Oetzel v. Henderson Hyundai Superstore, Inc.

Filing 51

PROTECTIVE ORDER. Signed by Magistrate Judge George Foley, Jr on 5/23/2018. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:16-cv-02589-JCM-GWF Document 50 Filed 05/22/18 Page 1 of 11

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MOSS & BARNETT
A Professional Association
John P. Boyle (pro hac vice)
Terese A. West (pro hac vice)
150 South Fifth Street, Suite 1200
Minneapolis, Minnesota 55402
Telephone: [phone]
Email: [e-mail]
[e-mail]

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Attorneys for Defendant

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MOSS & BARNETT, P.A.

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150 South Fifth Street, Suite 1200, Minneapolis, MN 55402
612/877-5000 ∙ FAX [phone]

MORRIS LAW GROUP
Ryan M. Lower, No. 9108
Raleigh C. Thompson, No. 11296
411 East Bonneville Avenue, Suite 360
Las Vegas, Nevada 89101
Telephone: [phone]
Email: [e-mail]
[e-mail]

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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CRYSTAL L. OETZEL,

) Case No. 2:16-cv-02589-JCM-GWF
)
Plaintiff,
)
)
v.
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STIPULATED PROTECTIVE
)
ORDER
HYUNDAI CAPITAL AMERICA,
)
doing business as HYUNDAI MOTOR )
FINANCE,
)
)
Defendant.
)
)

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1.

PURPOSES AND LIMITATIONS

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Discovery in this action is likely to involve production of confidential,

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proprietary, or private information for which special protection may be warranted.

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Accordingly, the parties hereby stipulate to and petition the court to enter the

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following Stipulated Protective Order. The parties acknowledge that this Order does

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not confer blanket protection on all disclosures or responses to discovery. The

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protection it affords from public disclosure and use extends only to the limited

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information or items that are entitled to confidential treatment under the applicable

Case 2:16-cv-02589-JCM-GWF Document 50 Filed 05/22/18 Page 2 of 11
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legal principles, and it does not presumptively entitle parties to file confidential

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information under seal.

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2.

“Confidential” material may include the following documents and tangible

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“CONFIDENTIAL” MATERIAL

things produced or otherwise exchanged1:

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 Information regarding the financial affairs of the defendants including,

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without limitation, income, expenses, and bank account information;

MOSS & BARNETT, P.A.

150 South Fifth Street, Suite 1200, Minneapolis, MN 55402
612/877-5000 ∙ FAX [phone]

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 Information protected by Federal Rule of Civil Procedure 5.2;

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 Information subject to confidentiality agreements with non-parties or
any pre-existing confidentiality agreements between the parties;

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 Information that qualifies as a "trade secret" pursuant to the law of the

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jurisdiction where the trade secret was created, is stored or maintained;

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and
 Commercial information that is treated as confidential by the producing

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party and harm to the producing party’s business interests may

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reasonably result if disclosure is not limited to certain individuals in

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accordance with this Order;
 Information appropriately marked as “Confidential” pursuant to the

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terms of this Order.

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3.

SCOPE
The protections conferred by this agreement cover not only confidential

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material (as defined above), but also (1) any information copied or extracted from

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confidential material; (2) all copies, excerpts, summaries, or compilations of

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confidential material; and (3) any testimony, conversations, or presentations by

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These enumerated categories do not prejudice any party from challenging a
confidentiality designation pursuant to Section 6 of this Order on the basis that
confidential protection is not warranted, even if the information falls within one of
the enumerated categories.
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Case 2:16-cv-02589-JCM-GWF Document 50 Filed 05/22/18 Page 3 of 11
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parties or their counsel that might reveal confidential material. However, the

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protections conferred by this agreement do not cover information that is in the

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public domain or becomes part of the public domain through trial or otherwise.

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4.

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ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1

Basic Principles. A receiving party may use confidential material that

case only for prosecuting, defending, or attempting to settle this litigation.

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MOSS & BARNETT, P.A.

is disclosed or produced by another party or by a non-party in connection with this

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150 South Fifth Street, Suite 1200, Minneapolis, MN 55402
612/877-5000 ∙ FAX [phone]

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Confidential material may be disclosed only to the categories of persons and under

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the conditions described in this agreement. Confidential material must be stored and

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maintained by a receiving party at a location and in a secure manner that ensures

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that access is limited to the persons authorized under this agreement.

