Deng v. State of Nevada ex rel. Board of Regents of the Nevada System of Higher Education et al

Filing 32

PROTECTIVE ORDER. Signed by Magistrate Judge Cam Ferenbach on 11/28/2018. (Copies have been distributed pursuant to the NEF - SLD)

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ELDA M. SIDHU
General Counsel
Nevada Bar No. 7799
LYNDA P. KING
Assistant General Counsel
Nevada Bar No. 7047
UNIVERSITY OF NEVADA, LAS VEGAS
4505 S. Maryland Parkway, Box 451085
Las Vegas, Nevada 89154-1085
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
Attorneys for Defendants
Mary F. Chapman, Esq.
Nevada Bar No. 6591
LAW OFFICE OF MARY F. CHAPMAN, LTD.
8440 W. Lake Mead Blvd., Suite 203
Las Vegas, Nevada 89128
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Attorney for Plaintiff

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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HONGHUI DENG,

CASE NO.: 2:17-cv-03019-APG-VCF

Plaintiff,

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vs.

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THE STATE OF NEVADA ex rel. THE
BOARD OF REGENTS OF THE NEVADA
SYSTEM OF HIGHER EDUCATION ON
BEHALF OF THE UNIVERSITY OF
NEVADA, LAS VEGAS; KEAH-CHOON
TAN,

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STIPULATED PROTECTIVE ORDER

Defendants.

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Plaintiff HONGHUI DENG (“Plaintiff”) and Defendants STATE OF NEVADA ex. rel.

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BOARD OF REGENTS OF THE NEVADA SYSTEM OF HIGHER EDUCATION, on behalf of

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the UNIVERSITY OF NEVADA, LAS VEGAS and KEAH-CHOON TAN, an individual
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(“Defendants”), by and through their respective counsel of record, hereby submit the following

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Stipulated Protective Order pursuant to Federal Rule of Civil Procedure 26(c) regarding the

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confidentiality of the production of material, information, documents, and the giving of testimony

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in this matter.

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I.

PURPOSE AND LIMITATIONS

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Disclosure and discovery activity in the above-captioned action are likely to involve the

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production of and testimony via deposition or other sworn statements regarding confidential or

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private information for which special protection from public disclosure and use for any purpose

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other than this ligation may be warranted. The parties acknowledge that this protective order does

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not confer blanket protection for all disclosures or responses to discovery and that the protection it

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affords from public disclosure and use extends only to limited information or items that are entitled

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to confidential treatment under the applicable legal principles.

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II.

DESIGNATION AND USE OF CONFIDENTIAL MATERIAL

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A.

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discovery only if that party in good faith believes that the material contains protected non-public

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confidential information under state or federal law. Such discovery material is referred to herein as

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“confidential material.” The party designating the material is referred to herein as the “designating

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party.”

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B.

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and/or documents that fall within one or more of the following categories: (a) information prohibited

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from disclosure by statute; (b) investigative reports, files, and any other supporting or related

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documents or files related to any investigation undertaken by UNLV;

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performance evaluations or assessments; (d) medical records or information of similar private,

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highly personal nature, in which an individual person has a legitimate expectation of privacy; (e)

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employee files or records of non-parties (f) portions of depositions (audio or video) where

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confidential material is disclosed or used as an exhibit; and (g)personnel and payroll files of UNLV

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employees deemed confidential as specified in the Nevada System of Higher Education Code, Title

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2, Chapter 5, Section 5.6.2 and/or Nevada Administrative Code 284.718. The parties reserve the

During this litigation, either party may designate as “confidential” any material produced in

“Confidential material,” as the term is used in this protective order, is testimony, information

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(c) UNLV employee

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right to meet and confer over additional categories that may be deemed confidential as discovery

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continues.

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C.

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“CONFIDENTIAL.” The designation will avoid obscuring or defacing any portion of the discovery

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material. If a party inadvertently fails to designate discovery material as confidential, but

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subsequently determines that such material should have been so designated, it will promptly provide

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written notice to the opposing party of the confidential designation and the material will be treated

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as confidential from receipt of the notice. On the other hand, if a party designates discovery material

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as confidential and later determines that it should not have been so designated, it will promptly

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provide the opposing party written notice of the removal of the designation and a duplicate copy of

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the discovery material without the confidential marking. All copies of confidential discovery

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material will also be considered confidential.

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D.

