Bracco v. Findlay Automotive of Nevada, LLC.

Filing 28

ORDER granting 27 Stipulation for Protective Order; Signed by Magistrate Judge Cam Ferenbach on 11/21/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 5 6 7 8 Anthony L. Martin Nevada Bar No. 8177 anthony.martin@ogletreedeakins.com Amy L. Howard Nevada Bar No. 13946 amy.howard@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Wells Fargo Tower, Suite 1500 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Fax: 702.369.6888 Attorneys for Defendant Findlay Automotive of Nevada, LLC dba Findlay Toyota UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF NEVADA 11 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 9 12 MARIA BRACCO, an individual, Plaintiff, 13 14 15 16 17 Case No. 2:17-cv-01222-APG-VCF vs. FINDLAY AUTOMOTIVE OF NEVADA, LLC dba FINDLAY TOYOTA, a Nevada corporation; and DOES 1-50, inclusive, STIPULATED PROTECTIVE ORDER GOVERNING THE CONFIDENTIALITY OF INFORMATION AND DOCUMENTS Defendants. 18 19 20 Defendant Findlay Automotive of Nevada, LLC dba Findlay Toyota (“Defendant”) and Plaintiff Maria Bracco (“Plaintiff”) (collectively referred to as “Parties”), by and through their 21 respective counsel of record, hereby request the Court enter the following Stipulated Protective 22 Order Governing the Confidentiality of Information and Documents. This Stipulation is brought 23 pursuant to and in compliance with Local Rule 7-1. 24 Plaintiff is expected to request confidential, non-public information and documents from 25 Defendant, including but not limited to, sales reports, information that may contain customer 26 27 28 information, including customer names, addresses, and financial information, non-public business records, personnel files, and other information and documents regarding certain individuals, 1 including employees who are not, and are not expected to be, parties to this matter. Plaintiff may 2 also request documents related to Defendant’s business operations. Defendant considers this 3 information and these documents to be private and confidential. In addition, Defendant may 4 request confidential, non-public information and documents from Plaintiff, including financial 5 6 7 records, and other information and documents regarding certain individuals, who are not, and are not expected to be, individual parties to this action. things, the answering of Interrogatories and Requests to Admit, and the taking of oral and/or 10 written depositions, during which the aforementioned proprietary, trade secret, financial, medical, 11 confidential and/or private information and documents of the Parties will be exchanged and 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Discovery in this case will require the production of documents, inspection of tangible 9 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 disclosed. To expedite the flow of discovery, facilitate the prompt resolution of disputes over 13 confidentiality, and to protect adequately material entitled to be kept confidential, the Parties agree 14 to limit the disclosure and use of proprietary, confidential, and private information and documents 15 as stipulated, pursuant to this Stipulated Protective Order on the following terms: 16 I. DEFINITIONS 17 The following definitions shall apply to this Stipulated Protective Order: 18 A. 19 The “Action” shall refer to in the instant litigation originally filed in the United States District Court for the District of Columbia, and transferred to the United 20 States District Court for the District of Nevada, Case No. 2:17-cv-01222-APG21 VCF, and any appeal thereof through final determination. 22 23 B. “Producing Party” shall mean any person or entity producing documents, 24 information or other materials in the Action, including any Party to the Action or 25 any third parties. 26 27 C. “Party” shall mean the Plaintiff and Defendant in this Action, and any other person that may become a named Party to the Action. 28 2 D. 1 “Confidential” information shall be defined as such documents, deposition 2 testimony or other information disclosed during discovery in the Action which the 3 Producing Party or another Party reasonably and in good faith contends contains 4 information that should be protected from disclosure pursuant to this Stipulated 5 Protective Order. 6 Any Party may designate any information or documents as Confidential in the reasonable exercise of such Party’s sole discretion; provided, 7 however, by agreeing to this Stipulated Protective Order, no Party waives the right 9 to challenge any other Party’s designation of any information or document as 10 Confidential. 11 E. “Legend” as used herein shall mean a stamp or similar insignia stating Confidential. F. When reference is made in this Stipulated Protective Order to any document or 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 13 Party, the singular shall include the plural, and plural shall include the singular. 