McNamara v. Hallinan et al

Filing 43

PROTECTIVE ORDER, as amended, re 41 Motion for Protective Order. Signed by Magistrate Judge Nancy J. Koppe on 8/24/2018. (Copies have been distributed pursuant to the NEF - MMM)

Case 2:17-cv-02966-KJD-NJK Document 41-1 Filed 08/24/18 Page 3 of 11

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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11 THOMAS W. MCNAMARA, as the CourtAppointed Monitor for AMG Capital
12 Management, LLC; BA Services LLC; Black
Creek Capital Corporation; Broadmoor Capital
13 Partners, LLC; Park 269, LLC; C5 Capital
LLC; DF Services Corp.; DFTW Consolidated
14 [UC] LLC; Impact BP LLC; Level 5 Apparel
LLC; Level 5 Capital Partners LLC; Level 5
15 Eyewear LLC; Level 5 Motorsports, LLC;
Level 5 Scientific LLC; NM Service Corp.
16 (f/k/a/ National Money Service); PSB Services
LLC; Real Estate Capital LLC (f/k/a/ Rehab
17 Capital I, LLC); Sentient Technologies; ST
Capital LLC; Westfund LLC; Eclipse
18 Renewables Holdings LLC; Scott Tucker
Declaration of Trust, dated February 20, 2015;
19 West Race Cars, LLC; and Level 5
Management LLC; and their successors,
20 assigns, affiliates, and subsidiaries,
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v.

Case No. 2:17-cv-02966-KJD-NJK
[PROPOSED] PROTECTIVE ORDER
AS AMENDED

Plaintiff,

CHARLES M. HALLINAN, an individual;
23 HALLINAN CAPITAL CORP., a Delaware
corporation; DOES I-X; and ROE
24 CORPORATIONS I-X,
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Defendants.

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EXHIBIT A
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Upon consideration of the Monitor’s motion for a protective and confidentiality order, the

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2 Court having found that the discovery of information that implicates third-party confidentiality
3 rights and/or that is confidential or proprietary has been requested in this action, and that the
4 disclosure and distribution of such information should be reasonably restricted, the Court finds
5 that good cause exists for the entry of this Order, and it is hereby ORDERED as follows:
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I.

DEFINITIONS

A.

their officers, directors, partners, members, principals or affiliates.

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“Party” means any of the parties to this action, including the Monitor, and any of

B.

“Counsel” means counsel of record in this action for any of the parties to this

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action and those attorneys’ stenographic, clerical, and paralegal employees, or

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outside support personnel and services whose duties and responsibilities in the

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conduct of this action require access to Confidential Material.

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C.

“Discovery Material” means:

(1) any information, document, tangible thing, or response to discovery

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requests pursuant to Fed. R. Civ. P. 33, 34, or 36;

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(2) any deposition testimony or transcript revealed during depositions upon

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oral or written examination pursuant to Fed. R. Civ. P. 30, or 31;

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(3) any document, thing, or premises made available for inspection or

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produced to the Receiving Party pursuant to Fed. R. Civ. P. 26, 33, or 34;

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(4) any document, thing, or premises made available for inspection or

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produced to the Receiving Party in response to a subpoena pursuant to

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Fed. R. Civ. P. 45; and

(5) any other similar materials, or portions thereof.

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D.

Material, including its directors, employees, and agents.

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“Producing Party” means any party or non-party who produces Discovery

E.

“Receiving Party” means a party (including the Monitor) to this action, including

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all employees, agents, and directors (other than Counsel) of the Party, who

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receives Discovery Material from a Producing Party.
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EXHIBIT A
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F.

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“CONFIDENTIAL” means any document, discovery response, testimony, or

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information that the Producing Party reasonably believes embodies: (i) trade

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secrets, proprietary, or other confidential business information; (ii) private

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personal or personnel information; (iii) information received in confidence from

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third parties; or (iv) information invasive of an individual’s legitimate privacy

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interests.

G.

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“Confidential Material” means any Discovery Material, and any copies, abstracts,

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summaries, or information derived from such Discovery Material, and any notes

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or other records embodying or disclosing the contents of such Discovery Material,
that is designated as CONFIDENTIAL in accordance with section II below.

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II.

DESIGNATION OF CONFIDENTIAL MATERIAL
Any document, any information produced on magnetic disk or other computer-related

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13 media, and any portion of oral testimony produced or given in this action that is asserted by
14 Producing Party to contain or constitute CONFIDENTIAL information shall be so designated by
15 Producing Party. The first page of each document or the front of each disk that contains
16 CONFIDENTIAL information shall be marked on its face with the following legend:
“CONFIDENTIAL”

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18 Transcript pages containing or constituting CONFIDENTIAL information shall be marked
19 CONFIDENTIAL on each such page, and the transcript shall be marked confidential on its cover
20 page.
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III. ACCESS TO CONFIDENTIAL MATERIAL
A.

