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)

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Case 2:17-cv-00019-GMN-PAL Document 28-1 Filed 09/12/17 Page 2 of 10 2 3 SCOTT M. MAHONEY(Nev. Bar No. 1099) FISHER &PHILLIPS LLP 300 S. Fourth Street Suite 1500 Las Vegas, NV 8911 Telephone:(702)252-3131 sinahoney@fisherphillips.com 4 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:(202)887-4000 Facsimile:(202)887-4288 dlivingston@akingump.com 9' Blander@akingump.com 5 10 Attorneys for Defendant DESERT PALACE,INC., d/b/a CAESARS PALACE 11 12 'i UNITED STATES DISTRICT COURT 13 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 18 v. 19 DESERT PALACE,INC., d/b/a CAESA.RS PALACEā€¢ DOES I throw~ gh_ X and ROE ~3USINESS ENTI`I'IES~ I through X,inclusive, 20 21 Defendants. 22 23 24 The Court recognizes that Defendant Desert Palace, Inc., d/b/a Caesaars Palace 25 ("Defendant") and Plaintiffs William J. Berry, Jr., Cynthia Falls, and Shane Kaufmann 26 ("Plaintiffs")(collectively the "parties") and others may be called upon to disclose 27 confidential business or private information in the course ofthis litigation, Beery, et 28 al. v. Desert Palace, Inc., d/b/a Caesars Palace, et al., No 2:17-cv-00019-GMN-PAL 02 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 4 provide for an orderly means for the parties and others to invoke confidentiality for 5 materials deserving such protection and the subsequent use ofthose materials in 6 accord with prevailing Ninth Circuit and U.S. District Court for the District of Nevada 7 standards, it is ordered as follows: DESIGNATION AS "CONFIDENTIAL" 9 In discovery, for good cause, any document(and the contents thereof}, thing, testimony, response to written discovery, ox information falling within the definitions 11 set forth below, may be designated and marked, in whole or in 12 by the party producing the documents or int'oz-mation at the time the documents are 13 provided, produced, or made available for inspection by the other party. "Confidential 14 Information" shall be treated so throughout this litigation. The procedure for 15 designating materials as Confidential is as follows: 16 1. part, 10 as "Confidential" "Confidential Information" maybe designated ox marked, in whole or in 17 part, as Confidential. "Confidential Information" is defined as facts, 1$ data, ar material which is highly personal and private to a particular 19 individual or entity, such employee personnel files, plaintiffs' medical 20 counseling or treatment records, and Defendant's proprietary business 21 information, including but not limited documents with personal or 22 financial information related to Defendant's customers. "Confidential 23 Information" also includes information that has been entrusted to a party 24 by persons not parties to this litigation upon a promise or legitimate 25 expectation of privacy that the information would be treated 26 confidentially and respectfully and not generally disclosed to others who 27 have no legitimate need of same. While such private and personal 28 information may be discoverable in this litigation, it should not be 2 03 Case 2:17-cv-00019-GMN-PAL Document 28-1 Filed 09/12/17 Page 4 of 10 1 disclosed in the public part ofthis case unless further proceedings are 2 undertaken. 2. 3 The parties shall have thirty(30)days from the entry ofthis Stipulation 4 and Order to designate as Confidential those documents that already have 5 been produced (by them or another party) or received prior to the date of 6 such entry. 3. 7 A party, person, or entity may designate materials as Confidential only if 8 they do so in good faith and reasonably believe that there is a legally 9 sound reason for the designation. 4. 10 In accord with Ninth Circuit precedent, the parties agree to use the least obstructing means of designating Confidential Information. 11 5. 12 During this litigation, either party may designate as Confidential any 13 material produced in discovery by any other party or any non-party if the 14 designating party in good faith believes that the material contains 15 Confidential Information. The designating party shall have 30 days from 16 the date the material has been produced, or from the date of entry ofthis 17 Order, to inform the non-designating party in writing that the produced 18 material is being designated as Confidential. 