-GWF Herb Reed Enterprises, LLC v. Florida Entertainment Management, Inc. et al, No. 2:2012cv00560 - Document 83 (D. Nev. 2012)

Court Description: PROTECTIVE ORDER Granting 82 Stipulation. Signed by Magistrate Judge George Foley, Jr on 11/2/2012. (Copies have been distributed pursuant to the NEF - SLD)

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-GWF Herb Reed Enterprises, LLC v. Florida Entertainment Management, Inc. et al Case 2:12-cv-00560-MMD -GWF Document 82 1 Doc. 83 Filed 11/01/12 Page 1 of 9 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 Case No.: 12-CV-560-MMD-GWF HERB REED ENTERPRISES, LLC, a Massachusetts company, 5 Plaintiff, 6 vs. 7 FLORIDA ENTERTAINMENT MANAGEMENT, INC, a Nevada company; and LARRY MARSHAK, an individual, 8 9 Defendants. 10 11 STIPULATED PROTECTIVE ORDER 12 Plaintiff Herb Reed Enterprises, LLC and Defendants Florida Entertainment Management, 13 Inc. and Larry Marshak, through counsel, pursuant to Federal Rule of Civil Procedure 26(c), 14 hereby stipulate and agree to the following Protective Order: 15 1. 16 Definitions: (a) “Confidential Information” means any information, document, electronic data, 17 testimony, or inspection that is designated and/or marked as “ CONFIDENTIAL” in good faith by 18 the party producing the materials. Any information, document, electronic data, testimony, or 19 inspection produced by a party in this litigation may be designated and marked as Confidential 20 Information; provided, however, that notwithstanding any such designation or marking, 21 Confidential Information does not include information that is readily available, in the public 22 domain at the time it was communicated, and/or publicly disclosed by the party producing it. 23 (b) “ Highly Confidential Information” means any information, document, electronic 24 data, testimony, or inspection that is designated and marked “ HIGHLY CONFIDENTIAL” in 25 good faith by the party producing, and that either constitutes or contains information that a party in 26 good faith believes is a trade secret or sensitive personal information. 27 /// 28 /// Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169 -1Dockets.Justia.com Case 2:12-cv-00560-MMD -GWF Document 82 1 (c) 2 Filed 11/01/12 Page 2 of 9 “Qualified Persons” means: (i) attorneys of record for the parties and persons employed by the law firm of 3 the attorneys of record who are assigned by the attorney of record to perform work for the 4 attorney on the matter; 5 (ii) a party or any representative of a party responsible for or involved in the 6 conduct of this litigation, provided that Confidential Information disclosed to any such 7 person shall be limited to that which reasonably relates to his or her role in the litigation; 8 (iii) stenographic reporters performing work related to this litigation; 9 (iv) expert witnesses or prospective expert witnesses, except that Confidential 10 Information and Highly Confidential Information disclosed to such persons shall be limited 11 to that reasonably necessary for them to form an opinion or prepare their testimony as to 12 the matters about which the attorney retained or may retain them; 13 (v) consultants retained by the parties to assist the attorneys of record, except 14 that Confidential Information and Highly Confidential Information disclosed to such 15 persons shall be limited to that which reasonably relates to the issues or subjects of the 16 consultation; 17 (vi) persons reasonably expected to testify at a hearing or trial, except that 18 Confidential Information or Highly Confidential Information disclosed to such persons 19 shall be limited to that which is reasonably necessary for their testimony or its preparation; 20 and 21 (vii) 22 23 24 such persons as hereafter are qualified to receive Confidential Information or Highly Confidential Information by Court order or agreement of the parties. 2. Use and Disclosure: (a) Absent a specific order by this Court, or written permission from the designating 25 party, information once designated as Confidential Information or Highly Confidential 26 Information shall be used by Qualified Persons solely in connection with this litigation, and not 27 for any business, competitive, or governmental purpose or function and such information shall not 28 be disclosed to anyone except as provided herein. Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169 -2- Case 2:12-cv-00560-MMD -GWF Document 82 1 (b) Filed 11/01/12 Page 3 of 9 Confidential Information shall not be disclosed to anyone other than a Qualified 2 Person. Prior to disclosure, each Qualified Person, except those identified in paragraphs 1(c)(i) 3 and (iii), shall first execute an acknowledgment in the form attached as Exhibit A. The original 4 executed acknowledgment shall be retained by the attorney disclosing the Confidential 5 Information, and a copy thereof forwarded to the opposing attorney. 