Hancock Sandblast & Paint LLC v. Drax, Inc. et al

Filing 34

STIPULATED PROTECTIVE ORDER re 33 Stipulation for Protective Order. Signed by Magistrate Judge Carl W. Hoffman on 1/20/17. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6
7

JAMES E. SMYTH, II, ESQ.
Nevada Bar No.: 6506
JONI A. JAMISON, ESQ.
Nevada Bar No.: 11614
TARA C. ZIMMERMAN, ESQ.
Nevada Bar No.: 11614
KAEMPFER CROWELL
1980 Festival Plaza Drive, Suite 650
Las Vegas, Nevada 89135
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]

8
Attorneys for Drax, Inc.
9

UNITED STATES DISTRICT COURT

10
11
12
13
14
15
16
17

DISTRICT OF NEVADA
UNITED STATES OF AMERICA for the use
and benefit of HANCOCK SANDBLAST &
PAINT LLC, an Oregon limited liability
company,

Case No. 2:16-cv-01326-JAD-CWH
STIPULATED PROTECTIVE ORDER

Plaintiff,
vs.
DRAX, INC., a corporation; and TRAVELERS
CASUALTY AND SURETY COMPANY OF
AMERICA, a corporation,

18

Defendants.
______________________________________

19

DRAX, INC., a corporation;

20
21
22
23

Cross-Claimant,
vs.
TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA, a corporation
Cross-Defendant.
______________________________________

24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

Page 1 of 20

1
2
3
4

DRAX, INC., a corporation;
Third-Party Plaintiff,
vs.
ANDERSON BURTON CONSTRUCTION,
INC.,
Third-Party Defendant.

5
6
7

ANDERSON BURTON CONSTRUCTION,
INC.,
Third Party Counterclaimant,

8
vs.
9

DRAX, INC., a corporation;
10
Third-Party Counterdefendant.
11
12

The undersigned counsel for Hancock Sandblast & Paint LLC, Drax, Inc., Travelers

13

Casualty and Surety Company of America, and Anderson Burton Construction (collectively, the

14

“Parties” and each, a “Party”) in the above captioned action agree that the Parties and non-parties

15

will be required to produce or disclose in this proceeding certain information and documents that

16

are subject to confidentiality limitations on disclosure under applicable laws and regulations and

17

applicable privacy rights. Such documents, described in more detail below, include information

18

that is a trade secret or other confidential research, development, or commercial information or is

19

of a private or personal nature. Disclosure of such information without reasonable restriction on

20

the use of the information may cause harm, damage, loss, embarrassment, or disadvantage to the

21

Producing Party or nonparty.

22

Accordingly, the Parties desire entry of an order, pursuant to the Federal Rules of Civil

23

Procedure 26(c), and other applicable laws and rules, that will facilitate the prompt resolution of

24

concerns or disputes over confidentiality, that will adequately protect material believed in good

KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

Page 2 of 20

1

faith to be confidential and ensure that protection is afforded only to material so entitled and that

2

will address any inadvertent production of documents or information protected from disclosure

3

by the attorney-client privilege, work-product immunity, or other applicable privilege:

4

Therefore, the Parties hereby stipulate that the following procedures shall be followed in

5

this proceeding to facilitate the orderly and efficient discovery of relevant information while

6

minimizing the potential for unauthorized disclosure or use of confidential or proprietary

7

information and documents.

8

1.

Purpose. The Parties recognize that preparation for any trial of this action may

9

require the discovery of certain information that a Designating Party, as defined below,

10

reasonably and in good faith believes should be subject to confidential treatment under a

11

protective order. The designation of a document, material, or information (whether written,

12

graphic or electronic) as being subject to the terms and conditions of this Protective Order, is

13

intended solely to facilitate prompt discovery and the preparation for trial of this action.

14
15

2.

Scope
a.

This Protective Order shall govern all hard copy and electronic materials,
the information contained therein, and all other information including all
copies, excerpts, summaries, or compilations thereof, whether revealed in
a document, deposition, other testimony, discovery response, or otherwise,
that any party to this proceeding (the “Producing Party” or “Designating
Party) produces to any other party (the “Receiving Party”) and that the
Producing Party designates as confidential under this Protective Order.

b.

This Protective Order is binding upon all Parties and their counsel in this
proceeding , upon all signatories to Exhibit A, and upon (as applicable)
their respective corporate parents, subsidiaries, and affiliates, including
their successors, and their respective attorneys, principals, experts,
consultants, representatives, directors, officers, employees, and others as
set forth in this Protective Order.

c.

If additional parties are added other than parents, subsidiaries or affiliates
of current parties to this litigation, their ability to receive a document
protected by this Protective Order will be subject to their being bound, by
agreement or Court Order, to this Protective Order.

16
17
18
19
20
21
22
23
24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

Page 3 of 20

d.

Third Parties who are obligated to produce Confidential Material in this
Action and who so elect may avail themselves of, and agree to be bound
by, the terms and conditions of this Protective Order and thereby become a
Producing Party for purposes of this Protective Order.

e.