19 II. DESIGNATION OF DEPOSITION TESTIMONY AS CONFIDENTIAL 20 Testimony ofParty Deponent 21 a. 22 When appropriate and subject to certain restrictions set forth in section I supra, 23 any party (or their counsel) may designate a party's (their own or another party's) 24 deposition testimony (or any portion thereof, including exhibits) as Confidential by 2S advising the repoz-ter and all parties on the record during the deposition or, thereafter, 26 by notifying the opposing party and court reporter in writing within thirty(30)days 27 after the actual receipt of a copy of a transcript. 28 Q4 Case 2:17-cv-00019-GMN-PAL Document 28-1 Filed 09/12/17 Page 5 of 10 b. Testimony ofNon-Party Deponent If a party (or their counsel) wishes to designate the deposition testimony of any 2 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, 9 designate their testimony as "Confidential" either at the deposition or in writing to the 10 opposing party and reporter within twenty(20)business days of notification by the 11 court reporter that the transcript is ready for review. Anon-party deponent retains the 12 right, in accordance with the Federal Rules of Civii Procedure, to seek a protective 13 order during the deposition to preclude or limit disclosures. 14 III. 15 DESIGNATION OF DOCUMENTS AND MATERIALS AS CONFIDENTIAL 16 Subject to the restrictions provided in section X supra, documents, portions of 17 documents, answers to interrogatories, responses to requests for admission and other 18 materials may be designated as Confidential by stamping or otherwise marking the 19 appropriate page ofthe material as Confidential. The recipient of any material marked 20 "Confidential" pursuant to this Stipulated Protective Order shall exercise due and 21 proper care with respect to the storage, custody, and use of Confidential Information. 22 IV. 23 SUBSEQUENT DESIGNATIONS AS CONFIDENTIAL Any material inadvertently produced without being designated as Confidential 24 as provided in section I sup~^a may be so designated at a later date by the producing 25 party ox person by sending a letter invoking such designation to each party who had 26 received such material and by reproducing the material with a Confidential stamp on 27 each page. The restrictions provided in section I for designating anything as 28 Confidential shall apply. 0 05 Case 2:17-cv-00019-GMN-PAL Document 28-1 Filed 09/12/17 Page 6 of 10 V. Any Confidential Information shall not be disclosed to or discussed with any 2 3 RESTRICTIONS ON DISCLOSURE person, except the following: i. 4 Unless otherwise restricted below, the individual party Plaintiffs and Defendant; 5 6 ii. Counsel to the parties and their staff; 7 iii. Expert witnesses and consultants retained to give testimony with regard 8 to the subject matter of the Confidential Information (or a portion 9 thereof,in which case, the disclosure shall be limited to that portion of Confidential Information which is related to the consulting or testimony, it only after having them sign a copy ofthe acknowledgement in this 12 protective order(see section VI infra); 10 13 iv. The Court, its staff, and the jury; l4 v. Unless otherwise restricted below, anon-party during the non-party's preparation fox testifying at a deposition, hearing, or trial in this 16 litigation, to the extent the Confidential Information shown to the non- 17 party, or the content of said Confidential Information, is reasonably likely 18 to be a part ofthe non-party's testimony on direct ox cross-examination, 19 and only after having the non-party sign a copy ofthe acknowledgement 20 in this protective order (see section VI Other persons only upon consent ofthe party vi. 21 infra); 15 designating information as Confidential and only after having those persons first sign a copy ofthe 23 acknowledgement in this protective order (see section VI 24 order ofthe Court. 25 infra) 22 or upon z6 SIGNATURE AND AGREEMENT TO COMPLY WITH THIS STIPULATION AND ORDER 27 The persons not directly employed by counsel of record for the parties, but to VI. 28 5 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 3 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 5 by either further orders ofthe Court or agreement of all the parties. 