Phipps et al v. Clark County School District et al

Filing 14

CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER. IT IS ORDERED that the parties' Stipulated Protective Order is APPROVED with the exception of Paragraph 18. Paragraph 18 is NOT APPROVED. Signed by Magistrate Judge Peggy A. Leen on 01/28/2013. (Copies have been distributed pursuant to the NEF - AC)

Case 2:13-cv-00002-GMN-PAL Document 11

1
2
3

Filed 01/25/13 Page 1 of 9

MARK E. FERRARIO
Nevada Bar No. 1625
KARA B. HENDRICKS
Nevada Bar No. 7743
MOOREA L. KATZ

4

Nevada Bar No. 12007

GREENBERG TRAURIG, LLP
5
6
7

8
9
10

3773 Howard Hughes Parkway
Suite 400 North

Las Vegas, Nevada 89169
Telephone:
[phone]
Fax: [phone]
Email: ferrariom(5).gtlaw.com
[e-mail]
[e-mail]

Counselfor Defendants
Variety School and Clark County School District

11

UNITED STATES DISTRICT COURT
12
i

FOR THE DISTRICT OF NEVADA

o- E *

o

13

•» °" -s'

JJ « O -o «*• I-

2f|J!! i4

JOHN PHIPPS, individually, and as Guardian

2I5|ll

ad litem for MONTGOMERY PHIPPS; DINA

S11 E g iJ
z=

al'8

15

No. 2:13-cv-00002

PHIPPS,

u

16
Plaintiffs,
17

18
19
20

STIPULATED CONFIDENTIALITY
AGREEMENT AND PROTECTIVE
ORDER

vs.

LACHELLE DEANNE JAMES; VARIETY

SCHOOL; CLARK COUNTY SCHOOL
DISTRICT, a Political Subdivision of the State
of Nevada; DOES I through X; and ROES I
through X, inclusive,

21

Defendants.
22
23

Pursuant to the Stipulation contained herein by and among counsel for Plaintiff John Phipps,

24

individually, and as Guardian ad litem for Montgomery Phipps; Dina Phipps, ("Plaintiff) and

25

counsel Defendants, Variety School and Clark County School District ("Defendants"), the Court

26

hereby finds as follows:

27
28

1.

The "Litigation" shall mean the above-captioned case, John Phipps,

individually and as Guardian ad litem for Montgomery Phipps; Diana Phipps v. Lachelle Deanne
LV 419920797V2

Case 2:13-cv-00002-GMN-PAL Document 11

Filed 01/25/13 Page 2 of 9

1

James; Variety School; Clark County School District, et. al., in the United States District Court,

2

District of Nevada Case No. 2:13-cv-00002,

3

2.

"Documents" or "Information" shall mean and include any documents

4

(whether in hard copy or electronic form), records, correspondence, analyses, assessments,

5

statements (financial or otherwise), responses to discovery, tangible articles or things, whether

6

documentary or oral, and other information provided, served, disclosed, filed, or produced, whether

7

voluntarily or through discovery or other means, in connection with this Litigation. A draft or non-

8

identical copy is a separate document within the meaning of these terms.

9

3.

"Party" (or "Parties") shall mean one party (or all parties) in this Litigation,

10
11

—

«

o> *? »

provides, serves, discloses, files, or produces any Documents or Information. "Receiving Party"

12

£ "• -5 °° £J N

and their in-house and outside counsel. "Producing Party" shall mean any person or entity who

shall mean any person or entity who receives any such Documents or Information.

13

HiJi! 14
| | ^£-§!

4.

The privacy of students who are not parties to the Litigation is protected

under federal law and as a school district that receives federal funding, CCSD is bound by the

c£ g'3 a s s

o

Family Educational Rights and Privacy Act ("FERPA") and is not at liberty to disclose personally
16

identifying information of its students without written consent or court order.

