Cirrus Aviation Services, LLC v. Cirrus Design Corporation

Filing 46

STIPULATED PROTECTIVE ORDER re 44 Stipulation. Signed by Magistrate Judge George Foley, Jr on 1/30/2019. (Copies have been distributed pursuant to the NEF - MMM)

Case 2:16-cv-02656-JAD-GWF Document 44 Filed 01/29/19 Page 1 of 13

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Michael J. McCue (Nevada Bar #6055)
Meng Zhong (Nevada Bar #12145)
LEWIS ROCA ROTHGERBER CHRISTIE LLP
3993 Howard Hughes Parkway, Suite 600
Las Vegas, NV 89169-5996
[phone] (phone)
E-mail: [e-mail]
E-mail: [e-mail]

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Attorneys for Defendant and Counter-Claimant
Cirrus Design Corporation

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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CIRRUS AVIATION SERVICES, LLC,
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Case No. 2:16-cv-2656-JAD-GWF
Plaintiff and Counter-Defendant,

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v.

PROPOSED PROTECTIVE ORDER

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CIRRUS DESIGN CORPORATION,
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Defendant and Counter-Plaintiff.
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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and for good cause,

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IT IS HEREBY ORDERED THAT:

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This Protective Order shall govern any record of information produced in this

Scope of Protection

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action and designated pursuant to this Protective Order, including all designated deposition

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testimony, all designated testimony taken at a hearing or other proceeding, all designated

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deposition exhibits, interrogatory answers, admissions, documents and other discovery

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materials, whether produced informally or in response to interrogatories, requests for

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admissions, requests for production of documents or other formal methods of discovery.

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This Protective Order shall also govern any designated record of information

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produced in this action pursuant to required disclosures under any federal procedural rule

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or local rule of the Court and any supplementary disclosures thereto.

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This Protective Order shall apply to the parties and to any nonparty from whom
discovery may be sought.
Nonparties may challenge the confidentiality of the protected information by filing a

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motion to intervene and a motion to de-designate.

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Definitions
(a)

The term PROTECTED INFORMATION shall mean confidential or

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proprietary technical, scientific, financial, business, health, or medical information

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designated as such by the producing party.

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(b)

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PROTECTED INFORMATION.

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3.

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The term CONFIDENTIAL INFORMATION shall mean all

Designation of Information
(a)

Documents and things produced or furnished during the course of

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this action shall be designated as containing CONFIDENTIAL INFORMATION, by

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placing on each page, each document (whether in paper or electronic form), or each thing a

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legend substantially as follows:

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CONFIDENTIAL INFORMATION

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(b)

A party may designate information disclosed at a deposition as

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CONFIDENTIAL INFORMATION by requesting the reporter to so designate the

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transcript at the time of the deposition.

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(c)

A producing party shall designate its discovery responses, responses

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to requests for admission, briefs, memoranda, and all other papers sent to the Court or to

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opposing counsel as containing CONFIDENTIAL INFORMATION when such papers are

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served or sent.

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(d)

A party shall designate information disclosed at a hearing or trial as

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CONFIDENTIAL INFORMATION by requesting the Court, at the time the information is

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proffered or adduced, to receive the information only in the presence of those persons

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designated to receive such information and Court personnel, and to designate the transcript

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appropriately.

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(e)

The parties will use reasonable care to avoid designating any

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documents or information as CONFIDENTIAL INFORMATION that is not entitled to

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such designation or which is generally available to the public. The parties shall designate
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only that part of a document or deposition that is CONFIDENTIAL INFORMATION,

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rather than the entire document or deposition. For example, if a party claims that a

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document contains pricing information that is CONFIDENTIAL, the party will designate

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only that part of the document setting forth the specific pricing information as

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CONFIDENTIAL INFORMATION, rather than the entire document.

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4.