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whom it is disclosed, shall be used only for the purposes of this action, and shall not be used in any

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other pending or future litigation, arbitration, administrative, court, quasi-judicial, or employment

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related hearings or proceedings, shall not be used for any business, investment, competitive, legal,

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or governmental purpose, and shall not be disclosed to any person who is not a qualified recipient

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as provided herein, or as ordered by a court or adjudicative body. All produced confidential material

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shall be carefully maintained so as to preclude access by persons who are not qualified recipients.

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E.

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personnel; (b) counsel of record, in-house counsel, and staff;(c) deposition notaries and staff; (d)

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parties to this litigation; and the following, provided that they expressly agree to be bound by the

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terms of this protective order after being provided with a copy of the protective order by counsel and

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their duty to maintain confidentiality has been explained: (i) any expert or consultant, whether

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testifying or not, specifically retained in this action; (ii) witness and potential witnesses at, or in

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preparation for, deposition, trial, or hearing or who otherwise requires the information as directed

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by counsel; and (iii) litigation support vendors and their personnel who perform copying, data entry,

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or similar functions.

The

designating

party

will

mark

each

page

of

appropriate

documents

as

Material designated confidential shall be held in confidence by each qualified recipient to

For purposes of this stipulation, the following are qualified recipients: (a) the Court and its

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Confidential material may not be disclosed to other persons or entities without prior written

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consent of the designating party or court order. Disclosure should be made only to the extent

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reasonably necessary for effective prosecution and defense of the claims in this action and for no

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other purpose.

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F.

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available to any non-qualified recipient any documents, materials or information designated

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CONFIDENTIAL in connection with (a) any other pending or future litigation, judicial, and/or

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administrative proceedings, and/or (b) any other purpose, except as set forth herein.

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Except as provided herein, qualified recipients shall not use, provide, or otherwise make

III. CONDITIONS OF DISCLOSURE

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A.

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CONFIDENTIAL to any person identified in Section II.B above, counsel of record for the receiving

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party shall advise that person of the terms of this Stipulated Protective Order and that he or she is

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bound its terms. Further, counsel for the receiving party will ensure that the person has read and

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agrees to the terms of this Stipulated Protective Order and has acknowledged his or her agreement

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by signing a copy of the Acknowledgement attached hereto as Exhibit A.

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B.

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material. They will maintain a list of all persons to whom confidential material has been disclosed

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and the make the disclosures required as provided in paragraphs II.E and III.A. Confidential material

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will be copied only by counsel or persons assisting counsel and only for purposes permitted by this

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order.

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C.

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becomes public knowledge through its authorized release and not in violation of this protective

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order. Whether material that becomes public will remain confidential under this protective order will

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be decided based on the standards and procedures herein.

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D.

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litigation may designate the previously produced confidential material as such by marking it

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CONFIDENTIAL, and providing the marked copy to the opposing party who will, within 7 days of

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the notice of the confidential designation, either (1) agree the material is confidential under the terms

As set forth in paragraph II.E above, before disclosing any document marked

The parties’ counsel will be responsible for their distribution and control of confidential

The restrictions set forth in this protective order will not apply to information that is or

If confidential material is, or has been produced by a party or third party, the parties in this

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of this protective order, or (2) inform the other party that it disagrees the material should be governed

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by the terms of this protective order, but nonetheless will treat the material as confidential for at least

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30 days from notice of the confidentiality designation, to give the party desiring protection sufficient

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time to seek relief from the Court. Treatment of the material as confidential will continue until the

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Court resolves the issue.

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E.

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similar to the one attached as Exhibit B, which provides a listing of that party’s designation.

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For each designation, the party designating material as confidential will produce a log,

IV.
A.

PROTECTING CONFIDENTIAL INFORMATION AT DEPOSITIONS

During a deposition, either party will advise or disclose to persons present the existence of

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this protective order if confidential material is discussed or used as an exhibit.

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B.

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make an oral statement to that effect on the record, and all persons not authorized to review such

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documents shall leave the deposition room until completion of the answers referring to the

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document. The reporter shall mark the transcript of the designated testimony “CONFIDENTIAL.”

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C.

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proceeding in this action, and its contents are disclosed in testimony at such proceeding, counsel for

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the parties will (a) advise the reporter that the exhibit refers to confidential material, and have it so

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marked. In either instance, the material will be marked confidential, separately bound, and be

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deemed as such, and subject to the provisions of this Protective Order. The reporter will not furnish

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copies to anyone other than the parties herein, and, if requested, the witness and his/her counsel.

