Gordon v. HOVG, LLC

Filing 20

PROTECTIVE ORDER. Signed by Magistrate Judge Nancy J. Koppe on 6/12/2017. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:17-cv-00135-GMN-NJK Document 18 Filed 06/09/17 Page 1 of 14

1 MICHAEL R. AYERS
Nevada Bar No. 10851
2 HINSHAW & CULBERTSON LLP
2375 E. Camelback Road, Suite 750
3 Phoenix, AZ 85016
Telephone: [phone]
4 Facsimile: 602-631-4404
[e-mail]
5
and
6
GINA M. MUSHMECHE
7 Nevada Bar No. 10411
KRAVITZ, SCHNITZER, & JOHNSON,
8 CHTD
8985 S. Eastern Avenue, Suite 200
9 Las Vegas, NV 89123
Telephone: [phone]
10 Facsimile: 702-362-2203
[e-mail]
11
Attorneys for Defendant HOVG, LLC dba Bay Area Credit Service, LLC
12
UNITED STATES DISTRICT COURT
13
DISTRICT OF NEVADA
14
CHARLES GORDON, individually and on
) Case No. 2:17-cv-00135-GMN-NJK
15 behalf of those similarly situated,
)
)
16
Plaintiff,
) STIPULATED MOTION AND
) PROPOSED PROTECTIVE ORDER
17 v.
) REGARDING CONFIDENTIALITY
) OF DISCOVERY MATERIAL AND
18 HOVG, LLC dba BAY AREA CREDIT
) INADVERTENT DISCLOSURE
SERVICE, LLC,
) ORDER
19
)
)
Defendant.
20
) as amended on pp. 7, 8, 9, and 10
)
21
22

Plaintiff, Charles Gordon (‟Plaintiffˮ), and Defendant HOVG, LLC dba Bay Area Credit

23 Service, LLC (‟Defendantˮ) (collectively ‟the Partiesˮ), hereby respectfully move the Court for
24 entry of a Protective and Inadvertent Disclosure Order. The Parties seek to maintain the
25 confidentiality of certain documents by governing their handling and to protect documents
26 subject to the attorney-client privilege or work product doctrine, pursuant to Federal Rules of
27 Civil Procedure 26(c)(1)(G) and Federal Rules of Evidence 502(d), and in support thereof states
28 as follows:

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The Parties’ proposed order is intended to permit and restrict the exchange of confidential

2 information and documents during discovery. For example, the Parties seek to protect
3 discoverable documents and materials relating to items such as (1) the materials, policies and
4 procedures Defendant uses to comply with applicable credit reporting-related laws, and training
5 of employees and agents with complying with such laws, (2) Defendant’s internal reports and
6 notes, (3) Plaintiff’s consumer information, (4) Defendant’s internal logs, and (5) other trade
7 secret information maintained by the Parties (collectively “Confidential Information”). The basis
8 for this Motion is several fold: 1) to protect confidential and sensitive consumer information as
9 this matter deals with alleged credit reporting issues, 2) to protect confidential and sensitive
10 personal and/or business information, and 3) to protect disclosure of trade secrets and other
11 confidential information resulting from Defendants investment of millions of dollars from the
12 public and/or competitors. Such confidential and trade secret information is generally not known
13 to competitors and not made available to the public.
14

Should Defendant’s confidential information become available to the public, it would

15 result in a windfall for other businesses involved in providing similar services. In addition, it
16 would place Defendant at a disadvantage competitively because Defendant would lose the edge
17 it has over other similar businesses that have not made similar investments in training, systems,
18 and procedures. Defendant’s Confidential Information include private information on how
19 Defendant organizes and documents activity on the subject account that is the result of
20 Defendants investments of thousands of dollars. Public disclosure of these materials would place
21 Defendant at a disadvantage competitively because its competitors would be aware of
22 Defendant’s Confidential Information. That type of knowledge could reasonably negatively
23 impact Defendants business.
24

In light of the above, the Parties respectfully request the Court enter the proposed

25 Protective Order.
26

DATED this 9th day of June, 2017.

