Rodriguez-Najera v. New Albertsons, Inc.

Filing 7

PROTECTIVE ORDER. Signed by Magistrate Judge Peggy A. Leen on 5/15/2012. (Copies have been distributed pursuant to the NEF - SLR)

Case 2:12-cv-00771-LDG -PAL Document 6

1
2
3
4
5
6
7

Filed 05/11/12 Page 1 of 13

LEW BRANDON, JR., ESQ.
Nevada Bar No. 5880
MORAN LAW FIRM, LLC
630 S. Fourth Street
Las Vegas, Nevada 89101
[phone]
[phone] - facsimile
[e-mail]
Attorney for Defendant,
NEW ALBERTSONS, INC.,
a Delaware corporation

8

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

9
10

ANDRES RODRIGUEZ-NAJERA,

11

Plaintiff,

12

CASE NO.: 2:12- cv-00771-LDG-PAL

v.

13
14
15
16
17

NEW ALBERTSONS, INC., A
DELAWARE CORPORATION, dba
ALBERTSON’S No. 6016; ROE
CORPORATIONS I-X; DOES XI-XX;
ROE MAINTENANCE
CORPORATION XXI-XXV; and,
DOE EMPLOYEES XXVI-XXX,

18

Defendants.
STIPULATED PROTECTIVE ORDER

19

In connection with the production of confidential documents and other

20
21

confidential information in this action, Plaintiff, ANDRES RODRIGUEZ-NAJERA

22

(the “Plaintiff”) and Defendant, NEW ALBERTSONS, INC. a Delaware Corporation

23

(the “Defendant”) through their respective counsel (“Plaintiff” and “Defendant” may

24

also be collectively referred to as, the “Parties” or individually as, “Party”), hereby

25
26
27

enter into this Stipulated Protective Order (“Stipulated Protective Order”).
///

28

1

Case 2:12-cv-00771-LDG -PAL Document 6

I. PURPOSE OF THIS PROTECTIVE ORDER

1
2
3

Filed 05/11/12 Page 2 of 13

The purpose of this Stipulated Protective Order is to provide a means for
limiting access to and use and disclosure of Confidential Documents or Information

4

produced in this action. Any unauthorized disclosure of Confidential Documents or
5
6
7
8
9
10
11
12

Information in violation of this Order may be subject to discipline by the contempt
powers of this United States District Court for the District of Nevada.
II. DESIGNATION OF “CONFIDENTIAL DOCUMENTS OR
INFORMATION”
The Parties may designate such documents or information as “Confidential”
in accordance with the following procedures:
A.

“Confidential” Documents or Information.

13

Either Party may designate any documents, records, reports, video tapes,
14
15

tangible items, or information as “Confidential.”

Upon a designation of

16

“Confidential,” the Parties shall treat any designated document, record, report, video

17

tape, tangible item, or information as confidential and shall only use such document,

18

record, report, video tape, tangible item, or information solely for the prosecution or

19

defense of this matter.

20
21

B.

Time of Designation

22

Unless otherwise agreed between counsel for the Parties, the designation of

23

Confidential Documents or Information shall be made at the time of the production

24

of documents, records, reports, video tapes, tangible items, or information.

25

C.

Manner of Designation

26

The designation of Confidential Documents or Information shall be made in
27
28

the following manner:

2

Case 2:12-cv-00771-LDG -PAL Document 6

Filed 05/11/12 Page 3 of 13

For documents, by placing the notation “Confidential” on each page

1

1.

2

of such document;

3

2.

4

For tangible items, including any video tapes or documents or

5

information produced on magnetic disks or other computer related media, by placing

6

the notation “Confidential” on the object and, if applicable, on the container thereof

7

or if such are not practicable, as otherwise agreed by the Parties. In the event either

8

Party generates any “hard copy” or printout from any “Confidential Material,” that

9

Party must immediately stamp each page “Confidential,” and the hard copy or
10
11

printout shall be treated as “Confidential Information pursuant to this Stipulated

12

Protective Order.”

13

D.
1.

14

Retroactive Designation
Inadvertent production of any Confidential Documents or Information

15

without a designation of confidentiality will not be deemed to waive a later claim as
16
17

to confidentiality or privilege, or prevent the Party claiming confidentiality from re-

18

designating such documents or information as “Confidential” promptly after

19

discovery of the inadvertent production.

20

2.

Within a reasonable time after production, either Party may

21

retroactively designate (or withdraw a designation) of Confidential Documents or
22
23

Information, regarding any material that it has produced, provided however, that such

24

retroactive designation (or withdrawal) shall be in accordance with the terms of this

25

Order.

26

notifying counsel for the non-designating Party in writing of such retroactive

27

Such retroactive designation (or withdrawal) shall be accomplished by

designation (or withdrawal).

