Leany v. Zurich American Insurance Company

Filing 22

ORDER Granting 19 Stipulation for Protective Order. Signed by Magistrate Judge Peggy A. Leen on 4/6/17. (Copies have been distributed pursuant to the NEF - MR)

Download PDF
1 2 3 4 5 6 7 8 9 10 Abran E. Vigil Nevada Bar No. 7548 Maria A. Gall Nevada Bar No. 14200 Joseph P. Sakai Nevada Bar No. 13578 BALLARD SPAHR LLP 100 North City Parkway, Suite 1750 Las Vegas, Nevada 89106 Phone: (702) 471-7000 Fax: (702) 471-7070 Email: vigila@ballardspahr.com Email: gallm@ballardspahr.com Email: sakaij@ballardspahr.com Attorneys for Defendant and CounterClaimant Zurich American Insurance Company (702) 471-7000 FAX (702) 471-7070 UNITED STATES DISTRICT COURT 12 LAS VEGAS, NEVADA 89106 BALLARD SPAHR LLP 100 NORTH CITY PARKWAY, SUITE 1750 11 DISTRICT OF NEVADA 13 TODD L. LEANY, 14 Plaintiff, 15 v. 16 ZURICH AMERICAN INSURANCE COMPANY, a New York corporation, 17 Defendant. 18 19 20 21 22 23 24 ZURICH AMERICAN INSURANCE COMPANY, Counterclaimant, v. TODD L. LEANY, CounterDefendant. ) CASE NO. 2:16-cv-01890-RFB-PAL ) ) ) ) ) STIPULATED PROTECTIVE ORDER ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 25 26 27 The parties to this action, by their respective counsel, having agreed to the following, and for good cause shown, IT IS HEREBY ORDERED as follows: 28 DMWEST #16294294 v2 1 1. PURPOSE AND LIMITATIONS. 2 Disclosure and discovery activity in this action may involve production of 3 confidential, proprietary, or private information for which special protection from 4 public disclosure may be warranted. The parties acknowledge that this Order does 5 not confer blanket protections on all disclosures or responses to discovery and that 6 the protection it affords extends only to the limited information or items that are 7 entitled under law to treatment as confidential. 8 2. SCOPE. (702) 471-7000 FAX (702) 471-7070 may be subject to discovery, including subpoenaed documents (hereinafter 12 LAS VEGAS, NEVADA 89106 requests, and all deposition testimony and exhibits and any other materials which 11 BALLARD SPAHR LLP All documents produced in the course of discovery, all responses to discovery 10 100 NORTH CITY PARKWAY, SUITE 1750 9 collectively “documents”), shall be subject to this stipulated protective order 13 concerning confidential information as set forth below. Any party, or any third party 14 who 15 CONFIDENTIAL but only after review of the documents by an attorney who has, in 16 good faith, determined that the documents contain “Confidential Information,” as 17 defined below, and pursuant to the procedure set forth below. 18 produces documents in this litigation, may designate 3. documents as CONFIDENTIAL INFORMATION. 19 “Confidential Information” shall mean any information, testimony, document, 20 or thing that contains confidential or proprietary information, such as trade secret, 21 financial information, or commercial information concerning a business’s customers, 22 vendors, personnel and operations. Nothing in this paragraph shall be construed as 23 an exclusion of any other material from the definition of “Confidential Information.” 24 Confidential Information does not include information that: (a) is in the public 25 domain at the time of disclosure; (b) becomes part of the public domain through no 26 fault of the Receiving Party; (c) the Receiving Party can show was in its rightful and 27 lawful possession at the time of disclosure; or (d) the Receiving Party lawfully 28 receives from a Non-Party later without restriction as to disclosure. 2 DMWEST #16294294 v2 1 2 3 4 5 4. OTHER DEFINITIONS. Party: any party to this action and attorney(s) of record for a Party in this action, including their associates, paralegals, and support/clerical staff. Non-Party: any individual, corporation, association, or natural person or entity other than a Party. to protection as confidential; (b) the Designating Party fails to apply to the Court for 10 an order designating the material confidential within the time period specified in 11 Section 9 below; or (c) the Designating Party withdraws its confidentiality 12 (702) 471-7000 FAX (702) 471-7070 the confidentiality designation and (a) the Court decides such material is not entitled 9 LAS VEGAS, NEVADA 89106 a Party or Non-Party as “CONFIDENTIAL,” unless the Receiving Party challenges 8 BALLARD SPAHR LLP Protected Material: any disclosure or discovery material that is designated by 7 100 NORTH CITY PARKWAY, SUITE 1750 6 designation in writing. 