Azeltine v. The Vons Companies, Inc.

Filing 26

ORDER Granting 25 Stipulated Protective Order. Signed by Magistrate Judge Nancy J. Koppe on 01/25/2017. (Copies have been distributed pursuant to the NEF - NEV)

Case 2:16-cv-01193-APG-NJK Document 25 Filed 01/24/17 Page 1 of 12

1
2
3
4
5
6

LEW BRANDON, JR., ESQ.
Nevada Bar No. 5880
MORAN BRANDON BENDAVID MORAN
630 S. Fourth Street
Las Vegas, Nevada 89101
[phone]
[phone] - facsimile
[e-mail]
Attorney for Defendant,
THE VONS COMPANIES, INC.

7

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

8
9

MELISSA SUE MARIE AZELTINE,
CASE NO.: 2:16-cv-01193-APG-NJK

10

Plaintiff,

11
12
13
14
15
16

v.
THE VONS COMPANIES INC.,
individually and dba VONS #1795, a
Foreign corporation; DOES I through X,
inclusive and ROE CORPORATIONS I
through X, inclusive,
Defendants.

17

STIPULATED PROTECTIVE ORDER

18
19

In connection with the production of confidential documents and other confidential

20

information in this action, Plaintiff, MELISSA SUE MARIE AZELTINE (the “Plaintiff”),

21

Defendant, THE VONS COMPANIES, INC. (the “Defendant”), through their respective

22

counsel (“Plaintiff” and “Defendant” may also be collectively referred to as, the “Parties” or

23
24
25

individually as, “Party”), hereby enter into this Stipulated Protective Order (“Stipulated
Protective Order”).

26
27
28

Page 1 of 12

Case 2:16-cv-01193-APG-NJK Document 25 Filed 01/24/17 Page 2 of 12

PURPOSE OF THIS PROTECTIVE ORDER

1
2
3

The purpose of this Stipulated Protective Order is to provide a means for limiting access
to and use and disclosure of Confidential Documents or Information produced in this action.

4
5
6
7
8
9
10
11
12

Any unauthorized disclosure of Confidential Documents or Information in violation of this
Order may be subject to discipline by the contempt powers of this United States District Court
for the District of Nevada.
DESIGNATION OF “CONFIDENTIAL DOCUMENTS OR INFORMATION”
The Parties may designate such documents or information as “Confidential” in
accordance with the following procedures:
A.

“Confidential” Documents or Information.

13

Either Party may designate any documents, records, reports, video tapes, tangible items,

14

or information as “Confidential.” Upon a designation of “Confidential,” the Parties shall treat

15

any designated document, record, report, video tape, tangible item, or information as

16

confidential and shall only use such document, record, report, video tape, tangible item, or

17
18
19

information solely for the prosecution or defense of this matter.
B.

Time of Designation

20

Unless otherwise agreed between counsel for the Parties, the designation of Confidential

21

Documents or Information shall be made at the time of the production of documents, records,

22

reports, video tapes, tangible items, or information.

23
24
25
26
27

C.

Manner of Designation

The designation of Confidential Documents or Information shall be made in the
following manner:
1. For documents, by placing the notation “Confidential” on each page of such document;

28

Page 2 of 12

Case 2:16-cv-01193-APG-NJK Document 25 Filed 01/24/17 Page 3 of 12

1

2. For tangible items, including any video tapes or documents or information produced on

2

magnetic disks or other computer related media, by placing the notation “Confidential” on the

3

object and, if applicable, on the container thereof or if such are not practicable, as otherwise

4
5
6

agreed by the Parties. In the event either Party generates any “hard copy” or printout from any
“Confidential Material,” that Party must immediately stamp each page “Confidential,” and the

7

hard copy or printout shall be treated as “Confidential Information pursuant to this Stipulated

8

Protective Order.”

9
10
11
12

D.

Retroactive Designation

1. Inadvertent production of any Confidential Documents or Information without a
designation of confidentiality will not be deemed to waive a later claim as to confidentiality or

13

privilege, or prevent the Party claiming confidentiality from re-designating such documents or

14

information as “Confidential” promptly after discovery of the inadvertent production.

15
16

2. Within a reasonable time after production, either Party may retroactively designate (or
withdraw a designation) of Confidential Documents or Information, regarding any material that

17
18

it has produced, provided however, that such retroactive designation (or withdrawal) shall be in

19

accordance with the terms of this Order. Such retroactive designation (or withdrawal) shall be

20

accomplished by notifying counsel for the non-designating Party in writing of such retroactive

21

designation (or withdrawal). Upon receipt of any such written re-designation, counsel (i) shall

22

not make any further disclosure or communication of such retroactively designated material

23
24

except as provided for in this Order; (ii) shall take reasonable steps to notify all persons known

25

to have possession of any retroactively designated material of the effect of such re-designation

26

under this Order; and (iii) shall take reasonable steps to procure all copies of such retroactively

27

designated material from any persons known to have possession of any such retroactively

28

Page 3 of 12

Case 2:16-cv-01193-APG-NJK Document 25 Filed 01/24/17 Page 4 of 12

1
2
3

designated material who are not entitled to receipt under this Order.
E.