Upon receipt of any such written re-designation,

28

3

Case 2:12-cv-00771-LDG -PAL Document 6

Filed 05/11/12 Page 4 of 13

1

counsel (i) shall not make any further disclosure or communication of such

2

retroactively designated material except as provided for in this Order; (ii) shall take

3

reasonable steps to notify all persons known to have possession of any retroactively

4

designated material of the effect of such re-designation under this Order; and (iii)
5
6

shall take reasonable steps to procure all copies of such retroactively designated

7

material from any persons known to have possession of any such retroactively

8

designated material who are not entitled to receipt under this Order.

9
10

E.

Resolution of Disputes Regarding Designation

If either Party, at any time, wishes to have the “Confidential” designation of

11
12

any particular Confidential Documents or Information removed or changed, that

13

Party shall first request in writing that the Party having made the designation at issue

14

change its designation.

15

resolve the dispute. If the designating Party refuses to agree to remove or change the

Thereafter, the Parties shall make good faith efforts to

16

designation, then the Party that requests that the designation be so removed may
17
18

make a motion before this Court for an order removing or changing the designation;

19

provided, however, that the designating Party shall have the burden of proving that

20

such particular Confidential Document or Information are properly designated as

21

“Confidential” pursuant to paragraph III below. At all times during the process of

22

challenging a designation, the Parties shall treat the Confidential Documents or

23
24
25

Information as originally designated until a change is agreed to or the motion is
decided by the Court and written notice of such decision is served on the Parties.

26
27
28

4

Case 2:12-cv-00771-LDG -PAL Document 6

Filed 05/11/12 Page 5 of 13

1

Any motion filed with respect to this Stipulated Protective Order or

2

documents labeled “Confidential” must comply with the local rules of the United

3

States District Court for the District of Nevada.

4

F.

Designation of Third Party Documents.

5
6

Documents and/or information produced by a third party in response to a

7

subpoena or during deposition in the course of this litigation may involve receipt of

8

information, documents, things or testimony which include, contain or comprise

9

protected information that may or may not be appropriate for “Confidential”

10

designation under this Order. Unless otherwise agreed in writing between counsel
11
12

for the parties, documents and information so produced by a third party shall be

13

treated as follows: First of all, all such documents and information shall

14

automatically be deemed to be and shall be treated as “Confidential” for twenty (20)

15

business days following their actual receipt by both counsel for Plaintiff and counsel

16

for Defendants in this action, in order to enable each such counsel to determine
17
18

whether in their view any protected information is embodied therein.

If no

19

designation of the information as “Confidential” by the Designating Party is received

20

by the non-Designating Party within twenty (20) business days after production, then

21

the information will not be protected by this Protective Order except pursuant to

22

subsequent designation by a party hereto or pursuant to a subsequent agreement of

23
24

the parties or Court order; if however a written designation of “Confidential” is made

25

by a Designating Party and is received by the non-Designating Party within twenty

26

(20) business days after production of documents or information by the non-party,

27

then the information will be subject to this Protective Order and will be deemed to be

28

5

Case 2:12-cv-00771-LDG -PAL Document 6

Filed 05/11/12 Page 6 of 13

1

“Confidential” (as requested by the Designating Party); provided, however, that the

2

designation may be challenged as any such designation.

3

Lastly, to the extent third party documents or information contains

4

information that is confidential and/or proprietary to the third party, the third party
5
6

can avail itself of the protections set forth in this Order and designate documents

7

and/or information it produces accordingly by executing this Order and agreeing to

8

be bound by its terms.

9
10
11

III. PERSONS TO WHOM CONFIDENTIAL DOCUMENTS OR
INFORMATION MAY BE DISCLOSED
A.

12
13

Disclosure of
“Confidential”

Documents

or

Information

Designated

as

Documents or Information designated as “Confidential” may be disclosed and

14
15

copies may be provided only to:

16

1.

Counsel of record;

17

2.

Expert witnesses or consultants retained by the Parties or their

18
19

respective counsel in connection with this action who have complied with paragraph
III (C), below;

20

3.

Outside court reporting services and court reporters as may be

21
22
23
24

reasonably necessary in connection with the preparation or conduct of this action;
4.

This Court and its personnel, or any other tribunal of competent

jurisdiction having involvement in this matter and its personnel;

25

5.

Any mediator or arbitrator selected by the Parties to mediate or

26
27

arbitrate this action; and

28

6

Case 2:12-cv-00771-LDG -PAL Document 6

Filed 05/11/12 Page 7 of 13

6.

Representatives of the Parties.

B.

1

Additional Authorized Disclosure of Documents or Information
Designated as “Confidential”

2
3
4

Notwithstanding anything to the contrary in paragraph III(A) above, particular

5
6

Confidential Documents or Information that have been designated as “Confidential”

7

may be disclosed and copies may be provided:

8

1.