The entry of this Protective Order does not preclude any Party from
seeking further order of this Court, including modification of this order, or
from objecting to discovery that the Party believes to be improper.

f.

1

Nothing herein shall be construed as an admission or concession by any
Party that designated Confidential Material, or any Document or
Information derived from Confidential Material, constitutes material,
relevant, or admissible evidence in this matter.

2
3
4
5
6
7
8
9
10
11

3.

Definitions. In this Order, the terms set forth below shall have the following

meanings:
a.

“Proceeding” or “Action” means the above-entitled proceeding.

b.

“Court” means the Honorable Judge currently assigned to this proceeding
or any other judge to which this proceeding may be assigned, including
Court staff participating in such proceedings.

c.

“Document” or “Documents” shall have the meaning set out in Federal
Rule of Civil Procedure 34(a) and applicable evidence rules and, for
purposes of this order, shall include electronically stored information.

d.

“Testimony” means all depositions, declarations or other pre-trial
testimony taken or used in this Proceeding.

e.

“Information” means the content of Documents or Testimony, as well as
any matter derived therefrom or based thereon.

f.

“Confidential Material” or “Confidential Discovery Material” means any
Document (electronic or hard copy), Testimony, or Information that a
Designating Party reasonably and in good faith believes to be entitled to
confidential treatment under applicable laws and that the Party designates
as such in accordance with the provisions of this Order.

12
13
14
15
16
17
18
19
20

i.

21
22
23
24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

A Party’s or non-party’s trade secrets (as defined in the Uniform
Trade Secrets Act); documents containing or constituting research
and development, marketing or training, confidential business,
commercial, or proprietary information, financial information or
data, technical information, manufacturing processes, product
specifications, engineering information and testing, or distribution
processes; or other proprietary or confidential business information
of commercial value and believed in good faith to be subject to

Page 4 of 20

protection from disclosure under applicable statutes, laws, or
regulations; and

1
2

ii.

any information pertaining to employees, contractors or other
agents of a Party.

iii.

All material, data, and information obtained, derived, or generated
from “Confidential Material,” to the extent the same are not
publicly available or otherwise subject to the exclusions herein.

iv.

Specifically excluded from the definition of “Confidential
Material” are:

v.

Any Documents, Testimony, or Information that have been, or in
the future will be, designated as “not confidential” by order of any
court;

vi.

Any Documents, Testimony, or Information obtained, in the past
or in the future, by any person or entity through procedures
established under the Freedom of Information Act or other public
records request. In the event of a dispute as to whether a
Document, Testimony, or Information is available through the
Freedom of Information Act or other public records request, the
issue will be resolved by Plaintiff’s counsel making an appropriate
request for the release of such material from the appropriate
governmental agency and the granting of such request by the
agency or a court.

3
4
5
6
7
8
9
10
11
12
13
14
g.

The phrase “Confidential Material—Attorney Eyes Only” refers to
Confidential Material that the Designating Party believes in good faith to
contain highly confidential information the disclosure of which to the
Party’s competitors would cause the Designating Party serious competitive
and commercial harm. As used in this Order, and unless otherwise
specified, “Confidential Material” shall encompass “Confidential
Material—Attorney Eyes Only.”

h.

“Designating Party” means the Party or non-party that designates
Documents, Testimony, or Information as Confidential Material.

i.

15

“Disclose,” “Disclosed” or “Disclosure” means to reveal, divulge, give, or
make available Documents, Testimony, or any part thereof, or any
Information contained therein.

16
17
18
19
20
21
22
23

4.

Designations of Confidential Material.
a.

i.

24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

Designation of Documents.

1920339_1.docx 17859.1

Documents Produced in TIFF-Image or PDF Format. With respect
to any Document produced in TIFF-image or PDF format, a
Page 5 of 20

Designating Party may designate the Document as Confidential
Material or Confidential Material—Attorney Eyes Only by placing
a stamp or marking on each page of the Document stating the
following: CONFIDENTIAL, SUBJECT TO PROTECTIVE
ORDER, PRODUCED BY [PARTY NAME] IN HANCOCK
LITIGATION or CONFIDENTIAL—ATTORNEY EYES
ONLY, SUBJECT TO PROTECTIVE ORDER, PRODUCED
BY [PARTY NAME] IN HANCOCK LITIGATION. Such
markings shall not obscure, alter, or interfere with the legibility of
the original document.

1
2
3
4
5
6

1.

7
8
9
10

ii.

11
12
13
14
15
16

Documents Produced in Native Format. With respect to any
Document produced in native format (“Native-Format
Document”), a Designating Party may designate the Document as
Confidential Material or Confidential Material—Attorney Eyes
Only by renaming the Document to include, at the end of the file
name and prior to the file extension, the following language:
CONFIDENTIAL, SUBJECT TO PROTECTIVE ORDER,
PRODUCED BY [PARTY NAME] IN HANCOCK
LITIGATION or CONFIDENTIAL—ATTORNEY EYES
ONLY, SUBJECT TO PROTECTIVE ORDER, PRODUCED
BY [PARTY NAME] IN HANCOCK LITIGATION.
1.

