Atlantic-Pacific Processing Systems, Inc. v. Dermaktive, LLC et al

Filing 41

ORDER Granting 40 Stipulation for Protection Order. Signed by Magistrate Judge Peggy A. Leen on 12/13/2016. (Copies have been distributed pursuant to the NEF - NEV)

Case 2:16-cv-00739-JAD-PAL Document 40 Filed 12/08/16 Page 1 of 10

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA

ATLANTIC-PACIFIC PROCESSING
SYSTEMS, INC., a Nevada corporation,

Case No. 2:16-cv-00739-JAD-PAL

Plaintiff,
vs.
DERMAKTIVE, LLC, a Florida limited
liability company, and JORDAN DUFNER, a
Connecticut resident; DOE INDIVIDUALS I
through X; and ROE ENTITIES I through X,

STIPULATION AND ORDER FOR
PROTECTION OF CONFIDENTIAL
INFORMATION DISCLOSED DURING
DISCOVERY

Defendants.
DERMAKTIVE, LLC, a Florida limited liability
company; and JORDAN DUFNER, a Connecticut
resident,
Counter-Plaintiffs
vs.

ATLANTIC-PACIFIC PROCESSING
SYSTEMS, INC., a Nevada corporation,
Counter-Defendant.
Plaintiff and Counter-Defendant ATLANTIC-PACIFIC PROCESSING SYSTEMS, INC.
(“APPS”), and Defendants and Counter-Plaintiffs DERMAKTIVE, LLC and JORDAN
DUFNER, through their respective counsel, hereby stipulate and agree as follows:
1.

Findings:
The Court finds that the Parties to this case may request or produce information involving

personal and financial information, trade secrets, or commercially sensitive information, the
disclosure of which is likely to cause harm to the Person producing such information. This
Order shall bind and inure to the benefit of the Parties to this litigation and any non-party which

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desires the protections of this Order with respect to any information obtained from it, or
produced by it, and which, itself or through its counsel, agrees to be bound by the terms of this
Order by executing the attached “Agreement to be Bound by Protective Order” (Attachment A).
A non-party seeking the protections of this Order shall execute a copy of the “Agreement to be
Bound by Protective Order” and shall serve a copy on both Parties.
2.

Definitions
(a)

“Party” or “Parties” means a named party or parties in this case. “Person” means

an individual or an entity. “Producing Party” means a Person who produces information subject
to this Order. “Receiving Party” means a Person who receives information subject to this Order.
“Qualified Person” is a Person defined in Section 3(g) of this Order.
(b)

“Confidential” information is information that falls within one or more of the

following categories:
(i)

The personal and financial information of credit card holders including

complete credit card numbers and any personally identifying information such as
names, addresses and telephone numbers;
(ii)

The identity, Merchant Identification Nos. (MIDs) and financial

information of any merchants processing credit cards through APPS, the
disclosure of which may have the effect of causing harm to the financial or
competitive position of any Producing Party from which the information was
obtained or of any Party to this action;
(iii)

The financial information of issuing and acquiring banks related to

APPS’s credit card processing activities, the disclosure of which may have the
effect of causing harm to the financial or competitive position of any Producing
Party from which the information was obtained;
(iv)

Any trade secret of the Producing Party, the Parties, or any third parties,

which has not been made public, and the disclosure of which may have the effect
of causing harm to the competitive position of any Producing Party from which
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STIPULATION AND ORDER FOR PROTECTION OF
CONFIDENTIAL INFORMATION DISCLOSED DURING DISCOVERY

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the information was obtained, any Party to this action, or any third party
including, but not limited to, agreements, pricing information, policies and
procedures, and customer lists; and
(v)

Any commercially sensitive information of the Producing Party, the

Parties, or any third parties, which has not been made public, the disclosure of
which is likely to harm the competitive position of any Producing Party from
which the information was obtained, any Party to this action, or any third party, or
would contravene an obligation of confidentiality of the Producing Party,
including, without limitation: (1) policies or procedures; (2) agreements by and
between the Producing Party, any one or all of the Parties, and/or third parties; (3)
business terms, including payment, pricing, fees, or other terms of doing business;
and/or (4) information which is subject to contractual or legal non-disclosure
obligations.
3.

Designation of Confidential Information
(a)

The protections of this Order shall not apply to information that, prior to

disclosure in this action, was within the actual possession or knowledge of the Receiving Party,
was previously disclosed by the Producing Party without any obligation of confidentiality, or
was actually public knowledge, provided that the information did not become public knowledge
through an act or omission of the Receiving Party. Any Receiving Party who claims that
information was, prior to disclosure in this action, within its actual possession or knowledge and
was not subject to a confidentiality obligation or was public knowledge shall have the burden of
proving that fact.
(b)

By designating a document, thing, material, testimony or other information

derived therefrom as “Confidential” under the terms of this Order, the Producing Party making
the designation is certifying to the Court that there is a good faith basis both in law and in fact for
the designation within the meaning of Fed. R. Civ. P. 26(g).
(c)

Confidential documents shall be so designated by stamping copies of the
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document produced to a Receiving Party with the legend “CONFIDENTIAL.” Stamping the
legend “CONFIDENTIAL” on the cover of any multipage document shall designate all pages of
the document as confidential, unless otherwise indicated by the Producing Party.
(d)

Testimony taken at a deposition, conference, hearing or trial may be designated as

Confidential by making a statement to that effect on the record at the deposition or other
proceeding. Arrangements shall be made with the court reporter taking and transcribing such
proceeding to separately bind such portions of the transcript containing information designated
as Confidential and to label such portions appropriately.
(e)