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HINSHAW & CULBERTSON LLP

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DATED

June 9, 2017

By:

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/s/Michael R. Ayers
MICHAEL R. AYERS
Attorneys for Defendant HOVG, LLC dba
Bay Area Credit Service, LLC

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MARCUS & ZELMAN, LLC

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6
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DATED

June 9, 2017

By:

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/s/Ari H. Marcus (with permission)
ARI H. MARCUS
Pro hac vice pending
1500 Allaire Avenue, Suite 101
Ocean, NJ 07712
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Plaintiff

PROTECTIVE AND INADVERTENT DISCLOSURE ORDER
Charles Gordon (“Plaintiff”), and Defendant HOVG, LLC dba Bay Area Credit Service,

14 LLC (“Defendant”), (collectively referred to as “the Parties” or singularly as “a Party”), having
15 agreed to the entry of a Protective and Inadvertent Disclosure Order pursuant to Rule 26(c) of the
16 Federal Rules of Civil Procedure and Federal Rules of Evidence 502(d), and the Court being
17 fully advised,
18

IT IS HEREBY ORDERED:

19

1.

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For the purposes of this Order, the following definitions shall apply:
a.

Confidential Information: Generally, information subject to disclosure

21 containing personal information, financial information, trade secrets or other confidential
22 research, including, but not limited to, formulas, methods, or development plans, confidential
23 business information such as marketing plans, customer lists, financial information, sales figures,
24 advertising expenditures, pricing plans, and balance sheets, supplier identities, business plans,
25 license agreements, or other information which could put the producing person or entity at a
26 competitive disadvantage if the information became known to the receiving party or other
27 information reasonably believed to be confidential. Information, the whole of which is publicly
28 available, should not be designated as “Confidential” or “Attorneys Eyes Only.”
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b.

CONFIDENTIAL Designation: Documents not previously disclosed to the

2 public should be designated “Confidential” when such documents contain confidential
3 information that may be reviewed by the Receiving Party, but must be protected against
4 disclosure to third parties.
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c.

ATTORNEYS’ EYES ONLY Designation: Documents not previously

6 disclosed to the public should be designated “Attorneys’ Eyes Only” when such documents
7 contain confidential information that 1) may only be reviewed by counsel for the Receiving Party
8 who, or 2) may only be reviewed by agreed upon named representatives of the Receiving Party
9 and their counsel and must be protected against disclosure to third parties.
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d.

The “Producing Party” is the Party that provides CONFIDENTIAL /

11 ATTORNEYS’ EYES ONLY Information;
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e.

The “Receiving Party” is a Party that receives CONFIDENTIAL /

13 ATTORNEYS’ EYES ONLY Information; and
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f.

An “Inadvertently Produced Document” is a document that a Party to this

15 litigation provides to the opposing Party in this case, but that should have been withheld by the
16 Producing Party, in whole or in part, based on a claim of privilege, work-product protection,
17 confidentiality or other restrictions on disclosure, and for which the Producing Party provides the
18 notice required in this Order.
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2.

When used in this Order, the word “document” means all written, recorded, or

20 electronically stored material of any kind, and copies thereof (whether identical or not identical)
21 including, but not limited to, interrogatory answers, production responses, requests to admit and
22 responses thereto, documents, as defined in the Federal Rules of Civil Procedure or in the
23 discovery requests in this action, or physical items produced by any Party or non-party in this
24 action whether pursuant to subpoena, court order, discovery requests, or by agreement,
25 deposition transcripts and exhibits, and any portions of any court papers which quote from or
26 summarize any of the foregoing.
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3.