Native-Format Documents may have to be copied or
duplicated for use in a litigation-support review application.
Any such copy or duplicate shall retain the full file name as
originally produced.

2.

For use outside a litigation-support review application,
Receiving Parties may make native-format copies or
duplicates of a Native-Format Document solely (a) for use
with experts or consultants who are retained in this Action
and who are Qualified Persons as defined below or (b) for
use as deposition or trial exhibits. Any such copy or
duplicate shall retain the full file name as originally
produced.

3.

All other copies or duplicates of Native-Format Documents
(e.g., TIFF-image, PDF, hardcopy) and all extracts,
summaries, or descriptions of Native-Format Documents

17
18
19
20
21
22
23
24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

All copies, duplicates, extracts, summaries, or descriptions
(hereinafter referred to collectively as “copies”) of
Confidential Material produced in TIFF-image or PDF
format shall be marked with the same confidential stamp or
marking as contained on the original, unless the original
confidential stamp or marking already appears on the
copies.

1920339_1.docx 17859.1

Page 6 of 20

shall contain a stamp or marking on each page of the
Document stating the following: CONFIDENTIAL,
SUBJECT TO PROTECTIVE ORDER, PRODUCED
BY [PARTY NAME] IN HANCOCK LITIGATION or
CONFIDENTIAL—ATTORNEY EYES ONLY,
SUBJECT TO PROTECTIVE ORDER, PRODUCED
BY [PARTY NAME] IN HANCOCK LITIGATION.
Such markings shall not obscure, alter, or interfere with the
legibility of the original document.

1
2
3
4
5
6

b.

Designation of Deposition Transcripts.
i.

During depositions, Confidential Material may be used or marked
as exhibits, but shall remain subject to this Order and may not be
shown to the witness unless such witness is a Qualified Person as
describe below

ii.

7

If deposition Testimony or exhibits contain or refer to Confidential
Material, or if they contain or refer to Documents, Testimony, or
Information to be designated as Confidential Material, the
Designating Party, by and through counsel, shall either

8
9
10
11

1.

On the record at the deposition, designate the Testimony or
exhibit(s) as Confidential Material or, as applicable,
identify already-designated Confidential Material, or

2.

12

No later than thirty (30) days after receiving a copy of the
deposition transcript, inform the deposing counsel and
counsel for other Parties that the Testimony or exhibit(s)
constitute Confidential Material; during the thirty-day
period, the entire deposition testimony, transcript, and
exhibits shall be treated as Confidential Material under this
Order.

13
14
15
16
17
iii.

18
19
20

iv.

21
22
23

When a Party designates testimony as Confidential Material during
the deposition, counsel for that Party may exclude from the
deposition all persons who are not Qualified Persons under this
Order.
When portions of a deposition transcript or its exhibits are
designated for protection, the transcript or exhibit pages containing
Confidential Material shall be separately bound by the court
reporter, who must affix to the top of each page the legend
CONFIDENTIAL, SUBJECT TO PROTECTIVE ORDER IN
HANCOCK LITIGATION or CONFIDENTIAL—
ATTORNEY EYES ONLY, SUBJECT TO PROTECTIVE
ORDER IN HANCOCK LITIGATION.

24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

Page 7 of 20

c.

Written Pleadings, Motion Papers, and Discovery Materials. A party may
designate as Confidential Material portions of interrogatories and
interrogatory answers, responses to requests for admissions and the
requests themselves, requests for production of documents and things and
responses to such requests, pleadings, motions, affidavits, and briefs that
quote, summarize, or contain Confidential Material. To the extent feasible,
such Confidential Material shall be prepared in such a manner that it is
bound separately from material not entitled to protection.

d.

Designation of Other Confidential Material. With respect to Confidential
Material produced in some form other than as described above, including,
without limitation, compact discs or DVDs or other tangible items, the
Designating Party must affix in a prominent place on the exterior of the
container or containers in which the Information or item is stored the
legend CONFIDENTIAL, SUBJECT TO PROTECTIVE ORDER,
PRODUCED BY [PARTY NAME] IN HANCOCK LITIGATION or
CONFIDENTIAL—ATTORNEY EYES ONLY, PRODUCED BY
[PARTY NAME] IN HANCOCK LITIGATION. If only portions of
the Information or item warrant protection, the Designating Party, to the
extent practicable, shall identify the portions that constitute “Confidential
Materials.”

e.

1

With respect to Documents or Information produced or disclosed by a
non-party, either the non-party or a Party may designate the Documents or
Information as Confidential Material pursuant to this Order. A Party so
designating material produced by a non-Party shall notify all other Parties
within 30 days of receipt of such Document or Information that the same
or portions thereof constitute or contain Confidential Material. Until the
expiration of 30 days, such Document or Information produced or
disclosed by any such non-party shall be treated as Confidential Material
under this Order.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

5.

Required Treatment of Confidential Material.
a.

