Halpern v. Tharaldson

Filing 52

ORDER Granting 50 Stipulated Confidentiality Agreement and Protective Order. Signed by Magistrate Judge George Foley, Jr on 05/11/2016. (Copies have been distributed pursuant to the NEF - NEV)

Case 2:15-cv-02037-JCM-GWF Document 50 Filed 05/10/16 Page 1 of 7

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Brian G. Anderson, Esq.
Nevada Bar No. 10500
Andrea M. Champion, Esq.
Nevada Bar No. 13461
HOLLAND & HART LLP
9555 Hillwood Drive, 2nd Floor
Las Vegas, NV 89134
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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Matthew J. Smith, Esq. (Pro Hac Vice)
Claire Wells Hanson, Esq. (Pro Hac Vice)
HOLLAND & HART LLP
555 Seventeenth Street, Suite 3200
Denver, Colorado 80202
Phone: [phone]
Fax: [phone]
[e-mail]
[e-mail]

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Attorneys for Defendant Gary Tharaldson

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HOLLAND & HART LLP
9555 Hillwood Drive, 2nd Floor
Las Vegas, NV 89134

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THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF NEVADA

16 JASON HALPERN,
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CASE NO.: 2:15-cv-02037-JCM-GWF
Plaintiff,

STIPULATED CONFIDENTIALITY
AGREEMENT AND PROTECTIVE
ORDER

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19 GARY THARALDSON,
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Defendant.

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Upon consideration of the parties’ Joint Motion for Entry of Stipulated Protective Order,

23 and it appearing to the Court that sufficient cause exists under Fed.R.Civ.P. 26(c) for the
24 issuance of a Protective Order, it is ORDERED as follows:
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1.

This Protective Order shall apply to all documents, materials, and information,

26 including without limitation, documents produced, answers to interrogatories, responses to
27 requests for admission, deposition testimony, and other information disclosed pursuant to the
28 disclosure or discovery duties created by the Federal Rules of Civil Procedure.
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2.

As used in this Protective Order, “Document” is defined to incorporate everything

2 listed in Fed.R.Civ.P. 34(a)(1)(A). A draft or non-identical copy is a separate Document within
3 the meaning of this term.
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3.

As used in this Protective Order, “Lawsuit” means this action and any appeals

5 therefrom.
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4.

As used in this Protective Order, “Confidential Information” shall be information

7 that is (1) confidential and implicates common law or statutory privacy interests of Plaintiff or
8 Defendant, or (2) confidential and proprietary business information.
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5.

Prior to designating any information as Confidential Information under this

10 Protective Order, counsel for the producing party shall review the information to be disclosed
11 and designate the information it believes in good faith is Confidential Information or otherwise
HOLLAND & HART LLP
9555 Hillwood Drive, 2nd Floor
Las Vegas, NV 89134

12 entitled to protection.
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6.

Confidential Information and all Documents produced in this Lawsuit shall be used

14 only for the preparation and litigation of this Lawsuit, and shall not be disclosed or used for any
15 other purpose including, without limitation, any business or commercial purpose or in connection
16 with any other proceeding or litigation.
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7.

All persons with access to Confidential Information produced by another party or a

18 nonparty shall take all reasonable precautions necessary to ensure that no other person shall
19 disclose or use Confidential Information for any purpose that does not relate to this Lawsuit or in
20 any manner that is not permitted by this Protective Order.
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8.

Confidential Information shall not, without the consent of the party producing it or

22 further Court order, be disclosed, summarized, described, characterized or otherwise
23 communicated or made available in whole or in part to any person except the following:
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a.

counsel of record in this Lawsuit;

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b.

persons employed by or associated with counsel of record in this Lawsuit
whose assistance is required in connection with prosecuting or defending this
Lawsuit;

c.

third-party vendors retained by the parties or their counsel for the purpose of
copying, scanning, microfilming, reorganizing, filing, coding, converting,
storing, or retrieving Documents or related data;

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d.

representatives of entity parties deemed necessary by counsel for assistance
with the prosecution or defense of this Lawsuit;

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expert witnesses and consultants retained in connection with this Lawsuit to
the extent counsel has a reasonable and good faith belief that the disclosure is
necessary for preparation, trial, or other proceedings in this Lawsuit;

f.

deponents, witnesses, or potential witnesses to the extent counsel has a
reasonable and good faith belief that such persons will be witnesses in this
case and that the witnesses’ examination with respect to the Confidential
Information is necessary in connection with such testimony;

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g.

the Court and its employees;

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h.

stenographic reporters and videographers who are engaged in proceedings
necessarily incident to the conduct of this Lawsuit; and

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i.

other persons upon written agreement of the parties.

