McGuire et al v. Carey et al

Filing 77

PROTECTIVE ORDER granting ECF No. 76 Stipulated Protective Order re confidential information. Signed by Magistrate Judge Carla Baldwin on 8/24/2020. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:20-cv-00249-RCJ-CLB Document 77 Filed 08/24/20 Page 1 of 10

1
REBECCA L. MASTRANGELO, ESQ.
2 Nevada Bar No. 5417
ROGERS, MASTRANGELO, CARVALHO & MITCHELL
3 700 S. Third Street
Las Vegas, Nevada 89101
4 Phone [phone]
Fax [phone]
5 [e-mail]
Attorneys for RE/MAX, LLC and
6 RE/MAX HOLDINGS, INC.
7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA (RENO)

9 PATRICK H. MCGUIRE, an individual
)
and LISA ANN MCGUIRE, an individual, )
10
)
Plaintiffs,
)
11
)
vs.
)
12
)
ANNE MARIE CAREY, an individual,
)
13 CAREY TRUST, a testamentary trust,
)
ANTONETTE D. SHAW, an individual,
)
14 MAXED PROFESSIONALS, LLC, a
)
Nevada limited liability company;
)
15 RE/MAX, LLC, a Delaware limited
)
liability company; and RE/MAX
)
16 HOLDINGS, INC., a Delaware
)
corporation; JOSEPH HENRY, in his
)
17 individual capacities; and THE CITY OF
)
RENO, a municipal entity.
)
18
)
Defendants.
)
19 ____________________________________)
20

CASE NO. 3:20-cv-00249-RCJ-CLB

STIPULATED PROTECTIVE ORDER

In order to protect the confidentiality of confidential information obtained by the parties

21 in connection with this case, the parties hereby agree as follows:
22

1.

This action is likely to involve trade secrets, customer and pricing lists and other

23 valuable research, development, commercial, financial, technical and/or proprietary information
24 for which special protection from public disclosure and from use for any purpose other than
25 prosecution of this action is warranted. Such confidential and proprietary materials and
26 information consist of, among other things, confidential business practices, or other confidential
27 research, development, or commercial information (including information implicating privacy
28 rights of third parties), information otherwise generally unavailable to the public, or which may

Case 3:20-cv-00249-RCJ-CLB Document 77 Filed 08/24/20 Page 2 of 10

1 be privileged or otherwise protected from disclosure under state or federal statutes, court rules,
2 case decisions, or common law. Accordingly, to expedite the flow of information, to facilitate
3 the prompt resolution of disputes over confidentiality of discovery materials, to adequately
4 protect information the parties are entitled to keep confidential, to ensure that the parties are
5 permitted reasonably necessary uses of such material in preparation for and in the conduct of
6 trial, to address their handling at the end of the litigation, and to serve the ends of justice, a
7 protective order for such information is justified in this matter. It is the intent of the parties that
8 information will not be designated as confidential for tactical reasons and that nothing be so
9 designate without a good faith belief that it has been maintained in a confidential, non-public
10 manner, and there is good cause why it should not be part of the public record in this case.
11

2.

Any party or non-party may designate as “confidential” (by stamping the relevant

12 page or as otherwise set forth herein) any document including electronically stored information
13 (“ESI”) or responses to discovery which that party or non-party considers in good faith to contain
14 information involving trade secrets, or confidential business or financial information, subject to
15 protection under the Federal Rules of Civil Procedure or Nevada law (“Confidential
16 Information”). Where a document or response consists of more than one page, the first page and
17 each page on which confidential information appears shall be so designated.
18

3.