Subject to section III(B) and III(C), in the absence of an order of the Court, any

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CONFIDENTIAL information produced in accordance with the provisions of

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section II above shall be used solely for purposes of the prosecution and defense

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of this action, shall not be used by the receiving party for any business,

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commercial, competitive, personal, public or other purpose, and shall not be

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disclosed to or discussed with any person other than: (i) Counsel for the

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Receiving Party; (ii) persons employed by, or who are independent contractors of,
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EXHIBIT A
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the Receiving Party who are participating in the management of the litigation and

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the preparation of this case for trial; (iii) outside experts or consultants who are

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engaged for the purpose of this action by the Receiving Party and such experts’ or

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consultants’ support personnel; (iv) a deponent, who may be shown or examined

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on any information, document or thing designated CONFIDENTIAL if it appears

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that the deponent authored, prepared, or received it; (v) certified court reporters

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taking testimony involving such CONFIDENTIAL information and their support

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personnel; and (vi) the Court (including any trier of fact) in connection with the

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proceedings in this action.

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B.

Outside Experts and Consultants. Subject to the provisions of this Protective

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Order, all Confidential Material may be disclosed to any outside expert or

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consultant engaged by a Party for the purpose of this action who has agreed to be

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bound by the terms of this Protective Order by signing an Acknowledgement form

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attached as Exhibit A. Executed copies of the Acknowledgment form shall be

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exchanged between counsel promptly upon request, and the absence of a signed

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Acknowledgment justifies the Producing Party’s refusal to provide documents

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until a signed Acknowledgment is provided by the Receiving Party.

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C.

Acknowledgment of Protective Order. Before obtaining access to any

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Confidential Material covered by this Protective Order, any person who is

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authorized to have access to Confidential Material pursuant to this Protective

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Order must have agreed in writing to be bound by the terms of this Protective

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Order by signing an Acknowledgement form attached as Exhibit A, an executed

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copy of which shall be provided to the opposing party. This provision does not

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apply to Parties, employees of a Party, or Counsel for a Party (including all

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employees, support staff, or those of Counsel’s law firm or agency), all of whom

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may access Confidential Information without separately signing Exhibit A.

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D.

Disclosure Pursuant to Consent. Confidential Material may be disclosed to
anyone so authorized by prior written consent of the Producing Party, and no
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EXHIBIT A
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Party is restricted in any way by this Protective Order in disclosing its own

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Confidential Material.
The limitations on disclosure contained in this Protective Order shall apply to documents

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4 or information that were in the possession of the Receiving Party before commencement of the
5 action entitled, Federal Trade Commission v. AMG Services, Inc. et al., District of Nevada, Case
6 No. 2:12-cv-00536-GMN-VCF. However, the limitations on disclosure contained in this
7 Protective Order shall not apply to documents or information that are or become published or
8 available in a manner not in violation of this Protective Order.
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IV. COURT PROCEDURES
If a document containing CONFIDENTIAL information is filed with the Court, it shall be

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11 filed with one of the following notations:
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See order issued
concurrently herewith
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Filed Under Seal - Contains CONFIDENTIAL Information
Subject to Protective Order

Any papers containing Confidential Material shall indicate clearly what portions are

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V.

HANDLING OF CONFIDENTIAL MATERIAL

A.

Nothing herein shall restrict a person authorized to have access pursuant to

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paragraph III(A) from making working copies, abstracts, digests, and/or analyses

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of Confidential Material for use in connection with this action. Such working

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copies, abstracts, digests, and analyses shall be deemed to have the same level of

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protection as the original Confidential Material under the terms of this Protective

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Order. Further, nothing herein shall restrict an authorized recipient from

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converting or translating such information into machine-readable form for

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incorporation in a data retrieval system used in connection with this action,

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provided that access to such information, in whatever form stored or reproduced,

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shall be limited to authorized recipients.

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B.

If the Producing Party through inadvertence produces any CONFIDENTIAL
document or thing without labeling, marking, or otherwise designating it as such
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EXHIBIT A
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in accordance with the provisions of this Protective Order, the Producing Party

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may give written notice to the Receiving Party that the document or thing

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produced is deemed CONFIDENTIAL and should be treated as such in

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accordance with the provisions of this Protective Order. The Receiving Party

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must treat such document or thing with the noticed level of protection from the

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date such notice is received. Promptly upon providing such notice to the

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Receiving Party, the Producing Party shall provide the Receiving Party with

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another copy of the document or thing that bears the new confidentiality

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designation under this Protective Order.

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C.

Non-parties may be examined and may testify concerning any document

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containing CONFIDENTIAL information of a Producing Party that clearly

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appears on its face or from other documents or testimony to have been prepared

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by, received by, known by, or communicated to the non-party.