Resolution of Disputes Regarding Designation

If either Party, at any time, wishes to have the “Confidential” designation of any

4
5
6

particular Confidential Documents or Information removed or changed, that Party shall first
request in writing that the Party having made the designation at issue change its designation.

7

Thereafter, the Parties shall make good faith efforts to resolve the dispute. If the designating

8

Party refuses to agree to remove or change the designation, then the Party that requests that the

9
10
11
12

designation be so removed may make a motion before this Court for an order removing or
changing the designation; provided, however, that the designating Party shall have the burden of
proving that such particular Confidential Document or Information are properly designated as

13

“Confidential” pursuant to paragraph III below. At all times during the process of challenging a

14

designation, the Parties shall treat the Confidential Documents or Information as originally

15

designated until a change is agreed to or the motion is decided by the Court and written notice

16

of such decision is served on the Parties.

17
18

Any motion filed with respect to this Stipulated Protective Order or documents labeled

19

“Confidential” must comply with the local rules of the United States District Court for the

20

District of Nevada.

21

F.

22

Designation of Third Party Documents.

Documents and/or information produced by a third party in response to a subpoena or

23
24

during deposition in the course of this litigation may involve receipt of information, documents,

25

things or testimony which include, contain or comprise protected information that may or may

26

not be appropriate for “Confidential” designation under this Order. Unless otherwise agreed in

27

writing between counsel for the parties, documents and information so produced by a third party

28

Page 4 of 12

Case 2:16-cv-01193-APG-NJK Document 25 Filed 01/24/17 Page 5 of 12

1

shall be treated as follows: First of all, all such documents and information shall automatically

2

be deemed to be and shall be treated as “Confidential” for twenty (20) business days following

3

their actual receipt by both counsel for Plaintiff and counsel for Defendants in this action, in

4
5
6

order to enable each such counsel to determine whether in their view any protected information
is embodied therein. If no designation of the information as “Confidential” by the Designating

7

Party is received by the non-Designating Party within twenty (20) business days after

8

production, then the information will not be protected by this Protective Order except pursuant

9
10
11
12

to subsequent designation by a party hereto or pursuant to a subsequent agreement of the parties
or Court order; if however a written designation of “Confidential” is made by a Designating
Party and is received by the non-Designating Party within twenty (20) business days after

13

production of documents or information by the non-party, then the information will be subject

14

to this Protective Order and will be deemed to be “Confidential” (as requested by the

15

Designating Party); provided, however, that the designation may be challenged as any such

16

designation.

17
18

Lastly, to the extent third party documents or information contains information that is

19

confidential and/or proprietary to the third party, the third party can avail itself of the

20

protections set forth in this Order and designate documents and/or information it produces

21

accordingly by executing this Order and agreeing to be bound by its terms.

22
23
24
25

PERSONS TO WHOM CONFIDENTIAL DOCUMENTS OR INFORMATION MAY
BE DISCLOSED
A.

Disclosure of Documents or Information Designated as “Confidential”

Documents or Information designated as “Confidential” may be disclosed and copies

26
27
28

may be provided only to:
1. Counsel of record;

Page 5 of 12

Case 2:16-cv-01193-APG-NJK Document 25 Filed 01/24/17 Page 6 of 12

1
2
3

2. Expert witnesses or consultants retained by the Parties or their respective counsel in
connection with this action who have complied with paragraph III(C), below;
3. Outside court reporting services and court reporters as may be reasonably necessary in

4
5
6
7
8
9

connection with the preparation or conduct of this action;
4. This Court and its personnel, or any other tribunal of competent jurisdiction having
involvement in this matter and its personnel;
5. Any mediator or arbitrator selected by the Parties to mediate or arbitrate this action; and
6. Representatives of the Parties.

10
11
12
13
14

B.

Additional Authorized Disclosure of Documents or Information Designated
as “Confidential”

Notwithstanding anything to the contrary in paragraph III(A) above, particular
Confidential Documents or Information that have been designated as “Confidential” may be

15
16
17

disclosed and copies may be provided:
1. To persons who are explicitly named on the document as the authors or addressees or to

18

persons who may be shown to be an author or recipient of any particular document;

19

2. To any other persons with the prior written consent of the designating Party;

20
21
22
23

3. To any other persons with the prior authorization of this Court or any other tribunal of
competent jurisdiction having involvement in this matter; and
4. If a document designated as “Confidential” refers to the conduct or affairs of a potential

24

witness, the Party’s counsel of record may and shall discuss such conduct or affairs with such

25

person without revealing the existence of the document, or its authors or source.

