1600 East Newlands Drive, LLC v. Amazon.com.NDVC, LLC et al

Filing 20

ORDER approving ECF No. 18 Stipulation for Entry of Protective Order, modifying Paragraphs III, C and VI (see order for details). Signed by Magistrate Judge William G. Cobb on 1/10/2018. (Copies have been distributed pursuant to the NEF - KR)

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Case 3:17-cv-00566-HDM-WGC Document 18-1 Filed 01/09/18 Page 1 of 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Brian C. Lake (AZ Bar #020543) (admitted pro hac vice) Aaron Welling (Nev. Bar #13418) PERKINS COIE LLP 2901 North Central Avenue, Suite 2000 Phoenix, Arizona 85012-2788 Telephone: 602.351.8000 Fax: 602.648.7000 BLake@perkinscoie.com AWelling@perkinscoie.com DocketPHX@perkinscoie.com Jessica L. Woelfel (Nev. Bar #1885) Lisa Wiltshire Alstead (Nev. Bar #10470) McDONALD CARANO LLP P.O. Box 2670 Reno, Nevada 89505 Telephone: (775) 788-2000 jwoelfel@mcdonaldcarano.com lalstead@mcdonaldcarano.com Attorneys for Plaintiff 1600 East Newlands Drive, LLC David R. Koch (Nev. Bar #8830) Koch & Scow LLC 11500 S. Eastern Ave., Suite 210 Henderson, Nevada 89052 Telephone: 702.318.5040 Fax: 702.318.5039 dkoch@kochscow.com Attorneys for Defendants Amazon.com.NVDC, LLC and Amazon.com, Inc. 16 UNITED STATES DISTRICT COURT 17 DISTRICT OF NEVADA 18 19 20 1600 EAST NEWLANDS DRIVE, LLC, a Nevada limited liability company, Plaintiff, 21 22 23 24 25 26 27 28 No. 3:17-cv-00566-HDM-WGC [PROPOSED] PROTECTIVE ORDER v. AMAZON.COM.NVDC, LLC, a Delaware limited liability company f/k/a AMAZON.COM.NVDC, INC.; AMAZON.COM, INC., a Delaware Corporation; and DOES I-X; and ROE CORPORATIONS XI-XX, inclusive, Defendants. (Hon. William G. Cobb) Case 3:17-cv-00566-HDM-WGC Document 18-1 Filed 01/09/18 Page 2 of 10 1 2 3 4 5 Having received and considered the parties’ Stipulation for Protective Order pursuant to Federal Rule of Civil Procedure 26(c), and good cause appearing, IT IS HEREBY ORDERED that the following procedures shall apply to confidential documents and information produced or disclosed in this case: I. CONFIDENTIAL INFORMATION. A. 6 Definition of “Confidential”. 7 “Confidential Information” means any non-public testimony, information, 8 documents or data that the designating party or third-party discovery respondent in good 9 faith believes contains confidential, sensitive, business, personal or proprietary 10 information. Confidential Information may include any document or information 11 produced, disclosed or exchanged in accordance with the Federal Rules of Civil Procedure 12 or by agreement, including, without limitation, initial and supplemental disclosures, 13 interrogatory answers, responses to requests for admission, responses to subpoenas, 14 responses to requests for production and any other documents or information produced in 15 response to discovery requests, or contained in deposition testimony and exhibits, 16 pleadings, motions, briefs, affidavits, declarations and any other discovery or disclosure 17 made in this litigation. 18 Confidential Information does not include (1) any information which a party 19 lawfully possessed, obtained or developed other than through discovery in this action; or 20 (2) any information that is or becomes available to the public through no act, or failure to 21 act, attributable to the receiving party or its counsel. 22 B. Designation of “Confidential” Information. 23 The parties and third-party discovery respondents may designate Confidential 24 Information in this action by stamping, labeling or otherwise appropriately marking the 25 documents or information as “CONFIDENTIAL—SUBJECT TO PROTECTIVE 26 ORDER”. A party must designate information as Confidential prior to producing the 27 information to the other party. A party may remedy an inadvertent failure to designate 28 produced documents or other materials by providing a supplemental notice and -2- Case 3:17-cv-00566-HDM-WGC Document 18-1 Filed 01/09/18 Page 3 of 10 1 designation to the other party within thirty (30) business days after the producing party 2 first learns that it inadvertently failed to designate the information as Confidential. 3 Following such notice, the identified materials shall be fully subject to this Protective 4 Order; however, there shall be no sanction for any use or disclosure of such information 5 prior to the supplemental notice and designation. 6 With respect to discovery responses that contain or constitute Confidential 7 Information, the responding party shall include a “CONFIDENTIAL—SUBJECT TO 8 PROTECTIVE ORDER” designation, as appropriate, on the first page of the discovery 9 response, and on each page of the document containing Confidential Information. 