A party or non-party may designate information disclosed during a deposition or

19 in response to written discovery as “confidential” by so indicating in said response or on the
20 record at the deposition and requesting the preparation of a separate transcript of such material.
21 Additionally a party or non-party may designate in writing, within twenty (20) days after receipt
22 of said responses or of the deposition transcript for which the designation is proposed, that
23 specific pages of the transcript and/or specific responses be treated as “confidential” information.
24 Any other party may object to such proposal, in writing or on the record. Upon such objection,
25 the parties shall follow the procedures described in paragraph 11 below. After any designation
26 made according to the procedure set forth in this paragraph, the designated documents or
27
28

2

Case 3:20-cv-00249-RCJ-CLB Document 77 Filed 08/24/20 Page 3 of 10

1 information shall be treated according to the designation until the matter is resolved according to
2 the procedures described in paragraph 11 below, and counsel for all parties shall be responsible
3 for marking all previously unmarked copies of the designated material in their possession or
4 control with the specified designation.
5

4.

Confidential Information may be additionally designated “Confidential -

6 Attorneys Eyes Only” by counsel for the Producing Party for the purpose of identifying
7 particularly sensitive Confidential Information relating to current or prospective research and
8 development, technical documents relating to current or prospective products, financial
9 information (including, but not limited to, amount or source of any income, profits, losses, or
10 expenditures, sales information, and pricing information), marketing or business plans, and the
11 names or other information tending to reveal the identities of a party’s present or prospective
12 customers, vendors, listeners, or advertisers.
13

5.

All information produced or exchanged in the course of this case (other than

14 information that is publicly available) shall be used by the party or parties to whom the
15 information is produced solely for the purpose of this case.
16

6.

Each party or non-party that designates information or items for protection under

17 this Order must take care to limit any such designation to specific material that qualifies under
18 the appropriate standards. The Designating Party must designate for protection only those parts
19 of material, documents, items, or oral or written communications that qualify so that other
20 portions of the material, documents, items, or communications for which protection is not
21 warranted are not swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or
22 routinized designations are not permitted under this Order, and designations which are shown to
23 be clearly unjustified or that have been made for an improper purpose (e.g. to unnecessarily
24 encumber the case development process or to impose unnecessary expenses or burdens on the
25 other parties) may expose the Designating Party to sanctions. If it comes to a Designating
26 Party’s attention that information or items that it designated for protection do not qualify for
27
28

3

Case 3:20-cv-00249-RCJ-CLB Document 77 Filed 08/24/20 Page 4 of 10

1 protection, that Designating Party must promptly notify all other Parties that it is withdrawing the
2 inapplicable designation.
3

7.

Except with the prior written consent of other parties, or upon prior order of this

4 Court obtained upon notice to opposing counsel, Confidential Information shall not be disclosed
5 to any other person than:
6

(a)

7
8

co-counsel retained for this litigation;
(b)

9
10

counsel for the respective parties to this litigation, including in-house counsel and

employees of such counsel and non-employee personnel engaged by counsel on a
contract basis;

(c)

individual defendants, class representatives, any officer or employee of a party, to

11

the extent deemed necessary by Counsel for the prosecution or defense of this

12

litigation;

13

(d)

consultants or expert witnesses retained for the prosecution or defense of this

14

litigation, provided that each such person shall execute a copy of the Certification

15

annexed to this Order as Exhibit “A” (which shall be retained by counsel to the

16

party so disclosing the Confidential Information and made available for inspection

17

by opposing counsel during the pendency or after the termination of the action

18

only upon good cause shown and upon order of the Court) before being shown or

19

given any Confidential Information and provided that if the party chooses a

20

consultant or expert employed by [The Corporate Defendant] or one of its

21

competitors (as listed on Appendix A), the party shall notify the opposing party,

22

or designating non-party, before disclosing any Confidential Information to that

23

individual and shall give the opposing party an opportunity to move for a

24

protective order preventing or limiting such disclosure;

25

(e)

any authors or recipients of the Confidential Information;

26

(f)

the Court, Court personnel, and court reporters; and

27
28

4

Case 3:20-cv-00249-RCJ-CLB Document 77 Filed 08/24/20 Page 5 of 10

1

(g)

witnesses (other than persons described in paragraph 4(e)). A witness shall sign

2

the Certification before being shown a confidential document. Confidential

3

Information may be disclosed to a witness who will not sign the Certification only

4

in a deposition at which the party who designated the Confidential Information is

5

represented or has been given notice that Confidential Information shall be

6

designated “Confidential” pursuant to paragraph 2 above. Witnesses shown

7

Confidential Information shall not be allowed to retain copies.