Except as specifically provided in this Order, counsel shall keep all
Confidential Material disclosed or produced to them within their exclusive
possession and control, shall take all necessary and prudent measures to
maintain the confidentiality of such materials and information, and shall
not permit unauthorized dissemination of such materials to anyone.

b.

Confidential Material shall not be disclosed in any way to anyone for any
purpose other than as required for the preparation of trial in this action or
other related actions as defined in Paragraph 10, below.

19
20
21
22

i.

23
24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

Nothing in this Order shall preclude a Party from introducing into
evidence at trial or evidentiary hearing any Confidential Material
that is admissible under applicable law. The Parties shall meet and
confer regarding the procedures for use of Confidential Material at
Page 8 of 20

trial or any evidentiary hearing and shall move the Court for entry
of an appropriate order. At trial or evidentiary hearings, the Court
may take such other measures or enter separate orders, as the Court
deems appropriate or upon request by any Party, to protect the
claimed Confidential Material sought to be introduced or admitted.

1
2
3
4

c.

Access to and disclosure of Confidential Material shall be limited to those
persons designated as Qualified Persons, below. Any Qualified Person
who examines any Confidential Material shall not disseminate orally, or
by any other means, any protected information other than as permitted by
this Order.

d.

Confidential Material shall not be used for any business, competitive or
other non-litigation purpose without the express written consent of counsel
for the Designating Party or by order of the Court.

5
6
7
8

i.

Nothing in this Protective Order shall limit any Designating
Party’s use of its own documents or shall prevent any Designating
Party from disclosing its own Confidential Material to any person
for any purpose.

ii.

9

Disclosures described in the above sub-paragraphs shall not affect
any confidential designation made pursuant to the terms of this
Protective Order so long as the disclosure is made in a manner that
is reasonably calculated to maintain the confidentiality of the
designated Information, Testimony, and/or Document.

10
11
12
13
14

e.

15
16
17

To avoid security risks inherent in certain current technologies and to
facilitate compliance with the terms of this Order, and unless otherwise
ordered or agreed upon in writing by the Designating Party whose
Confidential Material is at issue, all Qualified Persons with access to
Confidential Material shall comply with the following:
i.

They shall use secure means to store and transmit Confidential
Material.

ii.

Qualified Persons shall be prohibited from storing or transmitting
any Confidential Material in or via any online or web-based
storage location or service managed or maintained by any thirdparty service provider, including any provider of so-called “cloud
computing” services, other than a reputable litigation support
service provider with a secure domestic document hosting facility
that uses encrypted web-enabled software that allows for the
secure and protected sharing and collaboration of said Protected
Material among Qualified Persons and that does not employ socalled “cloud computing” services.

18
19
20
21
22
23
24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

Page 9 of 20

iii.

1
2
3
4
5
6

6.

Notwithstanding the foregoing provision, Qualified Persons, as
defined in the following paragraph, shall not be prohibited from
transmitting Confidential Material to any other Qualified Person
through electronic mail, as attachments to an electronic mail in the
form of separate PDF files or zip files, through tools provided by a
reputable litigation support service as described herein, or via FTP
file transfer, as long as the person transmitting the Protected
Material takes reasonable steps to protect the confidentiality of the
Confidential Material.

Qualified Persons With Respect to Confidential Material.

Confidential

7

Material (as distinct from Confidential Material—Attorney Eyes Only, covered in Paragraph 7

8

below) may be disclosed only to the following persons (referred to as “Qualified Persons”

9

throughout this Order):

10

a.

When produced by a Party: all other Parties (including partners, directors,
officers, and employees of defendants) and their inside and outside
counsel and insurers;

b.

With respect to Qualified Persons encompassed by the preceding
paragraph a, such persons include the attorneys’ employees and agents
(e.g., outside copy services, organizations involved in organizing, filing,
coding, converting, storing, or retrieving data or designing programs for
handling data connected with this action, including the performance of
such duties in relation to a computerized litigation support system, and
stenographers);

c.

Experts and consultants (“Consultants”) whose assistance is necessary to
assist counsel in the preparation of this Proceeding, whether or not the
Consultant is designated as an expert and retained to testify, with the
following qualifications:

11
12
13
14
15
16
17
18

i.

Disclosure shall not be made to any consultant who, as described
in Paragraph 9, is employed by or a consultant to a competitor of
the Designating Party;

ii.

Disclosure shall not be made to any consultant if counsel for the
Party retaining that consultant has actual knowledge that the
consultant has been found to have violated the terms of a
protective order in any litigation or legal proceeding; and

iii.

Any expert or medical professional to whom disclosure of
Confidential Material is authorized must be informed of this
Protective Order and must sign a copy of the Non-Disclosure
Agreement attached hereto as Exhibit “A.”

19
20
21
22
23
24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

Page 10 of 20

d.

1
2
3

A deponent or a witness at a deposition or pre-trial hearing, provided there
is a reasonable basis to believe that the witness will give relevant
testimony regarding the Confidential Material or that disclosure of
Confidential Material is necessary to prepare the witness for the
testimony.
i.