17

acknowledge that information that could reasonably likely to lead to admissible evidence in this

18

Litigation could contain information that is protected by FERPA. In addition, personnel files of

19

employees involved in an incident are confidential and private in nature, and as a result, must be

20

limited and protected to protect the individuals' fundamental right to privacy guaranteed by the

21

First, Third, Fourth, Fifth, and Ninth Amendments of the U.S. Constitution. See, El Dorado Savings

22

& Loan Assoc, v. Superior Court of Sacramento County, 190 Cal. App. 3d 342 (1987).

23

Accordingly, the Parties agree that, in conjunction with pre-discovery settlement negotiations or

24

with discovery proceedings in this Litigation, the Parties may designate any Document, thing,

25

material, testimony, or other Information derived therefrom as "CONFIDENTIAL" under the terms

26

of this Confidentiality Agreement and Protective Order (hereinafter "Order") that shall not be

27

provided or made available to third parties except as permitted by, and in accordance with, the

28
LV 419920797v2

The Parties

Case 2:13-cv-00002-GMN-PAL Document 11

Filed 01/25/13 Page 3 of 9

provisions of this Order. Confidential information includes any information contained in personnel
files of CCSD employees and/or information that has not been made public and contains trade
secret, proprietary and/or sensitive business or personal information, and/or any (personal)
information about students that is protected by FERPA,.

5.

In addition, if any party requests documents or other evidence that are subject

to FERPA, the Parties acknowledge that a Court Order requiring such .a disclosure must first be

obtained. If such a court order is granted, and disclosure of FERPA protected information is

required, the Parties acknowledge FERPA protected information will be marked confidential
pursuant to the Stipulated Confidentiality Agreement and Protective Order.
6.

10

CONFIDENTIAL Documents shall be so designated by marking or stamping

11

12

o.

each page of the Document produced to or received from a Party with the legend
"CONFIDENTIAL."

7.

II 2§? 13

ECO. x a r i N

Testimony taken at a deposition may be designated as CONFIDENTIAL by

^lilli 14

any Party making a statement to that effect on the record at the deposition or within ten (10)

59 x

15

business days of receipt of the transcript. Arrangements shall be made with the court reporter

16

taking and transcribing such deposition to separately bind such portions of the transcript and

17

deposition exhibits containing Information designated as CONFIDENTIAL, and to label such

18

portions appropriately. Counsel for the Parties may also designate an entire deposition transcript as

19

CONFIDENTIAL at the time of the deposition or within ten (10) business days of receipt of the

20

transcript.

21

8.

wsss'»„

3 £

8-g

-J £ i

CONFIDENTIAL Information shall be maintained in strict confidence by the

22

Parties who receive such information, shall be used solely for the purposes of this Litigation, and

23

shall not be disclosed to any person except:

(a)

24

The United States District Court, District of Nevada, or any other

25

court to which this matter may be transferred (the "Court"), so long as that document is filed under

26

seal;

27
28
LV 419920797v2

Case 2:13-cv-00002-GMN-PAL Document 11

(b)

1

Filed 01/25/13 Page 4 of 9

In the event of an appeal, the Nevada Supreme Court, the United

2

States Court of Appeals (the "Appellate Court") and/or the United States Supreme Court (the

3

"Supreme Court"), so long as that document is filed under seal;

(c)

4

The attorneys of record in this Litigation and their co-shareholders,

5

co-directors, partners, employees, and associates who are assisting in the Litigation (collectively

6

hereafter referred to as "Outside Counsel");

(d)

7

A Party, or an officer, director, or employee of a Party or of a Party's

8

affiliate, as long as any such person agrees to be bound by the terms and conditions of this

9

Agreement, however, no copies should be ;

(e)

10

Subject to the terms of Paragraph 12 below, experts or consultants

II

and their staff, retained by the Parties and/or Outside Counsel in this Litigation for the purposes of

12

this Litigation;

->«

(g)

ii S s?l 13
3 H •> £ S?
OS o. j: oo rl ri

PS|*£| 14

Any other person, only if the Receiving Party has given written notice

to the Producing Party of an intent to disclose specified CONFIDENTIAL Information to said

w 1 a 8 « «.