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4.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the designating party, a

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receiving party may disclose any confidential material only to:

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(a)

the receiving party’s counsel of record in this action, as well as

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employees of counsel to whom it is reasonably necessary to disclose the information

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for this litigation;

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(b)

the officers, directors, and employees (including in house

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counsel) of the receiving party to whom disclosure is reasonably necessary for this

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litigation, unless the parties agree that a particular document or material produced is

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for Attorney’s Eyes Only and is so designated;

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(c)

experts and consultants to whom disclosure is reasonably

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necessary for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);

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(d)

the court, court personnel, and court reporters and their staff;

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(e)

copy or imaging services retained by counsel to assist in the

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duplication of confidential material, provided that counsel for the party retaining the

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copy or imaging service instructs the service not to disclose any confidential
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Case 2:16-cv-02589-JCM-GWF Document 50 Filed 05/22/18 Page 4 of 11
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material to third parties and to immediately return all originals and copies of any

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confidential material;
(f)

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during their depositions, witnesses in the action to whom

Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the designating

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party or ordered by the court. Pages of transcribed deposition testimony or exhibits

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to depositions that reveal confidential material must be separately bound by the

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MOSS & BARNETT, P.A.

disclosure is reasonably necessary and who have signed the “Acknowledgment and

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150 South Fifth Street, Suite 1200, Minneapolis, MN 55402
612/877-5000 ∙ FAX [phone]

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court reporter and may not be disclosed to anyone except as permitted under this

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agreement;
(g)

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the author or recipient of a document containing the information

or a custodian or other person who otherwise possessed or knew the information;
(h)

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other parties, or counsel of record for other parties, in this

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lawsuit who have stipulated to this Order or whose clients are subject to this Order

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(this exception does not include confidential information or statements made or

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exchanged in connection with a mediation or settlement to the extent they are

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considered privileged or protected from discovery under federal or state law); or
(i)

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a Mediator and the Mediator's staff or other Dispute Resolution

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professional who signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A) in order to conduct a mediation between some or all of the parties.
4.3

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Filing Confidential Material. Before filing confidential material or

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discussing or referencing such material in court filings, the filing party shall make

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reasonable effort to confer with the designating party to determine whether the

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designating party will remove the confidential designation, whether the document

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can be redacted, or whether a motion to seal or stipulation and proposed order is

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warranted.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for

Protection. Each party or non-party that designates information or items for
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Case 2:16-cv-02589-JCM-GWF Document 50 Filed 05/22/18 Page 5 of 11
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protection under this agreement must take care to limit any such designation to

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specific material that qualifies under the appropriate standards. The designating

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party must designate for protection only those parts of material, documents, items,

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or oral or written communications that qualify, so that other portions of the material,

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documents, items, or communications for which protection is not warranted are not

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swept unjustifiably within the ambit of this agreement.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

MOSS & BARNETT, P.A.

150 South Fifth Street, Suite 1200, Minneapolis, MN 55402
612/877-5000 ∙ FAX [phone]

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber or delay the case development process or

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to impose unnecessary expenses and burdens on other parties) expose the

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designating party to sanctions.

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If it comes to a designating party’s attention that information or items that it

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designated for protection do not qualify for protection, the designating party must

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promptly notify all other parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided

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in this agreement (see, e.g., second paragraph of section 5.2 below), or as otherwise

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stipulated or ordered, disclosure or discovery material that qualifies for protection

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under this agreement must be clearly so designated before or when the material is

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disclosed or produced.

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(a)

Information in documentary form: (e.g., paper or electronic

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documents and deposition exhibits, but excluding transcripts of depositions or other

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pretrial or trial proceedings), the designating party must affix the word

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“CONFIDENTIAL” to each page that contains confidential material. If only a

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portion or portions of the material on a page qualifies for protection, the producing

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party also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins).

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(b)

Testimony given in deposition or in other pretrial or trial

proceedings: the parties must identify on the record, during the deposition, hearing,
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Case 2:16-cv-02589-JCM-GWF Document 50 Filed 05/22/18 Page 6 of 11
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or other proceeding, all protected testimony, without prejudice to their right to so

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designate other testimony after reviewing the transcript. Any party or non-party

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may, within fifteen days after receiving a deposition transcript, designate portions of

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the transcript, or exhibits thereto, as confidential.
(c)

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Other tangible items: the producing party must affix in a

information or item is stored the word “CONFIDENTIAL.” If only a portion or

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MOSS & BARNETT, P.A.

prominent place on the exterior of the container or containers in which the

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150 South Fifth Street, Suite 1200, Minneapolis, MN 55402
612/877-5000 ∙ FAX [phone]

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portions of the information or item warrant protection, the producing party, to the

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extent practicable, shall identify the protected portion(s).
5.3

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Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive

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the designating party’s right to secure protection under this agreement for such

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material. Upon timely correction of a designation, the receiving party must make

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reasonable efforts to ensure that the material is treated in accordance with the

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provisions of this agreement.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any party or non-party may challenge a

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designation of confidentiality at any time. Unless a prompt challenge to a

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designating party’s confidentiality designation is necessary to avoid foreseeable,

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substantial unfairness, unnecessary economic burdens, or a significant disruption or

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delay of the litigation, a party does not waive its right to challenge a confidentiality

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designation by electing not to mount a challenge promptly after the original

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designation is disclosed.

