Nevada West Petroleum, LLC v. BP West Coast Products, LLC, et al.,

Filing 34

PROTECTIVE ORDER re ECF No. 33 Stipulation. Signed by Magistrate Judge Peggy A. Leen on 5/31/16. (Copies have been distributed pursuant to the NEF - JC)

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FENNEMORE CRAIG, P.C.
Douglas C. Northup (Admitted Pro Hac Vice)
2394 E. Camelback Road, Suite 600
Phoenix, Arizona 85016-3429
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
FENNEMORE CRAIG, P.C.
Karl L. Nielson (Nevada Bar No. 5082)
300 South Fourth Street, Suite 1400
Las Vegas, Nevada 89101
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Defendants
BP West Coast Products, LLC, Tesoro Refining &
Marketing Company, LLC, Treasure Franchise
Company, LLC, Jeff Cary, Derek Tomita, and
Michael Glassman

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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NEVADA WEST PETROLEUM, LLC, a
Nevada limited liability company;
QARAMAN SUNSET / DECATUR, LLC, a
Nevada limited liability company; WASEF
QARAMAN, LLC, a Nevada limited liability
company; and QARAMAN MESQUITE,
LLC,
Plaintiffs,

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v.

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BP WEST COAST PRODUCTS, LLC, a
Delaware limited liability company; TESORO
REFINING & MARKETING COMPANY,
LLC, a Delaware limited liability company;
TREASURE FRANCHISE COMPANY,
LLC, a Delaware limited liability company;
JEFF CARY, an individual; DEREK
TOMITA, an individual; and MICHAEL
GLASSMAN, an individual,
Defendants.

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FENNEMORE CRAIG, P.C.

11465909

Case No. 2:15-cv-01684-APG-PAL

STIPULATED PROTECTIVE ORDER

Plaintiffs, NEVADA WEST PETROLEUM, LLC, a Nevada limited liability company;

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QARAMAN SUNSET / DECATUR, LLC,

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QARAMAN, LLC, a Nevada limited liability company; and QARAMAN MESQUITE, LLC

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(collectively, “Plaintiffs”), and Defendants BP WEST COAST PRODUCTS, LLC, a Delaware

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limited liability company; TESORO REFINING & MARKETING COMPANY, LLC, a

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Delaware limited liability company; TREASURE FRANCHISE COMPANY, LLC, a Delaware

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limited liability company; JEFF CARY, an individual; DEREK TOMITA, an individual; and

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MICHAEL GLASSMAN, an individual (collectively, “Defendants”), by and through their

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respective counsel, have agreed to enter into a protective order pursuant to Federal Rule of Civil

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Procedure 26(c) to be applied to this matter. The Parties agree that a protective order is required

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to expedite the flow of discovery material, facilitate the prompt resolution of disputes over

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confidentiality and adequately protect confidential material. Accordingly, the Parties respectfully

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request that the following protective order be entered by the Court:

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IT IS HEREBY ORDERED that:

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a Nevada limited liability company; WASEF

This Stipulated Protective Order (“Protective Order”) shall apply to all

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information, materials, or things subject to discovery in this action and produced from and after

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the agreement of the Parties to the terms of the Protective Order (“Discovery Materials”),

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including, without limitation, documents, testimony, and responses to information and discovery

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requests provided pursuant to the Federal Rules of Civil Procedure, which contain proprietary,

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confidential, or commercially sensitive information. The term “Party” (or, collectively, “Parties”)

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means Plaintiffs and Defendants.
2.

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Discovery Materials may be designated, in appropriate circumstances, as

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CONFIDENTIAL by a Party or non-party. The CONFIDENTIAL designation shall only be used

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for information or material that is intended by a Party or non-party to be CONFIDENTIAL, as to

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which the Party or non-party has exercised reasonable steps to maintain its secrecy, and as to

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which the Party or non-party believes, in good faith, that there is good cause for

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CONFIDENTIAL treatment. Notwithstanding the fact that a document, portion of a document or

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category of documents is specifically encompassed by the above definition, each Party reserves

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its rights to object to the production of any such documents or any other grounds as may be

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available by law or rule of procedure.
3.

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Discovery Materials may be designated as CONFIDENTIAL by a Party or non-

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party by stamping the words CONFIDENTIAL on the face of each page of the document or

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designating information as CONFIDENTIAL by reference to the document and page number

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being designated.