26
27

C. Disclosure to Experts or Consultants
Prior to disclosing or providing copies of any Confidential Documents or Information to

28

Page 6 of 12

Case 2:16-cv-01193-APG-NJK Document 25 Filed 01/24/17 Page 7 of 12

1

any expert or consultant pursuant to paragraphs III(A) or III(B), above, the Parties shall first

2

obtain the agreement of the expert, consultant or anyone else to whom such disclosure will be

3

made to be bound by the terms of this Stipulated Protective Order as set forth in the attached

4
5
6

“Acknowledgment and Agreement To Be Bound.” Specifically, the expert or consultant shall
acknowledge that, during the course of his or her retention, the expert or consultant may have

7

access to, and become acquainted with Confidential Documents or Information, which are

8

regularly used in the operation of the businesses of the designating Party and in which the

9
10
11
12
13

designating Party has an expectation of confidentiality. The expert or consultant shall agree not
to disclose such Confidential Documents or Information, directly or indirectly, to any person or
entity not subject to this Stipulated Protective Order or use them in any way outside the specific
scope of his/her retention as an expert witness in this action, or at any time thereafter.

14

D. Return of Confidential Documents or Information by Experts and Consultants

15

Confidential Documents or Information disclosed to any expert or consultant may be

16

retained by such expert or consultant provided that such expert or consultant subsequently

17
18
19
20
21
22

destroys any and all copies of such Confidential Documents or Information upon the
termination of their engagement.
USE OF CONFIDENTIAL DOCUMENTS OR INFORMATION
A. Use of Confidential Documents or Information Generally
Confidential Documents or Information shall only be used by the Parties, their respective

23
24

agents, and any other persons to whom such Confidential Documents or Information may be

25

disclosed pursuant to this Stipulated Protective Order: (1) in this action; (2) as otherwise

26

compelled by lawful process (provided the designating Party is given a reasonable notice to

27

object); or (3) as otherwise required by law. Notwithstanding the foregoing, nothing in this

28

Page 7 of 12

Case 2:16-cv-01193-APG-NJK Document 25 Filed 01/24/17 Page 8 of 12

1

Stipulated Protective Order shall prevent or limit the designating Party from disclosing

2

Confidential Documents or Information they so designate.

3

///

4
5
6

///
B. Use of Confidential Documents or Information in the Conduct of this Action

7

1. Confidential Documents or Information may be used by counsel for the non-designating

8

Party in good faith in connection with investigating this action, provided that the Confidential

9

Documents or Information are protected pursuant to the terms and conditions of this Stipulated

10
11

Protective Order.

12

2. The terms of this Stipulated Protective Order do not apply to evidence presented at or for

13

court proceedings and/or trial in this matter unless so designated by the Court. Any protective

14

measures relating to Confidential Documents or Information should be taken up with the

15

judicial officer conducting the particular proceeding at the appropriate time.

16
17
18

See 3. If either Party seeks to file pleadings or other documents with this Court that contains
order issued concurrently herewith.
the other Party’s Confidential Documents or Information, it may do so only if: (a) the pleading

19

and other documents that contains the other Party’s Confidential Documents or Information are

20

filed under seal in the manner prescribed by the Court; and (b) the filing Party informs the

21
22
23
24
25

designating Party of such filing prior to the filing of such documents with the Court.
RETURN OF CONFIDENTIAL DOCUMENTS, TESTIMONY, OR INFORMATION
Upon written request after the final conclusion of this action, the Parties shall:
A.

Return to the other Party any and all Confidential Documents or Information so

26

designated by that Party and all copies thereof in its possession, custody and control or

27

otherwise destroy such documents;

28

Page 8 of 12

Case 2:16-cv-01193-APG-NJK Document 25 Filed 01/24/17 Page 9 of 12

1
2
3

B.

Ensure that all Confidential Documents or Information in the possession, custody

or control of any permitted parties or third parties are returned to the designating Party or are
otherwise destroyed; and

4
5
6

C.

Destroy all notes, memoranda or other documents that contain excerpts from any

of the Confidential Documents or Information. Notwithstanding the foregoing, attorney work

7

product, attorney-client communications, and information derived from Confidential

8

Documents or Information may be retained by the non-designating Party and its counsel.

