Falls et al v. Desert Palace, Inc

Filing 43

PROTECTIVE ORDER. Signed by Magistrate Judge Peggy A. Leen on 10/26/2017. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:17-cv-00019-GMN-PAL Document 28-1 Filed 09/12/17 Page 2 of 10

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SCOTT M. MAHONEY(Nev. Bar No. 1099)
FISHER &PHILLIPS LLP
300 S. Fourth Street Suite 1500
Las Vegas, NV 8911
Telephone:[phone]
[e-mail]

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DONALD R. LIVINGSTON(DC Bar No. 436063)
ESTHER G. LANDER(DC Bar No. 461316)
Admitted~_ pr_o hac vice
6 AKIN GUMY STRAUSS HAVER & FELD LLP
1333 New Hamp~shire Avenue, N.W.
7 Washington, D.C;. 20036-1564
Telephone:[phone]
Facsimile:[phone]
[e-mail]
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Attorneys for Defendant
DESERT PALACE,INC., d/b/a CAESARS PALACE

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

i4 ila
15 I~ WILLIAM J. BERRY,JR.;

CYNTHIA FALLS; and SHANE

16' KAUFMAN,
17 '~ Plaintiffs,

Case No. 2:17-cv-00019-GMN-PAL
[PROPOSED]PROTECTIVE ORDER
=
~ZZ~GARDINCi CONFIDENTIAL
DISCOVERY MATERIALS

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v.

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DESERT PALACE,INC., d/b/a
CAESA.RS PALACE• DOES I
throw~ gh_ X and ROE ~3USINESS
ENTI`I'IES~ I through X,inclusive,

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Defendants.

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The Court recognizes that Defendant Desert Palace, Inc., d/b/a Caesaars Palace

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("Defendant") and Plaintiffs William J. Berry, Jr., Cynthia Falls, and Shane Kaufmann

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("Plaintiffs")(collectively the "parties") and others may be called upon to disclose

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confidential business or private information in the course ofthis litigation, Beery, et

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al. v. Desert Palace, Inc., d/b/a Caesars Palace, et al., No 2:17-cv-00019-GMN-PAL

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Case 2:17-cv-00019-GMN-PAL Document 28-1 Filed 09/12/17 Page 3 of 10

(D. Nev.}. Pursuant to Federal Rule of Civil Procedure 26(c), this stipulation serves to
2 protect the legitimate privacy interests, to maintain the confidentiality of information
3 entitled to protection that may be produced in discovery in this litigation, and to
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provide for an orderly means for the parties and others to invoke confidentiality for

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materials deserving such protection and the subsequent use ofthose materials in

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accord with prevailing Ninth Circuit and U.S. District Court for the District of Nevada

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standards, it is ordered as follows:
DESIGNATION AS "CONFIDENTIAL"

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In discovery, for good cause, any document(and the contents thereof}, thing,
testimony, response to written discovery, ox information falling within the definitions

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set forth below, may be designated and marked, in whole or in

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by the party producing the documents or int'oz-mation at the time the documents are

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provided, produced, or made available for inspection by the other party. "Confidential

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Information" shall be treated so throughout this litigation. The procedure for

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designating materials as Confidential is as follows:

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part,

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as "Confidential"

"Confidential Information" maybe designated ox marked, in whole or in

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part, as Confidential. "Confidential Information" is defined as facts,

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data, ar material which is highly personal and private to a particular

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individual or entity, such employee personnel files, plaintiffs' medical

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counseling or treatment records, and Defendant's proprietary business

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information, including but not limited documents with personal or

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financial information related to Defendant's customers. "Confidential

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Information" also includes information that has been entrusted to a party

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by persons not parties to this litigation upon a promise or legitimate

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expectation of privacy that the information would be treated

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confidentially and respectfully and not generally disclosed to others who

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have no legitimate need of same. While such private and personal

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information may be discoverable in this litigation, it should not be
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Case 2:17-cv-00019-GMN-PAL Document 28-1 Filed 09/12/17 Page 4 of 10

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disclosed in the public part ofthis case unless further proceedings are

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undertaken.
2.

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The parties shall have thirty(30)days from the entry ofthis Stipulation

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and Order to designate as Confidential those documents that already have

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been produced (by them or another party) or received prior to the date of

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such entry.
3.

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A party, person, or entity may designate materials as Confidential only if

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they do so in good faith and reasonably believe that there is a legally

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sound reason for the designation.
4.