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CONFIDENTIAL or designate by reference, the Parties agree that all Discovery Materials

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provided pursuant to this Protective Order shall be treated as CONFIDENTIAL until such time, if

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any, that contrary treatment is permitted pursuant to the terms of this Protective Order.
4.

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Notwithstanding a Party or non-party’s failure to stamp a document as

Any Party or non-party may designate deposition testimony or any portion of

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deposition testimony CONFIDENTIAL by advising the reporter and counsel of such designation

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during the course of the deposition or at any time thereafter. Any portions of any deposition

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designated CONFIDENTIAL may only be filed with the Court if the provisions of Paragraph 5

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below are complied with. Whenever any Discovery Materials designated as CONFIDENTIAL

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are identified as an exhibit in connection with testimony given in this civil proceeding, they shall

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be so marked and, if sought to be filed with the Court, the Party shall seek approval from the

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Court to file the CONFIDENTIAL exhibit under seal with the Court, as provided in Paragraph 5

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below.
5.

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Absent a stipulation between the Parties or a court order secured after appropriate

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notice to all interested persons, a Party may not file in the public record in this action any

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Discovery Material that has been designated as CONFIDENTIAL. The Party seeking to file any

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document with the Court that contains any CONFIDENTIAL information shall seek approval to

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file that document under seal. If a Party wishes to file or lodge Discovery Materials containing

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CONFIDENTIAL information under seal, the other Party shall not unreasonably withhold

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agreement to such procedure. If an agreement is reached, the Parties shall submit to the Court a

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joint motion for leave to file or lodge those documents under seal. Pursuant to LR 10-5, if no

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such agreement is reached, such papers shall be filed with the Court under seal and must be

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accompanied by a motion for leave to file those documents under seal. In either event, such

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motions and accompanying documents shall be filed in accordance with the Court’s electronic

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filing procedures. If papers are filed under seal pursuant to prior court order, the papers shall bear

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the following notation on the first page, directly under the case number “FILED UNDER SEAL

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PURSUANT TO COURT ORDER DATED __________________.” Further, in the event any

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stamped CONFIDENTIAL document or the information contained therein is included with, or the

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contents thereof are in any way disclosed, in any pleading, motion, deposition transcript or other

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paper filed with Clerk of any Court, the Party seeking protection will have an opportunity to ask

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the Court to preserve the confidentiality of that stamped CONFIDENTIAL document as the Court

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deems appropriate, consistent with the Ninth Circuit’s opinion in Kamakana v. City and County

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of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006). Until the Court makes a determination on

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the preservation of confidentiality, such protected documents and information shall be filed under

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seal and maintained under seal by the Clerk until further order of this Court in accordance with

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this Order and LR 10-5. The use of any protected document or of the information contained

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therein and any testimony associated with the protected information contained therein shall be

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held in camera, if necessary, to prevent disclosure to nonparties, or otherwise under such

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circumstances as will prevent the inadvertent disclosure of such documents and information,

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unless the Court orders otherwise upon good cause shown. If a Party seeks to file under seal any

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CONFIDENTIAL information, and the Court denies the request to file under seal, then within

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seven (7) days thereafter, the designating Party must file a request with the Court to seal the

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Discovery Materials containing the CONFIDENTIAL information, along with a supporting

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declaration, otherwise the CONFIDENTIAL information will be filed in the public record.
6.

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FENNEMORE CRAIG, P.C.

Except upon prior written consent of the Party asserting CONFIDENTIAL

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treatment or upon further order of a court of competent jurisdiction, information or material

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designated as CONFIDENTIAL shall be held in strict confidence and shall be used solely for the

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purposes of prosecution or defense of this civil proceeding, and shall not be used for any other

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purposes.

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Except as otherwise provided for in Section 9 of this Protective Order, all

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CONFIDENTIAL information and material shall remain in the possession of counsel for the

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respective Parties, and be stored in a secure place.
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(a) No Party concedes that any information or material designated by another

Party as CONFIDENTIAL does in fact contain or reflect trade secrets, proprietary or confidential

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information, or has been properly designated as CONFIDENTIAL.

