Farmers Insurance Exchange v. TOTO USA, Inc.

Filing 37

PROTECTIVE ORDER. Signed by Magistrate Judge Peggy A. Leen on 8/2/2018. (Copies have been distributed pursuant to the NEF - SLD)

Case 2:17-cv-02906-APG-PAL Document 34 Filed 07/24/18 Page 1 of 11

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Daniel S. Rodman
Nevada Bar No. 8239
Alexandria L. Layton
Nevada Bar No. 14228
SNELL & WILMER L.L.P.
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, NV 89169
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Attorneys for Defendant
TOTO USA, INC.

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nev ada 89169
702.784.5200

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FARMERS INSURANCE EXCHANGE, as
subrogee of Doug Ansell,

Case No. 2:17-cv-02906-APG-PAL

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Plaintiff,
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STIPULATED PROTECTIVE ORDER
vs.

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TOTO USA, INC., a Georgia corporation;
CHRISTOPHER HOMES, LLC, a Nevada
company; DOES I – X, inclusive, and ROE
CORPORATIONS I – X, inclusive,

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Defendants.

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IT IS STIPULATED and agreed by the parties to this action that, in order to facilitate

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discovery, in which the parties may request production of documents containing proprietary, trade

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secret and confidential information of Defendant TOTO USA, INC. (“Toto”) and related

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companies, that the following protective order shall be entered by the court.

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Case 2:17-cv-02906-APG-PAL Document 34 Filed 07/24/18 Page 2 of 11

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STIPULATED PROTECTIVE ORDER REGARDING

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THE CONFIDENTIALITY OF DOCUMENTS AND MATERIALS

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Pursuant to Federal Rule of Civil Procedure 26(c), the parties, in connection with the

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above-captioned action agree to the following Stipulated Protective Order to facilitate the

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exchange of discoverable information and, in particular, the production of documents, the service

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of discovery responses, and the taking of testimony. Unless modified pursuant to the terms

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contained in this Order, this Order shall remain in effect.

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1.

Documents or information containing confidential or proprietary business

or defenses of defendant Toto is likely to be disclosed or produced during the course of discovery

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Snell & Wilmer

information and/or trade secrets (“Confidential Information”) that bear significantly on the claims

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L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nev ada 89169
702.784.5200

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in this litigation;

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2.

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Toto asserts that public dissemination and disclosure of Confidential Information

could severely injure or damage Toto and would place Toto at a competitive disadvantage; and

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3.

Entry of an order controlling access to and dissemination of Confidential

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Information will protect the respective interests of the parties and facilitate the progress of

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disclosure and discovery in this case,

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THEREFORE, IT IS STIPULATED:

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1.

Documents,

discovery

responses,

and

deposition

testimony

containing

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Confidential Information produced, served or given by Toto in this litigation are referred to as

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“Protected Documents.”

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responses, or deposition testimony designated by Toto as “Confidential” upon production or

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containing Confidential Information and which are disclosed or produced to the attorneys for the

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other parties to this litigation are Protected Documents and are entitled to confidential treatment

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as described below.

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Except as otherwise indicated below, all documents, discovery

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Case 2:17-cv-02906-APG-PAL Document 34 Filed 07/24/18 Page 3 of 11

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2.

Protected Documents and any information contained therein shall not be used or

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shown, disseminated, copied, or in any way communicated to anyone for any purpose

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whatsoever, except as provided for below.

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3.

Protected Documents and any information contained therein shall be disclosed

only to the following persons (“Qualified Persons”):

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(a)

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Counsel in this action for the party or parties receiving Protected
Documents or any information contained therein;

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(b)

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Employees of such counsel assigned to and necessary to assist such counsel
in the preparation and trial of this action;

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(c)

Retained experts, advisors and consultants (including persons working for

Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nev ada 89169
702.784.5200

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or with such experts, advisors and consultants) of the party or parties

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receiving Protected Documents (“Retained Experts”), to the extent

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necessary to perform their work in connection with this case; and

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(d)

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The Court, Court personnel, and any Special Masters and/or Mediators
appointed by the Court, under seal.

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Protected Documents and any information contained therein shall be used solely for use and in

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connection with the above-captioned action.

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4.

Before the Retained Experts described in subparagraph 4(c) above are given access

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to Protected Documents, each person to whom a receiving party or its representatives intend to

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deliver, exhibit, or disclose any of the Protected Documents or Confidential Information or

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material contained therein shall be advised of the terms of this Order, shall be given a copy of this

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Order, and shall agree in writing, in the form attached hereto as Exhibit A, to be bound by its

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terms.

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5.

