Lawson Products, Inc. v. Frustaci
Filing
18
PROTECTIVE ORDER Granting 17 Joint MOTION for Stipulated Protective Order. Signed by Magistrate Judge Carl W. Hoffman on 01/16/2013. (Copies have been distributed pursuant to the NEF - AC)
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CERTIFICATE OF SERVICE
I hereby certify that on January 15, 2013, I electronically filed the
foregoing document with the Clerk of the Court by using the CM/ECF
system which will send a notice of electronic filing to the following:
Jordan P. Schnitzer
Kravitz, Schnitzer, Sloane & Johnson, Chtd.
8985 S. Eastern Avenue, Suite 200
Las Vegas, Nevada 89123
Michael R. Hall
7425 Peak Drive
Las Vegas, Nevada 89128
Attorneys for Defendant
/s/ Kenneth J. Vanko
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EXHIBIT 1
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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
LAWSON PRODUCTS, INC.
Plaintiff,
vs.
SAMUEL E. FRUSTACI,
Defendant.
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)
)
)
)
)
)
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)
No. 2:12-cv-01303-JCM-CWH
STIPULATED PROTECTIVE
ORDER
Under Federal Rule of Civil Procedure 26(c), and based upon the
stipulation of the parties, IT IS HEREBY AGREED AND ORDERED that
Plaintiff, Lawson Products, Inc., and Defendant, Samuel E. Frustaci,
stipulate and agree that the following Protective Order shall govern
discovery from parties and non-parties in the case currently pending
between them, and the Court hereby grants the Parties’ joint Motion for
Entry of Stipulated Protective Order.
IT IS HEREBY FURTHER AGREED AND ORDERED:
1.
Definitions: For purposes of this Protective Order the following
definitions shall apply:
a. “Counsel” shall mean the outside law firms who are counsel of
record for the respective Parties in this matter including their staff
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and independent contractors, and in-house counsel for the corporate
parties, and such legal, clerical, paralegal and secretarial staff
employed or retained by outside counsel for the sole purpose of
assisting in the litigation, and provided that each such firm or person
not employed by the firm first sign an Acknowledgement in the form
attached as Exhibit A and thereby agree to be bound by the terms of
this Order.
b. “Documents” shall mean answers to interrogatories, deposition
transcripts, records produced for inspection in any form in this
matter, and any other tangible record, including, without limitation,
printed matter, electronic media, or physical things.
c. “Receiving Party” shall mean each party to this lawsuit that seeks
or otherwise receives, but does not originate the Protected
Information, together with their respective counsels, consultants,
employees, and experts.
d. “Producing Party” shall mean any individual or entity that
produces or otherwise discloses information or Documents in
response to a request from either of the parties to this lawsuit,
including, without limitation, a non-party that produces or otherwise
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discloses information or Documents in response to a subpoena issued
by a party.
e. “Protected Information” shall mean any document (including
electronic documents), thing, deposition testimony, interrogatory
answers, responses to requests for admissions and/or production, or
other information provided in this action (“Discovery Material”) that
contains any trade secret, non-public, proprietary, or confidential
information and copies thereof, including but not limited to:
business, accounting, sales, marketing, tax, and employment records,
training procedures, design drawings in any medium, technical
information, licenses, agreements, and contracts, trade data and
research and development documents, customer identities and lists,
and computer software programs in source code or object code, and
identified by the Producing Party as “Confidential” or “Highly
Confidential.”
i. All Protected Information may be designated by the
Producing Party as “Confidential,” as defined and described
below.
ii. Certain limited categories of Protected Information may be
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further designated by the Producing Party as “Highly
Confidential,” as defined and described below. The Highly
Confidential designation shall be reserved for Protected
Information, the disclosure of which would provide a
particularly broad competitive advantage to the Producing
Party’s competitors and/or would likely cause significant harm
to the competitive position of the Producing Party.
Unless identified by the Producing Party as Highly Confidential or
expressly treated as Highly Confidential under other terms of this
Order, Protected Information will generally be identified and
designated as Confidential.
2.