If a Party wishes to disclose Confidential Material to such a
deponent or witness before or during a deposition or pre-trial
hearing, the deponent or witness must be informed of this
Protective Order and either sign a copy of the Non-Disclosure
Agreement attached hereto as Exhibit “A,” or consent under oath
on the record to abide by its provisions.

ii.

4

The Parties agree that this provision does not preclude the
Designating Party from objecting to or moving to preclude
disclosure to any deponent or witness, or to seek amendment of
this provision in the future, if it believes it has a good faith basis
for such objection or motion;

5
6
7
8
9
10

e.

A person identified in the Confidential Material as an author, source,
addressee, or recipient of the communication, or who already has a copy
of the Confidential Material;

f.

Any mediators or arbitrators selected to assist in resolution of this matter,
and their personnel who are actively engaged in assisting them;

g.

The Court or any Court personnel, including any court reporters; and

h.

Any person mutually agreed upon among the Parties, provided that such
person has been informed of this Protective Order and has signed a copy
of the Non-Disclosure Agreement attached hereto as Exhibit “A.”

11
12
13
14
15
16
7.

Qualified Persons With respect to Confidential Material—Attorney Eyes

17
Only.
18
Confidential Material—Attorney Eyes Only may be disclosed only to the following
19
Qualified Persons:
20
a.

Attorneys of record in this action, and their paralegals or their other
employees or agents (including litigation-support services as discussed
below) who require access to Confidential Material—Attorney Eyes Only
for the purpose of litigation of this action;

b.

Employees of independent copy services, printers or illustrators, for the
sole purpose of making copies of documents and exhibits to be used in this
litigation;

21
22
23
24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

Page 11 of 20

1
2

c.

Consultants who are Qualified Persons described in Paragraph 6.d. and its
sub-paragraphs above;

d.

A person identified in the Confidential Material—Attorney Eyes Only as
an author, source, addressee, or recipient of the communication, or who
already has a copy of the Confidential Material;

e.

Any mediators or arbitrators selected to assist in resolution of this matter,
and their personnel who are actively engaged in assisting them;

f.

Members of the jury in this case;

g.

The Court or any Court personnel, including any court reporters; and

h.

Any person mutually agreed upon among the Parties, provided that such
person has been informed of this Protective Order and has signed a copy
of the Non-Disclosure Agreement attached hereto as Exhibit “A.”

8.

Further Requirements With Respect to Qualified Persons.

3
4
5
6
7
8
9
10

a.

Before being given access to any Confidential Material, each
Qualified Person, other than the Court, the employees and staff of
the Court, counsel of record, and the direct employees of counsel
of record, and other than as set forth above with respect to those
witnesses to whom Confidential Material is disclosed or shown at a
deposition or pre-trial hearing as set forth in Paragraph 6.e., shall
be advised of the terms of this Order, shall be given a copy of this
Order, shall agree in writing to be bound by the terms of this Order
by signing a copy of the Non-Disclosure Agreement attached
hereto as Exhibit “A,” and shall consent to the exercise of personal
jurisdiction by this Court in any proceeding(s) to determine if the
signatory violated this Order. Counsel for each Party shall maintain
a list of all Qualified Persons to whom they or their client(s) have
provided any Confidential Material, which list shall be available
for inspection by the Court.

b.

11

The witness who is a Qualified Person pursuant to Paragraph 6.e.
but who has not signed a copy of the Non-Disclosure Agreement
attached hereto as Exhibit “A” may be shown Confidential
Material during his or her testimony, but shall not be given a copy
of the Confidential Material to keep. Before reviewing his or her
transcribed testimony containing the Confidential Material for
purposes of completing the errata sheet, such witness shall sign a
copy of the Non-Disclosure Agreement attached hereto as Exhibit
“A” and shall consent to the exercise of personal jurisdiction by
this Court in any proceeding(s) to determine if the signatory
violated this Order.

12
13
14
15
16
17
18
19
20
21
22
23
24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

Page 12 of 20

c.

Any Confidential Material distributed or disclosed to a Qualified
Person who is a signatory of Exhibit “A” shall be returned to the
Party’s counsel who provided it to the Qualified Person or shall be
destroyed at the completion of the Qualified Person’s consultation
or representation in this case. Upon the request of the Designating
Party or the Court, each such Qualified Person shall execute an
affidavit stating that all such Confidential Material and copies
thereof have been returned or destroyed as required.

d.

1

The Court shall retain jurisdiction over any person or organization
authorized, as set forth above, to receive Confidential Material as
necessary to enforce the provisions of this Order.

2
3
4
5
6
7
8
9
10
11
12
13

9.

Non-Disclosure to Competitors.

express written consent or court order, in no event shall any disclosure of a Designating Party’s
Confidential Material or Confidential Material—Attorney Eyes Only be made to any known
Competitor of that Designating Party or to any person who, upon reasonable and good faith
inquiry, could be determined to be a current employee thereof or consultant doing research for a
competitor of a Designating Party irrespective of whether such consultant or person is retained as
an expert in this action.