Disclosure and Use of Confidential Information

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Information that has been designated CONFIDENTIAL INFORMATION shall be

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disclosed by the receiving party only to Qualified Recipients. All Qualified Recipients shall

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hold such information received from the disclosing party in confidence, shall use the

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information only for purposes of this action and for no other action, and shall not use it for

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any business or other commercial purpose, and shall not use it for filing or prosecuting any

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patent application (of any type) or patent reissue or reexamination request, and shall not

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disclose it to any person, except as hereinafter provided. All information that has been

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designated CONFIDENTIAL INFORMATION shall be carefully maintained so as to

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preclude access by persons who are not qualified to receive such information under the

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terms of this Order.

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5.

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For purposes of this Order, “Qualified Recipient" means

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Qualified Recipients

(a)

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For CONFIDENTIAL INFORMATION:
(1)

Outside counsel of record for the parties in this action, and

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the partners, associates, secretaries, paralegal assistants, and employees of such counsel to

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the extent reasonably necessary to render professional services in the action, outside

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copying services, document management services and graphic services;

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(2)

Court officials involved in this action (including Court

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reporters, persons operating video recording equipment at depositions, and any special

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master appointed by the Court);

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(3)

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upon such terms as the Court may deem proper;
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Any person designated by the Court in the interest of justice,

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(4)

Any witness during the course of discovery, so long as it is

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stated on the face of each document designated CONFIDENTIAL INFORMATION being

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disclosed that the witness to whom a party is seeking to disclose the document was either

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an author, recipient, or otherwise involved in the creation of the document. Where it is not

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stated on the face of the confidential document being disclosed that the witness to whom a

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party is seeking to disclose the document was either an author, recipient, or otherwise

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involved in the creation of the document, the party seeking disclosure may nonetheless

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disclose the confidential document to the witness, provided that: (i) the party seeking

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disclosure has a reasonable basis for believing that the witness in fact received or reviewed

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the document, (ii) the party seeking disclosure provides advance notice to the party that

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produced the document, and (iii) the party that produced the document does not inform the

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party seeking disclosure that the person to whom the party intends to disclose the document

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did not in fact receive or review the documents. Nothing herein shall prevent disclosure at a

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deposition of a document designated CONFIDENTIAL INFORMATION to the officers,

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directors, and managerial level employees of the party producing such CONFIDENTIAL

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INFORMATION, or to any employee of such party who has access to such

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CONFIDENTIAL INFORMATION in the ordinary course of such employee’s

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employment; and

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(5)

Any designated arbitrator or mediator who is assigned to hear

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this matter, or who has been selected by the parties, and his or her staff, provided that such

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individuals agree in writing, pursuant to the Disclosure Agreement, to be bound by the

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terms of this Order.

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(6)

In-house counsel for a party to this action who are acting in a

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legal capacity and who are actively engaged in the conduct of this action, and the secretary

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and paralegal assistants of such counsel to the extent reasonably necessary;

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(7)

The insurer of a party to litigation and employees of such

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insurer to the extent reasonably necessary to assist the party’s counsel to afford the insurer

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an opportunity to investigate and evaluate the claim for purposes of determining coverage
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and for settlement purposes; and

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(8)

Representatives, officers, or employees of a party as

necessary to assist outside counsel with this litigation.
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Use of Protected Information
(a)

In the event that any receiving party’s briefs, memoranda, discovery

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requests, requests for admission, or other papers of any kind that are served or filed include

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another party’s CONFIDENTIAL INFORMATION, the papers must be appropriately

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designated, redacted if necessary, and filed under seal if necessary, pursuant to any

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applicable Local Rules of the District of Nevada, including LR IA 10-5 (“Sealed

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Documents”), LR IC 6-1 (“Redaction”), and LR IC 4-1 (“Service”).

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(b)

All documents, including attorney notes and abstracts, that contain

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another party’s CONFIDENTIAL INFORMATION, shall be handled as if they were

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designated pursuant to paragraph 4.

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(c)

Documents, papers, and transcripts that are filed with the Court and

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contain any other party’s CONFIDENTIAL INFORMATION shall be filed in accordance

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with LR IA 10-5 (“Sealed Documents”).