Notwithstanding the

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provisions of Section 11 below, any Party may at any time, on reasonable notice, move for (i)

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modification of this Protective Order, or (ii) relief from the provisions of this Protective Order

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with respect to specific information or material, including without limitation the use of

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CONFIDENTIAL information or material as exhibits at depositions, and in addition, the parties

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may agree to necessary modifications of this Protective Order. Should any Party hereto seek to

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utilize any CONFIDENTIAL information or material at the hearing of this matter, counsel for

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such Party shall meet with counsel for the opposing Party in an effort to agree upon a procedure

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to ensure the confidentiality of such information or material. In the event counsel is unable to

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reach agreement, the matter will be submitted to the Court for resolution.

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(b) A Party shall not be obligated to challenge the propriety of the designation of

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information or material as CONFIDENTIAL at the time made, and failure to do so shall not

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preclude a subsequent challenge thereof. If a Party challenges such designations, it shall send and

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give notice to counsel for the Party who designated the document CONFIDENTIAL and they

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shall attempt to resolve any challenge in good faith on an expedited and informal basis. If the

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challenge cannot be expeditiously and informally resolved, the challenging Party may apply for

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an appropriate ruling from the Court. This Protective Order shall not and does not change any

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burden of going forward or burden of proof in any proceeding before the Court.

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CONFIDENTIAL information or material in issue shall continue to be treated as

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CONFIDENTIAL until the Court orders otherwise or the Parties otherwise agree.
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The

Except with the prior written consent of the Parties or upon prior order of the

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Court obtained upon noticed motion, information or material designated as “CONFIDENTIAL”

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shall not be shown, delivered, or disclosed to any person other than:

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a)

The Parties to this litigation;

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b)

The Parties’ litigation counsel of record or members of such counsel's firm,

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including associates for the respective Parties to this litigation, and paralegal, clerical, secretarial,

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and administrative employees of such counsel assigned to assist in the preparation of this

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litigation;

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c)

Any employee of any of the Parties involved in the litigation or any employee of

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any affiliate of a Party (if such employee is involved in the litigation on behalf of a Party), and

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any in-house attorneys for the respective parties who are advising the parties, including

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paralegals, clerical, secretarial, and support staff of counsel assigned to assist in the preparation of

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this litigation.
d)

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Employees of any professional photocopy service or other litigation support

service utilized by counsel in the preparation of this litigation;

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e)

Any author, recipient, or producing Party of such material;

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f)

The Court and any persons employed by the Court whose duties require access to

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such material;
g)

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Any independent expert retained to assist in the preparation of this case or to

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testify at trial or any other proceeding in this action. This includes stenographic and clerical

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employees associated with such persons; and
h)

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FENNEMORE CRAIG, P.C.

Court reporters and other persons involved in recording deposition testimony in

this action by any means.
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Any person or entity receiving or possessing CONFIDENTIAL information or material

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subject to this Section 9 after the effective date of this Protective Order, other than the Parties

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who are bound by this Protective Order and those persons or entities described in subsections (f)

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and (h), shall be bound by the terms of this Protective Order and shall execute the

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“Acknowledgement and Agreement to be Bound” in the form attached hereto as “Exhibit A.”

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Any such person or entity receiving or possessing CONFIDENTIAL information under or

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pursuant to this section shall also keep and maintain such materials in a secure place.
10.

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Provided all the procedures of governing disclosure as set forth herein are

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followed and complied with, neither the provisions of this Protective Order nor the filing of any

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information or material under seal shall prevent the use, in open court, at any hearing, or at trial of

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this case, of any information or material that is subject to this Protective Order or filed under seal

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pursuant to its provisions.
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Unless ordered by a Court or agreed to in writing by the Parties, all material

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designated as CONFIDENTIAL pursuant to this Protective Order shall be treated in accordance

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with its designation and shall not be disclosed except under the terms of this Protective Order.

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a) In the event that any Party objects to the designation of any information or

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material, such Party may, in writing, request the designating Party to remove or change the

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designation. Such written request shall specifically identify the information or material at issue.

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b) The designating Party shall respond in writing within five (5) business days of

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receipt of the written request, or within such other period of time as may be designated by order

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of the Court or agreed to by the Parties. If the designating Party refuses to remove to change the

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designation as requested, its written response shall state the reasons for this refusal. Failure to

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provide a timely written response shall be deemed a refusal of the request.

