Armada Concrete, LLC v. Jaynes Corporation et al

Filing 29

ORDER that the parties' Stipulated Protective Order 28 which the court approves with the exception of Paragraph 12, as modified and signed by the court, is GRANTED. FURTHER ORDERED that the parties must comply with the requirements of Local Ru le 10-5(b) and the Ninth Circuit's decision in Kamakana, 447 F.3d 1172, with respect to any documents filed under seal or used at trial.STIPULATED PROTECTIVE ORDER. Signed by Magistrate Judge Cam Ferenbach on 8/19/15. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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United States of America for the use and benefit
of ARMADA CONCRETE, LLC, a Nevada
limited liability company,

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2:14–cv–02176–GMN–VCF

Plaintiff,
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ORDER

vs.
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JAYNES CORPORATION, et al.,
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Defendants.
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Before the court is the parties’ proposed Stipulated Protective Order regarding Disclosure of
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Confidential Information (#28 1), which the court approves with the exception of Paragraph 12. This order
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reminds counsel that there is a presumption of public access to judicial files and records.
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In the event that counsel files or lodges with the Court any Confidential Information, all
documents attaching, quoting from, or otherwise revealing the content of Confidential
Information shall be filed under seal in accordance with Local Rule 10-5 [and the Ninth
Circuit decision in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir.
2006)], or as otherwise required by the Court.

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A party seeking to file a confidential document or utilize a confidential document at trial must

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comply with the Ninth Circuit’s directives in Kamakana:
Unless a particular court record is one “traditionally kept secret,” a “strong presumption in
favor of access” is the starting point. ... A party seeking to seal a judicial record then bears
the burden of overcoming this strong presumption by meeting the “compelling reasons”
standard. ... that is, the party must “articulate[ ] compelling reasons supported by specific
factual findings,” that outweigh the general history of access and the public policies
favoring disclosure. ¶ In general, “compelling reasons” sufficient to outweigh the public’s
interest in disclosure and justify sealing court records exist when such “court files might
have become a vehicle for improper purposes,” such as the use of records to gratify private

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Parenthetical citations refer to the court’s docket.

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spite, promote public scandal, circulate libelous statements, or release trade secrets. ... The
mere fact that the production of records may lead to a litigant’s embarrassment,
incrimination, or exposure to further litigation will not, without more, compel the court to
seal its records.

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Id. at 1178-79 (citations omitted).

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To justify the sealing of discovery materials attached to non-dispositive motions, a particularized

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showing of good cause is required. Id. at 1180. To justify the sealing of discovery materials attached to

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dispositive motions or used at trial, however, a higher threshold is required: a particularized showing that

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compelling reasons support secrecy. Id. “A ‘good cause’ showing will not, without more, satisfy a

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‘compelling reasons’ test.” Id. When private discovery materials are attached to a dispositive motion (or

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response or reply) or used at trial, such materials become a part of a judicial record, and as such “are public

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documents almost by definition, and the public is entitled to access by default.” Id.

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ACCORDINGLY, and for good cause shown,

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IT IS ORDERED that:

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1.

The parties’ Stipulated Protective Order regarding Disclosure of Confidential Information

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(#28), which the court approves with the exception of Paragraph 12, as modified and signed by the court,

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is GRANTED.

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2.

The parties must comply with the requirements of Local Rule 10-5(b) and the Ninth

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Circuit’s decision in Kamakana, 447 F.3d 1172, with respect to any documents filed under seal or used at

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trial.

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DATED this 19th day of August, 2015.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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Leon F. Mead II, Esq.
Nevada Bar No. 5719
Sarah A. Mead, Esq.
Nevada Bar No. 13725

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SNELL & WILMER I..I..P.
3883 Howard Hughes Parkway, Suite 1100

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Las Vegas, NV 89169
Telephone : [phone]
Facsimile: (7 02) 7 84-5252
[e-mail]
[e-mail]
Attorneys for Jaynes Corporøtion and Western Surety Company

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I-INITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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United States of America for the use and
benef,rt of ARMADA CONCRETE, LLC, a
Nevada limited liability company,

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Use Plaintiff,

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CASE NO. 2: 1 4-cv -0217 6-GMN-VCF

PROPOSED STIPULATED
PROTECTIVE ORDER RE
DISCLOSURE OF CONFIDENTIAL

INFORMATION

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JAYNES CORPORATION, a New Mexico
corporation; and WESTERN SURETY
COUpANY, a South Dakota corporation and
surety authorized to do business in Nevada,
Payment Bond No. 929532918,

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Defendants.