Information produced by any party or non-party in this action may be designated

28 by the producing party(ies) as “Confidential” or “Attorneys Eyes Only.” Information designated
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1 “Confidential” or “Attorneys Eyes Only” may be used only in connection with this litigation, and
2 not for any other purpose. Such information may not be disclosed to anyone except as provided
3 in this Order and the parties shall exercise due care regarding storage, custody, and use.
4

4.

The protections of this Order may be used by third parties that are called upon to

5 provide documents, information or testimony in this case by following the provisions of this
6 Order.
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5.

Discoverable documents protected under this order and shall be designated as

8 CONFIDENTIAL or ATTORNEYS’ EYES ONLY and/or may be redacted. Relevant and
9 discoverable documents that are protected under this order and designated as CONFIDENTIAL
10 or ATTORNEYS’ EYES ONLY, and/or may be redacted, include items such as materials,
11 policies and procedures of Defendant, Defendant’s internal reports, notes and logs, Plaintiff’s
12 consumer information maintained by Defendant, trade secret information, and medical records
13 and personal information, and may include other documents as determined by the designating
14 party not specifically addressed herein. Nothing herein shall be construed as an agreement or
15 requirement by the parties to produce specific types of documents, and the parties specifically
16 reserve their rights to challenge any request for documents that may also contain Confidential
17 Information.
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6.

Any Party producing documents or other materials in this action may designate

19 such materials and the information contained therein subject to this Order by typing or stamping
20 on the front of the document, or on the portion(s) of the document for which confidential
21 treatment is designated, “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” if the Party has
22 a reasonable and good faith belief the material contains Confidential Information.
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7.

Any Confidential Information not reduced to documentary, tangible or physical

24 form or which cannot conveniently be designated in the manner set forth in paragraph 6,
25 including data contained in any electronic form, shall be designated CONFIDENTIAL or
26 ATTORNEYS’ EYES ONLY by informing the Receiving Party in writing that all of the
27 information is either CONFIDENTIAL or ATTORNEYS’ EYES ONLY. If any Party produces
28 Confidential Information stored electronically, including but not limited to production of
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1 magnetic diskettes or downloaded or uploaded files transferred by any method including
2 electronic mail, then all of that information retains its CONFIDENTIAL or ATTORNEYS’
3 EYES ONLY nature regardless of whether the information is manipulated or converted to any
4 other media, including, but not limited to, the creation of print-outs or other hard copies and
5 conversations, or manipulation of data for conversation or manipulation for processing by any
6 other computer hardware or software.
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8.

In the instance of deposition testimony, the witness under deposition or his or her

8 counsel shall invoke the provisions of this Order in a timely manner and designate the level of
9 restriction. During the deposition, unauthorized persons shall be excluded from testimony
10 designated “CONFIDENTIAL” or “ATTORNEYS EYES ONLY” as applicable under this
11 Order. The witness under deposition or his or her counsel shall have the right to designate or
12 change the level of restriction within a thirty (30) day period after the deposition. Any part of
13 deposition testimony in this case may be designated CONFIDENTIAL or ATTORNEYS’ EYES
14 ONLY by advising the reporter and all Parties of such fact, or by notifying the reporter and all
15 Parties in writing within thirty (30) days of the receipt of the transcript by the deponent or
16 deponent’s counsel. Deposition testimony marked CONFIDENTIAL or ATTORNEYS’ EYES
17 ONLY shall be given to no one other than people described in paragraphs 11 and 12. Any
18 CONFIDENTIAL or ATTORNEYS’ EYES ONLY testimony must be marked, treated, used
19 and/or disclosed only as provided in this Order.
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9.

If opposing counsel objects to the designation of certain information as

21 CONFIDENTIAL or ATTORNEYS’ EYES ONLY, or dispute concerning who may view such
22 information, he or she shall promptly inform the other Parties’ counsel in writing of the specific
23 grounds of objection. Counsel shall then, in good faith and on an informal basis, attempt to
24 resolve such dispute. If after such good faith attempt, counsel are unable to resolve their dispute,
25 opposing counsel may move for a disclosure order consistent with this order. Any motion for
26 disclosure shall be filed within fourteen (14) days of providing written notice of the objection,
27 and the information shall continue to have CONFIDENTIAL or ATTORNEYS’ EYES ONLY
28 status from the time it is produced until the ruling by the Court on the motion.
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10.