To Persons who are explicitly named on the document as the authors

9

or addressees or to persons who may be shown to be an author or recipient of any
10
11

particular document;
2.

13
14

To any other persons with the prior written consent of the designating

3.

12

To any other persons with the prior authorization of this Court or any

Party;

15

other tribunal of competent jurisdiction having involvement in this matter; and
16
17

4.

If a document designated as “Confidential” refers to the conduct or

18

affairs of a potential witness, the Party’s counsel of record may and shall discuss

19

such conduct or affairs with such person without revealing the existence of the

20

document, or its authors or source.

21

C.

Disclosure to Experts or Consultants

22

Prior to disclosing or providing copies of any Confidential Documents or
23
24

Information to any expert or consultant pursuant to paragraphs III(A) or III(B),

25

above, the Parties shall first obtain the agreement of the expert, consultant or anyone

26

else to whom such disclosure will be made to be bound by the terms of this

27

Stipulated Protective Order as set forth in the attached “Acknowledgment and

28

7

Case 2:12-cv-00771-LDG -PAL Document 6

Filed 05/11/12 Page 8 of 13

1

Agreement To Be Bound.” Specifically, the expert or consultant shall acknowledge

2

that, during the course of his or her retention, the expert or consultant may have

3

access to, and become acquainted with Confidential Documents or Information,

4

which are regularly used in the operation of the businesses of the designating Party
5
6

and in which the designating Party has an expectation of confidentiality. The expert

7

or consultant shall agree not to disclose such Confidential Documents or Information,

8

directly or indirectly, to any person or entity not subject to this Stipulated Protective

9

Order or use them in any way outside the specific scope of his/her retention as an

10

expert witness in this action, or at any time thereafter.
11
12

D.

Return of Confidential Documents or Information by Experts and
Consultants

13
14

Confidential Documents or Information disclosed to any expert or consultant

15

may be retained by such expert or consultant provided that such expert or consultant

16

subsequently destroys any and all copies of such Confidential Documents or

17

Information upon the termination of their engagement.

18

IV. USE OF CONFIDENTIAL DOCUMENTS OR INFORMATION
19
20

A.

Use of Confidential Documents or Information Generally

21

Confidential Documents or Information shall only be used by the Parties, their

22

respective agents, and any other persons to whom such Confidential Documents or

23

Information may be disclosed pursuant to this Stipulated Protective Order: (1) in this

24

action; (2) as otherwise compelled by lawful process (provided the designating Party
25
26
27

is given a reasonable notice to object); or (3) as otherwise required by law.
Notwithstanding the foregoing, nothing in this Stipulated Protective Order shall

28

8

Case 2:12-cv-00771-LDG -PAL Document 6

Filed 05/11/12 Page 9 of 13

1

prevent or limit the designating Party from disclosing Confidential Documents or

2

Information they so designate.

3

B.

Use of Confidential Documents or Information in the Conduct of
this Action

1.

Confidential Documents or Information may be used by counsel for

4
5
6

the non-designating Party in good faith in connection with investigating this action,

7

provided that the Confidential Documents or Information are protected pursuant to
8
9
10
11
12

the terms and conditions of this Stipulated Protective Order.
2.

The terms of this Stipulated Protective Order do not apply to evidence

presented at or for court proceedings and/or trial in this matter unless so designated
by the Court.

Any protective measures relating to Confidential Documents or

13

Information should be taken up with the judicial officer conducting the particular
14
15
16

proceeding at the appropriate time.
3.

If either Party seeks to file pleadings or other documents with this

17

Court that contains the other Party’s Confidential Documents or Information, it may

18

do so only if: (a) the pleading and other documents that contains the other Party’s

19

Confidential Documents or Information are filed under seal in the manner prescribed

20
21
22
23
24
25

by the Court; and (b) the filing Party informs the designating Party of such filing
prior to the filing of such documents with the Court.
V. RETURN OF CONFIDENTIAL DOCUMENTS, TESTIMONY, OR
INFORMATION
Upon written request after the final conclusion of this action, the Parties shall:

26
27
28

9

Case 2:12-cv-00771-LDG -PAL Document 6

1
2
3

A.

Filed 05/11/12 Page 10 of 13

Return to the other Party any and all Confidential Documents or

Information so designated by that Party and all copies thereof in its possession,
custody and control or otherwise destroy such documents;

4

B.

Ensure that all Confidential Documents or Information in the

5
6
7
8
9

possession, custody or control of any permitted parties or third parties are returned to
the designating Party or are otherwise destroyed; and
C.