6 (c) Highly Confidential Information shall be used and disclosed only to the persons 7 and only under the circumstances described herein. Highly Confidential Information shall not be 8 disclosed to anyone other than a Qualified Person identified in paragraphs 1(c)(i), (iii), (iv), (v), 9 (vi) and (vii). Prior to any disclosure of Highly Confidential Information, each such person, 10 except those identified in paragraphs 1(c)(i) and (iii), must execute an acknowledgment in the 11 form attached hereto as Exhibit A, a copy of which shall be provided to the producing party within 12 ten (10) business days of execution, along with any one of the following: either submit a CV or 13 resume when such persons are identified OR name that person, current employment, 10 year work 14 history and educational qualifications to determine possible competitors. The producing party, 15 upon confirmed receipt of an executed acknowledgement form, shall have ten (10) business days 16 to lodge a written objection to disclosure to any person seeking disclosure of Highly Confidential 17 Information. Disclosure shall not occur until either (i) the disclosing party agrees to withdraw the 18 objection or (ii) the party seeking disclosure successfully petitions the Court for relief and an 19 appropriate order is entered. 20 (d) In the event that Confidential Information or Highly Confidential Information is 21 disclosed to a person who is not authorized to receive it, such disclosure shall not affect the 22 confidentiality of the information or of other properly designated materials. The party and/or 23 person disclosing the information shall immediately notify the attorney of record for the other 24 party about the substance and content of the information disclosed and the identify of all recipients 25 of such information, and shall make all reasonable efforts to have all recipients return all 26 information disclosed and/or execute an acknowledgment in the form attached hereto as Exhibit A. 27 28 Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169 -3- Case 2:12-cv-00560-MMD -GWF Document 82 1 (e) Filed 11/01/12 Page 4 of 9 Anyone who has Confidential Information or Highly Confidential Information shall 2 maintain it in a locked filing cabinet, briefcase, or other secure and enclosed storage receptacle, 3 except when the information is in active and immediate use. 4 3. 5 Discovery Proceedings: (a) All answers to interrogatories, requests for the production of documents and things, 6 requests for admissions, and all documents or things produced, which constitute, comprise or 7 contain Confidential Information or Highly Confidential Information shall be so identified and 8 marked prominently by the disclosing party. Such identification or marking shall be made at the 9 time that the answer, document or thing is produced. 10 (b) In the case of depositions, the attorney of record for the disclosing party shall 11 advise the opposing attorney of record of the specific pages claimed to fall within the terms of this 12 Protective Order either during the deposition or within thirty (30) days of receiving the transcript 13 of the deposition. If not so designated during the deposition, the entire deposition transcript shall 14 remain confidential during that thirty-day period. The entire deposition transcript may be 15 designated as Confidential Information or Highly Confidential Information if it so qualifies. 16 Parties to this litigation may attend any deposition, and shall only be precluded from monitoring 17 deposition responses to those questions deemed Highly Confidential during the course of the 18 deposition or in transcripts. 19 (c) Only Qualified Persons authorized to receive Confidential Information may be 20 deposed with respect to Confidential Information, and only Qualified Persons authorized to 21 receive Confidential Information may be present during such portions of such depositions. Only 22 Qualified Persons authorized to receive Highly Confidential Information may be deposed related 23 to Highly Confidential Information, and only persons authorized to receive Highly Confidential 24 Information may be present during the portions of such depositions. A reporter recording any 25 Confidential Information or Highly Confidential Information, or incorporating such information 26 into the transcript, shall transmit the transcript only to the attorneys of record for the parties. Such 27 transcripts shall not be filed with the Court, except under the terms set forth herein. 28 Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169 -4- Case 2:12-cv-00560-MMD -GWF Document 82 Filed 11/01/12 Page 5 of 9 1 4. 2 comprising or containing Confidential Information or Highly Confidential Information without 3 identifying and marking it as such, the disclosing party may so identify and mark such document 4 or information at any time thereafter without waiver or prejudice to such rights as may thereafter 5 arise under this Agreement. 