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9.

Before disclosing any Confidential Information to any person listed in paragraphs

HOLLAND & HART LLP
9555 Hillwood Drive, 2nd Floor
Las Vegas, NV 89134

12 8.e, 8.f, or 8.i above, counsel shall provide such person with a copy of this Protective Order and
13 obtain from such person a written acknowledgment in the form attached as Exhibit A that such
14 person has reviewed a copy of this Protective Order, will comply with its terms in all respects,
15 and will submit to the jurisdiction of the Court for adjudication of any dispute about whether
16 such person has complied with the terms of this Protective Order. All such acknowledgments
17 shall be retained by the counsel obtaining them and shall be subject to in camera review by the
18 Court if good cause for review is demonstrated by opposing counsel.
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10.

The designation of Documents as “Confidential” for purposes of this Protective

20 Order shall be made in the following manner:
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a.

In the case of Documents (including tif or pdf images of Documents) or other
materials (apart from interviews, depositions or pretrial testimony), by
placing or affixing on them (in a manner that will not interfere with their
legibility) the word “CONFIDENTIAL.”

b.

In the case of electronically stored information produced in native format, the
storage media shall be marked with the legend “CONTAINS
CONFIDENTIAL INFORMATION” and the producing party shall provide
an electronic list (spreadsheet or table) by file name of all files that are so
designated.

c.

In the case of depositions or pretrial testimony, by a statement on the record,
by counsel, at the time of such disclosure, that said deposition or pretrial
testimony, or any portion thereof, is “Confidential.” Counsel shall direct the

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court reporter or counsel to affix the appropriate Confidential stamp to any
portion of the original transcript and to that portion of all copies of the
transcript, and those portions of the transcript so designated shall be deemed
Confidential. Although the designation shall be made on the record during
the deposition whenever possible, a party may designate portions of
depositions as Confidential after transcription, provided written notice of the
designation is given to all counsel of record within thirty days after notice by
the court reporter of the completion of the transcript.

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d.

The parties to this Protective Order may modify the procedure set forth in
paragraph 10(c) through agreement of counsel on the record at such
deposition without further order of the Court.

e.

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The parties will have up to 30 days from the execution of this Protective
Order to designate any Documents already produced as Confidential, and the
parties may designate such Documents by written statement to opposing
counsel identifying the particular Documents subject to this Protective Order.

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A party may object to the designation of particular Confidential Information by

HOLLAND & HART LLP
9555 Hillwood Drive, 2nd Floor
Las Vegas, NV 89134

12 giving written notice to the party designating the disputed information. The written notice shall
13 identify the information to which the objection is made. If the parties cannot resolve the
14 objection, either party may file an appropriate motion within ten business days after notice is
15 received, requesting that the Court determine whether the disputed information should be subject
16 to the terms of this Protective Order. The disputed information shall be treated as Confidential
17 Information under the terms of this Protective Order until the Court rules on the motion. If either
18 party fails to file such a motion within the prescribed time, the disputed information shall retain
19 its Confidential designation and shall thereafter be treated as Confidential Information in
20 accordance with this Protective Order. In connection with a motion filed under this provision, the
21 party designating the information as Confidential Information shall bear the burden of
22 establishing that good cause exists for the disputed information to be treated as Confidential
23 Information.
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12.

Subject to the Federal Rules of Civil Procedure and any other applicable law, the

25 use of Confidential Information in this Lawsuit shall not cause the information to lose its
26 confidential status. Any party that wishes to file Confidential Information with the Court must
27 move the Court to file such information under seal pursuant to Local Civil Rule 10-5(b).
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13.

If a party receives a request, including but not limited to a subpoena in a legal or

2 administrative proceeding, for the production of Confidential Information provided by another
3 party or a nonparty, that party shall promptly notify the party or nonparty who provided the
4 Confidential Information or its counsel, shall permit the producing party or nonparty to assert all
5 appropriate objections, and shall decline to produce the Confidential Information on the basis of
6 this Protective Order except upon Court order entered after the notice and procedures set forth
7 above have been followed.
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14.