Material designated as Confidential under this Order, the information contained

therein, and any summaries, copies, abstracts, or other documents derived in whole or in part
from material designated as confidential (hereinafter “Confidential Material”) shall be used for
the purpose of the prosecution, defense, or settlement of this action, and for no other purpose.
(f)

Confidential information produced pursuant to this Order may be disclosed or

made available only to the Court, to counsel for a party (including the paralegal, clerical, and
secretarial staff employed by such counsel), and to the “Qualified Persons” designated below.
(i)

a party, or an officer, director, or employee of a party deemed necessary

by counsel to aid in the prosecution, defenses, or settlement of this action;
(ii)

experts or consultants (together with their clerical staff) retained by such

counsel or party to assist in the prosecution, defense, or settlement of this action;
(iii)

court reporter(s) employed in this action;

(iv)

a witness at any deposition or other proceeding in this action;

(v)

an outside copying service designated by either party to make copies of

exhibits and third party document productions for production to the defendant;
and
(vi)

any other person as to whom the parties in writing agree, provided

however that if the Producing Party is a non-party, the Parties will secure the
agreement of the Producing Party before such disclosure.
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(g)

Prior to receiving any Confidential Material, each “Qualified Person” shall be

provided with a copy of this order and shall execute a nondisclosure agreement in the form of
Attachment A, a copy of which shall be provided forthwith to counsel for each other Party and
for the Parties, or in the case where the Producing Party is a non-party, to counsel for the
Producing Party.
(h)

Nothing herein shall impose any restrictions on the use or disclosure by a

Receiving Party of material obtained by such Receiving Party independent of discovery in this
action, whether or not such material is also obtained through discovery in this action, or from
disclosing its own Confidential Material as it deems appropriate. If Confidential Material,
including any portion of a deposition transcript designated as Confidential, is included in any
papers to be filed in Court relating to any non-dispositive matters such as discovery disputes,
such papers shall be labeled “Confidential- Subject to Court Order” and filed under seal until
further order of this Court.
(i)

In the event that any Confidential Material is used in any dispositive motion or

other dispositive court proceeding, such as trial, in this action, it shall only maintain its
confidential status through such use if the party using the Confidential Material, or any other
party affected by use, moves the Court under Fed. R. Civ. P. 26(c) for a separate order requiring
the Confidential Material to be sealed in accordance with the instructions on filing a motion for
leave to e-file a sealed document (which are located at www.nvd.uscourts.gov), specifying
precisely what the party or parties wish to be kept under seal and making a particularized
showing of good cause as to why the Court should depart from the strong presumption against
sealing any court records to public inspection. If a party intends to use Confidential Material
designated by a Producing Party in a live court hearing or other live proceeding, the Party
intending to use the Confidential Material shall give the Producing Party notice of the intended
use five (5) court days in advance to allow the Producing Party the opportunity to move the
Court for an order requiring the Confidential Material to be e-filed as a sealed document in
accordance with this paragraph of the Order.
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(j)

This Order shall be without prejudice to the right of the Parties (i) to bring before

the court at any time the question of whether a particular document or information is
Confidential Material or whether its use should be restricted or (ii) to present a motion to the
Court under Fed. R. Civ. P. 26(c) for a separate protective order as to any particular document or
information, including restrictions differing from those as specified herein. This Order shall not
be deemed to prejudice the Parties in any way in any future application for modification of this
Order. A Party successfully challenging any Confidential designation shall be presumptively
entitled to its attorneys’ fees and costs unless: (i) the Producing Party shows that the designation
was made in good faith or was substantially justified; or (ii) the Producing Party is a non-party.
(k)

This Order is entered solely for the purpose of facilitating the exchange of

documents and information between the Parties to this action without involving the Court
unnecessarily in the process. Nothing in this Order nor the production of any information or
document under the terms of this Order nor any proceedings pursuant to this Order shall be
deemed to have the effect of an admission or waiver by either party or of altering the
confidentiality or nonconfidentiality of any such document or information or altering any
existing obligation of any party or the absence thereof.
(l)

After final termination of this action, including any appeals, each counsel of

record shall within 60 days of a written request, (a) destroy or (b) return to the counsel of record
all documents containing Confidential Material in their possession and control, including all
copies thereof except that each counsel of record may maintain one archive copy of all pleadings,
correspondence, deposition transcripts, deposition exhibits, trial transcripts, and trial exhibits,
together with any attorney work product provided that such archive copy be appropriately
marked as confidential and be retained in accordance with the terms of this Order.

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December 13, 2016

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EXHIBIT A
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

1.

I, ___________________________, have read and understand the Stipulation and

Order for Protection of Information Disclosed During Discovery (the “Order”), and agree to be
bound by its terms.
2.

[For use with Qualified Persons] As set forth in the Order, I shall use

Confidential Material, and the information contained in that Confidential Material, solely for the
purpose of this litigation, and for no other purpose and no other case. I shall not disclose
Confidential Material or the information in that Confidential Material except as permitted in the
Order.
3.

[For use with non-party Producing Party] At the request of a Party in this

case, I shall produce Confidential Material, and the information contained in that Confidential
Material.
4.

I hereby submit myself to the jurisdiction of the United States District Court for

the District of Nevada for the enforcement of these agreements and the Order.

Executed this ___ day of ______________, 20____.

[Signature]

[Type or Print Name]

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STIPULATION AND ORDER FOR PROTECTION OF
CONFIDENTIAL INFORMATION DISCLOSED DURING DISCOVERY