Designations: Producing Parties shall take reasonable steps to
promptly designate all Protected Information as Confidential or Highly
Confidential. Unless otherwise agreed, all Confidential or Highly
Confidential designations shall be made in good faith by the Producing
Party at the time of disclosure or production to the Receiving Party, or at
such other time as permitted by this Protective Order. Such steps shall
include the following:
a. Documents, Responses to Written Discovery and Subpoenas,
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and Other Tangible Materials: All Discovery Materials in the form
of documents, written responses to discovery requests, or other
tangible materials other than depositions or other pretrial testimony
that is deemed by a Producing Party to disclose Protected
Information shall be so identified either specifically or in general by
that Producing Party. Specific designation shall be accomplished with
the name of the classifying Producing Party followed by the
appropriate designation term of either Confidential or Highly
Confidential.
b. Depositions: Except as to portions designated as “Confidential” or
“Highly Confidential” in the deposition itself, deposition transcripts
shall be treated as Confidential in their entirety until thirty days after
receipt of the transcript have passed, unless the parties expressly
agree otherwise in writing or on the record in the deposition. Within
thirty days after receiving the transcript, any party may designate an
entire deposition transcript or portions thereof as Confidential or
Highly Confidential, as appropriate. The designation shall be made
in writing to all other Parties and the court reporter, identifying with
reasonable precision the pages, line references, and exhibits
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constituting Protected Information and the class of designation. If
portions of the transcript or exhibits were designated during the
deposition, such designation remains in force and need not be
reasserted under this paragraph. Information or Documents
designated pursuant to this Protective Order shall retain its
designated status even though marked as a deposition exhibit, and
such status need not be reasserted under this paragraph. Subject to
the provisions relating to inadvertent failure to designate, failure to
designate testimony either at a deposition or within thirty (30) days
after receipt of the transcript shall be deemed a waiver of the right to
designate such testimony as Protected Information, but shall not
affect the status of any other information, whether or not closely
related. If the Parties disagree about the Confidential or Highly
Confidential designation of a deposition transcript, it shall continue
to be treated as Confidential or Highly Confidential (whichever
protection is being sought) until the Court rules otherwise.
c. Other Non-Documentary Discovery Materials. All Discovery
Materials containing Protected Information that are not in
documentary, physical, or tangible form or cannot be
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conveniently designated in the manner set forth above shall be
designated by the Producing Party by notifying the Receiving
Party in writing.
d. Document Inspections: All documents and things may be made
available for initial inspection by Counsel for the Receiving Party
prior to production. The parties recognize that in some instances it
may not be possible to identify or designate specific information
before inspection or at the time of providing such information for
reasons such as, but not limited to, the volume of Documents and/or
the legitimate desire of a Producing Party not to mark its original
records. In such circumstances and upon the Producing Party’s
request, the Documents may be generally designated as potentially
containing “Protected Information” and shall be treated as if
designated “Highly Confidential” until such time as the Producing
Party has a reasonable opportunity to review and designate the
documents as Confidential or Highly Confidential prior to providing
copies to the Receiving Party. Should a Producing Party have
concerns as to the potential designation as “Highly Confidential”
information, it is incumbent upon it to conduct a review of all such
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items without delay.
e. Inadvertent Failure to Designate: If, through inadvertence, a
Producing Party discloses any material containing Protected
Information without designating the material as Confidential or
Highly Confidential, such failure to designate does not constitute a
waiver. After an inadvertent failure to designate Protected
Information, the Producing Party may subsequently designate the
material as Confidential or Highly Confidential by so informing the
Receiving Party in writing. The Parties shall thereafter treat the
disclosed material as so designated in the written notification of the
inadvertent disclosure. The Receiving Party shall take reasonable
steps to provide a written advisement to persons to whom disclosure
was made before receipt of the designation of such status and of this
Order, and shall request return of such information and all copies,
but shall not otherwise be required to retrieve or take any action to
protect such information or copies of documents disclosed before the
receipt of the Protected Information designation.
f. Contested Designations: No party waives the right to dispute any
designation by agreeing to this Protective Order. A party shall not be
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obligated to challenge the propriety of designating any Protected
Information at the time such designation is made, and failure to do so
shall not preclude a subsequent challenge. If a party at any time
disagrees with the Producing Party’s designation of Confidential or
Highly Confidential of any Protected Information, or the restrictions
on its disclosure, the parties shall try first to resolve such dispute in
good faith on an informal basis. If the dispute cannot be resolved, the
objecting party may seek appropriate relief from this Court but the
Producing Party designating information as protected shall bear the
burden of proof that it should constitute Protected Information and
be restricted as provided. Each party shall also have the right at any
time to request relief and award of sanctions occasioned by any
party’s potential abuse of the protections in this Order. The Parties
may by stipulation provide for exceptions to this Order and any
party may seek an order of this Court modifying this Protective
Order. The Parties shall notify any Producing Party who is not party
to this lawsuit reasonably in advance of any modification to this
Protective Order, stipulated or otherwise, so that the Producing Party
may, if necessary, object to such modification to protect its interests.
