concludes to file with the Court a motion to remove the Confidential Information or

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Attorney's Eyes Only Information designation. If an objection is served within forty-two (42) days of

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trial, the objecting party must file its motion to remove the Confidential Information designation within

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half of the remaining time before trial, and the meet-and-confer period shall be shortened accordingly.

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Where a party authored, created, owns, or controls a document, information or other material that

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another party designates as Confidential Information or Attorney's Eyes Only Information, the party that

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authored, created, owns, or controls the Confidential Information or Attorney's Eyes Only Information

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may so inform the objecting party and thereafter shall also be considered a designating party for

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purposes of this paragraph.

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All documents, information and other materials initially designated as Confidential Information

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or Attorney's Eyes Only Information shall be treated as such in accordance with this Protective Order

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unless and until the Court rules otherwise, except for deposition transcripts and exhibits initially

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considered as containing Confidential Information under subparagraph 3.5, which will lose their

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confidential status after twenty-one (21) days unless so designated as Confidential Information or

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Attorney's Eyes Only Information. If the Court rules that a designation should not be maintained as to

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a particular document, the producing party shall, upon written request by a party, provide that party a

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copy of that document without the designation described in subparagraph 3.2.

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If an objecting party elects not to make such a motion with respect to documents, information

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or other materials to which an objection has been made, the objection shall be deemed withdrawn. If

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such a motion is made, the moving party shall bear the burden of proving that the document,

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information, or other material is not entitled to protection under the applicable law.

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6.

Custody. All Confidential Information or Attorney's Eyes Only Information and any and

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all copies, extracts and summaries thereof, including memoranda relating thereto, shall be retained by

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the receiving party in the custody of counsel of record, or by persons to whom disclosure is authorized

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under subparagraph 7.1.

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7.

Handling Prior to Trial.
7.1

Authorized Disclosures. Confidential Information shall be disclosed by the

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receiving party only to the following persons:

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a.

clerks, paralegals, and secretarial personnel;

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Counsel for the parties in this litigation, including their associates,

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Qualified persons taking testimony in this litigation involving such

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Confidential Information, and necessary stenographic, videotape and

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clerical personnel;

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c.

litigation;

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Experts and their staff who are consulted by counsel for a party in this

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Parties to this litigation, limited to the named party and, if that party is

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a corporate entity, a limited number of employees of the corporate entity

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and its insurers;

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e.

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Designated in-house counsel and a limited number of assistants,
administrative or otherwise;

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f.

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Outside vendors employed by counsel for copying, scanning and general
handling of documents;

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g.

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Any person of whom testimony is taken regarding the Confidential

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Information, except that such person may only be shown Confidential

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Information during his/her testimony, and may not retain a copy of such

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Confidential Information; and
h.

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filing materials under seal.

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Such disclosures are authorized only to the extent necessary to investigate, prosecute, or defend

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This Court and this Court's staff, subject to the Court's processes for

the litigation.

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Confidential Information may not be disclosed to persons under subparagraph (c) until the

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receiving party has obtained a written acknowledgment from the person receiving Confidential

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Information, in the form of the Declaration attached hereto, that he or she has received a copy of this

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Protective Order and has agreed to be bound by it. A party who discloses Confidential Information in

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accordance with subparagraph 7.1 shall retain the written acknowledgment from each person receiving

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Confidential Information, shall maintain a list of all persons to whom a receiving party has disclosed

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Confidential Information and identify what documents have been disclosed, and shall furnish the written

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acknowledgments and disclosure list to the Court for in camera review upon its request or order.

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Furnishing the written acknowledgments and disclosure list to the Court shall not constitute a waiver

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of the attorney work product or attorney-client privilege. Disclosure of Confidential Information to this

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Court, including judicial staff, shall be made in accordance with subparagraph 7.4 of this Protective

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Order.