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(d)

To the extent that documents are reviewed by a receiving party prior

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to production, any knowledge learned during the review process will be treated by the

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receiving party as CONFIDENTIAL INFORMATION until such time as the documents

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have been produced, at which time any stamped classification will control. No photograph

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or any other means of duplication, including but not limited to electronic means, of

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materials provided for review prior to production is permitted before the documents are

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produced with the appropriate stamped classification.

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(e)

In the event that any question is asked at a deposition with respect to

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which a party asserts that the answer requires the disclosure of CONFIDENTIAL

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INFORMATION, such question shall nonetheless be answered by the witness fully and

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completely. Prior to answering, however, all persons present shall be advised of this Order

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by the party making the confidentiality assertion and, all persons who are not allowed to
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obtain such information pursuant to this Order, other than the witness, shall leave the room

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during the time in which this information is disclosed or discussed.

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(f)

Nothing in this Protective Order shall bar or otherwise restrict

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outside counsel from rendering advice to his or her client with respect to this action and, in

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the course thereof, from relying in a general way upon his examination of materials

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designated CONFIDENTIAL INFORMATION, provided, however, that in rendering such

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advice and in otherwise communicating with his or her clients, such counsel shall not

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disclose the specific contents of any materials designated CONFIDENTIAL

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INFORMATION to persons not authorized to view such information pursuant to this

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Order.

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7.

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Inadvertent Failure to Designate
(a)

In the event that a producing party inadvertently fails to designate

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any of its information pursuant to paragraph 4, it may later designate by notifying the

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receiving parties in writing. The receiving parties shall take reasonable steps to see that the

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information is thereafter treated in accordance with the designation.

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(b)

It shall be understood however, that no person or party shall incur

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any liability hereunder with respect to disclosure that occurred prior to receipt of written

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notice of a belated designation.

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8.

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Challenge to Designation
(a)

Any receiving party may challenge a producing party’s designation

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at any time. A failure of any party to expressly challenge a claim of confidentiality or any

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document designation shall not constitute a waiver of the right to assert at any subsequent

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time that the same is not in-fact confidential or not an appropriate designation for any

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reason.

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(b)

Any receiving party may disagree with the designation of any

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information received from the producing party as CONFIDENTIAL INFORMATION. In

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that case, any receiving party desiring to disclose or to permit inspection of the same

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otherwise than is permitted in this Order, may request the producing party in writing to
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change the designation of a document or documents, stating with particularity the reasons

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for that request, and specifying the category to which the challenged document(s) should be

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de-designated. The producing party shall then have seven (7) days from the date of service

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of the request to:

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(i)

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advise the receiving parties whether or not it persists in such
designation; and

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(ii)

if it persists in the designation, to explain the reason for the

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particular designation and to state its intent to seek a

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protective order or any other order to maintain the

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designation.

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(c)

If no response is made within seven (7) days after service of the

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request under subparagraph (b), the information will be de-designated to the category

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requested by the receiving party. If, however, the request under subparagraph (b) above is

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responded to under subparagraph (b)(i) and (ii), seven (7) the producing party may then

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move the Court for a protective order or any other order to maintain the designation. The

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burden of proving that the designation is proper shall be upon the producing party. If no

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such motion is made within seven (7) days after the statement to seek an order under

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subparagraph (b)(ii), the information will be de-designated to the category requested by the

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receiving party. In the event objections are made and not resolved informally and a motion

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is filed, disclosure of information shall not be made until the issue has been resolved by the

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Court (or to any limited extent upon which the parties may agree).

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No party shall be obligated to challenge the propriety of any designation when

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made, and failure to do so shall not preclude a subsequent challenge to the propriety of

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such designation.

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(d)

With respect to requests and applications to remove or change a

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designation, information shall not be considered confidential or proprietary to the

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producing party if:

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///
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(i)

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the information in question has become available to the
public through no violation of this Order; or

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(ii)

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the information was known to any receiving party prior to its
receipt from the producing party; or

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(iii)

the information was received by any receiving party without

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restrictions on disclosure from a third party having the right

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to make such a disclosure.