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This Order shall be without prejudice to either party to bring before
the Court at any time the question of whether any particular
information is or is not, in fact Protected Information. While
Protected Information shall remain under the protection of this Order
until otherwise ordered by the Court, in considering the issue
nothing shall be regarded by the Court as Protected Information to
the extent and as to portions that are shown to be either:
i.
in the public domain at the time of disclosure as a
composite item of information; or
ii.
shown to be information a Receiving Party can establish,
by previously-existing documentary evidence, was
lawfully in its possession as a composite item of
information before the time of disclosure.
3.
Non-Use: Any Protected Information or other Discovery Material
produced during the course of this action shall be used solely for the
purposes of this action and shall not be disclosed or used by any Receiving
Party for any other purpose. A Receiving Party shall not use any Protected
Information for purposes of obtaining media attention or exposure or
publicizing this litigation. All obligations and duties arising under this
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Order shall survive until otherwise ordered by the Court. This Court
retains jurisdiction over the parties to resolve any dispute regarding the
improper use or disclosure of Protected Information under this Order.
4.
Disclosure of Protected Information: Except with the prior written
consent of the Producing Party or pursuant to further order of this Court,
Protected Information may not be disclosed to any person other than as
described below, based on its designation.
a.
Subject to the express limitations of this Protective Order for such
disclosures, “Qualified Persons” having access to Protected
Information designated as “Confidential” in this action are:
i.
Counsel of record in this Action and employees of
such counsel; or
ii.
The Parties to this lawsuit and their employees or
agents who are involved in the prosecution or
defense of this Action; or
iii.
Experts and consultants (and their staff and support
personnel) consulted by persons described in (i) or
(ii), above, in connection with this action (whether in
preparation for trial or in the presentation of
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evidence, or in connection with trial, motions,
testimony, evaluation, advice or otherwise in
connection with this Action), provided such expert
or consultant first complies with Paragraph 5, below;
or
iv.
Court reporters while in the performance of their
official duties, provided that these persons may
retain Protected Information only as long as is
necessary for the conduct of their duties in this
Action; or
v.
The Court and its staff; or
vi.
Any deponent and/or witness in this Action,
provided such deponent or witness complies with
Paragraph 5, below; or
vii.
Persons who appear on the face of the Protected
Information as an author, addressee, or recipient; or
viii. Independent third parties retained or used by
attorneys of record in this litigation (such as service
providers necessary to copy, scan, print, or
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reproduce documents) solely for the purposes of
preparation, trial, appeal, or settlement of this action;
or
ix.
Claims counsel or a representative of any insurer of a
party to this action, but only to the extent and to
portions necessary for a claim for defense or
indemnity arising from this action and provided that
such person complies with Paragraph 5, below.
b.
Protected Information designated as “Highly Confidential” in this
action shall be afforded all the protections as Confidential
information, but with the additional condition that Highly
Confidential information will be produced only to Counsel for
Receiving Party. Counsel for Receiving Party will not make copies
of the information, and will not disclose or discuss the contents
with any person, except that:
i. Counsel for Receiving Party may allow Receiving Party to
review or inspect the information, provided that the Receiving
Party complies with Paragraph 4(c), below.
ii. Counsel for Receiving Party may allow access by Qualified
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Persons pursuant to Paragraphs 4(a)(iii), but access by such
Qualified Persons shall be restricted to the independent
consultants or experts retained by a party and questioned by
Counsel in connection with this action, and only to the extent
and as to portions necessary to assist such Counsel in the
prosecution or defense of this action, to the extent relevant to
information reasonably believed to be the subject of their
expertise, and provided that such Designated Persons comply
with Paragraphs 4(c) and 5, and are not employed by a direct
competitor of Producing Party.
iii. Counsel for Receiving Party may allow access by Qualified
Persons pursuant to Paragraphs 4(a)(vi), but access by such
Qualified Persons shall be restricted to those Qualified Persons
who reasonably need to have access to such information in
connection with this action, and only to the extent and as to
portions necessary to assist counsel in the prosecution or
defense of this action. Additionally, Counsel for Receiving
Party may only allow such access if the Designated Persons
comply with Paragraphs 4(c) and 5, below.
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c.
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Counsel for Receiving Party may disclose
Highly
Confidential information pursuant to Paragraph 4(b)(i)-(ii) only
on the following conditions:
i. Such disclosure shall be limited to only the extent necessary
to assist the Receiving Party or Designated Person in the
prosecution or defense of this action, and may not use it for any
purpose other than in connection with the prosecution or
defense of this action.
ii. The Receiving Party or Designated Person may not view
Highly Confidential information outside the presence of
outside counsel.
iii. The Receiving Party or Designated Person may not make or
keep a copy of Highly Confidential information.
iv. The Receiving Party or Designated Person may not make
any summaries of or take notes on the content of the Highly
Confidential information.
v.
The Receiving Party or Designated Person may not
discuss or disclose the contents of the Highly Confidential
information with anyone other than Counsel for Receiving
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Party.
