Ballentine et al v. Las Vegas Metropolitan Police Department et al

Filing 82

PROTECTIVE ORDER. Signed by Magistrate Judge George Foley, Jr on 10/23/2015. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:14-cv-01584-APG-GWF Document 81 Filed 10/22/15 Page 1 of 12

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MARGARET A. MCLETCHIE, Nevada Bar No. 10931
ALINA M. SHELL, Nevada Bar No. 11711
MCLETCHIE SHELL LLC
701 East Bridger Ave., Suite 520
Las Vegas, Nevada 89101
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Plaintiffs
Craig R. Anderson, Esq., Nevada State Bar No. 6882
Brianna Smith, Esq., Nevada State Bar No. 11795
MARQUIS AURBACH COFFING
10001 Park Run Drive
Las Vegas, NV 89145
Telephone: [phone]
Email: [e-mail]
Attorneys for Defendants

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UNITED STATES DISTRICT COURT
ATTORNEYS AT LAW
701 EAST BRIDGER AVE., SUITE 520
LAS VEGAS, NV 89101
[phone] (T) / [phone] (F)
WWW.NVLITIGATION.COM

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DISTRICT OF NEVADA
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BRIAN BALLENTINE, an individual;
CATALINO DAZO, an individual; KELLY
PATTERSON, an individual; and GAIL
SACCO, an individual;

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CASE NO.: 2:14-cv-01584-APG-GWF
[PROPOSED] STIPULATED
PROTECTIVE ORDER

Plaintiffs,

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vs.

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LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, in its official capacity;
DETECTIVE CHRISTOPHER T.
TUCKER, as an individual and in his official
capacity as a Las Vegas Metropolitan Police
Department Detective; SERGEANT MIKE
WALLACE, as an individual and in his
official capacity as a Las Vegas Metropolitan
Police Department Sergeant; LIEUTENANT
JOHN LIBERTY, as an individual and in his
official capacity as a Las Vegas Metropolitan
Police Department Lieutenant,

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Defendants.

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Case 2:14-cv-01584-APG-GWF Document 81 Filed 10/22/15 Page 2 of 12

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This stipulated protected order is made between and among the parties to the abovecaptioned matter and on the date so indicated below:

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WHEREAS Defendants Las Vegas Metropolitan Police Department, Detective

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Christopher Tucker, Sergeant Mike Wallace, and Lieutenant John Liberty, by and through

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their undersigned counsel of record, BRIANNA SMITH, of the law firm of Marquis

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Aurbach Coffing, have requested that Plaintiff Brian Ballentine release medical

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information;

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WHEREAS, Mr. Ballentine’s medical information is confidential, personal,
sensitive, and private information;
WHEREAS, the parties agree to the terms herein, and stipulate to the entry of an

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Order protecting any of Mr. Ballentine’s medical information provided (hereinafter,

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“Confidential Information”).

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ATTORNEYS AT LAW
701 EAST BRIDGER AVE., SUITE 520
LAS VEGAS, NV 89101
[phone] (T) / [phone] (F)
WWW.NVLITIGATION.COM

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regarding whether there is an obligation to produce such information.

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The Parties do not waive any arguments or objections

WHEREAS, this stipulation only governs the disclosure of Mr. Ballentine’s

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medical information and does not pertain to any other discovery in this matter.

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NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED, by and between the

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parties hereto, through their undersigned counsel, as follows:

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1.

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Disclosure and discovery activity in this action may involve production of

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confidential, proprietary, or private information for which special protection from public

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disclosure may be warranted. The parties acknowledge that this Order does not confer

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blanket protections on all disclosures or responses to discovery and that the protection it

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affords extends only to the limited information or items that are entitled under law to

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treatment as confidential.

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2.

PURPOSED AND LIMITATIONS.

SCOPE OF CONFIDENTIAL INFORMATION.

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All documents produced in the course of discovery, all responses to discovery

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requests, and all deposition testimony and exhibits and any other materials which may be

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subject to discovery (hereinafter collectively “documents”) shall be subject to this stipulated
protective order concerning confidential information as set forth below. Any party, or any
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Case 2:14-cv-01584-APG-GWF Document 81 Filed 10/22/15 Page 3 of 12

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third party who produces documents in this litigation, may designate documents as

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CONFIDENTIAL but only after review of the documents by an attorney who has, in good

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faith, determined that the documents contain “Confidential Information,” as defined below,

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and pursuant to the procedure set forth below.