The term “copy” as used herein means any photographic, mechanical, electronic or

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computerized copy or reproduction of any document or thing, including, but not limited to, any

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electronic, photographic or computerized copy, or any transcript, in whole or in part, of such

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document or thing.

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Case 2:17-cv-02906-APG-PAL Document 34 Filed 07/24/18 Page 4 of 11

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6.

Should a party desire to file with the court a Protected Document or any other

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submission, e.g., pleading, motion, brief, or affidavit that contains Confidential Information or

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should such Protected Document or Protected Information be entered through testimony or as an

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exhibit at trial, the Protected Document and Protected Information shall be sealed by the terms of

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this Stipulated Protective Order and access to such materials and testimony shall be limited to

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those persons described in Paragraph 4 above. Any filing, trial exhibit or trial transcript shall be

Stricken by 7
the court.
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filed in a sealed container or envelope endorsed with the title of this action and the words

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Information in pleadings, court submissions or at trial does not waive the provisions of this

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Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nev ada 89169
702.784.5200

11

“Confidential-Subject to Protective Order.” The use of Protected Documents or Protected

Stipulated Protective Order.
7.

Any Protected Documents attached as an exhibit to any deposition taken in this

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action and any deposition testimony containing information from or referring to Protected

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Documents shall be sealed and protected from disclosure by this Stipulated Protective Order. The

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use of Protected Documents during depositions in this action does not waive the terms of this

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Stipulated Protective Order.

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8.

Any court reporter or transcriber who reports or transcribes deposition testimony

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in this action shall agree that all Confidential Information designated as such under this Order

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shall remain confidential and shall not be disclosed by them, except pursuant to the terms of this

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Order, and that any notes or transcriptions of such testimony (and any accompanying exhibits)

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will be retained by the reporter or delivered to counsel of record.

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9.

During portions of depositions at which Protected Documents or information

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designated as “Confidential” are used, persons, other than court reporters, videographers or

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transcribers, who are not entitled to access to the Protected Documents or Confidential

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Information covered by this Stipulated Protective Order shall be excluded.

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10.

Inadvertent or unintentional production of documents or information containing

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Confidential Information which are not designated “Confidential” shall not be deemed a waiver in

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whole or in part of a claim for confidential treatment.

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Case 2:17-cv-02906-APG-PAL Document 34 Filed 07/24/18 Page 5 of 11

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11.

Counsel for Plaintiff represents that they have not received from any source Toto

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documents marked as "Confidential" except pursuant to and consistent with confidentiality orders

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entered in other actions to which Toto and Plaintiff's Counsel are parties.

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The party or parties receiving Protected Documents shall not under any

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circumstances sell, offer for sale, advertise, or publicize Protected Documents or any information

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contained therein.

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13.

A party who receives a request or subpoena for the production or disclosure of

business days, give counsel for Toto written notice (via both facsimile and U.S. mail) of the

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request or subpoena and forward a copy of the request or subpoena. No Protected Documents or

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Snell & Wilmer

Protected Documents or Confidential Information under the terms of this Order shall, within three

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L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nev ada 89169
702.784.5200

8

Confidential Information shall be produced until Toto has received a copy of the request or

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subpoena and had a reasonable opportunity to file a motion for relief. If Toto makes a motion or

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other application for relief from the subpoena or other request in the appropriate forum, the party

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who received such materials shall not produce or disclose the requested information without

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consent of Toto or until ordered to do so by a court of competent jurisdiction.

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14.

If a party that receives Protected Documents or Confidential Information discovers

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that, whether through inadvertence or otherwise, it has disclosed or provided documents or

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information designated as “Confidential” to any person or entity not authorized to review it under

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the terms of this Stipulated Protective Order, then that party shall promptly (a) make reasonable

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best efforts to seek the return of the documents or information, (b) inform Toto of the disclosure

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and the relevant circumstances (including the identity(ies) of the person or entity to whom

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disclosure was made), and (c) advise the recipient of the provisions of this Order and request that

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they agree to its terms in writing by signing the certification attached as Exhibit A. This

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paragraph does not limit the remedies that Toto may pursue for breach of this Stipulated

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Protective Order.

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15.

This Stipulated Protective Order does not authorize or require disclosure of

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documents or information protected by or subject to claims of privilege or protection, including

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Case 2:17-cv-02906-APG-PAL Document 34 Filed 07/24/18 Page 6 of 11

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but not limited to the attorney-client privilege, work product protection, and joint defense or

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common interest privilege.

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information subject to a claim of privilege or protection, such production will not waive otherwise

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applicable claims of privilege or protection. Upon receipt of written notice identifying privileged

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or protected documents that were inadvertently or mistakenly produced, the receiving party shall

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within ten (10) business days: (a) return or certify the destruction of all such documents; and (b)

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destroy any work product or portions of any work product containing or reflecting their contents.

