Rohde v. Progressive Direct Insurance Company
Filing
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ORDER Granting 16 Stipulation re Confidentiality Agreement. Signed by Magistrate Judge Nancy J. Koppe on 8/30/17. (Copies have been distributed pursuant to the NEF - MR)
Case 2:17-cv-00620-GMN-NJK Document 16 Filed 08/29/17 Page 1 of 9
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RYAN L. DENNETT, ESQ.
Nevada Bar No. 005617
rdennett@dennettwinspear.com
MATTHEW J. WAGNER, ESQ.
Nevada Bar No. 011311
mwagner@dennettwinspear.com
DENNETT WINSPEAR, LLP
3301 N. Buffalo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone:
(702) 839-1100
Facsimile:
(702) 839-1113
Attorneys for Progressive Direct
Insurance Company
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
RANDY ROHDE,
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Plaintiff,
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vs.
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Case No: 2:17-cv-00620- GMN-NJK
PROGRESSIVE DIRECT INSURANCE
COMPANY; DOES I through X, inclusive,
ROE CORPORATIONS I through X,
inclusive,
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Defendants.
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STIPULATION AND ORDER REGARDING CONFIDENTIALITY AGREEMENT
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PLAINTIFF, RANDY ROHDE, by and through his counsel of record, Julie A. Mersch,
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Esq., of the LAW OFFICE OF JULIE A MERSCH; and DEFENDANT, PROGRESSIVE DIRECT
INSURANCE COMPANY (hereinafter "PROGRESSIVE INSURANCE"), by and through its
counsel of record, Ryan L. Dennett, Esq. of the law firm of DENNETT WINSPEAR, LLP, hereby
enter into the following STIPULATION AND ORDER REGARDING CONFIDENTIALITY
AGREEMENT:
WHEREAS PLAINTIFF has filed the above-identified suit against DEFENDANT,
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PROGRESSIVE INSURANCE;
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Case 2:17-cv-00620-GMN-NJK Document 16 Filed 08/29/17 Page 2 of 9
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WHEREAS PROGRESSIVE INSURANCE was served with Plaintiff’s request for
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production of documents at the LR-26 Meet and Confer Meeting and anticipates that
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PROGRESSIVE INSURANCE may be served with additional requests for documents in
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connection with the instant suit;
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WHEREAS PROGRESSIVE INSURANCE has asserted a privilege and will continue to
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assert a privilege, that the materials to be disclosed and sought by PLAINTIFF are of a
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confidential or proprietary nature and constitute a trade secret under applicable law, and will
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assert such a privilege from disclosure of documents and discovery as to any current and future
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requests for production of documents;
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WHEREAS PLAINTIFF and DEFENDANT PROGRESSIVE INSURANCE desire to
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expedite and facilitate the discovery process in this litigation while protecting the business
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interests of PROGRESSIVE INSURANCE to its trade secrets; and
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WHEREAS PLAINTIFF and DEFENDANT PROGRESSIVE INSURANCE agree that the
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easiest and most economical way to accomplish this goal is through the execution of this
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STIPULATION AND ORDER REGARDING CONFIDENTIALITY AGREEMENT.
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IT IS THEREFORE AGREED as follows:
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1.
Documents that will be produced by PROGRESSIVE INSURANCE and
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designated as “Confidential” as provided pursuant to this STIPULATION AND ORDER
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REGARDING CONFIDENTIALITY AGREEMENT are claimed by PROGRESSIVE INSURANCE
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to be of a confidential or proprietary nature by PROGRESSIVE INSURANCE at or about the time
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of the incident or transactions at issue in this litigation or at some time later. The purpose of this
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STIPULATION AND ORDER REGARDING CONFIDENTIALITY AGREEMENT is to protect the
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confidentiality of these documents.
2.
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Documents and information produced in this case by PROGRESSIVE
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INSURANCE shall be protected from inappropriate disclosure in accordance with the following
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terms and conditions:
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Case 2:17-cv-00620-GMN-NJK Document 16 Filed 08/29/17 Page 3 of 9
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a.
PROGRESSIVE INSURANCE may, in good faith, designate documents or
discovery information “confidential” including, but not limited to:
i.
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All documents and/or information that Defendant believes to constitute or
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disclose trade secrets or other confidential research, development, testing, or commercial
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information or other information that it is entitled to keep in confidence;
ii.