13 14 15 16 Producing Party: a Party or Non-Party that produces disclosures or discovery material in this action. Receiving Party: a Party that receives disclosures or discovery material from a Producing Party. 17 Designating Party: a Party or Non-Party that designates information or items 18 that it produces in disclosures or in responses to discovery as Protected Material. The 19 Party or Non-Party designating information or items as Protected Material bears the 20 burden of establishing good cause for the confidentiality of all such items. 21 22 Challenging Party: a party that elects to initiate a challenge to a Designating Party’s confidentiality designation. 23 Arbitration: the arbitration between Zurich American Insurance Company, as 24 claimant, and Century Steel, Inc., as respondent, currently pending before the 25 American Arbitration Association as Case No. 01-16-0003-1446. 26 Arbitrators: the arbitrators appointed to the Arbitration, Richard J. Collier, 27 Esq., Thomas G. Ryan, Esq., and William C. Turner, Esq., and any further arbitrator 28 that may be appointed in the Arbitration. 3 DMWEST #16294294 v2 1 5. FORM AND TIMING OF DESIGNATION. 2 Protected Material shall be so designated by the Producing Party by placing or 3 affixing the word “CONFIDENTIAL” on the document. Documents shall be 4 designated “CONFIDENTIAL” prior to, or contemporaneously with, the production or 5 disclosure of the documents. 6 Portions of depositions shall be deemed CONFIDENTIAL only if designated as 7 such when the deposition is taken or within fourteen business days after receipt of 8 the transcript. Such designation shall be specific as to the portions to be protected. limit “CONFIDENTIAL” designations to specific materials that qualify for protection 11 under the appropriate standards. (702) 471-7000 FAX (702) 471-7070 12 LAS VEGAS, NEVADA 89106 BALLARD SPAHR LLP A Designating Party must exercise restraint and make good faith efforts to 10 100 NORTH CITY PARKWAY, SUITE 1750 9 Inadvertent or unintentional production of Protected Material without prior 13 designation as “CONFIDENTIAL” shall not be deemed a waiver, in whole or in part, 14 of the right to designate documents as Protected Material as otherwise allowed by 15 this Order. 16 produced by another Party constitute Protected Material by informing the opposing 17 Party by following the procedures set forth herein for a Designated Party. 18 19 6. Further, a Party may assert that disclosures or discovery material PROTECTION OF PROTECTED MATERIAL. a. General Protections. Protected Material shall not be used or 20 disclosed by the parties or counsel for the parties or any other persons identified 21 below (at ¶ 6.b.) for any purpose whatsoever other than preparing for and conducting 22 this litigation (including any appeal) and the Arbitration. 23 b. Qualified Receiving Parties and Limited Third Party Disclosures. 24 Protected Material shall be held in confidence by each qualified Receiving 25 Party to whom it is disclosed, shall be used only for purposes of this action and/or the 26 Arbitration, and shall not be disclosed to any person who is not a qualified recipient. 27 All Protected Material shall be carefully maintained so as to preclude access by 28 persons who are not qualified Receiving Parties. 4 DMWEST #16294294 v2 1 Subject to these requirements, in addition to Parties, and the Court, the 2 following categories of persons may be allowed to review Protected Material pursuant 3 to this Order after executing an acknowledgment (in the form set forth at Exhibit A 4 hereto), that he or she has read and understands the terms of this Order and is 5 bound by it: 6 (1) Any officers, directors, or designated employees of a Party deemed 7 necessary by counsel of record in this action to aid in the prosecution, defense, or 8 settlement of this action; 9 10 (2) Professional outside vendors for attorneys of record (such as copying services and translators and interpreters); (702) 471-7000 FAX (702) 471-7070 (3) Deposition notaries and staff; 12 LAS VEGAS, NEVADA 89106 BALLARD SPAHR LLP 100 NORTH CITY PARKWAY, SUITE 1750 11 (4) The author of any document designated as CONFIDENTIAL or the 13 14 original source of Confidential Information contained therein; (5) Persons other than legal counsel who have been retained or specially 15 employed by a party as an expert witness for purposes of this lawsuit or to perform 16 investigative work or fact research; 17 (6) Deponents during the course of their depositions; 18 (7) Counsel for issuers of insurance policies under which any issuer may be 19 liable to satisfy part or all of a judgment that may be entered in these proceedings or 20 indemnify or reimburse payments or costs associated with these proceedings; 21 22 23 (9) Any other person as to whom the Producing Party has consented to disclosure in advance and in writing, on notice to each Party hereto. c. Control of Documents. Counsel for Parties shall take reasonable 24 efforts to prevent unauthorized disclosure of Protected Material pursuant to the 25 terms of this Order. No copies of Protected Material shall be made except by or on 26 behalf of attorneys of record, in-house counsel or the parties in this action. 27 28 d. Copies. Any person making copies of Protected Material shall maintain all copies within their possession or the possession of those entitled to 5 DMWEST #16294294 v2 1 access to such information under the Protective Order. 2 immediately affixed with the designation “CONFIDENTIAL” if the word does not 3 already appear on the copy. All such copies shall be afforded the full protection of 4 this Order. All copies shall be Stipulated Protective Order, the Receiving Party must immediately (a) notify in 9 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts 10 to retrieve all copies of the Protected Material, (c) inform the person or persons to 11 whom unauthorized disclosures were made of all the terms of this Order, and (d) 12 (702) 471-7000 FAX (702) 471-7070 Protected Material to any person or in any circumstance not authorized under this 8 LAS VEGAS, NEVADA 89106 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 7 BALLARD SPAHR LLP 7. 6 100 NORTH CITY PARKWAY, SUITE 1750 5 request such person or persons to execute the “Acknowledgment and Agreement to 13 Be Bound by Stipulated Protective Order” (Exhibit A). 14 8. 15 UNAUTHORIZED DISCLOSURE. IN COURT. FILING OF PROTECTED MATERIALS; PROTECTED MATERIALS 16 Subject to the Federal Rules of Evidence, Protected Material may be filed with 17 the Court or offered in evidence or hearing or trial of this case. This Order does not 18 seal court records in this case or apply to disclosure of Protected Material at trial. 19 Further, the parties understand that documents may be filed under seal only with 20 the permission of the Court after proper motion. Further, the fact that documents 21 have been designated as “CONFIDENTIAL” shall not be admissible evidence that 22 the documents in fact contain information entitled to protection from disclosure 23 under the law. 24 However, in the event a Party seeks to file Protected Materials with the Court, 25 those documents shall be filed under seal pursuant to Rule 10-5(b) of the Local Rules 26 of Practice for the U.S. District Court of Nevada and the Ninth Circuit’s decision in 27 Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). The Party 28 filing such Protected Materials may assert in the accompanying motion any reasons 6 DMWEST #16294294 v2 Federal Rules of Civil Procedure. 5 circumstances making prior consultation impractical or inappropriate, the Party 6 seeking to submit the Protected Material to the Court shall first consult with the 7 Designating Party. If the sole ground for a motion to seal is that the opposing party 8 (or non-party) has designated a document as subject to protection pursuant to this 9 Stipulated Protective Order, the movant must notify the opposing party (or non- 10 party) at least seven days prior to filing the designated document. The Designating 11 Party must then make a good faith determination if the relevant standard for sealing 12 (702) 471-7000 FAX (702) 471-7070 its position that the Protected Material merits protection under Rule 26(c) of the 4 LAS VEGAS, NEVADA 89106 Designating Party, who must be properly noticed, may likewise file a motion to assert 3 BALLARD SPAHR LLP why the Protected Materials should not, in fact, be kept under seal and the 2 100 NORTH CITY PARKWAY, SUITE 1750 1 is met. To the extent the Designating Party does not believe the relevant standard 13 for sealing can be met, it shall indicate that the document may be filed publicly no 14 later than four days after receiving notice of the intended filing. To the extent the 15 Designating Party believes the relevant standard for sealing can be met, it shall 16 provide a declaration supporting that assertion no later than four days after 17 receiving notice of the intended filing. 