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16.

If a party inadvertently or mistakenly produces documents or

After termination of this litigation, the provisions of this Order shall continue to be

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binding. This Court retains and shall have continuing jurisdiction over the parties and recipients

Stricken by
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the court.

of the Protected Documents for enforcement of the provisions of this Order following termination

Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nev ada 89169
702.784.5200

11
12

of this litigation.
17.

At the conclusion of the work of the Retained Experts as defined in herein, all

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Protected Documents and all reports, reliance materials, copies, prints, negatives, notes,

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information derived therefrom, and summaries thereof shall be returned to the attorneys who

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retained the Retained Experts provided access to the Protected Documents and Confidential

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Information. At the time of the return, an Affidavit in the form of Exhibit B attached hereto shall

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be executed by the Retained Experts who have had access to the Protected Documents and

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Confidential Information, stating that they have complied with the provisions of this Stipulated

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Protective Order. Such Affidavit shall be returned to the attorneys who provided access to the

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Protected Documents and Confidential Information and be maintained by them.

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completion of the trial and any appeals in this action and the satisfaction of any judgment, or

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upon the conclusion of any settlement, the parties receiving the Confidential Documents pursuant

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to this Stipulated Protective Order shall provide to counsel for Toto all Protected Documents

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produced under the terms of this Stipulated Protective Order. However, upon notice to Toto,

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counsel for plaintiff may keep one set of the Protected Materials for use in other litigation as

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allowed under Paragraph 4. The parties receiving the Confidential Documents pursuant to this

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Stipulated Protective Order shall further provide to counsel for Toto at such time of re-delivery an

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Upon

Case 2:17-cv-02906-APG-PAL Document 34 Filed 07/24/18 Page 7 of 11

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Affidavit in the form of Exhibit B attached hereto rep¡esenting compliance,. as outlined herein,

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with the terms of this Stipulated Protective Order and all Affidavits received by such parties

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pursuant to this paragraph.

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18.

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This Order shall be binding upon the parties and their attorneys,

successors,

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executors, personal representatives, administrators, heirs, legal representatives, assigns,

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subsidiaries, divisions, employees, agents, independent contractors,

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organizations over which they have control.

or other persons

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Respectfully submitted this

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LPu^'"M

SNELL & WILMER L.L.P.

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BAUMAN LOEWE WITT &

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By:

By:

Kenneth W.
Nevada
Paul

Daniel
Nevada Bar No. 8239
Alexandria L. Layton
Nevada Bar No. 14228
3883 Howard Hughes Pkwy, Suite 1100
Las Vegas, NV 89169
Attorneys þr Defendant
Toto USA, Inc.

o. 9389

BarNo. 10651
N orth Rancho Drive, Suite
Las Vegas, NV 89130
Attorneys þr Plaintiff
N

650

THE

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By:

I9

A. Hayes, Jr.
Nevada State Bar
4735 S. Durango Dr., Suite 105

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Las Vegas, Nevada 89147
Attorneyfor Defendant
Christopher Homes, LLC

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ORDER
IT IS SO ORDERED.
2nd day of
DATED this _

August

2018

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Presiding Judge

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114

or

Case 2:17-cv-02906-APG-PAL Document 34 Filed 07/24/18 Page 8 of 11

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Affrdavit in the form of Exhibit B attached hereto representing compliance, as outlined herein,

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with the terms of this Stipulated Protective Order and all Affidavits received by such

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pursuant to this paragraph.

18.

4

This Order shall be binding upon the parties and their attorneys,

parties

successors,

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executors, personal representatives, administrators, heirs, legal representatives,

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subsidiaries, divisions, employees, agents, independent contractors,

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organizations over which they have control.

or

assigns,

other persons or

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9

Respectfully submitted this

l0

_

of May,20l8.

SNELL & WILMER L.L.P

BAUMAN LOEWE WITT & MAXWELL

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By:

By:
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W. Maxwell

Daniel S.
Nevada Bar
9
Alexandria
No. 14228
Nevada
Hughes Pkwy, Suite 1100
3883
Las

egas,

Nevada Bar No. 9389
Paul T. Landis
Nevada Bar No. 10651
3650 North Rancho Drive, Suite I 14
Las Vegas, NV 89130

NV 89169

þr

Attorneysþr Plaintiff

Defendant

l7

USA,Inc.
THE HAYES LAW

l8
By:
Dale A.

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20

2t

Homes, LLC

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23

ORDER

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IT IS SO ORDERED.

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DATED this

_

day

of

2018.

26

Presiding Judge

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Jr.

