Rhodes et al v. Litigation Trust of the Rhodes Companies, LLC et al.

Filing 131

ORDER Granting 125 Stipulated Protective Order Regarding Documents Produced by Highland Capital Managements. Signed by Magistrate Judge Cam Ferenbach on 2/26/2015. (Copies have been distributed pursuant to the NEF - DC)

THE LITIGATION TRUST OF THE
RHODES COMPANIES, LLC, ET AL.,

Bankruptcy Case No.: 09-14814-LBR
Adversary Proceeding No. 12-01099
District Case No.: 2:12-cv-01272-MMD

Plaintiff,
v.

Chapter 11

JAMES M. RHODES, SEDORA
HOLDINGS, LLC, SAGEBRUSH
ENTERPRISES, INC., GYPSUM
RESOURCES, LLC, TRUCKEE SPRINGS
HOLDINGS, INC., JOHN C. RHODES,
JOHN C. RHODES, TRUSTEE OF THE
JAMES M. RHODES DYNASTY TRUST I,
JOHN C. RHODES, TRUSTEE OF THE
JAMES M. RHODES DYNASTY TRUST II,
HARMONY HOMES, INC., NORTH 5,
LLC, FARM HUALAPAI, LLC,
HARMONY 2, LLC, HAYDEN SPRINGS
PARTNERS, LLC, TROPICAL SANDS,
LLC, AND RHODES RANCH, LLC,

Stipulated Protective Order Regarding
Documents Produced by Highland
Capital Managements Pursuant to
FRCP 45 Subpoena Duces Tecum

Defendants.

WHEREAS, Defendants have subpoenaed Highland Capital Management (“Highland”)
to produce certain documents;
WHEREAS, Highland regards these documents and the information contained therein as
containing or constituting confidential information; and
WHEREAS, Highland, the plaintiff, and defendants, excluding Sedora Holdings, LLC,
which is a dissolved Delaware entity that remains unrepresented in the above-captioned adversary
proceeding, who have executed this stipulation (the “Specified Parties”), have agreed to protect
Highland’s claim to the confidentiality of said documents and information.
NOW, THEREFORE, IT IS STIPULATED AND AGREED AS FOLLOWS:
1.

Except as hereinafter provided, the undersigned counsel agree that the documents

produced by Highland in this action and the information contained therein (collectively, “Confidential

Information”) shall be held confidential if so designated by Highland. The Confidential Information
shall be used only for purposes necessary to the litigation of claims between and among the Specified
Parties in this action (“Permitted Purpose”), and not for any business or other purpose.
2.

Documents that Highland deems to be confidential shall be so designated by

clearly marking “CONFIDENTIAL” on each page thereof, or the first page of a multi-page document,
or by providing a separate written notice to plaintiff’s and defendants’ counsel designating documents
as confidential.
3.

Except with the prior written consent of Highland, the Confidential Information

may not be disclosed to any person other than:
(a) Counsel retained or employed by a Specified Party to the extent necessary for
the Permitted Purpose;
(b) Any officer or employee of a Specified Party to the extent necessary for the
Permitted Purpose;
(c) Expert witnesses or consultants retained by counsel for the Specified Parties,
but only to the extent necessary for the Permitted Purpose;
(d) Any court reporter or typist rendering services for recording or transcribing of
testimony in this action or any outside independent reproduction firm rendering reproduction services
in this action; and
(e) The court.
4.

Prior to the receipt of Confidential Information, all persons to whom Confidential

Information is disclosed shall acknowledge, by signing a copy of the attached non-disclosure
certificate, that they have read this Stipulation and Order and agree to be bound by its terms.
5.

This Stipulation and Order does not affect the rights of Highland with respect to

the Highland documents. The production of Highland documents shall not constitute an admission by
Highland, nor waive Highland’s rights, with respect to the propriety of their disclosure or their
relevance. Nothing in this Stipulation and Order shall be construed as precluding Highland from
objecting to any use of protected materials.

6.

A person receiving the Confidential Information shall provide said Confidential

Information only to persons to whom disclosure of the Confidential Information is authorized by this
Stipulation and Order and only for the purposes authorized herein.
7.

In the event it becomes necessary to show any Highland documents, or divulge

information contained therein, to a witness at a deposition who is not described in paragraph 3 above,
the Confidential Information shall be disclosed to that witness only after the witness acknowledges, by
signing a copy of the attached non-disclosure certificate, that the witness has read this Stipulation and
Order and agrees to be bound by its terms. That portion of any deposition transcript, including
attached exhibits, or other discovery, and that portion of any papers served or filed with the Court,
including attached exhibits, which disclose, pertain to, refer to, or incorporate Confidential Information
shall be treated according to the terms of this Stipulation and Order and shall be deemed to be
Confidential Information.
8.