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9.

Inadvertently Produced Privileged Documents

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The parties hereto also acknowledge that regardless of the producing party’s

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diligence an inadvertent production of attorney-client privileged or attorney work product

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materials may occur. In accordance with Fed. R. Civ. P. 26(b)(5) and Fed. R. Evid. 502,

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they therefore agree that if a party through inadvertence produces or provides discovery

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that it believes is subject to a claim of attorney-client privilege or attorney work product,

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the producing party may give written notice to the receiving party that the document or

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thing is subject to a claim of attorney-client privilege or attorney work product and request

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that the document or thing be returned to the producing party. The receiving party shall

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return to the producing party such document or thing. Return of the document or thing shall

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not constitute an admission or concession, or permit any inference, that the returned

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document or thing is, in fact, properly subject to a claim of attorney-client privilege or

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attorney work product, nor shall it foreclose any party from moving the Court pursuant to

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Fed. R. Civ. P. 26(b)(5) and Fed. R. Evid. 502 for an Order that such document or thing has

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been improperly designated or should be produced.

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10.

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In the event of an inadvertent disclosure of another party’s CONFIDENTIAL

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INFORMATION to a non-Qualified Recipient, the party making the inadvertent disclosure

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shall promptly upon learning of the disclosure: (i) notify the person to whom the disclosure

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was made that it contains CONFIDENTIAL INFORMATION subject to this Order; (ii)

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make all reasonable efforts to preclude dissemination or use of the CONFIDENTIAL
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Inadvertent Disclosure

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INFORMATION by the person to whom disclosure was inadvertently made including, but

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not limited to, obtaining all copies of such materials from the non-Qualified Recipient; and

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(iii) notify the producing party of the identity of the person to whom the disclosure was

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made, the circumstances surrounding the disclosure, and the steps taken to ensure against

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the dissemination or use of the information.

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Limitation

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This Order shall be without prejudice to any party’s right to assert at any time that

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any particular information or document is or is not subject to discovery, production or

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admissibility on the grounds other than confidentiality.

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12.

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Conclusion of Action
(a)

At the conclusion of this action, including through all appeals, each

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party or other person subject to the terms hereof shall be under an obligation to destroy or

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return to the producing party all materials and documents containing CONFIDENTIAL

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INFORMATION and to certify to the producing party such destruction or return. Such

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return or destruction shall not relieve said parties or persons from any of the continuing

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obligations imposed upon them by this Order.

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(b)

After this action, trial counsel for each party may retain one archive

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copy of all documents and discovery material even if they contain or reflect another party’s

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CONFIDENTIAL INFORMATION. Trial counsel’s archive copy shall remain subject to

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all obligations of this Order.

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(c)

The provisions of this paragraph shall not be binding on the United

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States, any insurance company, or any other party to the extent that such provisions conflict

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with applicable Federal or State law. The Department of Justice, any insurance company,

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or any other party shall notify the producing party in writing of any such conflict it

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identifies in connection with a particular matter so that such matter can be resolved either

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by the parties or by the Court.

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13.

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Any third party producing documents or things or giving testimony in this action
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Production by Third Parties Pursuant to Subpoena

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pursuant to a subpoena, notice or request may designate said documents, things, or

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testimony as CONFIDENTIAL INFORMATION. The parties agree that they will treat

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CONFIDENTIAL INFORMATION produced by third parties according to the terms of

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this Order.

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14.

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If any receiving party is subpoenaed in another action or proceeding or served with

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a document or testimony demand or a Court order, and such subpoena or demand or Court

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order seeks CONFIDENTIAL INFORMATION of a producing party, the receiving party

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shall give prompt written notice to counsel for the producing party and allow the producing

Compulsory Disclosure to Third Parties

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party an opportunity to oppose such subpoena or demand or Court order prior to the

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deadline for complying with the subpoena or demand or Court order. No compulsory

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disclosure to third parties of information or material exchanged under this Order shall be

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deemed a waiver of any claim of confidentiality, except as expressly found by a Court or

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judicial authority of competent jurisdiction.