Bar No. 9056
N
Durango Dr., Suite 105
473
Vegas, Nevada 89147
Defendant

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Case 2:17-cv-02906-APG-PAL Document 34 Filed 07/24/18 Page 9 of 11

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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FARMERS INSURANCE EXCHANGE, as
subrogee of Doug Ansell,
Plaintiff,

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6
7
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Case No. 2:17-cv-02906-APG-PAL

EXHIBIT “A”

vs.
TOTO USA, INC., a Georgia corporation;
CHRISTOPHER HOMES, LLC, a Nevada
company; DOES I – X, inclusive, and ROE
CORPORATIONS I – X, inclusive,

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Defendants.

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Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nev ada 89169
702.784.5200

11

STATE OF

_______________________

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COUNTY OF _______________________

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I certify that I have read the attached Stipulated Protective Order entered in the above

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entitled and numbered action. Before reviewing or receiving access to the contents of any

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documents, materials and/or matters designated as “Confidential” or “Produced Pursuant to

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Protective Order,” I acknowledge and agree that I am personally bound by and subject to the

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terms of the Stipulated Protective Order. I further agree to abide by all terms of the Stipulated

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Protective Order. I subject myself to the jurisdiction and venue of this Court for the purpose of

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enforcement of the Stipulated Protective Order.
___________________________________

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Subscribed and sworn to before me this

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__________ day of ____________, 2018.

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___________________________________
NOTARY PUBLIC

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Case 2:17-cv-02906-APG-PAL Document 34 Filed 07/24/18 Page 10 of 11

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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4

FARMERS INSURANCE EXCHANGE, as
subrogee of Doug Ansell,
Plaintiff,

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6
7
8

Case No. 2:17-cv-02906-APG-PAL

EXHIBIT “B”

vs.
TOTO USA, INC., a Georgia corporation;
CHRISTOPHER HOMES, LLC, a Nevada
company; DOES I – X, inclusive, and ROE
CORPORATIONS I – X, inclusive,

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Defendants.

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Snell & Wilmer

L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nev ada 89169
702.784.5200

11

AFFIDAVIT REGARDING DOCUMENTS PROVIDED PURSUANT TO
STIPULATED PROTECTIVE ORDER REGARDING
CONFIDENTIALITY OF DOCUMENTS AND MATERIALS

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_____________________, being first duly sworn, upon his or her oath, deposes and says:

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1.

I have been provided copies of, or access to, confidential documents, materials,

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and information that are subject to a Stipulated Protective Order Regarding: Confidentiality of

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Documents and Materials (“Stipulated Protective Order”) in the above-captioned action

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(hereinafter “Protected Documents”).

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2.

I have read and complied with all of the provisions of the Stipulated Protective

Order entered in the action regarding the Protected Documents.
3.

In formulating my opinions or in preparing for and/or assisting in the trial of the

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above-captioned action, I have provided the following individuals copies of, or access to, the

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Protected Documents at the address stated: ___________________________________________

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_____________________________________________________________________________.

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4.

The individuals listed in Paragraph 3 are the only individuals to whom I provided

copies of, or access to, the Protected Documents.

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Case 2:17-cv-02906-APG-PAL Document 34 Filed 07/24/18 Page 11 of 11

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5.

Before providing copies of, or access to, the Protected Documents to the

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individuals listed in Paragraph 3, I required that said individuals read a copy of the Stipulated

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Protective Order in this action.

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6.

The individuals listed in Paragraph 3 have executed Affidavits stating that they

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have complied with the terms of the Stipulated Protective Order and have returned all copies of

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Protected Documents and a copy of each such Affidavit is attached hereto.

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7.

I have made no copies of the Protected Documents provided pursuant to the

Stipulated Protective Order, other than those that have been returned to plaintiff’s counsel.
8.

With the Affidavit, I have returned all copies of Protected Documents provided to

Snell & Wilmer

me in the above-captioned action pursuant to the Stipulated Protective Order and have returned

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L.L.P.
LAW OFFICES
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nev ada 89169
702.784.5200

10

all Affidavits of those individuals to whom I provided copies of, or access to, the Protected

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Documents.

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9.

After submitting this Affidavit and the attached Affidavit Regarding Documents

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Provided Pursuant to Stipulated Protective Order Regarding Confidentiality of Documents and

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Materials and all copies of the Protected Documents to plaintiff’s counsel, pursuant to the

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requirements set forth in the Stipulated Protective Order, I will not have any original or copies of

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the Protected Documents whether in paper, DVD, video or electronic format.

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10.

I have otherwise complied with all of the terms of the Stipulated Protective Order

covering confidential documents and materials produced in the above-captioned action.

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___________________________________

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Subscribed and sworn to before me this

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__________ day of ____________, 2018.

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___________________________________
NOTARY PUBLIC

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