14

a.

15
16
17
18
19
20

10.

a.

The Designating Party bears the burden of establishing confidentiality.

b.

Nothing in this Order shall constitute a waiver of any Party’s right to
object to the designation or non-designation of Documents, Testimony, or
Information as Confidential Material.

c.

If a Party contends that any Document, Testimony, or Information has
been erroneously or improperly designated as Confidential Material, or
has been improperly redacted, the material at issue shall be treated as
confidential under the terms of this Order until

23
24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

In the case of an expert or consultant, the expert or consultant is best
suited to know whether he or she is a Competitor of a Producing Party, or
if he or she is a current employee of or consultant doing research for a
Competitor of a Producing Party. Thus, the Parties will be required by the
Protective Order to make a full inquiry of the expert or consultant on these
topics before any information is shared with the expert or consultant.

Challenges to Designations.

21
22

Notwithstanding the foregoing, without

i.

1920339_1.docx 17859.1

the Parties reach a written agreement or

Page 13 of 20

ii.

1
2

this Court issues an order determining that the material is not
confidential and shall not be given confidential treatment.

d.

In the event that counsel for a Party receiving Confidential Material in
discovery objects to such designation, said counsel shall advise counsel
for the Designating Party, in writing, of such objections, the specific
Confidential Material (identified by Bates number, if possible) to which
each objection pertains, and the specific reasons and support for such
objections (the “Designation Objections”).

e.

Counsel for the Designating Party shall have 30 days from receipt of the
written Designation Objections to respond in writing as to whether the
designations will be maintained or withdrawn.

f.

If Designating Party does not de-designate the challenged Confidential
Material at issue, the parties shall meet in confer in good faith, by phone
or in-person, to discuss the Designation Objections and attempt to resolve
the dispute.

g.

If, after meeting and conferring in good faith, the Parties are unable to
resolve the dispute regarding the Designation Objections, the Party
challenging the designations may file a motion with the Court seeking an
order to de-designate (i.e., to rule to be not confidential) the Confidential
Material subject to the Designation Objections (the “Designation
Motion”).

3
4
5
6
7
8
9
10
11
12
13

i.

Pending a resolution of the Designation Motion by the Court, the
Designating Party is presumed to have designated the Confidential
Material in good faith, and any and all existing designations
challenged in such Motion shall remain in place.

ii.

14

The Designating Party shall have the burden of establishing the
applicability of its “confidential” designation.

15
16
17
11.

Use of Confidential Material in Court Prior to Trial. The Parties will use the

18
following procedure, absent further Court Order, for disclosing Confidential Material to the
19
Court prior to trial.
20
a.

Confidential Material is not to be filed with the Court except when
required in connection with motions or other matters pending before the
Court.

b.

The Party seeking to file Confidential Material or a document reflecting or
including Confidential Material in support of a motion or other proceeding
pending before the Court may first notify the Designating Party of its
intent and seek agreement to de-designate such material.

21
22
23
24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

Page 14 of 20

c.

1
2
3
4
5

12.

Redactions
a.

6
7
8
9

Producing Parties reserve the right to redact information that is
nonresponsive (including but not limited to proprietary financial material
and products unrelated to this litigation).

c.

Notwithstanding any of the foregoing provisions, nothing contained herein
shall be construed as a waiver of a party’s ability to challenge such
redactions pursuant to the procedures set forth in Section 11 herein. The
burden as to the propriety of any redaction remains on the Designating
Party at all times.

12
13
14
15
13.

Subpoena by Other Courts or by Agencies.
a.

If another court or an administrative agency requests, subpoenas, or orders
the disclosure of Confidential Material from a Party that has obtained such
material under the terms of this Order, the Party so requested, subpoenaed,
or ordered shall notify the Designating Party by electronic mail
transmission, express mail, or overnight delivery to counsel of record for
the Designating Party not later than ten (10) days prior to producing or
disclosing any Confidential Material, and shall furnish such counsel with a
copy of the requests, subpoena, or order. The recipient of the Subpoena
shall not disclose any Confidential Material pursuant to the Subpoena
prior to the date specified for production on the Subpoena.

b.

Upon receipt of this notice, the Designating Party may, in its sole
discretion and at its own cost, move to quash or limit the request,
subpoena, or order, otherwise oppose the disclosure of the Confidential
Material, or seek to obtain confidential treatment of such Confidential
Material, to the fullest extent available under law, by the person or entity

18
19
20
21
22
23
24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

The Social Security numbers, tax identification numbers and other
personal identifying information of employees in any records.

b.

11

17

To protect against unauthorized disclosure of Confidential Discovery
Material, and to comply with all applicable state and federal laws and
regulations, the Producing Party may redact from produced documents,
materials and other things, the following items, or any other item(s)
protected from disclosure by statute or decisional authority or agreed upon
by the parties or ordered by the Court:
i.