14 G. 15 16 17 II. “Attorneys’ Eyes Only” shall mean only to be reviewed by counsel of record. DESIGNATION OF INFORMATION AND DOCUMENTS A. 18 When any document or things produced under this Stipulated Protective Order are designated Confidential, a Legend shall be affixed to the first page and all pages 19 containing information for which the Producing Party seeks protection. When 20 information produced in answer to an Interrogatory, or response to a Request for 21 Production or Request for Admission is designated as Confidential, the response or 22 answer shall be preceded with the appropriate designation. 23 24 B. Some documents being produced by both Plaintiff and Defendants may contain 25 social security numbers. Without need of any designation, social security numbers 26 will be deemed to be Confidential. In the event a document is produced without the 27 redaction of a social security number, any Party seeking to use the document will 28 3 1 make every effort to redact the social security number before its use in a deposition, 2 court proceeding or court filing. 3 C. 4 The initial failure to designate information or documents as Confidential in accordance with this Stipulated Protective Order shall not preclude the Producing 5 Party from, at a later date, designating any information or documents as 6 Confidential. The Producing Party may, by written notice to counsel of record for 7 the receiving Party, designate previously produced information or documents as 9 Confidential, which it had inadvertently failed to designate. Upon receipt of such 10 notice, the receiving Party shall promptly mark its copies of the information or 11 documents so designated, and shall, thereafter, treat the information and documents 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 as if it had been designated Confidential and shall restrict the disclosure or use of 13 the information or documents in accordance with this Stipulated Protective Order. 14 15 If the information or documents have previously been disclosed to non-parties, the 16 Parties shall take reasonable steps to obtain all such previously disclosed 17 information or documents and advise the non-parties to treat the designated 18 materials in a manner that is consistent with this Stipulated Protective Order and as 19 though the information and documents were originally so designated. 20 III. LIMITATIONS 21 22 A. This Stipulated Protective Order shall govern only documents, information and 23 materials generated or produced in response to any method of discovery conducted 24 by any Party to the Action, and used in the prosecution and defense of the Action. 25 26 B. Persons obtaining access to Confidential information under this Stipulated Protective Order shall use the information only for the preparation of and the trial in 27 28 4 1 the Action. Persons shall not use such information for any other purpose, including 2 business, commercial, personal, administrative or judicial proceedings. 3 C. 4 Nothing contained in this Stipulated Protective Order shall require any Party to treat as Confidential documents or information lawfully obtained by means other than 5 through discovery in the Action and under circumstances that would lead a 6 reasonable person to conclude that the documents or information were not intended 7 to be kept confidential by the recipient; provided, however, that nothing in this 9 Stipulated Protective Order shall authorize any use of documents or information 10 11 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 which is otherwise impermissible. IV. PERMISSIBLE DISCLOSURES/ACCESS Except as set forth herein, Confidential information, and any facts or information contained 13 14 therein or derived therefrom, shall be disclosed only to the Court on the condition that the Court 15 enters an order similar to this Stipulated Protective Order and/or to: (a) the Parties in the Action, 16 including their agents, officers, directors and employees, but only to the extent that such disclosure 17 is necessary for the conduct of litigation in the Action; (b) outside counsel for the Parties hereto 18 and their agents, employees, paralegals, or other secretarial and clerical employees or agents; (c) 19 experts, independent contractors, consultants, or advisors who are employed or retained by, or on 20 behalf of, one or more of the Parties to the Action or their counsel to assist in preparation of the 21 22 Action for trial; (d) deponents and their counsel who have a need to review this material during the 23 course of, or in connection with, depositions taken in or for the Action; (e) stenographic reporters 24 who are involved in depositions, the trial or any hearings or proceedings before the Court in the 25 Action; (f) people who have previously received or created the document; and (g) witnesses in the 26 Action who need to review this material in connection with their testimony in the Action. 