Destroy all notes, memoranda or other documents that contain

excerpts from any of the Confidential Documents or Information. Notwithstanding

10

the foregoing, attorney work product, attorney-client communications, and
11
12
13
14
15

information derived from Confidential Documents or Information may be retained by
the non-designating Party and its counsel.
VI. PUBLIC DOCUMENTS
None of the restrictions set forth in this Stipulated Protective Order shall

16

apply to any documents or other information that become public knowledge by
17
18
19

means not in violation of the provisions of this Stipulated Protective Order.
VII. NO PROBATIVE VALUE

20

This Stipulated Protective Order shall not aggregate or diminish any

21

contractual, statutory or other legal obligation or right of any party or person with

22

respect to any Confidential Documents or Information. The fact that information is

23
24

designated “Confidential” under the Stipulated Protective Order shall not be deemed

25

to be determinative of what a trier of fact may determine to be confidential or

26

proprietary. This Stipulated Protective Order shall be without prejudice to the right

27

of any party to bring information before this Court, regardless of (a) whether any

28

10

Case 2:12-cv-00771-LDG -PAL Document 6

Filed 05/11/12 Page 11 of 13

1

particular material is or is not Confidential, or (b) whether any particular information

2

or material is or is not entitled to a greater or lesser degree of protection under the

3

terms of this Stipulated Protective Order, provided that in doing so, the party

4

complies with the procedures set forth herein. The fact that any information is
5
6

disclosed, used, or produced in any proceeding in this action shall not be offered in

7

any other action or proceeding before this or any other Court, agency or tribunal as

8

evidence of or concerning whether or not such information is admissible, confidential

9

or proprietary.

10

VIII. NO IMPLIED WAIVER OF ADMISSION
11

No party shall be obligated to challenge the proprietary nature of any

12
13

designation of “Confidential” information, and the failure to do so shall not constitute

14

a waiver or otherwise preclude a subsequent challenge to the designation.

15

IX. MODIFICATION OF THIS STIPULATED PROTECTIVE ORDER

16

The Parties hereto may modify the terms of this Stipulated Protective Order
17
18

by further stipulation. However, no modification by the parties shall have the force

19

or effect of a court order unless the Court approves the modification. Alternatively,

20

any party hereto may seek an order of this Court to modify the terms of this

21

Stipulated Protective Order. Any motion seeking such modification must be served

22

upon all counsel of record and filed in accordance with this Court’s filing procedures.

23
24

///

25

///

26

///

27

///

28

11

Case 2:12-cv-00771-LDG -PAL Document 6

1
2
3

Filed 05/11/12 Page 12 of 13

X. EXECUTION AND COUNTERPART
This Stipulated Protective Order may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which

4

together shall constitute one and the same instrument. Facsimile signatures shall be
5
6

binding upon the Parties hereto and may be submitted and considered as originals.

7

IT IS SO STIPULATED.

8

Dated this 2nd day of May, 2012.

9
10

Dated this 2nd day of May, 2012.

EDWARD M. BERNSTEIN &
ASSOCIATES

MORAN LAW FIRM, LLC

/s/ David M. Moore, Esq.
DAVID M. MOORE, ESQ.
Nevada Bar No. 8580
500 South Fourth Street
Las Vegas, Nevada 89101

/s/ Lew Brandon, Jr., Esq.
LEW BRANDON, JR., ESQ.
Nevada Bar No. 5880
630 S. Fourth Street
Las Vegas, Nevada 89101
[e-mail]
Attorney for Defendant,
NEW ALBERTSONS, INC.

11
12
13
14
15
16

[e-mail]

Attorney for Plaintiff,
ANDRES RODRIGUEZ-NAJERA

17
18
19

IT IS SO ORDERED.

20
21
22

___________________________________
United States Magistrate Judge

23
24

Dated: _____________
May 15, 2012

25
26
27
28

12

Case 2:12-cv-00771-LDG -PAL Document 6

Filed 05/11/12 Page 13 of 13

1

Acknowledgment and Agreement To Be Bound

2

I hereby acknowledge that I may receive information designated as

3
4

“Confidential” from counsel to a party to this action.

5

understanding that such information will be provided to me pursuant to the terms and

6

I hereby certify my

restrictions of the above Stipulated Protective Order that has been entered by the

7

Court; that I have been given a copy of, and have read and understand, such
8
9

Stipulated Protective Order; that I agree to be bound by the terms thereof; and that I

10

irrevocably submit to the personal jurisdiction of the Court in connection with any

11

proceeding to enforce the Stipulated Protective Order that may involve me.

12
13

ACKNOWLEDGED AND AGREED:
14
15

Name:

_________________________________

16

Address:

_________________________________

17

Employer:

_________________________________

Title:

_________________________________

Dated:

_________________________________

18
19
20
21
22
23
24
25
26
27
28

13