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3.

CONFIDENTIAL INFORMATION.

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“Confidential Information” shall mean and include any medical records or

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information of or concerning Plaintiff Brian Ballentine. Nothing in this paragraph shall be

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construed as an exclusion of any other material from the definition of “Confidential

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Information.”
Confidential Information does not include information that: (a) is in the public

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domain at the time of disclosure; (b) becomes part of the public domain through no fault of

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the Receiving Party; (c) the Receiving Party can show was in its rightful and lawful

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ATTORNEYS AT LAW
701 EAST BRIDGER AVE., SUITE 520
LAS VEGAS, NV 89101
[phone] (T) / [phone] (F)
WWW.NVLITIGATION.COM

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possession at the time of disclosure; or (d) the Receiving Party lawfully receives from a Non-

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party later without restriction as to disclosure.

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4.

OTHER DEFINITIONS.

Party: any party to this action and attorney(s) of record for a Party in this action
including their associates, paralegals, and support/ clerical staff, consultants and experts.
Non-party: any individual, corporation, association, or natural person or entity other
than a party.

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Protected Material: any disclosure or discovery material that is designated by a Party

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or Non-party as “CONFIDENTIAL,” unless the Receiving Party challenges the

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confidentiality designation and (a) the Court decides such material is not entitled to

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protection as confidential; (b) the Designating Party fails to apply the Court for an order

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designating the material confidential within the time period specified in 10(b) below; or (c)

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the Designating Party withdraws its confidentiality designation in writing.

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Producing Party: a Party or Non-party that produces disclosures or discovery material
in this action.
Receiving Party: a Party that receives disclosures or discovery material from a
Producing Party.
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Designating Party: a Party of Non-party that designates information or items that it

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produces in disclosures or in responses to discovery as Protected Material. The Party or Non-

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party designating information or items as Protected Material bears the burden of establishing

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good cause for the confidentiality of all such items.

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Challenging Party: a party that elects to initiate a challenge to a Designating Party’s
confidentiality designation.

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FORM AND TIMING OF DESIGNATION.

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Protected Material shall be so designated by the Producing Party by placing or

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affixing the word “CONFIDENTIAL” on the document in a manner which will not interfere

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with the legibility of the document and which will permit complete removal of the

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“CONFIDENTIAL” designation. Documents shall be designated “CONFIDENTIAL” prior

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to, or contemporaneously with, the production or disclosure of the documents.

ATTORNEYS AT LAW
701 EAST BRIDGER AVE., SUITE 520
LAS VEGAS, NV 89101
[phone] (T) / [phone] (F)
WWW.NVLITIGATION.COM

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Portions of depositions shall be deemed CONFIDENTIAL only if designated as such

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when the deposition is taken or within seven business days after receipt of the transcript.

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Such designation shall be specific as to the portions to be protected and, if made by a Party.

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Inadvertent or unintentional production of Protected Material without prior

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designation as “CONFIDENTIAL” shall not be deemed a waiver, in whole or in part, of the

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right to designate documents as Protected Material as otherwise allowed by this Order.

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Further, a Party may assert that disclosures or discovery material produced by another Party

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constitute Protected Material by informing the opposing Party by following the procedures

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set forth herein for a Designated Party.

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PROTECTION OF PROTECTED MATERIAL.

6.

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a. General Protections. Protected Material shall not be used or disclosed by the

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parties or counsel for the parties or any other persons identified below (¶ 6.b.) for any

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purposes whatsoever other than preparing for and conducting litigation (including any

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appeal).

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b. Qualified Receiving Parties and Limited Third Party Disclosures. Protected

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Material shall be held in confidence by each qualified Receiving Party to whom it is
disclosed, shall be used only for purposes of this action, and shall not be disclosed to any
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person who is not a qualified recipient. All Protected Material shall be carefully maintained

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so as to preclude access by persons who are not qualified Receiving Parties.