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In accord with Ninth Circuit precedent, the parties agree to use the least
obstructing means of designating Confidential Information.

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5.

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During this litigation, either party may designate as Confidential any

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material produced in discovery by any other party or any non-party if the

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designating party in good faith believes that the material contains

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Confidential Information. The designating party shall have 30 days from

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the date the material has been produced, or from the date of entry ofthis

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Order, to inform the non-designating party in writing that the produced

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material is being designated as Confidential.

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II.

DESIGNATION OF DEPOSITION TESTIMONY AS CONFIDENTIAL

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Testimony ofParty Deponent

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a.

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When appropriate and subject to certain restrictions set forth in section I supra,

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any party (or their counsel) may designate a party's (their own or another party's)

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deposition testimony (or any portion thereof, including exhibits) as Confidential by

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advising the repoz-ter and all parties on the record during the deposition or, thereafter,

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by notifying the opposing party and court reporter in writing within thirty(30)days

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after the actual receipt of a copy of a transcript.

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b.

Testimony ofNon-Party Deponent

If a party (or their counsel) wishes to designate the deposition testimony of any

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of its current and/or former employees' or any other non-party deponent(or any
portion thereof, including e~iibits), they may do so by advising the reporter and all
parties on the record during the deposition or, thereafter, by notifying the opposing
party and court reporter in writing within thirty(30)days after the actual receipt of a
copy of the transcript.
A non-party deponent may, within the same restrictions and propriety,
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designate their testimony as "Confidential" either at the deposition or in writing to the

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opposing party and reporter within twenty(20)business days of notification by the

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court reporter that the transcript is ready for review. Anon-party deponent retains the

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right, in accordance with the Federal Rules of Civii Procedure, to seek a protective

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order during the deposition to preclude or limit disclosures.

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III.

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DESIGNATION OF DOCUMENTS AND MATERIALS AS
CONFIDENTIAL

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Subject to the restrictions provided in section X supra, documents, portions of

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documents, answers to interrogatories, responses to requests for admission and other

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materials may be designated as Confidential by stamping or otherwise marking the

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appropriate page ofthe material as Confidential. The recipient of any material marked

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"Confidential" pursuant to this Stipulated Protective Order shall exercise due and

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proper care with respect to the storage, custody, and use of Confidential Information.

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IV.

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SUBSEQUENT DESIGNATIONS AS CONFIDENTIAL
Any material inadvertently produced without being designated as Confidential

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as provided in section I sup~^a may be so designated at a later date by the producing

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party ox person by sending a letter invoking such designation to each party who had

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received such material and by reproducing the material with a Confidential stamp on

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each page. The restrictions provided in section I for designating anything as

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Confidential shall apply.
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V.

Any Confidential Information shall not be disclosed to or discussed with any

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RESTRICTIONS ON DISCLOSURE

person, except the following:
i.

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Unless otherwise restricted below, the individual party Plaintiffs and
Defendant;

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ii.

Counsel to the parties and their staff;

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iii.

Expert witnesses and consultants retained to give testimony with regard

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to the subject matter of the Confidential Information (or a portion

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thereof,in which case, the disclosure shall be limited to that portion of
Confidential Information which is related to the consulting or testimony,

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only after having them sign a copy ofthe acknowledgement in this

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protective order(see section VI

infra);

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iv.

The Court, its staff, and the jury;

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v.

Unless otherwise restricted below, anon-party during the non-party's
preparation fox testifying at a deposition, hearing, or trial in this

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litigation, to the extent the Confidential Information shown to the non-

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party, or the content of said Confidential Information, is reasonably likely

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to be a part ofthe non-party's testimony on direct ox cross-examination,

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and only after having the non-party sign a copy ofthe acknowledgement

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in this protective order (see section VI

Other persons only upon consent ofthe

party

vi.

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infra);

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designating information as

Confidential and only after having those persons first sign a copy ofthe

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acknowledgement in this protective order (see section VI

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order ofthe Court.

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infra)

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or upon

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SIGNATURE AND AGREEMENT TO COMPLY WITH THIS
STIPULATION AND ORDER

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The persons not directly employed by counsel of record for the parties, but to

VI.

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Case 2:17-cv-00019-GMN-PAL Document 28-1 Filed 09/12/17 Page 7 of 10

whom disclosure is necessary for purposes of this litigation (e.g., third-party witnesses
or experts), shall be provided with this Stipulation and Order and be required to sign
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the attached acknowledgement(Exhibit A)stating that he/she understands the terms
and agrees to comply with, and be bound by, this Stipulation and Order until modified

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by either further orders ofthe Court or agreement of all the parties.