5.
Acknowledgement: Qualified Persons defined in Paragraphs
4(a)(iii), 4(a)(vi), and 4(a)(ix) shall not be allowed access to any
Protected Information until after signing an Acknowledgement in the
form attached hereto as Exhibit A, and thereby agreeing to be bound
by the terms of this Order. However, Qualified Persons under
paragraph 4(a)(vii) do not need to sign Exhibit A.
6.
Obligations of Counsel: It shall be the responsibility of Counsel for the
respective parties to ensure compliance with the provisions of this
Protective Order in their dealings with Protected Information, and it shall
be the responsibility of Counsel to take reasonable and proper steps to
ensure that this Protective Order and all provisions are made known to any
person who shall examine Protected Information as provided. All persons
responsible for determining that Discovery Materials contain Protected
Information shall be familiar with this Order and the scope of its
protection. All Protected Information, including any and all copies thereof,
shall be kept by Counsel in a place appropriately safe, given its
designation.
7.
Conclusion of the Litigation: Within sixty (60) days after entry of a
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final judgment or dismissal with prejudice in this litigation (including
appeals or petitions for review) finally disposing of all issues raised in this
litigation, Counsel and all other persons having possession or control of a
Producing Party’s Protected Information thereof shall, upon request,
provide copies of all executed Exhibit A documents and shall: (a) return all
Protected Information and any copies thereof to the appropriate Producing
Party who produced the Protected Information; or (b) destroy such
Protected Information and all copies to the extent it contains or is contained
in any notes, summaries, digests, synopses or other document added by
Counsel or any other person after production. Each party shall give written
notice of such destruction to all Counsel. Subject to the foregoing, Counsel
may retain both a physical and electronic copy of any document containing
Protected Information for archive purposes. Counsel shall also provide the
opposing party with the originals of all acknowledgment forms executed
by persons pursuant to this Protective Order at any time upon request.
8.
Non-waiver: The production of Discovery Materials by a Producing
Party under the terms of this Order and in response to a request by any
other party shall not be construed to mean that the Producing Party has
waived any objection to the production, relevancy, or admissibility of said
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Document. Nothing shall preclude any Producing Party from opposing
any discovery on any lawful basis.
9.
Trial Procedures: The Parties agree to jointly request that the Court
implement appropriate procedures to protect Protected Information which
may be disclosed at the trial or any hearing in this matter consistent with
the spirit and scope of this Order.
10. Modification: Stipulations may be made, between Counsel for the
respective parties, as to the application of this Order to specific situations
(e.g., documents which are so voluminous that it would be overly
burdensome to mark each page thereof individually, or electronic
documents not identifiable in pages or screens) provided that such
stipulations are recorded in writing or contained in the record of any oral
proceeding. Nothing shall preclude any party from seeking an order of the
Court modifying or supplementing this Order. The Parties shall notify any
Producing Party who is not party to this lawsuit reasonably in advance of
any modification to this Protective Order, stipulated or otherwise, so that
the Producing Party may, if necessary, object to such modification to
protect its interests.
11. Interim Effect: This Protective Order shall be submitted to the Court
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for approval and, following approval, shall continue in effect until further
order of this Court. For purpose of proceeding with discovery without
delay, pending the Court’s approval of this Order, any Proprietary
Information produced under the terms of this Order shall be protected by
the Parties under these terms.
In the event the Court refuses to enter this Protective Order, or determines
that such Protective Order is premature, all provisions, as agreed to
between the parties, shall continue in effect until a Court determination is
made, at which time the Court determination shall supersede the
applicable terms of this Stipulated Order subject to any parties’ right to
seek an order modifying or supplementing the Order.
12. Filing under Seal: Filing of documents under seal shall be conducted in
compliance with Local Rule LR 10-5. No document filed under seal shall be
considered by the Court or relied upon by any party absent an order of the
Court so permitting.
IT IS SO ORDERED this
16th
day of January, 2013.
C.W. Hoffman, Jr.
Hon.
United States Magistrate Judge
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EXHIBIT A
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IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
LAWSON PRODUCTS, INC.
Plaintiff,
vs.
SAMUEL E. FRUSTACI,
Defendant.
)
)
)
)
)
)
)
)
)
No. 2:12-cv-01303-JCM-CWH
ACKNOWLEDGMENT OF
STIPULATED PROTECTIVE
ORDER
The undersigned acknowledges that he or she has read the Stipulated
Protective Order agreed to by the Parties and entered by the Court in this
action and agrees to be bound by the terms.
(Signature)
(Printed Name)
(Date)
{Exhibit A - Acknowledgment to Protective Order.docx /v. 1 }
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