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relating to any materials, products, goods and/or services;
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Discovery material reflecting or relating to research, testing or financial
iv.
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Business marketing, testing, training materials, research or strategic plans
All documents and/or information containing or referring to internal
data; and/or
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evaluations and/or criticisms of any of PROGRESSIVE INSURANCE products, goods, services,
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practices and/or procedures, as well as any claims handling materials for claims brought against
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PROGRESSIVE INSURANCE.
b.
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All documents produced by PROGRESSIVE INSURANCE in this case and
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designated “confidential” shall be used solely for the purpose of “this action” and shall not be
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made available to persons other than “qualified persons” as defined in Paragraph 3.
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action” specifically refers to the pretrial proceedings and trial or settlement of the above-
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referenced cause of action, and no other.
“This
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3.
“Qualified persons” means:
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a.
A party to this action, an officer, director, employee or partner or a party of in-
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house counsel having direct responsibility for, working directly on, or testifying in connection with
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this action who has executed a Declaration in the form attached hereto as Exhibit A the executed
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Exhibit A shall be delivered to counsel for PROGRESSIVE INSURANCE; and/or
b.
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Counsel of record for the parties and the legal assistants and regularly employed
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office staff of the counsel of record for the parties; and/or
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Case 2:17-cv-00620-GMN-NJK Document 16 Filed 08/29/17 Page 4 of 9
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c.
A person retained by a party or its attorneys of record to assist in this action, such
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as independent accountants, expert witnesses, statisticians, economists, consultants or other
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technical experts and/or consultants, who have signed a Declaration in the form of Exhibit A
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hereto. Delivery of the executed Exhibit A must be provided to counsel for PROGRESSIVE
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INSURANCE at the time an expert report is provided, expert disclosures are due or at the
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conclusion of this case, whichever comes first; and/or
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d.
Court reporters, persons operating video recording equipment at depositions, and
any Special Master appointed by the Court; and/or
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Actual or potential deposition witnesses in this action who are assisting counsel in
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the prosecution or defense of this action or whom counsel must advise concerning the status of
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this action who have executed a Declaration in the form attached hereto as Exhibit A.
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4.
Unless prior written consent for further disclosure has been obtained from counsel
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for PROGRESSIVE INSURANCE or permission for such disclosure has been given by the Court,
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each qualified person identified in Paragraphs 3(a), (c), and (e) above, as well as counsel for
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third-party witnesses, to whom delivery, exhibition or disclosure of any materials designed as
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confidential is made, shall be provided with a copy of this STIPULATION AND ORDER
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REGARDING CONFIDENTIALITY AGREEMENT.
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5.
“Confidential” documents and other discovery materials shall include all originals
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and copies of any document and/or information that PROGRESSIVE INSURANCE has
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designated as such by stamping the cover or other page or by stamping a blank sheet affixed to
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the cover or other page with the word “CONFIDENTIAL” or in any other reasonable manner
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appropriate to the form in which the confidential information is made available to the qualified
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persons as defined in Paragraph 3. In lieu of stamping the originals of documents,
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PROGRESSIVE INSURANCE may stamp copies that are produced or exchanged, or indicate in
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some appropriate fashion that the documents are confidential under this STIPULATION AND
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ORDER REGARDING CONFIDENTIALITY AGREEMENT.
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documents or other discovery materials produced and not so designated through mistake, an
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inadvertence, or for any other reason shall likewise be deemed confidential if later designated.
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Notwithstanding the foregoing,
Case 2:17-cv-00620-GMN-NJK Document 16 Filed 08/29/17 Page 5 of 9
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6.
In the event that a “qualified person” ceases to engage in the preparation for trial
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or trial of this proceeding, access by such person to confidential documents and other discovery
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materials of PROGRESSIVE INSURANCE shall be terminated. However, the provisions of this
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STIPULATION AND ORDER REGARDING CONFIDENTIALITY AGREEMENT shall remain in
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full force and effect as to all persons who have obtained access to such documents or other
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discovery materials of PROGRESSIVE INSURANCE designated for protection hereunder in
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perpetuity.