18 declaration to its motion to seal the designated material. If the Designating Party 19 fails to provide such a declaration in support of the motion to seal, the filing party 20 shall then file a motion to seal so indicating and the Court may order the document 21 filed in the public record. In such instances, absent extraordinary The filing party shall then attach that CHALLENGES TO PROTECTED MATERIAL. 22 9. 23 Any designation of Protected Material is subject to challenge. The following 24 25 26 27 28 procedures shall apply to any such challenge: a. Burden. The burden of proving the necessity of a “CONFIDENTIAL” designation remains with the party asserting confidentiality. b. Notice; Opportunity to Challenge. A party who contends that Protected Material is not entitled to confidential treatment shall give written notice 7 DMWEST #16294294 v2 1 to the party who affixed the “CONFIDENTIAL” designation of the specific basis for 2 the challenge. The party who so designated the documents shall have ten (10) days 3 from service of the written notice to determine if the dispute can be resolved without 4 judicial intervention and, 5 “CONFIDENTIAL” designation, and the status as Protected Material. c. 6 if not, to move for an Order confirming the Treatment as Protected Material Until Order or Withdrawal. (1) the Party who claims that the documents are Protected Material withdraws such 11 designation in writing; (2) the Party who claims that the documents are confidential 12 (702) 471-7000 FAX (702) 471-7070 Material subject to the full protections of this Order until one of the following occurs: 10 LAS VEGAS, NEVADA 89106 previously designated “CONFIDENTIAL” shall continue to be treated as Protected 9 BALLARD SPAHR LLP Notwithstanding any challenge to the designation of documents as such, all material 8 100 NORTH CITY PARKWAY, SUITE 1750 7 fails to move timely for an Order designating the documents as confidential as set 13 forth in paragraph 9.b. above; or (3) the Court rules that the documents are not 14 Protected Material and/or should no longer be designated as “CONFIDENTIAL.” d. 15 No Waiver. Challenges to the confidentiality of documents may 16 be made at any time and are not waived by the failure to raise the challenge at the 17 time of initial disclosure or designation. DURATION; CONCLUSION OF LITIGATION. 18 10. 19 All provisions of this Order restricting the use of Protected Material shall 20 continue to be binding after the conclusion of the litigation unless otherwise agreed 21 or ordered. Within 30 days of the final termination of this matter, which would be 22 either a final judgment on all claims or stipulation and order for dismissal with 23 prejudice, all documents and information designated as CONFIDENTIAL by a 24 Designating Party and which has not been challenged, including any copies, or 25 documents containing information taken therefrom, shall be returned to the 26 Designating Party. In the alternative, within 30 days of the final termination of this 27 case, which would be either a final judgment on all claims or stipulation and order for 28 dismissal with prejudice, all such documents, including copies, may be shredded or 8 DMWEST #16294294 v2 1 disposed of in a manner to ensure the destruction thereof and a declaration certifying 2 such destruction or disposal provided to the Designating Party. To the extent a party 3 has designated portions of a deposition transcript as CONFIDENTIAL, the non- 4 designating party shall dispose of or completely redact those portions deemed 5 CONFIDENTIAL, but is under no obligation or duty to shred or dispose of the 6 remainder of the deposition transcript that was not designated CONFIDENTIAL. 7 8 11. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION. (702) 471-7000 FAX (702) 471-7070 Party, the Party must so notify the Designating Party, in writing (by e-mail or fax, if 12 LAS VEGAS, NEVADA 89106 would compel disclosure of Protected Material designated by another Party or Non- 11 BALLARD SPAHR LLP If a Party is served with a subpoena or an order issued in other litigation that 10 100 NORTH CITY PARKWAY, SUITE 1750 9 possible) within three (3) court days after receiving the subpoena or order. Such 13 notification must include a copy of the subpoena or court order. ORDER SUBJECT TO MODIFICATION. 14 12. 