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CORPORA
corporation,

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ON,

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Third-Party Plaintiff,

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LIBERTY MUTUAL INSURANCE
COMPANY, a Massachusetts insurance
company and surety authorized to do
busiñess in Nevada, Payment Bond No.
0r7146423,

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Third-Party Defendant.

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Defendant/Third-Party Plaintiff, Jaynes Corporation, Inc. ("Jaynes") and Defendant

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and
Westem Surety Company ("Westem"), by and through their counsel, Snell & Wilmer, L'L.P.,

22350s18.1

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plaintiff United States for the Use and Benefit on behalf of Armada Concrete, LLC. ("Armada")

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by and through their counsel, Law Offices of Gordon & Rees LLP, and Third-Party Defendant

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Liberty Mutual Insurance Company ("Liberty Mutual"), by and through their counsel, Gordon &

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Rees

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pursuant to written discovery requests, to produce documents and/or information that contain

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proprietary, sensitive, and confidential national security information. Dissemination

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information to the public poses a national security threat to U.S. military operations and national

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security. Indeed, the U.S. Army Corps of Engineers regulations expressly prohibits disclosure

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documents

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in this matter without obtaining written approval from the U'S. Army

of

this

Corps

Engineers. (prime Contract, Defense Federal Acquisition Regulation Supplement ("FARS")

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Armada states that
252.204-7000.) Additionally, the Subcontract Agreement between Jaynes and

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,.[t]o the extent the Prime Contract provides for the confidentiality of any of the Owner's

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performance o
proprietary or otherwise confidential information disclosed in connection with the

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requirements."
this Agreement, the Subcontractor is equally bound by the Owner's conf,rdentiality

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(Subcontract Agreement $ 3.29.)

prohibiting all parties from disclosing confidential documents and information produced

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LLp (collectively the "Parties") will be required under Federal Rules of Civil Procedure, or

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in this litigation to any individual or entity outside of this litigation, or from otherwise using
in this matter, to
documents produced outside of this litigation is necessary and appropriate

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any threat to
preserve the confidentiality of military documents and information, and minimize

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F'3d 1206 (9$
national security. S¿e Fed. R. Civ. P. 26(c); Phitlips v. General Motors Corp',307

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.,[t]he unique character of the discovery process requires that the trial court

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ck. 2002).

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Motors Corp.,307
have substantial latitude to fashion protective orders." Phittips v. General

Indeed,

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(1984)')
F.3dt206,1212 (gthCir.2002) (citing Seattle Times Co. v. Rhinehart,467 U.S' 20,36
threat to
The Court finds that there is good cause to enter this protective order, as the

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national security represents a specific harm that could result

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if

the information is not protected'

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the
Phillips v. General Motors Corp.,307 F.3d 1206, l2l0-11 (9th Cir' 2002)' Moreover
this order. Phillips v'
balancing of protecting both public and private interests weighs in favor of

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General Motors corp.,307 F.3d 1206,1210-11 (9th Ch.2002).

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IT IS HEREBY ORDERED

that the following terms and procedures shall govern the

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production and non-disclosure of Confidential Information, as defined herein, for the above-

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captioned litigation:

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1.

Protective

Order. Any

discovery response, information, document or thing

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produced, and/or all deposition testimony given in connection with this litigation that contains

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sensitive information may be designated as Confidential Information.

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2.

Confidential Information entitled

to

confidential treatment

will

include all

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documents and information the Parties deem confidential including: (a) all project paper, tapes,

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documents, designs, drawings, plans, email correspondence, other correspondence, disks,

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diskettes, emails and other electronic data, and other tangible things produced by or obtained

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from any person in connection with this litigation; (b) Rule 26 disclosures, answers to document

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requests, interrogatories, and requests for admission; (c) transcripts of depositions, in whole or

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part, and exhibits thereto; and (d) all copies, extracts, and complete or partial summaries or charts

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or notes prepared or derived from such papers, documents or things. The handling of

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information shall be made in accordance with the terms of this Order.

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discovery response, inforrnation, document or thing produced, and/or all

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deposition testimony may be designated as Conhdential Information by one of the following

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methods:

a.

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In the case of documents or other materials (apart from depositions or other

to each page containing any

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pretrial testimony): by affixing the legend "Conf,tdential"

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Confidential Information, except that in the case of multi-page documents bound together by

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staple or other permanent binding, the word(s) "Confidential" need only be stamped on the first

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page of the document in order for the entire document to be treated as Confidential; and,

b.