10 Any party may designate any portion of a deposition as Confidential by notifying 11 the other parties on the record during the deposition or in writing within thirty (30) 12 calendar days after receipt of the deposition transcript. The deposition transcript shall be 13 treated as “Confidential” during this thirty-day period. 14 videographer participating in any deposition in this action shall be informed of, and 15 provided with a copy of, this Protective Order. When directed, each court reporter shall 16 designate those portions of the deposition transcript(s) with the legend “CONFIDENTIAL 17 —SUBJECT TO PROTECTIVE ORDER” as appropriate. 18 C. Each court reporter and Related Documents. 19 The terms of this Protective Order shall extend to and protect (1) all copies, 20 extracts and complete or partial summaries prepared from documents or information 21 designated as Confidential; (2) portions of deposition transcripts that contain or reflect the 22 content of any documents or information designated as Confidential; (3) portions of 23 briefs, memoranda or any other writing filed with the Court and any exhibits thereto that 24 contain or reflect the content of any documents or information designated as Confidential; 25 and (4) designated testimony taken at a hearing or other proceedings that contains or 26 reflects the content of any documents or information designated as Confidential. 27 28 -3- Case 3:17-cv-00566-HDM-WGC Document 18-1 Filed 01/09/18 Page 4 of 10 1 II. 2 If a party challenges the confidentiality designations of any Confidential 3 Information, the party shall provide the designating party with written notice of its 4 challenge. The parties shall meet and confer in good faith within seven (7) calendar days 5 of the notice and utilize their best efforts to attempt to resolve the dispute. If the parties 6 are unable to resolve the dispute within seven (7) calendar days of the meet and confer, 7 the party challenging the confidentiality designation may seek appropriate relief from the 8 Court. 9 designation is appropriate under the circumstances. CHALLENGES TO DESIGNATIONS. The designating party bears the burden of proving that the Confidentiality 10 If a party challenging the designation of information as Confidential seeks relief 11 from the Court, the protections of this Protective Order will continue to apply to the 12 designated information until the matter is decided by the Court. 13 14 III. ACCESS TO AND USE OF INFORMATION. A. Use of Confidential Information for Litigation Purposes Only. 15 All Confidential Information received in this action, whether through disclosures, 16 discovery or otherwise, shall be used solely for purposes of this action and not for any 17 other purpose. 18 19 20 21 B. Access to Confidential Information. Information designated as Confidential Information, and any information or materials derived therefrom, shall only be disclosed to, made available to, or used by: 1. Outside counsel for the parties and their employees or 22 contractors, to whom disclosure of Confidential Information is 23 necessary for purposes of the litigation; 24 2. In-house counsel for a party; 25 3. The Court and its personnel in any proceeding in this action; 26 4. The author or identified recipient of the Confidential 27 Information; 28 -4- Case 3:17-cv-00566-HDM-WGC Document 18-1 Filed 01/09/18 Page 5 of 10 1 5. The officer taking, reporting or videotaping a deposition and 2 employees of such officer to the extent necessary to prepare 3 the transcript or video of the deposition; 4 6. Upon execution of an Acknowledgement in the form attached 5 as Exhibit A, individual parties and the officers, directors or 6 employees of corporate parties who are assisting with or 7 evaluating this action; 8 7. Upon execution of an Acknowledgement in the form attached 9 as Exhibit A, deposition or trial witnesses who are not 10 officers, directors or employees of the parties, during their 11 deposition or trial testimony, to whom disclosure is reasonably 12 necessary (with the understanding that witnesses may receive 13 a copy of all exhibits marked or used during their deposition 14 or testimony in connection with their review of the transcripts, 15 but shall not retain copies of Confidential documents); 16 8. Upon execution of an Acknowledgement in the form attached 17 as Exhibit A, insurers of the parties who require the 18 information to assist in or evaluate this action; 19 9. Upon execution of an