Smith v. USAA Federal Savings Bank et al

Filing 15

AGREED PROTECTIVE ORDER granting 14 Stipulation re Protective Order. Signed by Magistrate Judge Peggy A. Leen on 3/8/2018. (Copies have been distributed pursuant to the NEF - MMM)

Case 2:17-cv-02331-JAD-PAL Document 14 Filed 03/06/18 Page 1 of 10

1
2
3
4
5
6
7
8
9

ALVERSON, TAYLOR,
MORTENSEN & SANDERS
KURT R. BONDS, ESQ.
Nevada Bar #6228
TREVOR R. WAITE, ESQ.
Nevada Bar #13779
6605 GRAND MONTECITO PARKWAY
SUITE 200
LAS VEGAS, NEVADA 89149
[phone]
FAX [phone]
[e-mail]
Attorneys for Defendant USAA
Federal Savings Bank
THE UNITED STATES DISTRICT COURT

11

FOR THE DISTRICT OF NEVADA

12
LAWYERS
6605 Grand Montecito Parkway, Suite 200
Las Vegas, Nevada 89149
[phone]

ALVERSON, TAYLOR, MORTENSEN & SANDERS

10

13

***
BOBBY E. SMITH,
Case No. 2:17-CV-02331-JAD-PAL
Plaintiff,

14
vs.
15
16
17

USAA FEDERAL SAVINGS BANK, and
EQUIFAX INFORMATION SERVICES,
LLC,

18
Defendants.
19
20
21

AGREED PROTECTIVE ORDER AND STIPULATION
The Court, having been advised and upon the consent and stipulation of Plaintiff, Bobby E. Smith

22
and Defendant, USAA Federal Savings Bank (“USAA FSB”), (collectively the “Parties) enters the
23
24
25
26
27
28

following Agreed Protective Order and Stipulations (Agreement and Order):
1.0 DEFINITIONS AND BACKGROUND INFORMATION:
1.1 As used in this order, the word:
1

KB/25350

Case 2:17-cv-02331-JAD-PAL Document 14 Filed 03/06/18 Page 2 of 10

1
2
3
4

1.1.1 “Party” or “Parties” shall include Bobby E. Smith and USAA FSB, and each
of their employees, agents, representatives, and attorneys (including both outside counsel and
inside counsel).
1.1.2 “Person(s)” shall include any “Party” or non-party to this action, whether an
individual, corporation, partnership, company, unincorporated association, governmental
agency, or other business or governmental entity.

5
6
7
8
9

11

1.1.4 “Discovering Party” shall mean the Party who has requested the production of
documents designated as Confidential Material under this Agreement and Order.

12
LAWYERS
6605 Grand Montecito Parkway, Suite 200
Las Vegas, Nevada 89149
[phone]

ALVERSON, TAYLOR, MORTENSEN & SANDERS

10

1.1.3 “Confidential Material” or “Confidential Document” shall mean any and all
documents or other materials produced in response to Requests for Production of Documents
as well as any confidential or proprietary documents, data, or information provided in
response to other written discovery requests, interrogatory answers or deposition testimony.
All Confidential Materials (including interrogatory answers) shall be Bates stamped and
marked as confidential with a watermark or legend. By agreement between the Parties
(confirmed in writing) additional documents may be designated as Confidential Material
subject to the terms of this Stipulation and Order.

13

1.1.5 “Producing Party” shall mean the Party who has produced documents
designated as Confidential Material under this Agreement and Order.

14

1.2

15

USAA FSB contends that documents and information sought by Bobby E. Smith designated
Confidential Material represent and/or reflect trade secrets or other confidential and
proprietary research, development or commercial information. The parties agree USAA FSB
has a legitimate interest in protecting trade secrets, confidential and proprietary information.
The parties agree the protections within this agreement are adequate.

16
17
18
19

1.3

USAA FSB’s Trade Secrets and Proprietary Information:

Nature of this Agreement and Order

23

The nature of this agreement and order is to protect USAA FSB’s member and business
interests in its own intellectual property, information, and processes. The insurance, banking,
and investment industries are highly competitive markets, and disclosure of USAA FSB’s
trade secrets, confidential or proprietary information could cause irreparable and significant
harm to USAA FSB and its members. This Agreement and Order is intended to prevent this
foreseeable harm and any related unforeseeable harm.

24

1.4

25

The documents and information at issue do not involve the public health and safety, a public
entity, or issues important to the general public.