U g <« £ 5 E
5 x

u

« &s

i *c

person, who shall be identified by name, address, phone number, and relationship, if any, to the

16

Receiving Party, and the Producing Party has not provided a written objection to the disclosure

17

within ten (10) business days of delivery of the notification. In the event of an objection, no

18

disclosure shall be made pending the resolution of the objection.

19

information that is protected by FERPA, the objection can only be resolved by stipulation of the

20

parties or court order which includes a provision allowing CCSD to provide no less than thirty (30)

21

days' notice to the parents of the children that may be implicated in any disclosure. Before any

22

person may receive Documents or Information pursuant to this subparagraph, he or she must

23

comply with the requirements of Paragraph 12 below.

24

9.

If the disclosure includes

If a witness is providing or is provided CONFIDENTIAL Information during

25

a deposition, counsel for the Producing Party may request that all persons other than the witness and

26

persons entitled by this Order to have access to the CONFIDENTIAL Information leave the

27

deposition room during that portion of the deposition other than the court reporter. Failure of any

28
LV 419920797v2

Case 2:13-cv-00002-GMN-PAL Document 11

Filed 01/25/13 Page 5 of 9

person to comply with such a request will constitute sufficientjustification for the witness to refuse
to answer the question, or for the Producing Party to demand that CONFIDENTIAL Information
not be provided to the witness, pending resolution of the issue.

10.

All designations of Information as CONFIDENTIAL by the Producing Party

must be made in good faith.

11.

A party may object to the designation of particular Information as

CONFIDENTIAL by giving written notice to the party designating the disputed Information. The
written notice shall identify the Information to which the objection is made. If the parties cannot

resolve the objection within ten (10) business days after the time the notice is received, it shall be
10
11

o\ *? *
tC a. ja
3
*» c •o r- r»

motion requesting that the Court determine whether the disputed Information should be subject to

12

si

the obligation of the party designating the Information as CONFIDENTIAL to file an appropriate

the terms of this Protective Order.

13

date the parties fail to resolve the objection, the disputed Information shall be treated as

14

CONFIDENTIAL under the terms of this Protective Order until the Court rules on the motion.

15

the designating party fails to file such a motion within the prescribed time, the disputed Information

16

shall lose its designation as CONFIDENTIAL and shall not thereafter be treated as

17

CONFIDENTIAL in accordance with this Protective Order.

18

under this provision, the party designating the Information as CONFIDENTIAL shall bear the

19

burden of establishing that good cause exists for the disputed Information to be treated as

20

CONFIDENTIAL.

21

12.

2 °°z

H x§zg.g.

If such a motion is filed within ten (10) business days after the

If

3. s
U

o «o

CQ X

OS

In connection with a motion filed

While protected by this Order, any Information designated CONFIDENTIAL

22

shall be held in strict confidence by each person to whom it is disclosed; shall be used solely for the

23

purposes of this Litigation; and shall not be used for any other purpose, including, without

24

limitation, use in any other lawsuit. Documents and Information previously produced by the parties

25

may be designated "Confidential" within 30 days after the date of this Order.

26
27

13.

With respect to outside experts or other persons pursuant to Paragraph 7(g),

to become an authorized expert or other person entitled to access to CONFIDENTIAL Information,

28
LV 419920797V2

Case 2:13-cv-00002-GMN-PAL Document 11

Filed 01/25/13 Page 6 of 9

the expert or other person must be provided with a copy of this Order and must sign a certification
acknowledging that he/she has carefully and completely read, understands, and agrees to be bound
3

by this Order. The Party on whose behalf such a Certification is signed shall retain the original

4

Certification.

5

14.

Notwithstanding any other provision herein, nothing shall prevent a Party

6

from revealing CONFIDENTIAL Information to a person who created orpreviously received (as an

7

addressee or by way of copy) such Information.