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The disclosure of Attorney's Eyes Only Information is limited in the same ways as set forth
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above for Confidential Information except that, in addition, Attorney's Eyes Only Information may not

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be disclosed to persons described above in subparagraphs (d) and (e) without prior written consent by

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the designating party nor to persons within the category described above in subparagraph (g) without

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prior notice to the designating party under circumstances allowing the designating party to obtain

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adequate protection with respect to the Attorney's Eyes Only Information either by agreement or by

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application to the Court.

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7.2

Disclosure to Competitors. In general, Confidential Information and Attorney

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Eyes Only Information may not be disclosed to competitors of a designating party. However, if at any

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time such disclosure is believed to be necessary to advance the interest of a party, then before disclosing

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Confidential Information or Attorney's Eyes Only Information to any authorized person who is a

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competitor (or an employee of a competitor) of the designating party, the party wishing to make such

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disclosure shall give at least fourteen (14) days notice in writing to the designating party, stating the

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names and addresses of the person(s) to whom the disclosure will be made, and identifying with

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particularity the documents to be disclosed. If, within the fourteen (14) day period, a motion is filed

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objecting to the proposed disclosure, disclosure is not authorized unless and until the Court orders

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otherwise. For purposes of this Protective Order, "competitor" is defined as any person or entity that

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designs, manufactures, assembles or supplies products to or for the market(s) served by the designating

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party ("competitive products") or components of competitive products.

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7.3

Unauthorized Disclosures. All persons receiving Confidential Information or

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Attorney's Eyes Only Information under the terms of this Protective Order are under the jurisdiction of

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the state courts and U.S. federal courts located in Nevada for all matters arising from the improper

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disclosure or use of such information. If Confidential Information or Attorney's Eyes Only Information

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is disclosed to any person other than in the manner authorized by this Protective Order, the party or

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person responsible for the disclosure, and any other party or person who is subject to this Protective

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Order and learns of such disclosure, shall immediately bring such disclosure to the attention of the

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designating party. Without prejudice to other rights and remedies of the designating party, the

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responsible party or person shall make every effort to obtain and return the Confidential Information

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or Attorney's Eyes Only Information and to prevent further disclosure on its own part or on the part of

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the person who was the unauthorized recipient of such information.
7.4

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Court Filings. In the event any Confidential Information or Attorney's Eyes Only

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Information must be filed with the Court prior to trial, the proposed filing shall comply with the Nevada

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Rules of Civil Procedure. In accordance with these rules, the proposed filing shall be accompanied by

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a motion to file the Confidential Information under seal and a proposed order, and the application and

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proposed order shall be directed to the judge to whom the Confidential Information is directed. This

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provision is applicable to briefs, memoranda, and other filings which quote, summarize, or describe

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Confidential Information.

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8.

Care in Storage. Any person in possession of Confidential Information or Attorney's

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Eyes Only Information produced by another party shall exercise reasonable and appropriate care with

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regard to the storage, custody, copying, and use of such information to ensure that the confidential and

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sensitive nature of same is maintained.

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Handling During Trial. Confidential Information and Attorney's Eyes Only Information

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that is subject to this Order may be marked and used as trial exhibits by either party, subject to terms

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and conditions as imposed by the Court upon application by any party.

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10.

No Implied Waivers. This Protective Order shall not be interpreted as a waiver of the

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right to object, under applicable law, to the furnishing of information in response to discovery requests

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or to object to a requested inspection of documents or facilities. Parties producing Confidential

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Information and Attorney's Eyes Only Information in this litigation are doing so only pursuant to the

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terms of this Protective Order. The taking of any action in accordance with the provisions of this

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Protective Order shall not be interpreted as a waiver of any claim or position or defense in this action,

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or any other actions.

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No Admission. The designation of any item as Confidential Information or Attorney's

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Eyes Only Information shall not be construed as an admission that such material, or any testimony

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concerning such material, would be admissible in evidence in this litigation or in any other proceeding.

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12.