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In the

case

of

depositions, including exhibits thereto,

or other pretrial

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testimony: (i) by a statement on the record, by any counsel or the deponent, at the time of such

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disclosure; or (ii) by written notice from any Party's counsel or the deponent or his/her counsel,

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within ten business days after receiving

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the transcript and/or documents referred to therein as Confidential. Such written notice must be

a copy

of the transcript thereof, designating all or some

-322350518.1

all Parties, the deponent and counsel for the deponent. Only those portions of

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sent to counsel for

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the transcripts so designated as "Confidential" must be treated as Confidential. The Parties may

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modify this procedure for any particular deposition, by a writing signed by counsel for all Parties

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and by the deponent or counsel for the deponent, without further order from the Court.

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4.

o'Confidential" shall apply to materials and information that may
The designation

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solely in connection with this litigation, and not for any business, competitive, other litigation or

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the Court to the contrary, all documents and information disclosed shall be used by the Parties

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which is intended to be protected against disclosure to third parties. Absent a specific order by

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be disclosed to the Parties and others identified in this Order for the purposes of the litigation, but

governmental purpose or function, and such information shall not be disclosed to anyone except

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as expressly provided herein.

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5.

Any Party may, at any time, request or contest in writing that any Confidential

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of this Order. A Party who makes such a

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Information be released from the requirements

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contention shall be referred to in this Order as the "Requesting Party." Upon written contention,

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ooConf,tdential" shall meet and confer with the Requesting
the Party claiming that information is

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Party within ten (10) days of receipt of a written request therefor.

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reached by negotiation, and the Court has not provided for a different procedure to handle such

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disputes, then the Requesting Party may make an application for a ruling from the Court on the

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continued application of the "Conf,rdential" designation of such information or document. The

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Requesting Party shall submit the contested Confidential Information to the Court for in camera

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inspection, and the terms of this Stipulation and Protective Order shall continue to apply to such

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Confidential Information until the Court rules on the application.

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6.

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If

an agreement cannot be

Confidential Information and information derived from Confidential Information,

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including without limitation any testimony about an exhibit designated as Confidential, shall not

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be disclosed except as set forth herein.

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related thereto disclosed by any Party shall be used solely for this litigation and may not be used

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for any other purpose.

7.

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All Confidential Information produced

Confidential Information may only be disclosed to the following persons:

-4223s0s I 8.1

and information

a.
b.

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any Party and counsel of record for any Party to this action;

paralegal, stenographic, clerical and secretarial personnel currently

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employed by a Party to the case, (including but not limited to photocopy service personnel and

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document management vendors, such as coders and data-entry personnel, retained by outside

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counsel);

c.

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stenographic, video or audio court reporters engaged to record depositions

in this litigation, and certified interpreters and/or translators for those depositions, if any;

d.

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non-party expert(s) or consultant(s) and their secretarial, technical and

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clerical employees (including but not limited to photocopy service personnel and document
management vendors, such as coders and data-entry personnel, retained by outside counsel) who

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actively assist in the preparation of this action;

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an author or recipient thereof;

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any person who is determined to have been an author and/or previous

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recipient of the Confidential Information, but who is not identified on the face thereof, provided

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there is prior testimony of actual authorship or receipt of the Confidential Information by such

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person prior to such person being shown any Conf,rdential Information;

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any person identified on the face of any such Confidential Information

g.

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any non-party engaged by the Parties or appointed by the Court for

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purposes of acting as a Discovery Referee, Special Master, andlor neutral arbitrator or mediator in

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any alternative dispute resolution procedures in which the Parties may participate; and

h.

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order of the Court;

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B.

any other person by written agreement among all Parties' counsel, or by

Each individual identified in paragraphs 7 (a) - (h) above to whom Confidential

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Information is furnished, shown, or disclosed shall, prior to the time he or she receives access to

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such materials, be provided by counsel furnishing him or her such material a copy of this Order'

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Counsel disclosing Confidential Information shall advise said persons of the provisions of this

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Order and secure adequate assurance of confidentiality and agreement from that person or entity:

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(1) to be bound by the terms hereof, (2) to maintain the received Confidential Materials in
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223505 I 8.1

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confidence, and (3) not to disclose the received Confidential Materials to anyone other than in

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accordance with the terms of this Order.

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9.

The foregoing is without prejudice to the right of any Party to this Order to:

a.
b.

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seek to

modify or obtain relief from any aspect of this Order; or

object to the use, relevance, or admissibility at trial or otherwise of any

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material, whether or not designated in whole or in part as Confidential Information governed by

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this Protective Order.

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10.

Nothing in this Order shall prohibit a Party from using Confidential Materials for

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deposition preparation, use during a deposition, or from marking any Confidential Materials as an

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exhibit to a deposition and examining the deponent thereon. Likewise, nothing in this Order shall

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prohibit aParty from using Confidential Materials for examination of a witness at trial, or from

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marking any Confidential Materials as an exhibit during trial and examining a lr;ial witness

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thereon.