8
9

15.

The inadvertent production of any Information without it being properly

marked or otherwise designated shall not be deemed to waive any claim of confidentiality with

10

respect to such Information.

11

CONFIDENTIAL Information without marking or designating it as such in accordance with the

12

provisions of this Order, the Producing Party may, promptly on discovery, furnish a substitute copy

13

properly marked along with written notice to all Parties (or written notice alone as to non-

P5|lg| 14

documentary Information) that such Information is deemed CONFIDENTIAL and should be treated

|= all 15

as such in accordance with the provisions of this Order. Each receiving person must treat such

°

16

Information as CONFIDENTIAL in accordance with the notice from the date such notice is

17

received. Disclosure of such CONFIDENTIAL Information prior to the receipt of such notice shall

18

not be deemed a violation of this Confidentiality Agreement. A Receiving Party who has disclosed

19

such CONFIDENTIAL Information prior to the receipt of such notice shall take steps to cure such

20

disclosure by requesting return of the original document and substituting it with the properly

21

marked one.

Su

. If a Producing Party, through inadvertence, produces any

-J

-J &•
K a. x to m -!,

U 1 S )5 « „

22

23
24

16.

A copy of this Order shall be shown to each attorney acting as counsel for a

Party and to each person to whom CONFIDENTIAL Information will be disclosed.
17.

Nothing in this Order shall be construed as an admission or agreement that

25

any specific Information is or is not confidential, subject to discovery, relevant, or admissible in

26

evidence in any future proceeding.

27
28
LV 419920797V2

Case 2:13-cv-00002-GMN-PAL Document 11
Paragraph 18 not approved
by court.

1

18.

Filed 01/25/13 Page 7 of 9

If CONFIDENTIAL Information is contained in any brief or other paper to

2

be filed in the public record of the Court by a Party, the CONFIDENTIAL Information will be

3

redacted from such brief or other paper and shall be appropriately marked and separately filed in a

4

sealed envelope. The envelope shall set forth on its face the case caption, the title of the paper, a

5

notation that the paper is filed under seal, and the title and date of the Court Order authorizing the

6

paper to be filed under seal. When e-filing, a Party shall file a 1-page cover sheet stating that the

7

CONFIDENTIAL Information was e-filed under seal, and then deliver the aforementioned envelope

8

containing the CONFIDENTIAL Information to chambers and/or to the clerk of the Court. Upon or

9

before tendering such CONFIDENTIAL Information to the Court for filing, the Party shall file a

10

motion with the Court to obtain leave to file it under seal.

11

compliance with applicable Court Rules. If such leave is not timely obtained, then the Party

12

desiring to file the CONFIDENTIAL Information shall confer in good faith with the Producing

AC ft. j; oo r4 in|

13

Party to determine how such Information otherwise may be provided to the Court. If the Court

Hi?ztS

14

ultimately refuses to allow such Information to be filed under seal, then it may be filed not under

ic

seal. The foregoing shall not apply to CONFIDENTIAL Information submitted to the Court in the

16

parties' Confidential Settlement Statements, if applicable.

0u

Such motion shall be made in

J

"if »p«

OS 5 s 3) g .•=

« x

C g-g

UJ r~

Juti.

a*"

°

17

19.

This Order shall not be construed to prevent any Party from making use of or

18

disclosing Information that was lawfully obtained by a Party independent of discovery in this

19

Litigation, whether or not such material is also obtained through discovery in this Litigation, or

20

from using or disclosing its own CONFIDENTIAL Information as it deems appropriate.

21

20.