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Subject to these requirements, in addition to Parties and the Court, the following

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categories of persons may be allowed to review Protected Material pursuant to this Order

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after executing an acknowledgment (in the form set forth at Exhibit A hereto), that he or she

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has read and understands the terms of this Order and is bound by it:

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(1) Any officers, directors, or designated employees of a Party deemed

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necessary by counsel of record in this action to aid in the

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prosecution, defense, or settlement of this action;

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(2) Professional outside vendors for attorneys of record (such as
copying services and translators and interpreters);
(3) Deposition notaries and staff;

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ATTORNEYS AT LAW
701 EAST BRIDGER AVE., SUITE 520
LAS VEGAS, NV 89101
[phone] (T) / [phone] (F)
WWW.NVLITIGATION.COM

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(4) The author of any document designated as CONFIDENTIAL or the

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original source of Confidential Information contained therein;

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(5) Persons other than legal counsel who have been retained or specially

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employed by a party as an expert witness for purposes of this lawsuit

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or to perform investigative work or fact research;

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(6) Deponents during the course of their depositions;

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(7) Counsel for issuers of insurance policies under which any issuer

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may be liable to satisfy part or all of a judgment that may be entered

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in these proceedings or indemnify or reimburse payments or costs

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associated with these proceedings;

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(8) Any private mediator or arbitrator appointed by the Court or selected

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by mutual agreement of the parties and the mediator or arbitrator’s

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secretarial and clerical personnel;

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(10) Any other person as to whom the Producing Party has consented

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to disclosure in advance and in writing, on notice to each Party hereto.

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c. Control of Documents. Counsel for Parties shall take reasonable efforts to
prevent unauthorized disclosure of Protected Material pursuant to the terms of this Order.
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No copies of Protected Material shall be made except by or on behalf of attorneys of record,

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in-house counsel or the parties in this action.

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d. Copies. Any person making copies of Protected Material shall maintain all

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copies within their possession or the possession of those entitled to access to such

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information under the Protective Order. All copies shall be immediately affixed with the

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designation “CONFIDENTIAL” if the word does not already appear on the copy. All such

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copies shall be afforded the full protection of this Order.
7.

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this Stipulated

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Protective Order, the Receiving Party must immediately (a) notify in writing the Designating

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Party of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the

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ATTORNEYS AT LAW
701 EAST BRIDGER AVE., SUITE 520
LAS VEGAS, NV 89101
[phone] (T) / [phone] (F)
WWW.NVLITIGATION.COM

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Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

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made of all the terms of this Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound by Stipulated Protective Order” (Exhibit A).

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8.

UNAUTHORIZED DISCLOSURE.

FILING

OF

PROTECTED

MATERIALS;

PROTECTED

MATERIALS IN COURT.

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Subject to the Federal Rules of Evidence, Protected Material may be filed with the

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Court or offered in evidence or hearing or trial of this case. This Order does not seal court

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records in this case or apply to disclosure of Protected Material at trial. Further, the parties

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understand that documents may be filed under seal only with the permission of the Court

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after proper motion. Further, the fact that documents have been designated as

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“CONFIDENTIAL” shall not be admissible evidence that the documents in fact contain

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information entitled to protection from disclosure under the law.

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However, in the event a Party seeks to file Protected Materials with the Court, those

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documents shall be filed under seal pursuant to Rule 10-5 of the Local Rules of Practice for

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the U.S. District Court of Nevada. The Party filing such Protected Materials may assert in

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the accompanying motion any reasons why the Protected Materials should not, in fact, be
kept under seal and the Designating Party, who must be properly noticed, may likewise file
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Case 2:14-cv-01584-APG-GWF Document 81 Filed 10/22/15 Page 7 of 12

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a motion asserting its position that the Protected Material merits protection under Rule 26(c)

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of the Federal Rules of Civil Procedure. In such instances, absent extraordinary

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circumstances making prior consultation impractical or inappropriate, the Party seeking to

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submit the Protected Material to the Court shall first consult with counsel for Designating

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Party.
CHALLENGES TO PROTECTED MATERIAL.

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9.