8

8.

Any persons receiving Confidential Information shall not reveal or discuss such

9 information to or with any person who is not entitled to receive such information, except as set
10 forth herein.
11

9.

Unless otherwise permitted by statute, rule or prior court order, papers filed with

12 the court under seal shall be accompanied by a contemporaneous motion for leave to file those
13 documents under seal, and shall be filed consistent with the court’s electronic filing procedures
14 in accordance with Local Rule IA 10-5. Notwithstanding any agreement among the parties, the
15 party seeking to file a paper under seal bears the burden of overcoming the presumption in favor
16 of public access to papers filed in court. Kamakana v. City and County of Honolulu, 447 F.2d
17 1172 (9th Cir. 2006); Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2010).
18

10.

A party may designate as “Confidential” documents or discovery materials

19 produced by a non-party by providing written notice to all parties of the relevant document
20 numbers or other identification within thirty (30) days after receiving such documents or
21 discovery materials. Any party or non-party may voluntarily disclose to others without restriction
22 any information designated by that party or non-party as confidential, although a document may
23 lose its confidential status if it is made public.
24

11.

If a party contends that any material is not entitled to confidential treatment, such

25 party may at any time give written notice to the party or non-party who designated the material.
26 The party or non-party who designated the material shall have thirty (30) days from the receipt of
27
28

5

Case 3:20-cv-00249-RCJ-CLB Document 77 Filed 08/24/20 Page 6 of 10

1 such written notice to apply to the Court for an order designating the material as confidential.
2 The party or non -party seeking the order has the burden of establishing that the document is
3 entitled to protection.
4

12.

Notwithstanding any challenge to the designation of material as Confidential

5 Information, all documents shall be treated as such and shall be subject to the provisions hereof
6 unless and until one of the following occurs:
7

(a)

8
9

the party or non-party who claims that the material is Confidential Information
withdraws such designation in writing; or

(b)

the party or non-party who claims that the material is Confidential Information

10

fails to apply to the Court for an order designating the material confidential within

11

the time period specified above after receipt of a written challenge to such

12

designation; or

13

(c)

the Court rules the material is not confidential.

14

13.

All provisions of this Order restricting the communication or use of Confidential

15 Information shall continue to be binding after the conclusion of this action, unless otherwise
16 agreed or ordered. Upon conclusion of the litigation, a party in the possession of Confidential
17 Information, other than that which is contained in pleadings, correspondence, and deposition
18 transcripts, shall either (a) return such documents no later than sixty (60) days after conclusion of
19 this action to counsel for the party or non-party who provided such information, or (b) destroy
20 such documents within the time period upon consent of the party who provided the information
21 and certify in writing within thirty (30) days that the documents have been destroyed.
22

14.

Any receiving party that knows that it intends to present Confidential Information

23 of another party in oral form at trial, or during any pre-trial or post-trial hearing, shall first notify
24 the Court and the Producing Party a reasonable amount of time in advance. Nothing herein shall
25 be deemed to preclude the admission into evidence of any materials covered by this Protective
26 Order, although the parties have reserved all rights to object to the admissibility of any such
27 material. Any Confidential Information admitted into evidence, shall be admitted into evidence
28 in an appropriate manner to protect the confidentiality of the materials.

6

Case 3:20-cv-00249-RCJ-CLB Document 77 Filed 08/24/20 Page 7 of 10

1

15.