9
10
11
12
13
14
15
16

PUBLIC DOCUMENTS
None of the restrictions set forth in this Stipulated Protective Order shall apply to any
documents or other information that become public knowledge by means not in violation of the
provisions of this Stipulated Protective Order.
NO PROBATIVE VALUE
This Stipulated Protective Order shall not aggregate or diminish any contractual,
statutory or other legal obligation or right of any party or person with respect to any

17
18

Confidential Documents or Information. The fact that information is designated “Confidential”

19

under the Stipulated Protective Order shall not be deemed to be determinative of what a trier of

20

fact may determine to be confidential or proprietary. This Stipulated Protective Order shall be

21

without prejudice to the right of any party to bring information before this Court, regardless of

22

(a) whether any particular material is or is not Confidential, or (b) whether any particular

23
24

information or material is or is not entitled to a greater or lesser degree of protection under the

25

terms of this Stipulated Protective Order, provided that in doing so, the party complies with the

26

procedures set forth herein. The fact that any information is disclosed, used, or produced in any

27

proceeding in this action shall not be offered in any other action or proceeding before this or any

28

Page 9 of 12

Case 2:16-cv-01193-APG-NJK Document 25 Filed 01/24/17 Page 10 of 12

1

other Court, agency or tribunal as evidence of or concerning whether or not such information is

2

admissible, confidential or proprietary.

3

NO IMPLIED WAIVER OF ADMISSION

4

No party shall be obligated to challenge the proprietary nature of any designation of

5
6
7

“Confidential” information, and the failure to do so shall not constitute a waiver or otherwise
preclude a subsequent challenge to the designation.

8

MODIFICATION OF THIS STIPULATED PROTECTIVE ORDER

9
10
11
12

The Parties hereto may modify the terms of this Stipulated Protective Order by further
stipulation. However, no modification by the parties shall have the force or effect of a court
order unless the Court approves the modification. Alternatively, any party hereto may seek an

13

order of this Court to modify the terms of this Stipulated Protective Order. Any motion seeking

14

such modification must be served upon all counsel of record and filed in accordance with this

15

Court’s filing procedures.

16

///

17
18

///

19

///

20

///

21

///

22

///

23
24

///

25

///

26

///

27

///

28

Page 10 of 12

Case 2:16-cv-01193-APG-NJK Document 25 Filed 01/24/17 Page 11 of 12

EXECUTION AND COUNTERPART

1
2
3

This Stipulated Protective Order may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together shall constitute one and the

4
5
6

same instrument. Facsimile signatures shall be binding upon the Parties hereto and may be
submitted and considered as originals.

7

IT IS SO STIPULATED

8

Dated this 24th day of January, 2017.

9

THE 702 FIRM

MORAN BRANDON BENDAVID MORAN

/s/ Joel Hengstler, Esq.
BRADLEY J. MYERS, ESQ.
Nevada Bar No. 8857
JOEL HENGSTLER, ESQ.
Nevada Bar No. 11597
400 S. 7th Street, Suite 400
Las Vegas, Nevada 89101
[phone]
[phone] – Facsimile
[e-mail]
Attorneys for Plaintiff,
MELISSA SUE MARIE AZELTINE

/s/ Lew Brandon, Jr., Esq.
LEW BRANDON, JR., ESQ.
Nevada Bar No. 5880
KRIS D. KLINGENSMITH, ESQ.
Nevada Bar No. 13904
630 S. Fourth Street
Las Vegas, Nevada 89101
Attorneys for Defendant,
THE VONS COMPANIES, INC.

10
11
12
13
14
15
16
17
18
19
20
21

IT IS SO ORDERED.

22

____________________________
______________________
__ _ __
U.S. Magistrate Judge
S. Magistrate Judge
g at
t

23

Dated:_______________________
t d January 25, 2017

24
25
26
27
28

Page 11 of 12

Case 2:16-cv-01193-APG-NJK Document 25 Filed 01/24/17 Page 12 of 12

1
2
3

Acknowledgment and Agreement To Be Bound
I hereby acknowledge that I may receive information designated as “Confidential” from

4
5
6

counsel to a party to this action. I hereby certify my understanding that such information will be
provided to me pursuant to the terms and restrictions of the above Stipulated Protective Order

7

that has been entered by the Court; that I have been given a copy of, and have read and

8

understand, such Stipulated Protective Order; that I agree to be bound by the terms thereof; and

9
10
11

that I irrevocably submit to the personal jurisdiction of the Court in connection with any
proceeding to enforce the Stipulated Protective Order that may involve me.

12
13
14

ACKNOWLEDGED AND AGREED:
Name:

_________________________________

Address:

_________________________________

16

Employer:

_________________________________

17

Title:

_________________________________

18

Dated:

_________________________________

15

19
20
21
22
23
24
25
26
27
28

Page 12 of 12