6 VII. USE OF CONFIDENTIAL INFORMATION IN COURT FILINGS 7 The parties acknowledge that this protective order does not confer blanket 8 protection and does not necessarily entitle them to file confidential information under 9 seal (or require opposing party to do so) without complying with the standards 10 articulated in Kamakana v. Czty and Couunty ofI~onolulu, 447 F.3d J. l 72(9th Cir. 11 2Q06), and subsequent case law, and also in accord with Local Rule IA 10-5. 12 i. While only good cause for protection is required for confidentiality in 13 discovery and thus might justify sealing in discovery and discovery 14 pleadings, a higher standard, compelling reason, is required for sealing of 1S evidence in relation to dispositive matters. 16 ii. The parties may agree that the filing party may file documents designated 17 confidential by the other party not under seal. If no such agreement is 18 made before filing, then any documents to be filed with the court 19 containing confidential material will be accompanied by a motion to seal. 20 A motion to file a document under seal will be served on opposing 21 counsel, and on the person or entity that has custody and control ofthe 22 document, if it is different from opposing counsel. 23 iii. If the designating party seeks to secure continuing protection (i.e., is in 24 favor of sealing), then the burden remains on that designating party to 25 meet the particular standard in the context of the filing(good cause far 26 discovery; compelling reason for dispositive matter use). 27 28 iv. For motions that refer to confidential material in an identifiable way,the parties will publicly file a redacted version ofthe filing. 6 Case 2:17-cv-00019-GMN-PAL Document 28-1 Filed 09/12/17 Page 8 of 10 1 VIII. DISPUTING AND CHALLENGING L7ESTGNATIONS A party to this action may, at any time, challenge the designation of 2 3 Confidential. The challenger must first give the designator notice and ten(10) 4 calendar days to withdraw the designation. if a resolution does not occur after the 5 parties have met and conferred as required by the Federal Rules of Civil Procedure, 6 either party may file a motion with the Court to resolve the dispute. Such motion 7 must be filed within thirty(30)calendar days of receipt of the written objection to the 8 designation. The disputed documents)or testimony shall be submitted to the Caurt 9 under seal and continue to be regarded as Confidential unless and until the Court 10 determines.to the contrary. 11 IX. NO WITHHOLDING A party to this litigation may not withhold production of any document of any 12 13 information solely on the basis that it is Confidential. A party may, under appropriate 14 circumstances, seek greater protection than the protection afforded by this Protective 15 Order far documents or information deserving of same, but must do so by securing a 16 stipulation or by filing a motion for a protective order on or before the due date for 17 production. 18 X. TREATMENT OF CONFIDENTIAL INFORMATION IN GENERAL A.ny documents,testimony, and/or information that has been designated 19 20 Confidential under this Order is to be used only in the above-captioned action, and 21 may not be used in any other action or for any other purpose unless the party seeking 22 to make such use acquired the documents, testimony, and/or information from a 23 source independent of the above-captioned action. 24 XI. TREATMENT OF CONFIDENTIAL INFORMATION AFTER LITIGATION l~ T Tl .T 25 26 At the conclusion of the case (either by settlement or "final" order), the parties, 27 their counsel, and any other person having received Confidential Information shall 28 return the same to counsel for the party providing the Confidential Info nation. /// 7 ~: Case 2:17-cv-00019-GMN-PAL Document 28-1 Filed 09/12/17 Page 9 of 10 1 return the same to counsel for the party providing the Confidential Information. 2 3 It is so ordered. 4 5 Dated: October 26, 2017 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Honorable United States Magistrate Judge Case 2:17-cv-00019-GMN-PAL Document 28-1 Filed 09/12/17 Page 10 of 10 1 Exhibit A 2 3 ACKNOWLEDGEMENT 4 5 6 7 8 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. 9' l0 11 DATED: 12 I 13 (SIGNATURE) 14 15 16 (PRINT NAME) 17 18 ADDRESS: 19 20 21 22 23 24 25 26 27 28 0 10

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