10

16

Absent any such agreement, if Confidential Material or a document
reflecting or including Confidential Material is submitted to or otherwise
disclosed to the Court in connection with a motion or other proceeding
pending before the Court, such Confidential Material shall be separately
filed under seal pursuant to Local Rule 10-5(b) and the directives imposed
by the Ninth Circuit Court of Appeals in Kamakana v. City and County of
Honolulu, 447 F.3d 1172 (9th Cir. 2006).

1920339_1.docx 17859.1

Page 15 of 20

issuing the request, subpoena, or order. The Party who received the
request, subpoena, or order shall not oppose or otherwise interfere with the
Designating Party’s effort to quash or limit the request, subpoena, or
order.

1
2
3

14.

4

Disposition of Confidential Material.
a.

Upon the request of any Party after the final conclusion of this action
(including without limitation any appeals and after the time for filing all
appellate proceedings has passed), each Party so requested shall return all
Confidential Material to counsel for the Party that produced it, shall
destroy it, or otherwise shall comply with an applicable order of the Court,
subject to the exception described herein.

b.

The return or destruction of Confidential Material under this paragraph
shall include, without limitation, all copies, and duplicates thereof,
including copies on any litigation-support review application, which shall
not be considered work product for purposes of this paragraph.

c.

The Parties shall certify, within 60 days of receipt of a written request for
certification, that all Confidential Material required to be returned or
destroyed have been so returned or destroyed.

d.

As an exception to the above requirements, and unless otherwise ordered
by the Court, counsel may retain: (a) copies of pleadings or other papers
that have been filed with the Court and that are Confidential Material or
that reflect, reference, or contain Confidential Material; (b) their work
product; and (c) official transcripts and exhibits thereto. The terms and
provisions of this Order shall continue to apply to any such materials
retained by counsel.

5
6
7
8
9
10
11
12
13
14
15
16

15.

Order Survives Termination of Action. After the termination of this action by

17

entry of a final judgment or order of dismissal, the provisions of this Order shall continue to be

18

binding. This Order is, and shall be deemed to be, an enforceable agreement between the Parties,

19

their agents, and their attorneys. The Parties agree that the terms of this Order shall be interpreted

20

and enforced by this Court.

21
22

16.

No Waiver of Any Privilege Upon Inadvertent Production
a.

23

The Parties have agreed that, in discovery in this lawsuit, they do not
intend to disclose information subject to a claim of attorney-client
privilege or attorney work product protection.

24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

Page 16 of 20

i.

This Order does not effect or constitute a waiver of any Party’s
right to withhold or redact information protected from disclosure
by the attorney-client privilege, work product doctrine, or any
other applicable privilege, protection, law, or regulation.

ii.

Pursuant to Federal Rule of Evidence 502(d) and Federal Rule of
Civil Procedure 26(b)(5)(B), the production or disclosure of any
discovery material that a Party (the “Disclosing Party”) thereafter
claims should not have been produced or disclosed based on
privilege or work product protections (“Inadvertently Disclosed
Information”), shall not constitute or be deemed a waiver or
forfeiture in whole or in part—in this or any other action— of any
claim of attorney-client privilege or work product immunity that
the Disclosing Party would otherwise be entitled to assert with
respect to the Inadvertently Disclosed Information and its subject
matter regardless of the circumstances of the production or
disclosure. As set forth below, such Inadvertently Disclosed
material shall be returned to the Producing Party or destroyed upon
request.

iii.

1

In accordance with the requirements of applicable law or rules of
procedure, and unless otherwise agreed by the Parties, with each
production of documents the Producing Party shall provide a
privilege log within sixty (60) days that identifies any information
or documents withheld on the basis of privilege, except for workproduct prepared by or at the direction of counsel after the
institution of this action for purposes of the litigation and
privileged communications with counsel after the institution of this
action.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

b.

Attorney’s Ethical Responsibilities. Nothing in this order overrides any
attorney’s ethical responsibilities to refrain from examining or disclosing
materials that the attorney knows or reasonably should know to be
privileged and to inform the Disclosing Party that such materials have
been produced. Any party receiving materials that, on their face, appear to
be covered by a privilege, shall not copy, distribute, or otherwise use in
any manner such materials and shall provide prompt notice of the
disclosure to the Producing Party to afford the Producing Party the
opportunity to request return of the materials, in accordance with the terms
of this paragraph.

c.

If a Disclosing Party notifies the Receiving Party of Inadvertently
Disclosed Information, the Receiving Party shall, within ten (10) court
days: (i) return or destroy (or in the case of electronically stored
information, delete) all copies of such information (including all notes or
other work product of the Receiving Party reflecting the contents of the
Inadvertently Disclosed Information) within their possession, custody, or
control—including all copies in the possession of experts, consultants, or

17
18
19
20
21
22
23
24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

Page 17 of 20

others to whom the Inadvertently Disclosed Information was provided—
and (ii) provide a certification of counsel that all such Inadvertently
Disclosed Information has been returned or destroyed. From the moment a
Disclosing Party provides notice of inadvertent production, a Receiving
Party shall not copy, distribute, or otherwise use in any manner the
disputed documents or information, and shall instruct all persons to whom
the Receiving Party has disseminated a copy of the documents or
information that the documents or information are subject to this Order
and may not be copied, distributed, or otherwise used pending a motion
and further notice from the Court. For purposes of this Order, Protected
Information that has been stored by the Receiving Party on a source of
electronically stored information that is not reasonably accessible, such as
backup storage media, is sequestered. If such data is retrieved, the
Receiving Party must promptly take steps to delete the restored protected
information.