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Counsel for the parties shall maintain a list of the names of all persons, including
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all experts, expected to testify at trial, who inspect or view confidential documents and other
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discovery information or who receive any copies of such confidential documents or discovery
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information and shall make such a list available to PROGRESSIVE INSURANCE at the
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conclusion of this litigation.
8.
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This
STIPULATION
AND
ORDER
REGARDING
CONFIDENTIALITY
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AGREEMENT initially protects from disclosure all documents that the producing party designates
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in good faith as "confidential".
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designated, another party may, within 20 days of delivery of the document or other information,
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send a letter to the producing party challenging any such designations by indicating by bates
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number ranges or other sufficient identifying information precisely which documents the
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challenging party asserts are not in fact "confidential". The parties shall confer in good faith in an
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attempt to informally resolve the dispute. If such attempt is unsuccessful, the party asserting the
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“confidential” designation of the document(s), shall file a motion for a protective order regarding
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any designations in question, enclosing, where appropriate, the documents challenged for in
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camera review. The opposing party shall oppose the Motion per FRCP. Movant shall apply, if
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necessary, and submit the motion. Upon stipulation approved by the court, the parties may
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expedite briefing.
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information" hereunder unless or until the court order that they be released from such status.
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Upon delivery of any document or other information so
The documents challenged hereunder retain their status as "confidential
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Case 2:17-cv-00620-GMN-NJK Document 16 Filed 08/29/17 Page 6 of 9
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9.
Documents initially designated as "confidential" by either party are solely to be
used within the confines of this litigation.
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Nothing contained herein shall prevent disclosure beyond the terms of this
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STIPULATION
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PROGRESSIVE INSURANCE consents in writing to such disclosure; or if the Court allows such
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disclosure; or if the party to whom confidential information has been produced thereafter
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becomes obligated to disclose the information in response to a lawful subpoena, PROVIDED
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THAT the subpoenaed party gives prompt written notice to counsel for PROGRESSIVE
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INSURANCE and permits PROGRESSIVE INSURANCE's counsel sufficient time to intervene
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ORDER
REGARDING
CONFIDENTIALITY
AGREEMENT
if
and seek appropriate relief in the action in which the subpoena was issued.
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AND
Nothing in this STIPULATION AND ORDER REGARDING CONFIDENTIALITY
AGREEMENT, nor any action taken in compliance with it, shall:
a.
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Operate as an admission by PROGRESSIVE INSURANCE that any particular
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document, or discovery material, deposition transcript, or discovery response is or is not
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confidential; or
b.
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Prejudice in any way the right of any party to seek a determination by the Court
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whether particular documents or other information should or should not be disclosed or if
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disclosed whether it should remain subject to the terms of this STIPULATION AND ORDER
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REGARDING CONFIDENTIALITY AGREEMENT.
Any party may request the Court to modify or otherwise grant relief from any provision of
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this STIPULATION AND ORDER REGARDING CONFIDENTIALITY AGREEMENT.
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Nothing in this STIPULATION AND ORDER REGARDING CONFIDENTIALITY
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AGREEMENT shall be deemed to impair PROGRESSIVE INSURANCE's right to object to the
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production of documents or information on any ground, or to assert that the documents or
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information sought are privileged or otherwise protected from disclosure or to demand more
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stringent restrictions for the treatment or disclosure of any documents or discovery information
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on any ground that may be warranted by the circumstances of a particular document request.
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Case 2:17-cv-00620-GMN-NJK Document 16 Filed 08/29/17 Page 7 of 9
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13.
Nothing in this STIPULATION AND ORDER REGARDING CONFIDENTIALITY
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AGREEMENT shall bar or otherwise restrict any attorney herein from rendering advice to his or
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her client with respect to this case.
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14.
The parties and their attorneys, and any “qualified persons” who receive
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confidential
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CONFIDENTIALITY AGREEMENT, who intentionally, knowingly, or otherwise violate the terms
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of this STIPULATION AND ORDER REGARDING CONFIDENTIALITY AGREEMENT shall be
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jointly and severally liable to PROGRESSIVE INSURANCE for all damages arising therefrom
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and PROGRESSIVE INSURANCE may pursue any and all civil remedies available to it for
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breach of the terms of this STIPULATION AND ORDER REGARDING CONFIDENTIALITY
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AGREEMENT.