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VII. USE OF CONFIDENTIAL INFORMATION IN COURT FILINGS

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The parties acknowledge that this protective order does not confer blanket

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protection and does not necessarily entitle them to file confidential information under

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seal (or require opposing party to do so) without complying with the standards

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articulated in Kamakana v. Czty and Couunty ofI~onolulu, 447 F.3d J. l 72(9th Cir.

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2Q06), and subsequent case law, and also in accord with Local Rule IA 10-5.

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i.

While only good cause for protection is required for confidentiality in

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discovery and thus might justify sealing in discovery and discovery

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pleadings, a higher standard, compelling reason, is required for sealing of

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evidence in relation to dispositive matters.

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ii.

The parties may agree that the filing party may file documents designated

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confidential by the other party not under seal. If no such agreement is

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made before filing, then any documents to be filed with the court

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containing confidential material will be accompanied by a motion to seal.

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A motion to file a document under seal will be served on opposing

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counsel, and on the person or entity that has custody and control ofthe

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document, if it is different from opposing counsel.

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iii.

If the designating party seeks to secure continuing protection (i.e., is in

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favor of sealing), then the burden remains on that designating party to

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meet the particular standard in the context of the filing(good cause far

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discovery; compelling reason for dispositive matter use).

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iv.

For motions that refer to confidential material in an identifiable way,the
parties will publicly file a redacted version ofthe filing.
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Case 2:17-cv-00019-GMN-PAL Document 28-1 Filed 09/12/17 Page 8 of 10

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VIII. DISPUTING AND CHALLENGING L7ESTGNATIONS
A party to this action may, at any time, challenge the designation of

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Confidential. The challenger must first give the designator notice and ten(10)

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calendar days to withdraw the designation. if a resolution does not occur after the

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parties have met and conferred as required by the Federal Rules of Civil Procedure,

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either party may file a motion with the Court to resolve the dispute. Such motion

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must be filed within thirty(30)calendar days of receipt of the written objection to the

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designation. The disputed documents)or testimony shall be submitted to the Caurt

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under seal and continue to be regarded as Confidential unless and until the Court

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determines.to the contrary.

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IX.

NO WITHHOLDING
A party to this litigation may not withhold production of any document of any

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information solely on the basis that it is Confidential. A party may, under appropriate

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circumstances, seek greater protection than the protection afforded by this Protective

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Order far documents or information deserving of same, but must do so by securing a

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stipulation or by filing a motion for a protective order on or before the due date for

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production.

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X.

TREATMENT OF CONFIDENTIAL INFORMATION IN GENERAL
A.ny documents,testimony, and/or information that has been designated

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Confidential under this Order is to be used only in the above-captioned action, and

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may not be used in any other action or for any other purpose unless the party seeking

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to make such use acquired the documents, testimony, and/or information from a

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source independent of the above-captioned action.

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XI.

TREATMENT OF CONFIDENTIAL INFORMATION AFTER LITIGATION
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At the conclusion of the case (either by settlement or "final" order), the parties,

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their counsel, and any other person having received Confidential Information shall

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return the same to counsel for the party providing the Confidential Info nation.
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Case 2:17-cv-00019-GMN-PAL Document 28-1 Filed 09/12/17 Page 9 of 10

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return the same to counsel for the party providing the Confidential Information.

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It is so ordered.
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Dated: October 26, 2017

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Honorable
United States Magistrate Judge

Case 2:17-cv-00019-GMN-PAL Document 28-1 Filed 09/12/17 Page 10 of 10

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Exhibit A

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ACKNOWLEDGEMENT

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I HEREBY ACKNOWLEDGE THAT I HAVE READ THE FOREGOING
PROTECTIVE ORDER FOR CONFIDENTIALITY OF MATERIALS ENTERED
BY THIS COURT IN THIS LAWSUIT. I HEREBY ACKNOWLEDGE THAT I
UNDERSTAND THE ORDER AND AGREE TO MAKE MY BEST EFFORTS TO
COMPLY WITH IT AND MAINTAIN THE CONFIDENTIALITY OF
CONFIDENTIAL INFORMATION PROVIDED TO ME.

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DATED:

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(SIGNATURE)

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(PRINT NAME)

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ADDRESS:

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