20
21
22

Public Health & Safety Not At Issue

26
27
28

2

KB/25350

Case 2:17-cv-02331-JAD-PAL Document 14 Filed 03/06/18 Page 3 of 10

1

1.5

2

4

It is the purpose of this Agreement and Order and the desire of USAA FSB to make the
broadest range of reasonably relevant documents available to Bobby E. Smith without
waiving any trade secrets, privilege, or otherwise proprietary information and without
subjecting the parties and the Court to numerous discovery motions.

5

1.6

6

The Parties agree to limit dissemination of any documents and information as set forth in this
Agreement and Order and are materially relying on the representations and covenants
contained within.

3

7
8

Good Faith Discovery Cooperation:

Reliance on this Agreement

2.0 SCOPE OF AGREEMENT AND PROTECTIVE ORDER:

9
2.1

Purpose of This Agreement and Order:

11
12
LAWYERS
6605 Grand Montecito Parkway, Suite 200
Las Vegas, Nevada 89149
[phone]

ALVERSON, TAYLOR, MORTENSEN & SANDERS

10

13
14
15
16
17
18
19
20
21
22
23

It is the purpose of this Agreement and Order that USAA FSB will be provided reasonable assurance
that:
2.1.1 The documents produced by USAA FSB will be used in this litigation and this
litigation only;
2.1.2 The documents produced by USAA FSB will not be used for commercial
purposes;
2.1.3 The documents produced by USAA FSB will not be used for non-litigation
purposes.
2.2
USAA FSB is relying on this Agreement and Order, and would not have produced the
documents and information otherwise.
2.3
USAA FSB’s production under this Agreement and Order does not admit or concede
the documents or information are relevant or admissible in this litigation.
2.4
This Agreement and Order survives the end of the above-styled litigation.
2.5
The parties agree good cause exists for this Agreement and for the Court to enter this
Order.
2.6
Compliance with this Agreement and Order will be a material term to any settlement
agreement reached in this case.
IT IS THEREFORE, STIPULATED BY THE PARTIES AND ORDERED BY THE
COURT:
3.0 DOCUMENTS TO BE PRODUCED BY USAA FSB:

24

3.1

Procedure for production of documents:

25

3.2

Any part of the claims file, USAA FSB files, or USAA FSB documents produced for
inspection and made available for copying in this action by any Party to this litigation
or any third parties after the date of entry of this Order may be designated

26
27
28

3

KB/25350

Case 2:17-cv-02331-JAD-PAL Document 14 Filed 03/06/18 Page 4 of 10

1

Confidential Material or Confidential Documents. Such a designation shall be made
by placing a watermark or legend inscribing the word "Confidential" on the face of
each page of each document so designated.

2
3

3.3

Such Confidential Documents in whole or in part or in any form, and the information
within, may be used and disclosed solely for the preparation and trial of this litigation
only, including all appeals. Copies of any discovery designated “confidential” shall
only be provided to parties or persons as identified within this Agreement and Order.

3.4

The Parties and their counsel agree to use reasonable efforts not to disclose the
information to any third person or entity whatsoever, except to (the following are
collectively referred to as “Qualified Person(s)”):

4
5
6
7
8

a. counsel of record and their associated attorneys in this action on behalf of a party
to this litigation;
b. employees or agents of counsel of record including regularly employed support
staff, paralegal and clerical personnel who have a direct responsibility for assisting
such counsel in the preparation and trial of litigation, including appeals;
c. outside consultants and experts and their employees or agents retained by retained
counsel or any party to this litigation for the purpose of assisting in the preparation
and trial of this litigation, including appeals;
d. the court presiding in any hearing or trial in this matter where the confidential
information is to be presented (“the Court”), and court personnel, including
stenographic reporters regularly employed by the court;
e. stenographic or video reporters who are otherwise engaged in such proceedings as
are necessarily incident to the conduct of this litigation;
f. witnesses or prospective witnesses requested by counsel to give testimony or
otherwise to prepare for any deposition, hearing, trial or other proceeding in this
litigation.

9

11
12
LAWYERS
6605 Grand Montecito Parkway, Suite 200
Las Vegas, Nevada 89149
[phone]

ALVERSON, TAYLOR, MORTENSEN & SANDERS

10

13
14
15
16
17
18

Any person or group of people who do not each meet the criteria of a Qualified
Person as defined above, shall be deemed to be a “non-qualified person” or “nonqualified persons.”