Nothing in this Order shall prevent any Party from objecting to discovery that it

2 believes is improper.
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11.

Any documents and/or other information designated as “CONFIDENTIAL,” as

4 well as any copies or excerpts thereof, or analyses or reports that pertain thereto, may be made
5 available only to:
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a.

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Plaintiff and Defendant in this case, including officers, directors,
employees, and in-house attorneys of the Parties;

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b.

Counsel of record for the Parties to the case;

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c.

Attorneys, paralegals, secretaries and other personnel employed or

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retained by or working under the supervision of counsel of record

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described in subparagraph 9(b) who are assisting in this action;

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d.

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Court reporters and videographers used to record deposition testimony in
this case;

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e.

Experts specifically retained as consults or expert witnesses in connection

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with this case, provided that the person signs a document in the form of

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Exhibit A attached hereto;

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f.

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Any other person or entity as to whom counsel for the producer or
provider of the confidential information agreed in writing, or whom the

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Court directs, shall have access to such information, provided that the

20

person signs a document in the form of Exhibit A attached hereto, stating

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that he or she has read and understands this Order and agrees to be bound

22
by its terms, before seeing CONFIDENTIAL documents; and

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g.

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The Court and Court personnel.

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12.

Documents and/or other information designated “Attorneys Eyes Only,” as well

27 as any copies or excerpts thereof, or analyses or reports which pertain thereto, may be made
28 available only to:
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a.

Attorneys of record for the Receiving Party, and their employees and

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other attorneys and/or employees of their firms directly involved in the

3

matter, except for any persons with a present ownership or other financial

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5

interest in one or more parties or in the outcome of this litigation;
b.

Judges, the Court and jury, law clerks and other clerical personnel of the

6
Court before which this action is pending.
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c.

Independent experts not associated directly or indirectly with a party

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whom the receiving party identifies to the Producing Party at least ten

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(10) days prior to disclosure. Such independent experts must sign a

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document in the form of Exhibit A, stating that he or she has read and

13

understands this Order and agrees to be bound by its terms, before seeing

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ATTORNEYS’ EYES ONLY documents. No such entity or person may

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be a former or present employee of, or have had or currently have any

16

ownership interest in any of the parties to this action. If the producing

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party has any objection to the proposed independent expert, it shall so

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notify the receiving party within the ten (10) day period. The parties shall
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attempt to resolve any differences concerning such independent experts,

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but if they are unable to do so, the receiving party may seek relief from

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the Court as provided in paragraph 9 above. No disclosure of the

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information shall be made to the proposed independent expert until after

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the Court has ruled upon the issue.

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d.

Except as provided herein, deponents at their depositions shall not be

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given access to confidential information designated “Attorneys Eyes

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Only” by any party or third party, other than the party who has made the

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designation. In the event a party intends to provide “Attorneys Eyes
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Only” documents to a deponent during a deposition and such deponent

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otherwise does not have access to such documents, the party shall give a

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ten (10) day notice to counsel of the designating party. If there is no

4

objection, the deponent shall comply with paragraph 13 below and be

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allowed to review such documents. If the designating party objects to the

6
disclosure, the receiving party may seek relief from the Court as provided
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in paragraph 9 above.

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13.