In the event of inadvertent production or disclosure of any Document that the

9 producing party believes should have been designated Confidential, the producing party may,
10 upon discovery of such inadvertent disclosure or production, request the marking of any such
11 Document as Confidential and thereafter such Document and all copies thereof shall be subject
HOLLAND & HART LLP
9555 Hillwood Drive, 2nd Floor
Las Vegas, NV 89134

12 to the provisions of this Protective Order respecting the treatment of Confidential Information.
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In the event of an inadvertent disclosure of any Document that is subject to a claim

14 by the producing party that the Document should have been marked Confidential prior to its
15 production, or that the Document should have been withheld from disclosure as privileged or
16 work product or by reason of some other limitation upon disclosure authorized by law, the
17 disclosure of such Document shall extend only to the Document so inadvertently disclosed or
18 produced and shall not extend to or affect the right to designate as Confidential, or to withhold
19 from production as privileged or work product, any other Document, even though such
20 Documents may relate to the same transaction or subject matter as the Document inadvertently
21 disclosed.
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16.

Any attorney-client privileged or work product Document inadvertently disclosed

23 shall be returned to the producing party upon request, and all copies and materials including
24 information from such Document shall be returned or destroyed, upon the parties agreeing that,
25 or there being an order entered that: (a) such Document is protected by the attorney-client
26 privilege or constitutes protected work product; and (b) such Document was inadvertently
27 produced. Upon the date of receipt by the receiving party of a claim of inadvertent production,
28 the privileged or work product status shall be deemed to be restored, and the Document shall not
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Case 2:15-cv-02037-JCM-GWF Document 50 Filed 05/10/16 Page 6 of 7

1 be further disclosed or used except in connection with any proceedings contemplated in this
2 paragraph, until the parties agree otherwise or the Court rules on the issue. The receiving party
3 shall not be deemed to have
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violated this Protective Order with respect to any use of such privileged or work product

5 Document on a date prior to the making of such request for return of such Document.
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17.

At the conclusion of this Lawsuit, unless other arrangements are agreed upon, each

7 Document and all copies thereof which have been designated as Confidential shall be returned to
8 the party that designated it Confidential, or the parties may elect to destroy Confidential
9 Documents. Where the parties agree to destroy Documents designated as Confidential, the
10 destroying party shall provide all parties with an affidavit confirming the destruction.
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This Protective Order may be modified by the Court at any time for good cause

HOLLAND & HART LLP
9555 Hillwood Drive, 2nd Floor
Las Vegas, NV 89134

12 shown following notice to all parties and an opportunity for them to be heard.
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IT IS SO STIPULATED:

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By: /s/ Matthew J. Smith
Brian G. Anderson, Esq.
Andrea M. Champion, Esq.
Holland & Hart LLP
9555 Hillwood Drive, 2nd Floor
Las Vegas, NV 89134

By: /s/ William R. Fried
David A. Carroll, Esq. (NSB #7643)
Anthony J. DiRaimondo, Esq. (NSB #10875)
Rice Reuther Sullivan & Carroll, LLP
3800 Howard Hughes Pkwy., Suite 1200
Las Vegas, Nevada 89169

Matthew J. Smith, Esq. (Pro Hac Vice)
Claire Wells Hanson, Esq. (Pro Hac Vice)
Holland & Hart LLP
555 Seventeenth Street, Suite 3200
Denver, CO 80202
Attorneys for Defendant Gary Tharaldson

William R. Fried, Esq. (Pro Hac Vice)
Herrick Feinstein LLP
2 Park Avenue
New York, New York 10016

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Attorneys for Plaintiff Jason Halpern

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IT IS SO ORDERED

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_________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge
United States Magistrate Judge
DATED: ____________________________

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Dated: May 11, 2016

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EXHIBIT A
ACKNOWLEDGEMENT OF RECEIPT AND UNDERSTANDING

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I, ____________________________, have read and understand the Stipulated Confidentiality

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Agreement and Protective Order entered in the Halpern v. Tharaldson matter (Case No. 2:15-cv5
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02037-JCM-GWF), and hereby agree to comply with and be bound by the terms and conditions

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of said Order, unless and until modified by further order of the Court. I will not disclose to any

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individuals, other than those specifically authorized by the Court or in the Order, any documents

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or information designated as Confidential Information pursuant to the Order which is disclosed

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to me. Nor will I copy, use or disclose any documents or information designated as Confidential
Information pursuant to the Order except for the purposes of this lawsuit and/or any rights of any

HOLLAND & HART LLP
9555 Hillwood Drive, 2nd Floor
Las Vegas, NV 89134

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of the parties related to this lawsuit and as authorized by the Order. I hereby consent to the
jurisdiction of the Court in this case for purposes of enforcing this Order.

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Dated: ____________________

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By: ___________________________________________
[SIGNATURE]

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Print Name:

___________________________________

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Print Address: ___________________________________

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___________________________________

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