19
20
21
22
23
24
25
26
27
28

4.0 DEPOSITIONS:
4.1.

Deposition testimony shall be designated as Confidential Material under the terms of
this Agreement and Order only if counsel for a party advises the court reporter and
opposing counsel such designation at the deposition, or by written designation to all
parties and the court reporter within ten (10) business days after receiving the
deposition transcript. The court reporter shall note on the record the designation of
Confidential Material and shall separately transcribe those portions of the testimony
so designated and shall mark the face of such portion of the transcript as
“Confidential Material.” The parties may use Confidential Material during any
4
KB/25350

Case 2:17-cv-02331-JAD-PAL Document 14 Filed 03/06/18 Page 5 of 10

1

deposition provided the witness is apprised of the terms of this Agreement and Order
and executes the acknowledgment attached as Exhibit “A.” The parties may use
Confidential Material during a deposition only if the room is first cleared of all nonqualified persons.

2
3
4.2

In the event that any party desires to contest the designation of any documents,
information, or testimony as Confidential Material that party shall, after requesting
and being denied re-designation within a timely manner, shall file an objection with
the Court and request a hearing on the matter. At such hearing, the party designating
the information as Confidential Material shall have the burden to establish that
party’s right to protection of the Confidential Material. All such documents,
information or testimony shall be treated as Confidential Material until the Court
makes a decision regarding the status of the documents, information and testimony.

4.3

4

Any papers filed with the Court in these actions which include, attach or make
reference to Confidential Material (or information derived from Confidential
Material) shall be considered Confidential Material governed by the terms of this
Agreement and Order, and shall be filed under seal and shall remain sealed with the
Office of the Clerk so long as the materials retain the status of Confidential Material.

5
6
7
8
9

11
12
LAWYERS
6605 Grand Montecito Parkway, Suite 200
Las Vegas, Nevada 89149
[phone]

ALVERSON, TAYLOR, MORTENSEN & SANDERS

10

13

5.0 VIEWING OF DOCUMENTS BY THIRD PARTIES:

14

5.1

Possession of Documents by Third Parties:

15
The undersigned counsel as counsel who become the custodian of the Confidential
Material produced by a party shall not grant possession of the documents to any other
person or entity except as expressly authorized by the terms of this Agreement and
Order.

16
17
18
5.2

Viewing of Documents by Third Parties is Permissible:

19
Subject to the terms and conditions of this Agreement and Order, the undersigned
counsel may permit other persons or entities to possess and to view documents
produced under this Agreement and Order.

20
21
5.3

22
23
24

All Confidential Material produced or provided in the course of this litigation, and
the information obtained from examining the same, shall be used solely for the
purposes of the proceedings in this litigation, and not for any other purpose. The
Confidential Material shall not be disclosed to anyone, either orally or in writing,
except in accordance with the terms of this Agreement and Order.

25
///
26
27
28

5

KB/25350

Case 2:17-cv-02331-JAD-PAL Document 14 Filed 03/06/18 Page 6 of 10

1

5.5

3

The Parties do not waive, and expressly retain the right to assert in the Action or
other investigation or lawsuit, the application of any common law or statutory
privileges or any theory of immunity from disclosure of the confidential documents,
in whole or in part, or in any form, and any other confidential information

4

a.

Nothing in this Agreement and Order shall preclude a Party from seeking and
obtaining, on an appropriate showing, additional protection (or relief from
protection) with respect to the confidentiality of information or documents
produced in the action.

b.

Nothing in this Agreement and Order is to be construed or used as a waiver of
any rights or procedural or evidentiary objections or privileges under either
the applicable Rules of Civil Procedure or the Rules of Evidence.

c.

This Agreement and Order is entered into for the purposes of this action only,
and shall not apply to documents or things produced by any party in any other
litigation.

d.

The Parties agree and acknowledge that before disclosing any Confidential
Material to a Qualified Person, as defined above in Section 3 of this
Agreement and Order, the Party shall provide to the Qualified Person a copy
of this Agreement and Order and each Qualified Person shall execute a copy
of the attached AGREEMENT TO BE BOUND BY PROTECTIVE
ORDER REGARDING CONFIDENTIAL INFORMATION (Exhibit
“A”). The executed copy of Exhibit “A” shall be retained by the attorney
who has disclosed the Confidential Material to the Qualified Person.