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video or audio reporter and those persons who are authorized by the terms of this Order to receive

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such material may be present. The portions of the transcripts of all testimony designated as

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Confidential Information shall be labeled with the appropriate designation by the reporter'

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document or information designated as Confidential Information pursuant to this Order is used

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during the course of a deposition, that portion of the deposition record reflecting such material

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shall be labeled with the appropriate "confidential" designation.

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1. If Confrdential Information

is disclosed at a deposition, only the stenographic,

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If any

Procedure for Request to Seal. Any filing made with the Clerk of the Court,

as

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such filing may be required or permitted by the local rules of this Court, which contains or has

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attached to

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and a case-by-case determination as

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sealed. For good cause shown, the Court may order that such f Confidential Information shall be

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sealed.

13.

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it Confidential Information, shall be submitted to this Court for an in camerq review
to whether the Confidential Information submitted shall be

In the event of a hearing or trial in this matter at which any Party intends to present

information or materials designated hereunder as Confidential, counsel for the Parties will meet

-6223s0518.1

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and confer to determine what safeguards are necessary to protect against the disclosure of the

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designated information

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Parties
burdensome means of protecting such materials during the proceeding. Counsel for the

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shall confer on appropriate procedures for protecting the confidentiality of any documents,

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information and transcripts used in the course of any court proceedings, and shall incorporate

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designated
such procedures into the pre-trial order. For trial, the Party seeking to use information

7

Confidential without redacting the Confidential portion of the information, shall, via written

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all such
motion in limine filed and served pursuant to the Court's trial scheduling order, submit

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judge under seal for in
information (document, transcript, interrogatory answef, etc.) to the trial

or materials, and shall attempt to determine the least intrusive

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and
camera review, and a decision on whether such information can be used at trial,

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if

and

so, what

limitations, if any, shall aPPlY.

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14.

This Order shall survive the termination of this action and shall continue in full

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of this action and
force and effect thereafter. Within thirty (30) calendar days after the termination

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of time to seek
the expiration of any and all rights of appeal or further appeal or the expiration

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Materials shall return all
leave to appeal, all persons or entities that have received Confidential

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an alternative to returning all
such Confidential Materials to counsel for the designated Party. As

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in writing for the producing
or part of such Confidential Materials, persons or entities may certify

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party that they have destroyed all unreturned Confidential Materials. Where a Party has provided

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entity, it shall be
confidential Materials to a retained expert or consultant or any other person or

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Confidential Materials
the responsibility of that party to obtain the return or destruction of the

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from such expert or consultant. This parugraph does not apply to the copies of Confidential
This order shall not
Materials that have been submitted to and are in the possession of the court.

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this action, subject
preclude the use or disclosure of any Confidential Materials during the trial of

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Materials at trial.
to the right of any party to seek an order governing use of the Confidential

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15.

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judgment, order'
Within fifteen (15) days of the close of this action, whether by

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copies thereof, in their
settlement or other means, the Parties must return all information, and

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possession to the Party that served the confidential Information.

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l223505 I 8.1

16. If at any time any Confidential

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Information protected by this Order or information

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produced in this litigation is subpoenaed from the receiving party by any court, administrative or

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legislative body, or is requested, via formal discovery request or otherwise, by any other person

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or entity purporting to have authority to require the production of such information, the party to

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whom the subpoena or other request is directed shall, within three (3) business days of receipt,

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give the other party hereto notice of said request. The party receiving the discovery request or

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subpoena shall

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Information and all information so designated in this case as

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information. The party receiving notice of a pending discovery request, subpoena, or other

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inquiry, shall have three (3) business days to, in writing, advise the party from whom the

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discovery was requested of its intent to protect the confidentiality of the information sought, or of

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its decision to allow it to be disclosed. The party objecting to the disclosure of the Confidential

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Information shall take all steps it deems necessary at its own expense, including incuning and

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paying its own attorney's fees. It is acknowledged and agreed that any violation or threatened

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violation of this provision by any Party will cause immediate and irreparable harm entitling the

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other party to obtain injunctive reliet including a temporary restraining order without notice

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pending a hearing on an application for preliminary injunction

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remedies available.

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in the interim take all necessary

steps

to protect the potentially Confidential

if it were its own confidential

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in addition to all other legal

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immediately upon its execution by counsel for such parties.

18. All persons subject to the terms of this Order agree that this Court shall retain

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jurisdiction over them for the purpose of enforcing this Order.

19.

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The terms of this Order shall be effective and enforceable as between the Parties

This Order may only be amended or modified by written agreement of the parties

hereto and approved by this Courl, or by order of this Court.

IT IS SO ORDERED.

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Dated

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August 19

2015
U.S. District Court Judge

Magistrate

-8223505 I 8.1