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c) If the designating Party fails to respond to a request or refuses to remove or

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change the designation, the Party requesting re-designation shall have three (3) business days to

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file a motion seeking such re-designation. It shall be the burden of the designating Party to

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establish that the information or material is correctly designated within the meaning of this

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Protective Order, and applicable case law.
d) In the event of such a motion, the information or material at issue may be

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submitted to the Court for in camera inspection.
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The Parties understand and agree that this Protective Order does not waive any

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additional privilege, right of privacy or right of confidentiality that may apply to any interrogatory

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or request for production served by any Party. Further, this stipulation does not waive or abrogate

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any objection made by any Party in response to any other interrogatory or request for production.
13.

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The provisions of this Protective Order shall not terminate at the final conclusion

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of this litigation. This Protective Order shall remain in full force and effect in perpetuity unless

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modified, superseded or terminated by written consent of the parties or by order of the Court.

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Each person subject to this Protective Order shall continue to be subject to the jurisdiction of the

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United States District Court for the District of Nevada for the purpose of enforcement of the

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terms of this Protective Order for as long as the Protective Order remains in effect. The Court

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shall not be divested of the power to enforce the terms of this Protective Order as to any persons

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subject to the Protective Order by the final conclusion of this litigation or by the filing of a notice

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of appeal or other pleading that arguably has the effect of divesting this Court of jurisdiction of

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this matter generally.
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No later than 45 days after the final adjudication of this action, including any

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appeals, and upon written request by a designating Party, all information or material designated

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pursuant to this Protective Order shall be returned to the designating Party or shall be destroyed

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(provided, however, counsel for each Party may retain one copy of any designated document,

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which will remain subject to this Protective Order), unless a motion seeking modification of this

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Protective Order is filed. In the event that such information or material is destroyed, the person or

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persons responsible for such destruction shall certify in writing to the completion and manner of

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destruction. This provision shall not apply to file copies of pleadings, briefs, and correspondence

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maintained by the Parties’ counsel in their respective litigation files in the ordinary course of

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business.
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The Court retains jurisdiction to make such amendments, modification, and

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additions to this Protective Order as it may from time to time deem appropriate. Any Party may

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make a request to the Court for any reasonable amendment to this Protective Order to facilitate

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the efficient and appropriate handling of confidential information or material.

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DATED May 19, 2016.

FENNEMORE CRAIG, P.C.

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By:

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/s/ Karl L. Nielson
Douglas C. Northup (Admitted Pro Hac Vice)
2394 E. Camelback Road, Suite 600
Phoenix, Arizona 85016-3429
- and Karl L. Nielson (NVB No. 5082)
300 South Fourth Street, Suite 1400
Las Vegas, Nevada 89101
Attorneys for Defendants

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DATED May 19, 2016.

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MORRIS, SULLIVAN, LEMKUL & PITEGOFF

By:

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/s/ Christopher A. Turtzo
Jeffrey I. Pitegoff (NVB No. 005458)
Christopher A. Turtzo (NVB No. 10253)
3770 Howard Hughes Parkway, Suite 170
Las Vegas, NV 89169
Attorneys for Plaintiffs

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ORDER

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Pursuant to the foregoing stipulation of the Parties, IT IS SO ORDERED.

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DATED this 31st day of May, 2016.

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UNITED STATES MAGISTRATE JUDGE

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FENNEMORE CRAIG, P.C.

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EXHIBIT A

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ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND

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I, ________________________________________ [print or type full name], of

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_______________________________________________ [print or type full address], declare

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under penalty of perjury that I have read in its entirety and understand the Stipulated Protective

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Order that was issued by the United States District Court for the District of Nevada on

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_______________, 2016, in the case of Nevada West Petroleum, LLC, et al. v. BP West Coast

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Products, LLC, et al., Case No. 2:15-cv-01684-APG-PAL. I agree to comply with and to be

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bound by all the terms of the Stipulated Protective Order, and I understand and acknowledge that

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failure to so comply could expose me to sanctions and punishment in the nature of contempt. I

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solemnly promise that I will not disclose in any manner any information or item that is subject to

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the Stipulated Protective Order to any person or entity except in strict compliance with the

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provisions of the Stipulated Protective Order.

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Date:

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City and State where sworn and signed:

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Printed name:

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Signature:

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FENNEMORE CRAIG, P.C.

11465909

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