Nothing herein shall be deemed to waive any applicable privilege or work product

2 protection, or to affect the ability of a party to seek relief for an inadvertent disclosure of material
3 protected by privilege or work product protection.
4

16.

Any witness or other person, firm or entity from which discovery is sought may be

5 informed of and may obtain the protection of this Order by written request to the parties’
6 respective counsel or by oral request at the time of any deposition or similar proceeding.
7

DATED this 24th day of August, 2020.

8 ROGERS, MASTRANGELO, CARVALHO
& MITCHELL
9
/s/ Rebecca L. Mastrangelo
10 ___________________________________
Rebecca L. Mastrangelo, Esq.
11 Nevada Bar No. 5417
700 S. Third Street
12 Las Vegas, Nevada 89101
Attorneys for Defendants
13 RE/MAX, LLC and RE/MAX HOLDINGS, INC.

William J. Kelly III
Admitted Pro Hac Vice
501 S. Cherry Street, Suite 1100
Denver, Colorado 80246
Attorneys for Defendants RE/MAX, LLC
and RE/MAX HOLDINGS, INC.

14 STEPHENSON LAW, PLLC

LEWIS BRISBOIS BISGAARD & SMITH

KELLY LAW PARTNERS, LLC
/s/William J. Kelly III

15
/s/ John N. Stephenson
16 _____________________________
John Neil Stephenson, Esq.
17 Nevada Bar No. 12497
1770 Verdi Vista Court
18 Reno, Nevada 89523
Attorney for Plaintiffs
19

/s/ Alice Herbolsheimer
Alice Herbolsheimer, Esq.
Nevada Bar No. 6389
5555 Kietzke Lane, Suite 200
Reno, Nevada 89511
Attorneys for Antonette D. Shaw and Maxed
Professionals, LLC

20 MIDTOWN LAW

RENO CITY ATTORNEY’S OFFICE

21
/s/ Stephanie Rice
22 ___________________________________
Stephanie Rice, Esq.
23 Nevada Bar No. 11627
115 Casazza Drive
24 Reno, Nevada 89501
Attorney for Anne Marie Carey and Carey
25 Trust

/s/ Chandeni Sendall
______________________________
Chandeni Sendall, Esq.
Nevada Bar No. 12750
P.O. Box 1900
Reno, Nevada 89505
Attorney for City of Reno and Joseph Henry

26
27
28

7

Case 3:20-cv-00249-RCJ-CLB Document 77 Filed 08/24/20 Page 8 of 10

1

Stipulated Protective Order
CASE NO. 3:20-cv-00249-RCJ-CLB

2
3
4

ORDER
IT IS SO ORDERED this 24th day of ____________, 2020.
___
August

5
6
7

____________________________________
U.S. MAGISTRATE JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

8

Case 3:20-cv-00249-RCJ-CLB Document 77 Filed 08/24/20 Page 9 of 10

1
2
CERTIFICATION

3

I hereby certify my understanding that Confidential Information is being provided to me
4
pursuant to the terms and restrictions of the Protective Order dated ___________, in McGuire v.
5
Carey, et al., Case No. 3:20-cv-00249-RCJ-CLB. I have been given a copy of that Order and
6
read it. I agree to be bound by the Order. I will maintain all such Confidential Information 7
including copies, notes, or other transcriptions made therefrom - in a secure manner to prevent
8
unauthorized access to it. No later than thirty (30) days after the conclusion of this action, I will
9
return the Confidential Information - including copies, notes or other transcriptions made
10
therefrom - to the counsel who provided me with the Confidential Information, I hereby consent
11
to the jurisdiction of the United States District Court for the purpose of enforcing the Protective
12
Order.
13
DATED:_____________________
14
15
16

______________________________
Name

17
18
Retained by:
19
20
21

Name of party

22
23
24
25
26
27
28

9

Case 3:20-cv-00249-RCJ-CLB Document 77 Filed 08/24/20 Page 10 of 10

1
2

EXHIBIT “A”

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

10