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Jurisdiction to Enforce Protective Order

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After the termination of this action, the Court will continue to have jurisdiction to

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enforce this Order.

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16.

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This Order is without prejudice to the right of any person or entity to seek a

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Modification of Protective Order

modification of this Order at any time either through stipulation or Order of the Court.

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17.

Confidentiality of Party’s Own Documents

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Nothing herein shall affect the right of the designating party to disclose to its

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officers, directors, employees, attorneys, consultants or experts, or to any other person, its

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own information. Such disclosure shall not waive the protections of this Protective Order

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and shall not entitle other parties or their attorneys to disclose such information in violation

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of it, unless by such disclosure of the designating party the information becomes public

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knowledge. Similarly, the Protective Order shall not preclude a party from showing its own

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information, including its own information that is filed under seal by a party, to its officers,
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directors, employees, attorneys, consultants or experts, or to any other person.
IT IS SO AGREED AND STIPULATED this 29th day of January, 2019:
LEWIS ROCA
ROTHGERBER CHRISTIE LLP

FOX ROTHSCHILD LLP

By: /s/ Meng Zhong
.
Michael J. McCue (Nevada Bar #6055)
Meng Zhong (Nevada Bar #12145)
3993 Howard Hughes Parkway, Suite 600
Las Vegas, NV 89169

By: /s/ Kevin M. Sutehall
.
Mark J. Connot (Nevada Bar #10010)
Kevin M. Sutehall (Nevada Bar #9437)
1980 Festival Plaza Drive, Suite 700
Las Vegas, NV 89135

Attorneys for Defendant and CounterClaimant Cirrus Design Corporation

Attorneys for Plaintiff and CounterDefendant Cirrus Aviation
Services, LLC

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IT IS SO ORDERED:

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___________________________________
UNITED STATES DISTRICT JUDGE
UNITED STATES MAGISTRATE JUDGE

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DATED: ____________________________
1/30/2019

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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CIRRUS AVIATION SERVICES, LLC,

Case No. 2:16-cv-2656-JAD-GWF

Plaintiff and Counter-Defendant,

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v.

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CIRRUS DESIGN CORPORATION,

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Defendant and Counter-Plaintiff.

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I, __________________, am employed by ______________________. In

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connection with this action, I am:

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_______

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a director, officer or employee of _________________________ who is
directly assisting in this action;

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Other Qualified Recipient (as defined in the Protective Order)

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(Describe:______________________________________________).
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I have read, understand and agree to comply with and be bound by the terms

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of the Protective Order in the matter of ____________________________________, Civil

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Action No. _________________, pending in the United States District Court for the

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District of Nevada. I further state that the Protective Order entered by the Court, a copy of

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which has been given to me and which I have read, prohibits me from using any

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PROTECTED INFORMATION, including documents, for any purpose not appropriate or

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necessary to my participation in this action or disclosing such documents or information to

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any person not entitled to receive them under the terms of the Protective Order. To the

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extent I have been given access to PROTECTED INFORMATION, I will not in any way

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disclose, discuss, or exhibit such information except to those persons whom I know (a) are

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authorized under the Protective Order to have access to such information, and (b) have
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executed a Disclosure Agreement. I will return, on request, all materials containing

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PROTECTED INFORMATION, copies thereof and notes that I have prepared relating

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thereto, to counsel for the party with whom I am associated. I agree to be bound by the

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Protective Order in every aspect and to be subject to the jurisdiction of the United States

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District Court for the District of Utah for purposes of its enforcement and the enforcement

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of my obligations under this Disclosure Agreement. I declare under penalty of perjury that

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the foregoing is true and correct.

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_______________________________
Signed by Recipient

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_______________________________
Name (printed)

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Date: __________________________

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