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information
This
subject
STIPULATION
to
this
AND
STIPULATION
ORDER
AND
ORDER
REGARDING
REGARDING
CONFIDENTIALITY
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AGREEMENT may be modified by executing a revised stipulation and order among all parties,
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approved by the Court or by application by noticed motion.
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Nothing in this STIPULATION AND ORDER REGARDING CONFIDENTIALITY
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AGREEMENT shall be construed as a waiver of any rights by any party with respect to matters
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not specifically provided for herein.
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17.
Unless otherwise permitted by statute, rule or prior court order, papers filed with
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the court under seal shall be accompanied by a contemporaneous motion for leave to file those
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documents under seal, and shall be filed consistent with the court’s electronic filing procedures in
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accordance with Local Rule 10-5(b). Notwithstanding any agreement among the parties, the
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party seeking to file a paper under seal bears the burden of overcoming the presumption in favor
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of public access to papers filed in court. Kamakana v. City and County of Honolulu, 447 F.2d
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1172 (9th Cir. 2006).
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18.
Nothing in this STIPULATION AND ORDER REGARDING CONFIDENTIALITY
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AGREEMENT shall be construed to subject the Court or its staff to civil liability for any disclosure
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of confidential information if contrary to the terms of this stipulated protective order. Neither shall
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this STIPULATION AND ORDER REGARDING CONFIDENTIALITY AGREEMENT be construed
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Case 2:17-cv-00620-GMN-NJK Document 16 Filed 08/29/17 Page 8 of 9
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to interrupt or affect the Court's duties to apply Ninth Circuit standards to unseal materials as
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appropriate, even though those materials may be been designated as confidential pursuant to
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this stipulated protective order.
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DATED:
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LAW OFFICES OF JULIE A. MERSCH
DENNETT WINSPEAR, LLP
By
/s/ Julie A. Mersch
JULIE A.MERSCH, ESQ.
Nevada Bar No. 004694
701 S. Seventh Street
Las Vegas, Nevada 89101
Telephone: (702) 387-5868
Facsimile: (702) 387-0109
Attorneys for Plaintiff,
RANDY ROHDE
/s/ Matthew J. Wagner
By
RYAN L. DENNETT, ESQ.
Nevada Bar No. 005617
MATTHEW J. WAGNER, ESQ.
Nevada Bar No. 011311
3301 N. Buffalo Drive, Suite 195
Las Vegas, Nevada 89129
Telephone: (702) 839-1100
Facsimile: (702) 839-1113
Attorneys for Defendant, PROGRESSIVE
DIRECT INSURANCE COMPANY
8/25/2017
DATED:
8/25/2017
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ORDER
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Good cause appearing therefore, IT IS SO ORDERED.
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August 30, 2017
DATED this _____ day of
, 2017.
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___________________________________
UNITED STATES MAGISTRATE JUDGE
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Case 2:17-cv-00620-GMN-NJK Document 16 Filed 08/29/17 Page 9 of 9
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO
ABIDE BY STIPULATION AND ORDER
REGARDING CONFIDENTIALITY AGREEMENT
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THE UNDERSIGNED HEREBY UNDERSTANDS AND ACKNOWLEDGES that he or she
has read the Stipulation and Order Regarding Confidentiality Agreement filed in this action on
___________________, 2017. The Undersigned hereby acknowledges that a Stipulation and
Order Regarding Confidentiality Agreement in the case of RANDY ROHDE v PROGRESSIVE
DIRECT INSURANCE COMPANY, et al., was filed in the United States District Court Southern
District for the District of Nevada and entitled “STIPULATION AND ORDER REGARDING
CONFIDENTIALITY AGREEMENT.”
The Undersigned agrees to be bound by the terms of the above-mentioned Stipulation
and Order Regarding Confidentiality Agreement in the same manner as the parties to the
Stipulation and Order and their respective attorneys. The Undersigned agrees to provide Ryan
L. Dennett, Esq., attorney for Defendant PROGRESSIVE INSURANCE, with written notice of
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any document sharing as well as a list of any recipients of shared documents. The Undersigned
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also agrees, as provided in the Stipulation and Order Regarding Confidentiality Agreement, to
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submit to the jurisdiction of the United States District Court Southern District for the District of
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Nevada for any proceedings related to any violation or threatened violation of this Order.
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Dated:
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Litigant
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Litigant
Litigant
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Attorney
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