27 Confidential information may be disclosed to persons listed in this paragraph only after such 28 5 1 person has been shown a copy of this Stipulated Protective Order and agrees to be bound by the 2 terms of this Stipulated Protective Order in the form attached hereto as Exhibit A. In the event an 3 authorized person does not execute Exhibit A expressly agreeing to be bound by this Stipulated 4 Protective Order, the Parties and the Court will nevertheless deem the authorized person to be so 5 6 7 bound. V. DECLASSIFICATION Unless and until otherwise ordered by the Court, or otherwise agreed by the Parties, all 9 documents and other discovery materials designated Confidential or Attorneys’ Eyes Only shall be 10 treated as such under this Stipulated Protective Order. In the event that any Party objects to the 11 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 designation of any document, the objecting Party may seek modification of the designation or the disclosure of the redacted information in accordance with the following procedure: 13 14 A. At any time, the receiving Party of any document or information designated 15 Confidential may notify the Producing Party, in writing, that the receiving Party 16 does not concur in the designation or redaction. The Parties shall attempt to resolve 17 such challenges informally. In the event that such attempts are not successful, the 18 receiving Party may file a motion seeking to remove the designation as 19 Confidential, and the Court shall make an independent determination as to whether 20 or not any given document or information is Confidential and/or properly redacted 21 22 based upon facts then existing, and in so doing, the Court shall not be bound by any 23 Party’s designation; provided, however, that such documents or discovery material 24 shall be deemed Confidential unless and until the Court rules otherwise. The Party 25 or entity making the designation must show that there is good cause for the 26 document or information to have such protection. 27 28 6 B. 1 In the event that any Party files a motion to remove a designation or redaction of 2 information, the document or information shall be submitted to the Court for in 3 camera inspection. 4 VI. DESIGNATED INFORMATION AND DOCUMENTS IN DEPOSITIONS 5 A. In the case where Confidential information or documents are used or revealed 6 during a deposition, designation of the transcript or any portion thereof, including 7 the designated documents or other exhibits, as Confidential, may be made by a 9 statement by a Party, counsel or the witness on the record, so that the stenographer 10 transcribing the deposition can affix a Legend to the cover page and all appropriate 11 pages of the transcript and to each copy thereof for dissemination to counsel and in 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 compliance with this Stipulated Protective Order. 13 B. 14 A Party or a witness may designate a deposition or trial transcript, or a portion 15 thereof, disclosing, containing or referring to any Confidential information or 16 documents as “Confidential” by informing counsel for all other Parties to this 17 Action in writing within thirty (30) days after receipt of the transcript as to the 18 specific pages and lines deemed Confidential, and thereafter such pages and lines 19 shall constitute Confidential information or documents pursuant to this Stipulated 20 Protective Order. Upon receipt of such notice, any Party in possession of copies of 21 the transcript with the designated pages and lines shall affix the appropriate Legend 22 23 thereto. During the 30-day interval following receipt of a transcript, the transcript 24 shall be treated as Confidential. 25 26 27 VII. DESIGNATED INFORMATION AND DOCUMENTS IN BRIEFS In the event that any Confidential document or information, or information derived therefrom is included with, or the contents thereof are disclosed in any documents filed with the 28 7 1 Clerk of this Court or any other court, including, without limitation, any pleadings, motion papers, 2 briefs or deposition transcripts, such documents shall be filed under seal subject to the provisions 3 of LR IA 10-5. 