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6.2

Meet and Confer. The parties must make reasonable effort to resolve

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any dispute regarding confidential designations without court involvement. Any

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motion regarding confidential designations or for a protective order must include a

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certification, in the motion or in a declaration or affidavit, that the movant has

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engaged, or reasonably attempted to engage, in a good faith meet and confer
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Case 2:16-cv-02589-JCM-GWF Document 50 Filed 05/22/18 Page 7 of 11
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conference with other affected parties in an effort to resolve the dispute without

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court action. The certification must list the date, manner, and participants to the

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conference. A good faith effort to confer requires a face-to-face meeting or a

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telephone conference.
6.3

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Judicial Intervention. If the parties cannot resolve a challenge

retain confidentiality. The burden of persuasion in any such motion shall be on the

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MOSS & BARNETT, P.A.

without court intervention, the designating party may file and serve a motion to

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150 South Fifth Street, Suite 1200, Minneapolis, MN 55402
612/877-5000 ∙ FAX [phone]

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designating party. Frivolous challenges, and those made for an improper purpose

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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

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expose the challenging party to sanctions. All parties shall continue to maintain the

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material in question as confidential until the court rules on the challenge.

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7.

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PRODUCED IN OTHER LITIGATION, OR REQUESTED BY ANY NEW

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PARTY TO THIS LITIGATION

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PROTECTED MATERIAL SUBPOENAED OR ORDERED

If a party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” that party must:

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(a)

promptly notify the designating party in writing and include a copy of

the subpoena or court order;
(b)

promptly notify in writing the party who caused the subpoena or order

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to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this agreement. Such notification shall include a

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copy of this agreement; and

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(c)

cooperate with respect to all reasonable procedures sought to be

pursued by the designating party whose confidential material may be affected.

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If any additional parties are added into this litigation and they request access

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or copies of CONFIDENTIAL material, those additional parties shall be subject to

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Case 2:16-cv-02589-JCM-GWF Document 50 Filed 05/22/18 Page 8 of 11
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each and every of the restrictions on such CONFIDENTIAL information set forth

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herein.

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8.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

confidential material to any person or in any circumstance not authorized under this

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agreement, the receiving party must immediately (a) notify in writing the

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designating party of the unauthorized disclosures, (b) use its best efforts to retrieve

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MOSS & BARNETT, P.A.

If a receiving party learns that, by inadvertence or otherwise, it has disclosed

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150 South Fifth Street, Suite 1200, Minneapolis, MN 55402
612/877-5000 ∙ FAX [phone]

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all unauthorized copies of the protected material, (c) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this agreement, and

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(d) request that such person or persons execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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9.

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PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
When a producing party gives notice to receiving parties that certain

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inadvertently produced material is subject to a claim of privilege or other protection,

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the obligations of the receiving parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever

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procedure may be established in an e-discovery order or agreement that provides for

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production without prior privilege review. Parties shall confer on an appropriate

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non-waiver order under Fed. R. Evid. 502.

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10.

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NON TERMINATION AND RETURN OF DOCUMENTS
Within 60 days after the termination of this action, including all appeals, each

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receiving party, upon a written request from the designating party, must return all

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confidential material to the producing party, including all copies, extracts and

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summaries thereof. Alternatively, the parties may agree upon appropriate methods

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of destruction.

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Notwithstanding this provision, counsel are entitled to retain one archival
copy of all documents filed with the court, trial, deposition, and hearing transcripts,
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Case 2:16-cv-02589-JCM-GWF Document 50 Filed 05/22/18 Page 9 of 11
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correspondence, deposition and trial exhibits, expert reports, attorney work product,

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and consultant and expert work product, even if such materials contain confidential

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material. The confidentiality obligations imposed by this agreement shall remain in

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effect until a designating party agrees otherwise in writing or a court orders

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otherwise.

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(signatures on following page)

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MOSS & BARNETT, P.A.

150 South Fifth Street, Suite 1200, Minneapolis, MN 55402
612/877-5000 ∙ FAX [phone]

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Case 2:16-cv-02589-JCM-GWF Document 50 Filed 05/22/18 Page 10 of 11
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DATE: May 22, 2018
KAZEROUNI LAW GROUP, APC

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MOSS & BARNETT, P.A.

150 South Fifth Street, Suite 1200, Minneapolis, MN 55402
612/877-5000 ∙ FAX [phone]

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By: /s/ Michael Kind
Michael Kind, Esq.
6069 S. Fort Apache Rd., Ste. 100
Las Vegas, NV 89148
Telephone: [phone]
Email: [e-mail]
Attorneys for Plaintiff

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s/ Terese A. West
John P. Boyle (admitted pro hac vice)
Terese A. West (admitted pro hac vice)
150 South Fifth Street, Suite 1200
Minneapolis, MN 55402
Telephone: [phone]
Email: [e-mail];
[e-mail]
MORRIS LAW GROUP
Ryan M. Lower (Bar No. 9108)
Raleigh C. Thompson (Bar No. 11296)
900 Bank of America Plaza
300 South Fourth Street
Las Vegas, Nevada 89101
Email: [e-mail];
[e-mail]

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Attorneys for Defendant

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ORDER

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MOSS & BARNETT
A Professional Association

IT IS SO ORDERED.

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UNITED STATES MAGISTRATE JUDGE

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DATE:

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5/23/2018