Inadvertent Disclosure. Nothing in this Protective Order abridges applicable law

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concerning inadvertent disclosure of a document that the Disclosing Party believes contains

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attorney-client communications, attorney work product, or otherwise privileged information. If a party

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inadvertently discloses documents or information subject to a claim of privilege or work product

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protection, such disclosure will not waive otherwise applicable claims of privilege or work product

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protection under applicable law. Upon discovery by the Receiving Party, or receipt of written notice

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from the Disclosing Party identifying privileged or Protected Documents that were inadvertently

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produced, the receiving party shall within seven (7) business days either: (a) return or certify the

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destruction of all such documents, all copies, and any work product or portions of any work product

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containing or reflecting the contents of the subject materials; or (b) after attempting to resolve any

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dispute with opposing counsel informally, file a motion to challenge the assertion of privilege and tender

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the subject documents for in camera review with the motion. The moving party shall do nothing to

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compromise the privilege claim until the Court rules on said motion and the opportunity for appellate

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review is exhausted or the issue is otherwise resolved.

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13.

Parties' Own Documents. This Protective Order shall in no way restrict the parties in

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their use of their own documents and information, and nothing in this Protective Order shall preclude

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any party from voluntarily disclosing its own documents or information to any party or nonparty.

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Motion to Compel Production of Confidential Information. If any third party

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subpoenas Confidential Information and/or Attorney's Eyes Only Information from a party to this action

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or moves to compel a party to this action to produce any such information, such party shall immediately

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notify the parties who originally produced and/or designated such information that a subpoena has been

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served or a motion has been made in order to allow the parties who originally produced and/or

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designated such information the opportunity to seek a protective order or oppose the motion or

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application. If, within thirty (30) days after receiving notice of a subpoena seeking Confidential

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Information and/or Attorney's Eyes Only Information from a receiving party, the party who originally

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produced and/or designated such information fails to move for a protective order, the party subject to

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the subpoena may produce said information. In addition, if a party is ordered to produce Confidential

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Information or Attorney's Eyes Only Information covered by this Protective Order, then notice and, if

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available, a copy of the order compelling disclosure shall immediately be given the parties who

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originally produced and/or designated such information. Nothing in this Protective Order shall be

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construed as requiring the party who is ordered to produce such Confidential Information or Attorney's

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Eyes Only Information to challenge or appeal any order requiring the production of such information

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or to subject himself/herself to any penalty for non-compliance with any legal process or seek any relief

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from the Court.

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15.

No Effect on Other Rights. This Protective Order shall in no way abrogate or diminish

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any pre-existing contractual, statutory, or other legal obligations or rights of any party with respect to

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Confidential Information.

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16.

Modification. In the event any party hereto seeks a Court order to modify the terms of

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this Protective Order, or seeks a protective order which incorporates the terms and conditions of this

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Protective Order said party shall make such request by written stipulation or noticed motion to all parties

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that must be served and filed in accordance with local court rules.

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17.

Handling Upon Conclusion of Litigation. All parties, counsel, and persons to whom

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disclosure was made agree to return all Confidential Information and Attorney's Eyes Only Information

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to the designating party within ninety (90) days of the conclusion of litigation between the parties,

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including final appellate action or the expiration of time to appeal or seek further review. In addition,

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counsel shall certify in writing that all such Confidential Information and Attorney's Eyes Only

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Information have been returned. Counsel for each party also shall contact each person to whom that

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party has provided a copy of any Confidential Information or Attorney's Eyes Only Information and

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request the documents be returned. In lieu of returning Confidential Information and Attorney's Eyes

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Only Information, the person or party in possession of such information may elect to destroy it. If the

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person or party in possession of Confidential Information or Attorney's Eyes Only Information elects

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to destroy it rather than return it, that person or party must notify the designating party in writing of the

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destruction of the information within ninety (90) days of the conclusion of litigation between the parties,

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including final appellate action or the expiration of time to appeal or seek further review.

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18.

Survival of the Terms of this Protective Order. Even after the termination of this

litigation, the confidentiality obligations imposed by this Protective Order shall remain in effect until
a Designating Party otherwise in writing or a court order otherwise directs.
DATED this 8th day of December, 2011.

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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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