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To designate confidential material in deposition testimony, the designating party will (a)

If confidential material is marked as an exhibit during a deposition, or hearing, or other

V.

USE OF CONFIDENTIAL INFORMATION IN COURT FILINGS

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The parties acknowledge that this protective order does not entitle them to file confidential

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information under seal without complying with the requisite legal standards and Local Rule 10-5.

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The parties may agree that the filing party may file documents designated confidential by the other

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party not under seal. If no such agreement is made before filing, then any documents to be filed with

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the court containing confidential material will be accompanied by a motion to seal. A motion seeking

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leave to file a document under seal will be served on opposing counsel, and on the person or entity

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that has custody and control of the document, if it is different from opposing counsel. The documents
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and/or information shall be filed under seal with the following legend: THIS DOCUMENT

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CONTAINS CONFIDENTIAL MATERIAL COVERED BY A PROTECTIVE ORDER OF THE

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COURT AND IS SUBMITTED PURSUANT TO THAT ORDER. THE CONFIDENTIAL

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CONTENTS OF THIS DOCUMENT MAY NOT BE DISCLOSED WITHOUT EXPRESS

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ORDER OF THE COURT.

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VI.

CHALLENGING A CONFIDENTIAL DESIGNATION

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If a party disputes the designation of discovery material as confidential, then the objecting

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party will notify the designating party in writing by electric mail of such dispute. The notice will

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identify the material and explain the basis for the objection. The designating party will have 7

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calendar days to provide a written response by electronic mail to the notice, explaining its reason(s)

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for designating the material as confidential. Should the objecting party dispute such a reason(s), it

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will so notify the designating party, and the objecting party will have 21 calendar days from the date

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of such notice to seek relief from the Court and any motions challenging a confidential designation

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will be made in compliance with Local Rule 26-7. In the event of a dispute, the parties will continue

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to treat the disputed material as confidential until the dispute is resolved informally between the

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parties, or by the court.

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VII.

NON-PARTY SUBPOENAS AND COURT ORDERS

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If any party receives a subpoena from any non-party to this protective order, or is ordered by

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a court of competent jurisdiction, seeking production or disclosure of confidential material, or

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otherwise legally required to produce documents or information designated Confidential, that party

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(the “subpoenaed/ordered party”) will give notice, as soon as practicable and in no event more than

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5 business days after receiving the subpoena or order, to opposing counsel and furnish a copy of the

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subpoena, order, or request with said notice. The subpoenaed/ordered party will not disclose any

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confidential material for 10 business days, or obtaining consent after providing notice to the other

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party, and in no event make disclosure before notice is given unless ordered by a court. If, within

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this 10 business day period, court relief is sought from the subpoena with regard to any confidential

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material, the subpoenaed party will wait for the Court to resolve the issue or applicable rules direct

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otherwise. Nothing in this paragraph shall be construed to require a party to act contrary to or in
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contempt of any court order.

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VIII. ADDITIONAL RIGHTS

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Nothing in this protective order will (a) restrict any party to its own material or discovery

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material that has not been designated confidential; (b) prejudice any party’s right to object to the

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production or disclosure of information, confidential or otherwise, it considers not subject to

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discovery; (c) restrict the proper scope of discovery that can be sought by any party; or (d) prejudice

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any party’s right to seek relief from the terms of this protected order.

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This protected order is without prejudice to the right of any party to move the Court, pursuant

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to Fed. R. Civ. P. 26(c) or Local Rule 26-7, for an order seeking protection of confidential material

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sought by or produced though discovery, which protection is different from or in addition to that

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provided for in this protective order, and such right is expressly reserved. Similarly, each party

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reserves the right to request the Court to order disclosure of material subject to this protective order

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or request modification of this protective order.

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IX.

RETURN OF CONFIDENTIAL MATERIAL

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Within 60 days after this action is concluded, including any appeals, materials designated as

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confidential, and copies thereof, will be returned to the producing party. This provision will not

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apply to court filings or pleadings, briefs, or correspondence maintained by counsel during the

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ordinary courses of business. Rather than returning confidential material, it may be destroyed, with

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proper verification of the destruction by the party in possession of the confidential material. .

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X.