2

5
6
7
8
9

11
12
LAWYERS
6605 Grand Montecito Parkway, Suite 200
Las Vegas, Nevada 89149
[phone]

ALVERSON, TAYLOR, MORTENSEN & SANDERS

10

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

6.0

NO WAIVER BY INADVERTENT PRODUCTION:
If any Confidential Material is inadvertently provided to a Discovering Party without being
marked as confidential in accordance with this order, the failure to so mark the material shall
not be deemed a waiver of its confidentiality, privilege, or right to object. Until the material
is designated as confidential by the Producing Party however, the Discovering Party shall be
entitled to treat the material as non-confidential. When the material is designated as
Confidential Material, the Discovering Party shall take prompt steps to assure the material is
marked as confidential or returned to the Producing Party for confidential designation
pursuant to this Agreement and Order. The Producing Party shall bear the costs of
designating and marking the Confidential Material as such.

7.0 RETURN OF DOCUMENTS AT END OF LITIGATION:
Within ten (10) days after the final settlement or termination of action, it is the obligation of
the Discovering Party to return or destroy all Confidential Material provided by the
Producing Party. The Discovering Party shall return or destroy all Confidential Material,
6
KB/25350

Case 2:17-cv-02331-JAD-PAL Document 14 Filed 03/06/18 Page 7 of 10

1
2
3

including all copies, notes, tapes, papers and any other medium containing, summarizing,
excerpting, or otherwise embodying any Confidential Material, except that the Discovering
Party shall be entitled to destroy, rather than return (a) any Confidential Material stored in or
by data processing equipment and (b) work product memoranda or pleadings embodying
Confidential Material, subject to State Bar rules.

4
5
6

The Discovering Party will confirm in writing to the Producing Party its compliance with this
Section 7.0.
8.0 PHOTOCOPYING PROHIBITED BEYOND THIS LITIGATION:

7
8
9

The Confidential Material shall not be photographed, photocopied or reproduced in any
manner except in preparation of this litigation.
9.0 PUBLICATION PROHIBITED:

11
12
LAWYERS
6605 Grand Montecito Parkway, Suite 200
Las Vegas, Nevada 89149
[phone]

ALVERSON, TAYLOR, MORTENSEN & SANDERS

10
The Confidential Material shall not be published or reproduced in any manner on the
internet, blogs, bulletin boards, email, newspapers, magazines, bulletins, or other media
available publicly or privately. Likewise, persons may not verbally share the Confidential
Material to non-qualified persons.

13
10.0 ALL DOCUMENTS REVEALED TO THE COURT SHALL BE SEALED:
14
15
16
17
18
19

All motions or other documents filed with the Court, if any, which reveal any portion of the
Confidential Material shall be:
10.1 Filed in a sealed envelope directly with the presiding Judge.
10.2 Considered sealed documents until further order of the Court, if any.
10.3 All proceedings in connection therewith shall be conducted in chambers, if allowed
by the court.
10.4 Any records made of such proceedings, if any, shall also be sealed.
11.0 NON-WAIVER:

20
21
22
23
24
25
26
27
28

This Agreement and Order is not, and shall not be interpreted as, a waiver by any party of any
right to claim in this lawsuit or otherwise, that the documents or information are privileged or
otherwise undiscoverable.
12.0 VIOLATION AND ENFORCEMENT OF ORDER:
This Court shall retain jurisdiction to enforce this Protective Order and decide any issues
relating to or arising from it. Any party, including attorneys of record and outside
consultants and experts retained in this action, who violates this Order, including but not
limited to unauthorized disclosure of confidential information or documents, is subject to
sanctions, including but not limited to, dismissal of claims or defenses, civil contempt,
7
KB/25350

Case 2:17-cv-02331-JAD-PAL Document 14 Filed 03/06/18 Page 8 of 10

1
2
3
4
5

damages, assessment of reasonable expenses, including attorneys’ fees incurred by the person
whose confidential information was disclosed in violation of this Order, and/or any other
sanction deemed appropriate by the Court. Disclosure of confidential material in violation of
this order will also entitle a party to recover all damages proximately flowing from the
violation, including attorneys’ fees, and including attorneys’ fees expended in the
enforcement of this order. Should any provision of this Stipulation be struck or held invalid
by a court of competent jurisdiction, all remaining provisions shall remain in full force and
effect.