Acknowledgement in the form attached 20 as Exhibit A, independent experts who have been retained by 21 the parties in this action or their counsel of record; 22 10. Upon execution of an Acknowledgement in the form attached 23 as Exhibit A, graphics, design, jury consultant or focus group 24 services retained by the parties or counsel; 25 11. Upon execution of an Acknowledgement in the form attached 26 as Exhibit A, third party vendors retained by the parties or 27 counsel to assist with the preservation of documents, 28 electronic discovery for this lawsuit, document review for this -5- Case 3:17-cv-00566-HDM-WGC Document 18-1 Filed 01/09/18 Page 6 of 10 1 lawsuit, or the collection and production of documents and 2 Confidential Information in this lawsuit; 3 12. Upon execution of an Acknowledgement in the form attached 4 as Exhibit A, any third-party mediator jointly selected by the 5 parties or appointed by the Court; and 6 13. 7 Any other person to whom the designating party agrees in writing. 8 Parties shall disclose copies of Exhibit A, as executed by persons receiving 9 Confidential Information (except for non-testifying expert consultants), to counsel of 10 11 record in this action within fifteen (15) days of execution. C. Information Submitted to the Court. 12 Any party filing any paper with the Court that contains or discloses the substance 13 or content of information designated as Confidential Information shall move to file the 14 paper under seal concurrently with the filing of the papers. Such paper shall be filed and 15 kept under seal until further order of the Court. 16 Subject to the Federal Rules of Evidence, and notwithstanding the foregoing, 17 nothing in this Protective Order affects in any way the admissibility of any documents, 18 testimony or other evidence at trial, or restricts the use of information at trial. Any party 19 who intends to use at trial another party’s or third-party discovery respondent’s 20 Confidential Information shall give the designating party reasonable notice of the 21 intention to use such Confidential Information sufficiently in advance of trial so that the 22 designating party has a reasonable opportunity to request that such material be received in 23 camera, redacted, filed under seal or received by the Court under other conditions to 24 prevent unnecessary disclosure in accordance with any applicable court rules and 25 procedures. The Court may then determine whether the proffered evidence shall be 26 treated as Confidential Information and, if so, what protection may be afforded to such 27 evidence at the trial or hearing. 28 -6- Case 3:17-cv-00566-HDM-WGC Document 18-1 Filed 01/09/18 Page 7 of 10 1 D. Subpoena for Confidential Information. 2 If any Confidential Information governed by this Order is subpoenaed or requested 3 from a party who has received such Confidential Information pursuant to this Order by a 4 court, administrative body, legislative body or any other person or entity purporting to 5 have authority to require the production of such information, the person to whom the 6 subpoena or request is directed shall give immediate written notice of the subpoena or 7 request to the party that designated the Confidential Information and include a copy of the 8 subpoena or request. 9 designating party shall be responsible for obtaining any order it believes necessary to Upon receipt of the notice specified in this paragraph, the 10 prevent disclosure of Confidential Information. 11 subpoena or request is directed shall not produce any Confidential Information absent (1) 12 receipt of written notice from the party that designated the Confidential Information 13 stating that the party does not object to production of the Confidential Information; (2) 14 final resolution of any objection asserted by the designating party; or (3) order requiring 15 production issued by any court with jurisdiction over the subpoenaed person or party. If, 16 however, the designating party does not respond or otherwise take any action to obtain an 17 order of protection for the Confidential Information, then the party in receipt of the 18 subpoena or other request as described above may comply with the subpoena or request 19 pursuant to the applicable rules of civil procedure. The person or party to whom the 20 IV. DISCLOSURE OF CONFIDENTIAL INFORMATION. 21 If Confidential Information is disclosed to anyone other than in a manner 22 authorized by this Protective Order, the party responsible for such disclosure must 23 immediately bring all pertinent facts relating to such disclosure to the attention of the 24 producing party and make every reasonable effort to retrieve such Confidential 25 Information or Customer Information and to prevent further disclosure. 