1
2
3
4
5
6
7
8
d.

If the Receiving Party contests the claim of attorney-client privilege or
work product protection, the Receiving Party may—within five (5)
business days of receipt of the notice of disclosure—move the Court for an
Order compelling production of the Inadvertently Disclosed Information
(“Disclosure Motion”). Such a Disclosure Motion shall be filed or lodged
conditionally under seal and shall not assert as a ground for entering such
an Order the fact or circumstances of the inadvertent production. Pending
resolution of the Disclosure Motion, the Receiving Party must not use the
challenged information in any way or disclose it to any person other than
those required by law to be served with a copy of the sealed Disclosure
Motion. On any such Disclosure Motion, the Disclosing Party shall retain
the burden of establishing its privilege or work product claims. Nothing in
this paragraph shall limit the right of any Party to petition the Court for an
in camera review of the Inadvertently Disclosed Information.

e.

9

Rule 502(b). The provisions of Federal Rule of Evidence 502(b) are
inapplicable to the production of Protected Information under this Order.

10
11
12
13
14
15
16
17
18
19

17.

Inadvertent Production or Disclosure of Confidential Material.
a.

Inadvertent or unintentional disclosure, without the required
confidentiality designation, of any Document, Testimony, or Information
that the Disclosing Party intended to designate as Confidential Material
(“inadvertent production”) shall not be deemed a waiver in whole or in
part of the producing Party’s claim of confidentiality, either as to specific
documents and information disclosed or as to the same or related subject
matter.

b.

In the event that a Designating Party makes such an inadvertent
production, that Party shall contact the receiving Party within 30 days of
the discovery of the inadvertent production, or as promptly as reasonably

20
21
22
23
24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

Page 18 of 20

possible thereafter, and inform the receiving Party or Parties in writing of
the inadvertent production and the specific material at issue.

1
2

c.

Upon receipt of such notice, the receiving Party or Parties shall treat the
material identified in the notice as confidential until (i) the Parties agree to
non-confidential treatment of the subject material, or (ii) the Court, on
motion of any Party, issues an order addressing the appropriate treatment
of the subject material.

d.

Within ten court days of receiving notice of the inadvertently disclosed
Confidential Material, the receiving Party shall return or destroy all copies
of such Confidential Material and provide a certification of counsel that all
such Confidential Material has been returned or destroyed. Each receiving
Party shall notify every person or organization that received copies of or
access to the material identified in the notice that such material contains
Confidential Material.

3
4
5
6
7
8
9
10

/./././

11

/./././

12

/./././

13

/./././

14

/./././

15

/./././

16

/./././

17

/./././

18

/./././

19

/./././

20

/./././

21

/./././

22

/./././

23

/./././

24

/./././

KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

Page 19 of 20

e.

1

As promptly as reasonably possible thereafter, the Disclosing Party shall
re-produce the Confidential Material with the required legend.

2
3

STEWART SOKOL & LARKIN LLC

4

By:

5
6
7
8
9

LAW OFFICES OF DIETRICH &
SALAMONE, PLLC

/s/ Adam S. Heder
Jan D. Sokol (Pro Hac Vice)
Adam S. Heder (Pro Hac Vice)
2300 SW First Ave., Suite 200
Portland, OR 97201

By: /s/ Jay G. Trinnaman
Jay G. Trinnaman, Bar No. 9287
10161 Park Run Dr., Suite 150
Las Vegas, NV 89145

HOWARD & HOWARD ATTORNEYS
PLLC
Jennifer R. Lloyd, Bar No. 9617
Marisa L. Maskas, Bar No. 10928
3800 Howard Hughes Pkwy, Suite 1000
Las Vegas, NV 89169

Attorneys for Travelers Casualty and Surety
Company of America and Anderson Burton
Construction, Inc.

10
Attorneys for Plaintiff
11
12
13
14

KAEMPFER CROWELL
By: /s/ James E. Smyth
James E. Smyth, Bar No. 6506
Joni A. Jamison, Bar No. 11614
1980 Festival Plaza Drive, Suite 650
Las Vegas, NV 89135

15
Attorneys for Drax, Inc.
16
17

ORDER
IT IS SO ORDERED.

18
____________________________________
UNITED STATES MAGISTRATE JUDGE

19
20

1/20/17
DATED: ___________________________

21
22
23
24
KAEMPFER CROWELL
1980 Festival Plaza Drive
Suite 650
Las Vegas, Nevada 89135

1920339_1.docx 17859.1

Page 20 of 20