4 VIII. DESIGNATED INFORMATION AND DOCUMENTS IN THE RECORD 5 Confidential information or documents may be offered in evidence at any hearing or the 6 7 trial in the Action, provided that the Parties have met, conferred and agreed in advance of the hearing and/or trial as to how the information or documents will be used, including, by way of 9 example, requesting that the Court designate that portion of the transcript containing the Parties’ 10 discussion of the Confidential information or documents as Confidential and maintain it under seal, 11 only to be produced to the Parties’ at their request. If the Parties cannot agree about how the 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 information or documents will be used during a hearing, before or at the time of the hearing, the 13 14 Party designating such Confidential status may move the Court for an order that the evidence be 15 received in camera or under other conditions to prevent unnecessary disclosure. If such a motion 16 is made regarding evidence to be introduced at the time of trial, then the Party designating such 17 Confidential status shall notify opposing counsel and the Court of its intent to make the motion 18 sufficiently in advance of and outside the presence of the jury so that counsel has the opportunity 19 to object to the evidence and/or an opportunity to seek appropriate protection from the Court 20 outside the presence of the jury and before the information or documents are offered into evidence 21 22 in open court. The Court will then determine whether the proffered evidence should continue to be 23 treated as Confidential and, if so, what protection, if any, may be afforded to such information at 24 the hearing. 25 IX. 26 27 SUBPOENA BY COURT OR OTHER AGENCIES If at any time any document or information protected by this Stipulated Protective Order is subpoenaed by any court, administrative or legislative body, or is requested by any other person or 28 8 1 entity purporting to have authority to require the production of such information, the Party to 2 whom the subpoena or other request is directed shall immediately give written notice thereof to 3 any Party which has designated such information Confidential. 4 The Party that received the subpoena shall object to production under Rule 45 of the Federal Rules of Civil Procedure, or any 5 6 7 similar rule protecting the production of Confidential documents in that proceeding. After receipt of the notice specified under this paragraph, the designating Party shall be responsible for obtaining any order it believes necessary to prevent disclosure of documents designated, and the 9 Party to whom the referenced subpoena or other request is directed shall produce such document or 10 information only upon an order issued by a judge of a court of competent jurisdiction requiring 11 such production. 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 X. CLIENT CONSULTATION 13 Nothing in this Stipulated Protective Order shall prevent or otherwise restrict counsel from 14 15 rendering advice to their clients and, in the course thereof, relying generally on examination of 16 stamped Confidential information or documents; provided, however, that in rendering such advice 17 and otherwise communicating with such clients, counsel shall not make specific disclosure of any 18 items so designated except pursuant to the procedures in Paragraph IV above. 19 XI. COPIES OF DESIGNATED INFORMATION 20 The attorneys of record are responsible for employing reasonable measures, consistent with 21 22 this Stipulated Protective Order, to control duplication of, access to, and distribution of copies of 23 Confidential information. Parties shall not duplicate Confidential information or documents except 24 working copies and for filing in Court under seal. All copies of any Confidential information or 25 documents shall be treated as provided in this Stipulated Protective Order. Any Party making, or 26 causing to be made, copies of any such documents shall make certain that each such copy bears the 27 appropriate Legend pursuant to the requirements of this Stipulated Protective Order. 28 9 1 2 XII. NO WAIVER A. 3 No Confidential information or documents shall lose such status under this Stipulated Protective Order as the result of the use of such information or 4 documents in any hearing, trial, or other court proceeding in this Action, provided 5 that such use is consistent with the terms of this Stipulated Protective Order. 6 Counsel to the Parties in the Action shall confer at least five (5) days before any 7 such hearing, trial, or other court proceeding in order to work out any objections to 9 the use of any Confidential information or documents in such court proceeding and 10 to make such amendments to this Stipulated Protective Order which the Parties 11 agree are necessary to assure the continued confidentiality of such information. 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 B. Notwithstanding anything to the contrary contained herein, all objections as to 13 admissibility in evidence of the discovery material subject to this Stipulated 14 15 Protective Order are reserved and are not waived by any terms of this Stipulated 16 Protective Order. The use of Confidential information and documents as evidence 17 at trial shall be subject to this Stipulated Protective Order unless otherwise agreed to 18 by the Parties or modified by the Court. 