26 V. CONFIDENTIALITY OF A PARTY’S OWN DOCUMENTS. 27 Nothing in this Protective Order shall affect the right of the producing or 28 designating party to disclose to its own officers, directors, employees, consultants or -7- Case 3:17-cv-00566-HDM-WGC Document 18-1 Filed 01/09/18 Page 8 of 10 1 experts, or to any other person, information or documents the party has designated as 2 Confidential Information. 3 VI. TERMINATION OF LITIGATION. 4 Within sixty (60) calendar days of the final resolution of this action, including any 5 appeal, all persons subject to the terms of this Protective Order shall (1) destroy, or 6 assemble and return to the producing party, all Confidential Information; and (2) destroy 7 any outlines, summaries, abstracts, compilations, memoranda or other documents, which 8 constitute, embody, contain or disclose the contents of the Confidential Information; 9 except that counsel of record in this action may retain one archival copy of pleadings and 10 other Court filings, deposition transcripts, deposition exhibits, trial transcripts, trial 11 exhibits, correspondence, legal research memoranda, and work product. 12 The terms of this Protective Order shall survive and remain in full force and effect 13 after the final conclusion or resolution of this action. The Court shall retain jurisdiction 14 over the parties, their counsel, and all persons to whom Confidential Information has been 15 disclosed for the purpose of enforcing the terms of this Protective Order and/or redressing 16 any violation thereof and may impose appropriate sanctions for violation of this Protective 17 Order. 18 VII. ADDITIONAL PROTECTION. 19 Nothing in this Protective Order shall preclude any party from seeking and 20 obtaining, on a sufficient showing, additional protection with respect to the confidentiality 21 of documents or other discovery material. Likewise, nothing in this Protective Order shall 22 preclude a party from seeking relief from this Protective Order with respect to particular 23 documents or discovery material designated hereunder. 24 25 26 27 28 -8- Case 3:17-cv-00566-HDM-WGC Document 18-1 Filed 01/09/18 Page 9 of 10 1 VIII. MODIFICATION. 2 The terms of this Protective Order may be modified by (1) agreement of the parties 3 or (2) order of this Court for good cause appearing, upon application by any party or upon 4 the Court’s own order. 5 6 7 8 9 10 11 DATED this ____ day of _____________________, 2018. ORDER Paragraph III, C - Information Submitted to the Court is modified to reflect that any motion regarding filing confidential information and motions to seal shall comply with LR 1A 10-5 and the dictates of Kamakana v. City and County of Cobb___________ William G. Honolulu, 447 F.3d 1172 (9th Cir. 2006). See also, Center for Auto Safety v. Chrysler DistrictLLC, 809 F.3d 1092, 1097 (9th Cir. U.S. Group, Court Judge 2016). Paragraph VI - Termination of Litigation is modified to reflect that although the parties may agree to be bound by the confidentiality terms of this Order beyond the conclusion of this lawsuit, the dismissal of this action will terminate the jurisdiction of this Court. 12 13 IT IS SO ORDERED. 14 DATED: January 10, 2018. 15 16 17 _____________________________________________ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 -9- Case 3:17-cv-00566-HDM-WGC Document 18-1 Filed 01/09/18 Page 10 of 10 1 EXHIBIT A 2 Agreement to the Terms of the Protective Order in 1600 East Newlands Drive, LLC v. Amazon.com.NVDC, LLC and Amazon.com, Inc. (U.S. District Court for the District of Nevada, Case No. 3:17-cv-00566-HDM-WGC) 3 4 5 6 7 8 9 I, __________________________, being a person authorized under the Protective Order in the above-named action to have access to Confidential Information protected by the Protective Order, have read and understood the Protective Order, and hereby agree to comply with and be bound by the terms of the Protective Order. 10 I further agree to submit to the jurisdiction of the U.S. District Court for the 11 District of Nevada for the purpose of enforcing the terms of the Protective Order, even if 12 such enforcement proceeding occurs after termination of this action. 13 14 DATED: ____________ 15 ______________________________ 16 Print Name and affiliation: 17 18 ___________________________ 19 20 of _________________________ 21 22 138115535.1 23 24 25 26 27 28 -10-

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