BINDING EFFECT

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This protective order will remain in full force and effect at all times during which any party

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to this stipulated protective order, or any person having been provided with a copy of the protective

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order by counsel for one of the parties, retains possession, custody, or control of any confidential

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material. The court shall retain jurisdiction to enforce the provisions of the Protective Order and to

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make such amendments, modifications, and additions to this Protective Order as the court may from

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time to time deem appropriate. The parties reserve the right, at any time during this litigation, to

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petition the court to modify, amend, or add to the list of qualified recipients.

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XI.

UNAUTHORIZED DISCLOSURE OR INADVERTENT PRODUCTION

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If either party learns that, by inadvertence or otherwise, it disclosed confidential material to

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any person or in any circumstance not authorized under this protective order, the receiving party

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must immediately (a) notify the designating party in writing of the unauthorized disclosure, (b) use

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its best efforts to retrieve all unauthorized copies of the confidential material, (c)inform the person(s)

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of the terms of the protective order, and (d) advise such person(s) of the existence of the protective

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order and their obligation to maintain confidentiality of any unauthorized disclosure or inadvertent

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production pursuant to that order.

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Pursuant to Federal Rule of Evidence 502(d) and (e), attorney-client, work product, or any

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other privilege will not be waived by disclosure connected to this litigation. As a result, the parties

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agree that nothing in this protective order will be deemed to limit or waive the attorney-client, work

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product, or any other applicable privilege.

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DATED: November 28, 2018

DATED: November 28, 2018

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/S/ LYNDA P. KING
LYNDA P. KING
Assistant General Counsel
Nevada Bar No. 7047
UNIVERSITY OF NEVADA, LAS VEGAS
4505 S. Maryland Parkway, Box 451085
Las Vegas, Nevada 89154-1085
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants

/S/ MARY F. CHAPMAN
Mary F. Chapman, Esq.
Nevada Bar No. 6591
LAW OFFICE OF MARY F. CHAPMAN, LTD.
8440 W. Lake Mead Blvd., Suite 203
Las Vegas, Nevada 89128
Telephone: [phone]
Facsimile: [phone]
Attorney for Plaintiff

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IT IS SO ORDERED.
DATED this 28th day of November, 2018.

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___________________________________________
UNITED STATES MAGISTRATE JUDGE

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EXHIBIT A
ACKNOWLEDGEMENT OF STIPULATED CONFIDENTIALITY AGREEMENT
AND AGREEMENT TO BE BOUND
I, ____________________ [print or type full name], of ________________________________
[print or type full address], declare under penalty of perjury hereby acknowledge and certify that I
have received and read in its entirety the Stipulated Protective Order (“Order”) that was issued by
the United States District Court for the District of Nevada (“Court”) entered on _______________
[insert date of Order] in the case of Honghui Deng v. State of Nevada ex. rel. Board of Regents of
the Nevada System of Higher Education, on behalf of the University of Nevada, Las Vegas, and
Keah-Choon Tan, Case No.: 2-17-cv-03019-APG-VCF. I am a qualified recipient pursuant to the
Order and agree to the receipt of confidential material as defined by the Order. I have read and
understand the terms and conditions of the Order, agree to comply with and be bound by all of its
provisions, and consent to the continuing jurisdiction of the Court, even if such enforcement
proceedings occur after the case is terminated. I further acknowledge that failure to comply with the
terms and conditions of the Order expose me to sanctions and punishment in the nature of contempt.
I agree that I will not disclose in any manner any confidential material to any person or entity, or for
any purpose other than as provided in the Order.
DATED this

day of

, 20

.

Signature: ______________________________
Printed Name: ___________________________
Company: ______________________________
Street Address: __________________________
City, State, Zip Code______________________
Phone Number: __________________________

EXHIBIT B
[Name of Case]
[Jurisdiction]

CONFIDENTIALITY LOG, #
[Insert Name of Party Designating]

of

Issued As of ____________ [Insert Date of Issuance]
Date of Orig Production
of Docs & Source
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EXAMPLE: June 15,
2018, From Dr. Doe

Bates-Stamp
Numbers or Identifier *
DDD002—004, Full
Pages

Date of Protective
Designation and
Production
July 13, 2018

Description of Docs or
Info
Plaintiff’s Med Records

Basis & Authority for
Confidentiality Designation

Signed
Acknowledgment
Y/N

Private Medical Records from Dr. Doe

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*If document does not have a bate-stamp number, please otherwise identify it (i.e. deposition transcript page and lines being designated, describe third party
doc–“5/13/15 Smith Email to Jones Re: Trade Secret Recipe”...)