15 This Order shall be subject to modification on motion of any Party or any other 16 person who may show an adequate interest in the matter to intervene for purposes of 17 addressing the scope and terms of this Order. The Order shall not, however, be 18 modified until the Parties shall have been given notice and an opportunity to be 19 heard on the proposed modification. NO JUDICIAL DETERMINATION. 20 13. 21 This Order is entered based on the representations and agreements of the 22 Parties and for the purpose of facilitating discovery. 23 construed or presented as a judicial determination that any specific document or item 24 of information designated as CONFIDENTIAL by counsel is subject to protection 25 under Rule 26(c) of the Federal Rules of Civil Procedure or otherwise until such time 26 as a document-specific ruling shall have been made. 27 28 9 DMWEST #16294294 v2 Nothing herein shall be 1 14. 2 3 MISCELLANEOUS. a. Right to Further Relief. Nothing is this Order abridges the right of any person to seek its modification by the Court in the future. 4 b. Right to Assert Other Objections. By stipulating to the entry of 5 this Order, no Party waives any right it otherwise would have to object to disclosing 6 or producing any information or item on any ground not addressed in this Order. 7 Similarly, no Party waives any right to object on any ground to use in evidence of any 8 of the material covered by this Protective Order. 9 10 (702) 471-7000 FAX (702) 471-7070 12 LAS VEGAS, NEVADA 89106 BALLARD SPAHR LLP 100 NORTH CITY PARKWAY, SUITE 1750 11 13 14 15 16 17 18 19 15. PERSONS BOUND UPON ENTRY OF ORDER. This Order shall take effect when entered and shall be immediately binding upon the Parties (as defined herein). Dated this 4th day of April, 2017. BALLARD SPAHR LLP ALBRIGHT, ALBRIGHT STODDARD, WARNICK By: /s/ Joseph P. Sakai Abran E. Vigil Nevada Bar No. 7548 Maria A. Gall Nevada Bar No. 14200 Joseph P. Sakai Nevada Bar No. 13578 100 North City Parkway, Suite 1750 Las Vegas, Nevada 89106 By: /s/ William H. Stoddard, Jr. D. Chris Albright, Esq. Nevada Bar No. 4904 William H. Stoddard, Jr., Esq. Nevada Bar No. 8679 801 South Rancho Drive, Suite D4 Las Vegas, Nevada 89106 Attorneys for Plaintiff/CounterDefendant Todd L. Leany 20 Attorneys for Defendant/Counterclaimant Zurich 21 American Insurance Company 22 23 ORDER 24 IT IS SO ORDERED. 25 Dated this 6th day of , 2017. April 26 27 UNITED STATES MAGISTRATE JUDGE 28 10 DMWEST #16294294 v2 & EXHIBIT A EXHIBIT A 1 ACKNOWLEDGEMENT OF UNDERSTANDING 2 AND AGREEMENT TO BE BOUND 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 TODD L. LEANY, 7 Plaintiff, 8 v. 9 ZURICH AMERICAN INSURANCE COMPANY, a New York corporation, 10 Defendant. (702) 471-7000 FAX (702) 471-7070 12 LAS VEGAS, NEVADA 89106 BALLARD SPAHR LLP 100 NORTH CITY PARKWAY, SUITE 1750 11 13 14 15 16 17 ZURICH AMERICAN INSURANCE COMPANY, Counterclaimant, v. TODD L. LEANY, CounterDefendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 2:16-cv-01890-RFB-PAL ACKNOWLEDGEMENT OF UNDERSTANDING AND AGREEMENT TO BE BOUND 18 19 The undersigned hereby acknowledges that he or she has read the Stipulated 20 Protective Order dated __________________________, 2017, in the above-captioned 21 action, understands the terms thereof, and agrees to be bound by such terms. The 22 undersigned submits to the jurisdiction of the United States District Court for the 23 District of Nevada in the matter relating to the Order and understands that the 24 terms of said Order obligate him/her to use discovery materials designated 25 CONFIDENTIAL solely for the purposes of the above-captioned action or the 26 Arbitration currently pending before the American Arbitration Association as Case 27 No. 01-16-0003-1446, and not to disclose any such Protected Material to any person, 28 firm, entity, or concern. DMWEST #16294403 v1 1 2 3 4 5 6 7 The undersigned acknowledges that violation of the Stipulated Protective Order may result in penalties for contempt of court. Name: ___________________________________________ Job Title: ________________________________________ Employer: ________________________________________ Business Address: _________________________________ _________________________________ _________________________________ 8 9 10 ___________________________ Date ______________________________________ Signature (702) 471-7000 FAX (702) 471-7070 12 LAS VEGAS, NEVADA 89106 BALLARD SPAHR LLP 100 NORTH CITY PARKWAY, SUITE 1750 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 DMWEST #16294403 v1

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?