19 C. 20 The inadvertent disclosure of Confidential information and documents shall not, under any circumstances, be deemed a waiver, in whole or in part, of any Party’s 21 claims of confidentiality. 22 23 D. The inadvertent production of any document or other information during discovery 24 in the Action shall be without prejudice to any claim that such material is 25 privileged, prohibited or protected from disclosure as privileged or work product, 26 27 and no Party shall be held to have waived any rights by reason of such inadvertent production. 28 10 1 XIII. NON-TERMINATION 2 The termination of proceedings in the Action shall not relieve the Parties from the 3 obligation of maintaining the confidentiality of all information and documents produced and 4 designated pursuant to this Stipulated Protective Order, unless the Parties otherwise agree or the 5 6 7 Court orders or permits otherwise. Upon the final disposition of the Action, all information and documents, including any summaries or abstracts of materials, however maintained, shall be kept completely confidential. 9 documents only for the purpose of defending ethical charges or professional malpractice charges, 10 11 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 Counsel for either Party may use the Confidential information and and may not use Confidential information or documents in any subsequent lawsuit. XIV. INADVERTENT PRODUCTION OF PRIVILEGED MATERIALS A. The inadvertent production of information that is subject to a claim of any privilege 13 or other protection as trial-preparation material shall not constitute a waiver of any 14 15 privilege or protection, provided that – consistent with the provisions of Fed. R. 16 Civ. P. 26(b)(5) – the Producing Party notifies the receiving Party in writing of the 17 inadvertent production as soon as practicable following the Producing Party’s 18 discovery of the inadvertent production. 19 B. Following the Producing Party’s written notice of the inadvertent production, the 20 receiving Party shall promptly return, destroy, or delete from its databases all copies 21 of the specified information and shall make reasonable efforts to retrieve the 22 23 information if the receiving Party previously provided the information to third 24 parties. 25 26 C. The receiving Party shall not assert a claim or argument in this or any other court or legal proceeding that the Producing Party’s act of inadvertently producing the 27 28 11 1 information constituted a waiver of the Producing Party’s privilege or other 2 protection over the information. 3 D. 4 If there is a disagreement as to whether the specified information is privileged or subject to protection, the receiving Party may present the information under seal to 5 the Court for a determination. 6 7 E. Until the Court makes a determination of the privileged or protected status of the information, the receiving Party shall not use in any way (including, but not limited 9 to, using the information in depositions or at trial) nor disclose the information to 10 11 other Parties. IT IS SO STIPULATED. 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 DATED this 20th day of November, 2017. 13 14 WATKINS & LETOFSKY, LLP OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. /s/ Theresa M. Santos Daniel R. Watkins Theresa M. Santos 8215 S. Eastern Avenue Suite 265 Las Vegas, NV 89123 Telephone: 702.901.7553 Attorneys for Plaintiff Maria Bracco /s/ Anthony L. Martin Anthony L. Martin Amy L. Howard 3800 Howard Hughes Parkway Suite 1500 Las Vegas, NV 89169 Telephone: 702.369.6800 Attorneys for Defendant Findlay Automotive of Nevada, LLC dba Findlay Toyota 15 16 17 18 19 20 21 22 23 ORDER IT IS SO ORDERED. 24 25 26 27 UNITED STATES MAGISTRATE JUDGE 11-21-2017 DATED 28 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 20 21 22 Exhibit A 19 UNDERSTANDING AND AGREEMENT REGARDING CONFIDENTIAL DOCUMENTS AND INFORMATION 23 24 25 26 27 28 13 1 EXHIBIT A 2 UNDERSTANDING AND AGREEMENT REGARDING CONFIDENTIAL DOCUMENTS AND INFORMATION 3 4 I hereby state that I have read and received a copy of the Stipulated Protective Order Governing the Confidentiality of Documents and Information (the “Order”) in Maria Bracco vs. 5 6 7 Findlay Automotive of Nevada, LLC dba Findlay Toyota, Case No. 2:17-cv-01222-APG-VCF, which case is currently pending in the United States District Court for the District of Nevada (the “Court”). I understand the terms of the Order, agree to be bound by those terms, and consent to the 9 jurisdiction of the Court with respect to enforcement of the Order. 10 11 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 13 14 ___________________________________________ Signature ___________________________________________ Printed Name: ___________________________________________ Dated 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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