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D.

If no confidentiality designation of deposition testimony is made at the time of the

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deposition, any transcript containing CONFIDENTIAL information shall be

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designated as containing such information by no later than thirty (30) calendar

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days after receipt of the transcript of the deposition. Otherwise, such transcript

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shall not be deemed Confidential Material.

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E.

This Protective Order shall not prevent any Party from moving the Court for an

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order that a non-party witness may be examined and may testify concerning any

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document containing CONFIDENTIAL information. Prior to so moving, the

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moving Party seeking to examine the non-party witness or have the non-party

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witness testify may (but is not required to) instead seek the other Party’s

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agreement by requesting, in writing, to examine the non-party witness or have the

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non-party witness testify and shall identify the documents designated as about

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which it seeks to examine the non-party witness or about which it seeks to have

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the non-party witness testify. In any motion, the moving Party shall have the

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EXHIBIT A
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burden of establishing before the Court the need for the non-party witness to be

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examined about or testify about the CONFIDENTIAL document or information.

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VI. PROCEDURE TO CHALLENGE DESIGNATIONS
This Protective Order shall not prevent any Party from moving the Court for an order that

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5 information designated as CONFIDENTIAL by Producing Party is not, in fact,
6 CONFIDENTIAL information. Prior to so moving, the Party seeking to reclassify the
7 information shall seek the Producing Party’s agreement by objecting, in writing, to the
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No motion shall
be filed without
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first conducting a
proper meet-and10
confer. See
Local Rule 11
26-7(c).
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designation by specifying to information at issue and the grounds for questioning the
designation. The Producing Party shall have ten (10) court days to respond to such request. In
any motion, the Producing Party shall have the burden of establishing before the Court the need
for classification as CONFIDENTIAL. In connection with any such motion, the Producing
Party’s designation shall be given NO WEIGHT.

VII. INADVERTENTLY PRODUCED MATERIAL

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The inadvertent disclosure or production of any Discovery Material that is subject to an

15 objection on the basis of attorney-client privilege or work-product protection, or that
16 inadvertently lacks a CONFIDENTIAL designation under this Protective Order, will not be
17 deemed to waive a Producing Party’s claim to its privileged or protected nature or estop the
18 Producing Party or the privilege holder from designating the Discovery Material as attorney19 client privileged, subject to the work product doctrine, or designated as CONFIDENTIAL at a
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Any Receiving Party who becomes aware of any produced Discovery material that is

22 privileged or subject to work product protections shall immediately notify the Producing Party of
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Disclosure of the Discovery Material prior to an assertion of privilege, work product

25 protection or a CONFIDENTIAL designation shall not be deemed a violation of the provisions
26 of this Order. This Order and clawback provision are guided but not limited by Federal Rule of
27 Evidence 502(d) and Federal Rule of Civil Procedure 26(b)(5)(B).
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EXHIBIT A
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1 VIII. RIGHT TO FURTHER RELIEF
Nothing in this Protective Order shall abridge the right of any Party to seek judicial

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3 modification or amendment of this Protective Order.
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IX. RIGHT TO ASSERT OTHER OBJECTIONS
This Protective Order shall not be construed as waiving any right to assert a claim of

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6 privilege, relevance, or other grounds for not producing Discovery Material.
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X.

SURVIVAL OF OBLIGATIONS
The obligations created by this Protective Order shall survive the termination of this

9 action unless otherwise modified by the Court. The Court shall retain jurisdiction, even after
10 termination of this action, to enforce this Protective Order and to make such amendments and
11 modifications to this Protective Order as may be appropriate.
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IT IS SO ORDERED:

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Nancy J. Koppe
United States Magistrate Judge
UNITED STATES DISTRICT JUDGE

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Dated:

August 24

, 2018

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EXHIBIT A
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Attachment A

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Acknowledgment of Receipt of Protective and

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Confidentiality Order and Contempt for Violation of Order

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The undersigned hereby acknowledges receipt of a copy of the Protective Order (the

5 “Order”) entered by the Court in Thomas W. McNamara et. al. v. Charles M. Hallinan et. al.,
6 2:17-cv-02966-KJD-NJK (D. Nev). The undersigned states that he or she has read, fully
7 understands, and agrees to be bound by the provisions of said Order with respect to documents or
8 information designated “CONFIDENTIAL” including the prohibition on the communication of
9 any information contained in such documents or information except pursuant to the explicit
10 terms of the Order, and is aware that for any violation of the provisions of said Order, he or she
11 is subject to such penalties as the Court may direct. The undersigned further expressly
12 acknowledges that the disclosure in any manner of “CONFIDENTIAL” information other than
13 as allowed by the Confidentiality Order will constitute a violation of an Order of the Court.
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Signature

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Name (printed or typed)

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Title

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Date

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EXHIBIT A
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