6
7
8
9

11
12
LAWYERS
6605 Grand Montecito Parkway, Suite 200
Las Vegas, Nevada 89149
[phone]

ALVERSON, TAYLOR, MORTENSEN & SANDERS

10

13

SO STIPULATED this 6th day of March, 2018.
By: //s// Rachel B. Saturn
Rachel B. Saturn
HAINES & KRIEGER, LLC
8985 S. Eastern Avenue, Suite 350
Las Vegas, Nevada 89123
phone: [phone] ext. 206
efax: [phone]
email: [e-mail]
ATTORNEYS FOR PLAINTIFF
BOBBY E. SMITH

By: //s// Trevor R. Waite
Trevor R. Waite
ALVERSON, TAYLOR,
MORTENSEN & SANDERS
TREVOR R. WAITE, ESQ.
Nevada Bar #13779
6605 GRAND MONTECITO PKWY
SUITE 200
LAS VEGAS, NEVADA 89149
[phone]
ATTORNEYS FOR DEFENDANT
USAA FSB

14
15
16
17
18
19

As to the stricken portion by the court on p.7, paragraph "10.0 ALL DOCUMENTS
SO ORDERED this _____ day of BE SEALED," the court will approve this protective
REVEALED TO THE COURT SHALL _______________________, 2018.
order to facilitate the parties' discovery changes. However, the parties have not shown,
and the court has not found, that any specific documents are entitled to protection. The
parties shall comply with the requirements of LR IA 10-5 and LR IC 4-1(c) with respect to
documents filed under seal in a civil case. The parties shall also comply with controlling
_________________________________
Ninth Circuit law regarding the presumption of public access to judicial files and records.
Honorable Judge Jennifer A. Dorsey
See Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006).

20
IT IS SO ORDERED this 8th day of March, 2018.
21
________________________________
Peggy A. Leen
United States Magistrate Judge

22
23
24

\\atms-fs2\data\kurt.grp\CLIENTS\25300\25350\pleading\Stipulation Protective.doc

25
26
27
28

8

KB/25350

Case 2:17-cv-02331-JAD-PAL Document 14 Filed 03/06/18 Page 9 of 10

1

EXHIBIT “A”

2
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA

3
4

BOBBY E. SMITH,
Case No. 2:17-CV-02331-JAD-PAL

5
6
7
8

Plaintiff,
vs.
USAA FEDERAL SAVINGS BANK, and
EQUIFAX INFORMATION SERVICES,
LLC,

9
Defendants.

11

AGREEMENT TO BE BOUND BY

12
LAWYERS
6605 Grand Montecito Parkway, Suite 200
Las Vegas, Nevada 89149
[phone]

ALVERSON, TAYLOR, MORTENSEN & SANDERS

10

PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION

13
I hereby attest to my understanding that information or documents designated as Confidential
14
15

Material or Confidential Documents and the information contained therein are provided to me

16

pursuant to the terms and conditions and restrictions of the AGREED PROTECTIVE ORDER

17

AND STIPULATION entered in the above styled case. I have been given a copy, read, and

18

understand the AGREED PROTECTIVE ORDER AND STIPULATION; and that I agree to be

19

bound by it, and consent to the personal jurisdiction of the Court that signed the AGREED

20
PROTECTIVE ORDER AND STIPULATION, for enforcement.
21
22

I further agree that I shall not disclose to others in any manner, except in accordance with that

23

AGREED PROTECTIVE ORDER AND STIPULATION, any Confidential Material (or

24

Confidential Documents) as defined in that Agreement and Order, and that such Confidential

25
Material shall be used only for the purposes of the captioned legal proceeding. I understand that the
26
27
28

9

KB/25350

Case 2:17-cv-02331-JAD-PAL Document 14 Filed 03/06/18 Page 10 of 10

1

unauthorized disclosure of Confidential Material could result in the violation of the rights to privacy,

2

and/or serious economic harm to the party providing the Confidential Material which could continue

3

to cause harm even after the termination of that legal proceeding. I further agree and attest to my

4
5

understanding that, in the event that I fail to abide by the terms of that AGREED PROTECTIVE

6

ORDER AND STIPULATION, I may be subject to sanctions, including sanctions by way of

7

contempt of court, imposed by the Court for such a failure.

8
9

__________________________________________
Signature
Date

11

__________________________________________
Name Printed

12
LAWYERS
6605 Grand Montecito Parkway, Suite 200
Las Vegas, Nevada 89149
[phone]

ALVERSON, TAYLOR, MORTENSEN & SANDERS

10

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

10

KB/25350