Each person permitted by this Order to have access to Confidential Information,

other than the parties’ counsel, shall, prior to being given such access, be provided with a copy of
this Order for review. Upon receiving this Order, each person shall sign a statement in the form
of Exhibit A hereto indicating that he has read the order and agrees to comply with its terms.
See order issued concurrently herewith. construed as automatically permitting a Party to file
14.
Nothing in this order shall be
under seal. The Party seeking leave of Court shall show “compelling reasons” (dispositive
motion) or “good cause” (non-dispositive motion) for filing under seal. See Kamakana v. City &
Cnty of Honolulu, 447 F.3d 1172, 1179-80 (9th Cir. 2006). Additionally, such Party seeking to
file under seal shall, within the applicable deadline, file a redacted, unsealed version of any
motion, response or reply if such Party is waiting for a ruling from the Court on filing an
unredacted, sealed version of the same document.
15.

Nothing contained in this Order shall preclude a Party from using its own

CONFIDENTIAL or ATTORNEYS’ EYES ONLY material in any manner it sees fit, or from
revealing such CONFIDENTIAL or ATTORNEYS’ EYES ONLY material to whomever it
chooses, without prior consent of any other Party or of this Court.
16.

The Parties cannot use, file or disclose any CONFIDENTIAL or ATTORNEYS’

EYES ONLY material in any pretrial court proceeding that is open to persons not authorized to
have access to such CONFIDENTIAL or ATTORNEYS’ EYES ONLY material under the terms
of this Order. In the event that a Party wishes to use any CONFIDENTIAL or ATTORNEYS’
EYES ONLY material in any pretrial court proceeding, affidavit, brief, memorandum of law, or

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1 other papers filed in Court in this litigation, it shall, in accordance with Local Rule IA 10-4 and
2 10-5, file a motion with the Court seeking leave to file the CONFIDENTIAL or ATTORNEYS’
3 EYES ONLY material under seal.
4

17.

Upon request of the Producing Party and within sixty (60) days after the final

5 disposition of all aspects of this case by settlement, judgment, or expiration of time to appeal, all
6 documents designated CONFIDENTIAL or ATTORNEYS’ EYES ONLY, including any
7 reproductions of such documents, must be destroyed or returned to the producing Party or its
8 counsel. At the Producing Partyʼs request, if the documents are destroyed, the Party who has
9 destroyed the documents must furnish an affidavit attesting to same.
10

18.

Nothing in this Order shall be construed to require the production of any

11 document or ESI that a Party contends is protected from disclosure by the attorney-client
12 privilege and/or the work product doctrine.
13

19.

Pursuant to the agreement of the Parties under Federal Rules of Evidence 502(e)

14 and by Order of this Court under Federal Rules of Evidence 502(d), no disclosure, production, or
15 exchange of documents or information in this case shall constitute a waiver of any applicable
16 attorney-client privilege or of any applicable work product protection in this or any other federal
17 or state proceeding. This Order applies to any documents or ESI disclosed, exchanged, produced,
18 or discussed-whether intentionally or inadvertently-among the Parties, their counsel and/or any
19 agents (such as vendors and experts) in the course of this litigation.
20

20.

This Order applies regardless of whether the Documents or ESI describe or relate

21 to actions taken in this litigation, or in prior or separate litigations.
22

21.

Upon learning of any Inadvertently Produced Documents, the Producing Party

23 shall promptly give all counsel of record notice of the inadvertent production. The notice shall
24 identify the document, the portions of the document that were inadvertently produced, and the
25 first date the document was produced. If the Party that produced a document claims that only a
26 portion of the Inadvertently Produced Document was inadvertently produced, the Party shall
27 provide with the notice of inadvertent production a new copy of the document with the allegedly
28 privileged portions redacted.
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22.

Upon receiving notice of an Inadvertently Produced Document, or upon

2 determining that a document received is known to be privileged, the Receiving Party must
3 promptly return, sequester or destroy the specified information and any copies it has, and shall
4 destroy any notes that reproduce, copy or otherwise disclose the substance of the privileged
5 information. The Receiving Party may not use or disclose the information until the claim is
6 resolved. If the Receiving Party disclosed the information before being notified, it must take
7 reasonable steps to retrieve and prevent further use or distribution of such information until the
8 claim is resolved.
9

23.