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Any designation of Protected Material is subject to challenge. The following

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procedures shall apply to any such challenge:
a. Burden. The burden of proving the necessity of a “CONFIDENTIAL”

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designation remains with the party asserting confidentiality.
b. Notice; Opportunity to Challenge. A party who contends that Protected

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Material is not entitled to confidential treatment shall give written notice to the party who

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ATTORNEYS AT LAW
701 EAST BRIDGER AVE., SUITE 520
LAS VEGAS, NV 89101
[phone] (T) / [phone] (F)
WWW.NVLITIGATION.COM

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affixed the “CONFIDENTIAL” designation of the specific basis for the challenge. The party

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who so designated the documents shall have ten (10) days from service of the written notice

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to determine if the dispute can be resolved without judicial intervention and, if not, to move

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for an Order confirming the “CONFIDENTIAL” designation, and the status as Protected

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Material.

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c. Treatment as Protected Material until order or withdrawal. Notwithstanding

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any challenge to the designation of documents as such, all material previously designated

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“CONFIDENTIAL” shall continue to be treated as Protected Material subject to the full

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protections of this Order until one of the following occurs: (1) the Party who claims that the

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documents are Protected Material withdraws such designation in writing; (2) the Party who

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claims that the documents are confidential fails to move timely for an Order designating the

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documents as confidential as set forth in paragraph 9.b. above; or (3) the Court rules that the

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documents are not Protected Material and/or should no longer be designated as

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“CONFIDENTIAL.”

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d. No Waiver. Challenges to the confidentiality of documents may be made at any

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time and are not waived by the failure to raise the challenge at the time of initial disclosure
or designation.
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10.

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DURATION; CONCLUSION OF LITIGATION.

All provisions of this Order restricting the use of Protected Material shall continue
to be binding after the conclusion of the litigation unless otherwise agreed or ordered.

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11.

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PROTECTED

MATERIAL

SUBPOENAED

OR

ORDERED

PRODUCED IN OTHER LITIGATION.

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If a Party is served with a subpoena or an order issued in other litigation that would

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compel disclosure of Protected Material designated by another Party or Non-party, the Party

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must so notify the Designating Party, in writing (by e-mail or fax, if possible) within three

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(3) court days after receiving the subpoena or order. Such notification must include a copy

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of the subpoena or court order.

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12. ORDER SUBJECT TO MODIFICATION.
This Order shall be subject to modification on motion of any Party or any other

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ATTORNEYS AT LAW
701 EAST BRIDGER AVE., SUITE 520
LAS VEGAS, NV 89101
[phone] (T) / [phone] (F)
WWW.NVLITIGATION.COM

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person who may show an adequate interest in the matter to intervene for purposes of

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addressing the scope and terms of this Order. The Order shall not, however, be modified until

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the Parties shall have been given notice and an opportunity to be heard on the proposed

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modification.

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13. NO JUDICIAL DETERMINATION.

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This Order is entered based on the representations and agreements of the Parties

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and for the purpose of facilitating discovery. Nothing herein shall be construed or presented

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as a judicial determination that any specific document or item of information designated as

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CONFIDENTIAL by counsel is subject to protection under Rule 26(c) of the Federal Rules

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of Civil Procedure or otherwise until such time as a document-specific ruling shall have been

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made.

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14. MISCELLANEOUS.

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a. Public Health and Safety. Nothing in this Order is intended to prevent any Party

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from raising with the Court any concern that the non-disclosure of certain Protected Material

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may have a possible adverse effect upon the general public health or safety, or the

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administration or operation of government or public office.

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Case 2:14-cv-01584-APG-GWF Document 81 Filed 10/22/15 Page 9 of 12

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b. Right to Further Relief. Nothing in this Order abridges the right of any person
to seek its modification by the Court in the future.

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c. Right to Assert Other Objections. By stipulating to the entry of this Order, no

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Party waives any right it otherwise would have to object to disclosing or producing any

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information or item on any ground not addressed in this Order. Similarly, no Party waives

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any right to object on any ground to use in evidence of any of the material covered by this

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Protective Order.

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15.

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PERSONS BOUND UPON ENTRY OF ORDER.