Should any third party seek access to the Confidential Information, by request,

subpoena or otherwise, the Specified Parties or other recipient of the Confidential Information, as
applicable, shall promptly notify Highland, and shall cooperate to the extent allowable by law with
Highland in resisting any efforts by third parties to obtain Confidential Information from the Specified
Parties or other person.
9.

Any Party may object to any designation as Confidential Information at any time

by giving written notice (including by e-mail) to counsel for the designating Party. Such written notice
shall identify the Confidential Information to which the objection is directed and contain a statement of
the specific reasons for the objection.
10.

If the objecting Party and designating Party are unable to resolve their differences

within fourteen (14) calendar days after the designating Party’s receipt of the notice (or such later time
as the Parties may agree), the designating Party may file an appropriate application or motion with the
Court requesting that the designated Confidential Information be treated as confidential. The
designating Party shall have the burden of proving pursuant to Fed. R. Civ. P. 26(c) that the
Confidential Information should be treated as confidential. During the pendency of any such

application or motion, the Parties shall continue to treat the documents at issue as confidential under
this Protective Order.
11.

However, if no such application or motion is filed within twenty-one (21) days

after the receipt of the written notice of objection (or such later time as the Parties may agree), the
documents at issue shall no longer be treated as Confidential Information under this Protective Order.
12.

The provisions of this stipulation and order survive the conclusion of this

litigation and of the Court's jurisdiction.

/s/ Michael Yoder
Michael Yoder, Esq.
Diamond McCarthy, LLP
6855 S. Havana Street, Suite 220
Denver, Colorado 80112
Counsel for The Litigation Trust of the Rhodes
Companies, LLC

/s/ William Coulthard
William L. Coulthard, Esq.
Kemp, Jones & Coulthard, LLP
3800 Howard Hughes Parkway, 17th floor
Las Vegas, Nevada 89169
Counsel for James M. Rhodes; Sagebrush
Enterprises, Inc.; Harmony Homes, Inc.; North
5th LLC; Farm Hualapai, LLC; Harmony 2,
LLC; Hayden Springs Partners, LLC; Tropical
Sands, LLC; and Rhodes Ranch, LLC

Scott Ellington, Esq.
Highland Capital Management, L.P.
300 Crescent Court, Suite 700
Dallas, Texas 75201
General Counsel for Highland Capital
Management, L.P.

/s/ Owen Nitz
W. Owen Nitz, Esq.
Nitz, Walton & Heaton, Ltd.
601 S. 10th Street, Ste. 201
Las Vegas, Nevada 89101
Counsel for John C. Rhodes, individual; John
C. Rhodes, Trustee of the James M. Rhodes
Dynasty Trust I; John C. Rhodes, Trustee of
the James M. Rhodes Dynasty Trust II;
Gypsum Resources, LLC; and Truckee Springs
Holding, Inc.

IT IS SO ORDERED:
___________________________________
UNITED STATES DISTRICT JUDGE
UNITED STATES MAGISTRATE JUDGE
February 26, 2015
DATED:____________________________

THE LITIGATION TRUST OF THE
RHODES COMPANIES, LLC, ET AL.,

Bankruptcy Case No.: 09-14814-LBR
Adversary Proceeding No. 12-01099
District Case No.: 2:12-cv-01272-MMD

Plaintiff,
Chapter 11

v.
JAMES M. RHODES, SEDORA
HOLDINGS, LLC, SAGEBRUSH
ENTERPRISES, INC., GYPSUM
RESOURCES, LLC, TRUCKEE SPRINGS
HOLDINGS, INC., JOHN C. RHODES,
JOHN C. RHODES, TRUSTEE OF THE
JAMES M. RHODES DYNASTY TRUST I,
JOHN C. RHODES, TRUSTEE OF THE
JAMES M. RHODES DYNASTY TRUST II,
HARMONY HOMES, INC., NORTH 5,
LLC, FARM HUALAPAI, LLC,
HARMONY 2, LLC, HAYDEN SPRINGS
PARTNERS, LLC, TROPICAL SANDS,
LLC, AND RHODES RANCH, LLC,
Defendants.

NON-DISCLOSURE CERTIFICATE
I certify my understanding that access to confidential materials is provided to me
pursuant to the terms and restrictions of a Confidentiality Stipulation and Order among the parties to
this action and Highland Capital Management, dated

, 2015, and that I have been given a copy

of, and have read, the Stipulation and Order and agree to be bound by its terms. I understand that the
contents of the confidential materials, and any notes or other memoranda or any other forms of
information which copy or disclose confidential materials, shall not be disclosed to anyone other than
in accordance with that Stipulation and Order and shall be used only for the purposes set forth therein.
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I agree to be subject to the jurisdiction of this Court for purposes of enforcement of this
Non-Disclosure Certificate and the Stipulation and Order.

By:___________________________
Title:________________________
Representing:_________________
Date:_________________________