A Party receiving documents produced by another Party is under a good faith

10 obligation to promptly alert the Producing Party if a document appears on its face or in light of
11 facts known to the Receiving Party to be privileged.
12

24.

To the extent that any Party obtains any information, documents or

13 communications through Inadvertently Produced Documents, such information, documents and
14 communications shall not be filed or presented for admission into evidence or sought in
15 discovery by that Party in any action.
16

25.

If the Receiving Party challenges a claim that a Inadvertently Produced Document

17 is properly privileged, the Receiving Party may in connection with a good faith challenge, make
18 reference to the contents of the document in any paper submitted to the Court, so long as such
19 filing is made under seal. If requested by the Receiving Party, the Producing Party shall provide
20 such Inadvertently Produced Documents to the Court for in-camera review.
21

26.

If the Court sustains the claim that an Inadvertently Produced Document is

22 properly a Produced Privileged Document, the Receiving Party shall, within two (2) days of the
23 Court’s order, return the Inadvertently Produced Document and any copies it has and destroy any
24 notes relating to the Produced Privileged Document and advise the Producing Party in writing of
25 the destruction.
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IT IS SO ORDERED:

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UNITED STATES MAGISTRATE JUDGE

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June 12, 2017.
Dated: ___________________________

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2

EXHIBIT A
1.

I, ___________________, residing at ________________________, have read

3 the foregoing Protective Order (the “Order”) in the case captioned Charles Gordon v. HOVG,
4 LLC dba Bay Area Credit Service, LLC,; Court No. 2:17-cv-00135-GMN-NJK (the “Action”). I
5 agree to be bound by its terms with respect to any documents designated as “CONFIDENTIAL”
6 or “ATTORNEYS’ EYES ONLY” there under that are furnished to me as set forth in the Order.
7

2.

I further agree: (a) not to disclose to anyone any documents, or any information

8 contained in documents, designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”
9 other than as set forth in the Order; and (b) not to make any copies of any documents designated
10 as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” except in accordance with the Order.
11

3.

I hereby consent to the jurisdiction of the United States District Court for the

12 District of Arizona with regard to any proceedings to enforce the terms of the Order against me.
13

4.

I hereby agree that any documents designated as “CONFIDENTIAL” or

14 “ATTORNEYS’ EYES ONLY” that are furnished to me will be used by me only for the
15 purposes of the Action, and for no other purpose, and will not be used by me in any business
16 affairs of my employer or of my own; nor will the information contained therein be shared or
17 otherwise imparted by me to any other person. At the conclusion of the action, I agree that all
18 documents designed “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” in my possession
19 or control, including any reproductions of such documents, must be returned to the producing
20 Party or its counsel and that all summaries of such material and all memoranda, pleadings or
21 other documents containing such material shall be destroyed.
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23 Date

Signature

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CERTIFICATE OF SERVICE
I hereby certify that on the 9th day of June, 2017, I served a copy of the foregoing
STIPULATED MOTION AND PROPOSED PROTECTIVE ORDER REGARDING
CONFIDENTIALITY

OF

DISCOVERY

MATERIAL

AND

INADVERTENT

DISCLOSURE ORDER upon each of the parties via electronic service through the United
States District Court for the District of Nevada's ECF system to the following:

David Krieger, Esq.
8 HAINES & KRIEGER, LLC
8985 S. Eastern Avenue, Suite 350
9 Henderson, Nevada 89123
Attorneys for Plaintiff
10
Gina M. Mushmeche
11 KRAVITZ, SCHNITZER, & JOHNSON, CHTD.
8985 S. Eastern Avenue, Suite 200
12 Las Vegas, NV 89123
Attorneys for Defendant
13
14 By /s/Eleanor Powell
An Employee Hinshaw & Culbertson, LLP
15

Ari H. Marcus, Esq.
Marcus & Zelman, LLC
1500 Allaire Avenue, Suite 101
Ocean, NJ 07712
Attorneys for Plaintiff

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