If either Party becomes required by law, regulation, or order of a court or

22

governmental entity to disclose any CONFIDENTIAL Information that has been produced to it

23

under the terms of this Order, such Party will reasonably notify the other Parties, in writing, so that

24

the original Producing Party has an opportunity to prevent or restrict such disclosure. The Party

25

required to disclose any CONFIDENTIAL Information shall use reasonable efforts to maintain the

26

confidentiality of such CONFIDENTIAL Information and shall cooperate with the Party that

27

originally produced the Information in its efforts to obtain a protective order or other protection

28
LV 419920797v2

Case 2:13-cv-00002-GMN-PAL Document 11

Filed 01/25/13 Page 8 of 9

1

limiting disclosure; however, the Party required to disclose the Information shall not be required to

2

seek a protective order or other protection against disclosure in lieu of, or in the absence of, efforts

3

by the Producing Party to do so.

21.

4

Upon termination of this Litigation, either by settlement or other action, any

5

Party and its counsel that obtained CONFIDENTIAL Information through discovery shall, upon

6

request, return all such CONFIDENTIAL Information to the Producing Party or certify as to its

7

destruction. Counsel may retain CONFIDENTIAL Information solely for archival purposes. The

8

restrictions of this Protective Order shall apply to Counsel for as long as they hold such archival

9

Documents.

22.

10

The obligation to treat all Information designated as CONFIDENTIAL in

11

12

shall survive any settlement or other termination of this Litigation.

23.

13

Si 2$''
06 O. .c oo <n

3

accordance with the terms of this Order and not to disclose such CONFIDENTIAL Information

The inadvertent production of any Information during discovery in this action

S 5 "O •"* i-

Pa§l|| 14

shall be without prejudice to any claim that such Information is subject to the attorney-client

U "H S «" « li
2 J u < 8

S § '3 J? § 1
Z

m

« 'B

a

1 J

privilege or is protected from discovery as attorney work product. No Party shall be held to have

16

waived any rights by such inadvertent production. Upon notification of inadvertent production, the

17

receiving Party shall not use or divulge the contents of such Information unless subsequently agreed

18

to by the Producing Party or permitted by the Court. Any such inadvertently produced Information

19

shall be returned by the Receiving Party within three business days of any written request therefore.

20

The Receiving Party retains the right to challenge the Information as not privileged or otherwise

21

protected and discoverable.

22

//

23

//

24

//

25

//

26

//

27

//

US
fiE

y

28
LV 419920797V2

Case 2:13-cv-00002-GMN-PAL Document 11

1
2
3

24.

Filed 01/25/13 Page 9 of 9

The Parties may seek modification of this Order by the Court at any time, by

stipulation or for good cause.
IT IS SO STIPULATED.

4

Dated this 25th day of January, 2013.

Dated this 25th day of January, 2013.

Greenberg Traurig, LLP

The Cobeaga Law Firm

/s/MarkE. Ferrario

5

/s/J. Mitchell Cobeaga

Mark E. Ferrario

J. Mitchell Cobeaga

Nevada Bar No. 1625

Nevada Bar No. 0177

6

7
8

9
10

Kara B. Hendricks
11

550 East Charleston Boulevard

Nevada Bar No. 7743

Suite D

3773 Howard Hughes Parkway
-if

- K; §
Ov *? =f
M
'

B

tux a

^

Las Vegas, Nevada 89104

12

a.

Suite 400 North

Counselfor Plaintiff

1J
1^

Las Vegas, Nevada 89169
Counselfor Defendants Variety School
and Clark County School District

K o -o «~- r-

3

v. C a o> S?

~J op*- > « ?J

14
oe i -a So s =

u 15*5 i

ea x

-* =-•«

-i £ iS

15

16

17

IT IS ORDERED that the parties' Stipulated Protective Order is APPROVED with the
ORDER
exception of Paragraph 18. Paragraph 18 is NOT APPROVED.

18

19
20

DatedIT IS 28th day of January, 2013.
this HEREBY ORDERED.
DATED this

21

22

day of January, 2013.
_____________________________________
Peggy A. Leen
United States Magistrate Judge
UNITED STATES DISTRICT COURT JUDGE

23
24
25

26
27

28
LV 419920797V2