This Order shall take effect when entered and shall be immediately binding upon
the Parties (as defined herein).

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Dated: October _____, 2015.

Dated: October _____, 2015.

ATTORNEYS AT LAW
701 EAST BRIDGER AVE., SUITE 520
LAS VEGAS, NV 89101
[phone] (T) / [phone] (F)
WWW.NVLITIGATION.COM

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MCLETCHIE SHELL LLC

MARQUIS AURBACH COFFING

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Alina M. Shell
MARGARET A. MCLETCHIE
Nevada State Bar No. 10931
ALINA M. SHELL
Nevada State Bar No. 11711
MCLETCHIE SHELL, LLC
701 E. Bridger Ave., Suite 520
Las Vegas, NV 89101
Telephone: [phone]
[e-mail]
Attorneys for Plaintiffs

Brianna Smith, Esq.
BRIANNA SMITH, ESQ.
Nevada State Bar No. 11795
CRAIG R. ANDERSON, ESQ.
Nevada State Bar No. 6882
MARQUIS AURBACH COFFING
10001 Park Run Drive
Las Vegas, NV 89145
Telephone: [phone]
[e-mail]
Attorneys for Defendants

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IT IS SO ORDERED.

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Dated this
day of October, 2015.
Datedthis 23rd day of October, 2015.

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UNITED STATES DISTRICT COURT JUDGE
GEORGE FOLEY, JR.
United States Magistrate Judge

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Case 2:14-cv-01584-APG-GWF Document 81 Filed 10/22/15 Page 10 of 12

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EXHIBIT “A”

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ATTORNEYS AT LAW
701 EAST BRIDGER AVE., SUITE 520
LAS VEGAS, NV 89101
[phone] (T) / [phone] (F)
WWW.NVLITIGATION.COM

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Case 2:14-cv-01584-APG-GWF Document 81 Filed 10/22/15 Page 11 of 12

ACKNOWLEDGMENT OF UNDERSTANDING
AND AGREEMENT TO BE BOUND

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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BRIAN BALLENTINE, an individual;
CATALINO DAZO, an individual; KELLY
PATTERSON, an individual; and GAIL
SACCO, an individual;

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Plaintiffs,

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LAS VEGAS METROPOLITAN POLICE
DEPARTMENT, in its official capacity;
DETECTIVE CHRISTOPHER T.
TUCKER, as an individual and in his
official capacity as a Las Vegas
Metropolitan Police Department Detective;
SERGEANT MIKE WALLACE, as an
individual and in his official capacity as a
Las Vegas Metropolitan Police Department
Sergeant; LIEUTENANT JOHN LIBERTY,
as an individual and in his official capacity
as a Las Vegas Metropolitan Police
Department Lieutenant,

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ATTORNEYS AT LAW
701 EAST BRIDGER AVE., SUITE 520
LAS VEGAS, NV 89101
[phone] (T) / [phone] (F)
WWW.NVLITIGATION.COM

ACKNOWLEDGMENT OF
UNDERSTANDING AND
AGREEMENT TO BE BOUND

vs.

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CASE NO.: 2:14-cv-01548-APG-GWF
NJK

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Defendants.

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The undersigned hereby acknowledges that he or she has read the Confidentiality

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Order dated ________________, 2015, in the above-captioned action, understands the terms

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thereof, and agrees to be bound by such terms. The undersigned submits to the jurisdiction

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of the United States District Court for the District of Nevada in matter relating to the

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Confidentiality Order and understands that the terms of said Order obligate him/her to use

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discovery materials designated CONFIDENTIAL solely for the purposes of the above-

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captioned action, and not to disclose any such Protected Material to any person, fir, entity,
or concern.
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Case 2:14-cv-01584-APG-GWF Document 81 Filed 10/22/15 Page 12 of 12

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The undersigned acknowledges that violation of the Stipulated Confidentiality
Order may result in penalties for contempt of court.

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Name:
Job Title:
Employer:
Business Address:

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Date

Signature

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ATTORNEYS AT LAW
701 EAST BRIDGER AVE., SUITE 520
LAS VEGAS, NV 89101
[phone] (T) / [phone] (F)
WWW.NVLITIGATION.COM

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