6 5 7 Failure to Identify or Mark: If a party produces a document or information constituting, Inadvertent Disclosure. If, through inadvertence, a producing party provides any “ Confidential” or “ Highly 8 Confidential” , material in this litigation without marking the information as “ Confidential” or “ 9 Highly Confidential” ,” the producing party may subsequently inform the receiving party in 10 writing of the “ Confidential” or “ Highly Confidential,” nature of the disclosed information, and 11 the receiving party shall treat the disclosed information in accordance with this Order after receipt 12 of such written notice and make reasonable efforts to retrieve any such material that has been 13 inadvertently disclosed to persons not authorized to receive the material under the terms hereof. A 14 party objecting to any such designations shall follow the procedures set forth above. Prior 15 disclosure of material later designated shall not constitute a violation of this Order. If “ 16 Confidential” or “ Highly Confidential” material is disclosed to any person other than in the 17 manner authorized by this Order, the person responsible for disclosure must immediately bring all 18 pertinent facts relating to such disclosure to the attention of counsel for the producing party and, if 19 appropriate, to the Court and, without prejudice to other rights and remedies of any party, take 20 reasonable and appropriate measures to prevent further disclosure by it or by the person who was 21 the recipient of such information. The person making such disclosures shall be responsible for any 22 damages caused to the producing party by virtue of such disclosure. 23 Inadvertent disclosure of privileged or protected trial-preparation materials shall be 24 governed by Fed. R. Civ. P. 26(b)(5)(B). 25 6. 26 Highly Confidential Information may, at any time, give written notice to the attorney of record for 27 the party that produced the information that the receiving party challenges the designation of the 28 information. If the parties cannot resolve the dispute amicably, then the requesting party may file a Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169 Challenges: The attorney of record for the party receiving Confidential Information or -5- Case 2:12-cv-00560-MMD -GWF Document 82 Filed 11/01/12 Page 6 of 9 1 motion seeking an Order of the Court with respect to the information in question. The party who 2 designated the information shall bear the burden of demonstrating that the designation is 3 appropriate. The party challenging the designation shall treat the information as being properly 4 designated hereunder until the Court rules otherwise. 5 7. Filing With the Court: 6 A party seeking to file documents containing Confidential Information or Highly 7 Confidential Information under seal will first file a motion to seal in accordance with the 8 provisions of Local Rule 10.5. 9 8. Retention of Jurisdiction. Jurisdiction is to be retained by this Court after final 10 determination of this action for purposes of enabling any party or person affected by this Order to 11 apply to the Court for such direction, order or further decree as may be appropriate for the 12 construction, modification, enforcement or compliance herewith or for the punishment of any 13 violation hereof, or for such additional relief as may become necessary. 14 9. 15 appropriate modification hereof; provided, however, that prior to such application, the parties shall 16 certify in writing that they have endeavored unsuccessfully to resolve the matter. 17 10. 18 of Confidential Information and Highly Confidential Information at trial and thereafter shall be 19 governed by a later Court order. 20 11. 21 the Court shall return all documents containing Confidential Information or Highly Confidential 22 Information to the attorney of record for the party who filed such document. Further, upon 23 termination of this action, all materials containing or comprising Confidential Information or 24 Highly Confidential Information, and any copies thereof, in the possession of any party, attorney 25 or person shall be returned to the attorney of record for the party who produced the information, or 26 shall be destroyed if the attorney of record for the party who produced the information authorizes 27 such destruction; provided, however, that attorneys of record may retain their attorney work 28 product that contains or comprises such materials. The restrictions of this Protective Order shall Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169 Further Order: Nothing herein shall preclude any party from applying to the Court for any Scope: This Order shall govern only the pretrial proceedings in this matter. The handling Return of Information: Upon termination of this action and all timely filed direct appeals, -6- Case 2:12-cv-00560-MMD -GWF Document 82 Filed 11/01/12 Page 7 of 9 1 continue to apply to any such Confidential Information or Highly Confidential Information 2 retained by an attorney. 3 12. 4 Information or Highly Confidential Information pursuant to a subpoena, order of a court of 5 competent jurisdiction, or otherwise, that party, attorney or person shall give notice of such 6 request to the attorney of record of the party who produced the information at least twenty (20) 7 business days prior to any scheduled date for the disclosure of the information. In the event that 8 the period for the requested disclosure is shorter than twenty (20) business days, the party, 9 attorney or person shall give the attorney of record for the party who produced the information 10 Other Proceedings. If any party, attorney or person is requested to disclose Confidential immediate notice of the request upon its receipt. 11 IT IS SO STIPULATED 12 DATED: November 1, 2012 13 14 15 16 17 18 19 20 21 LEWIS AND ROCA, LLP HUTCHISON & STEFFEN, LLC By: __/s/John L. Krieger______________ John L. Krieger 3993 Howard Hughes Parkway, Suite 600 Las Vegas, Nevada 89169 (702) 949-8200 By:___/s/Jacob A. Reynolds______________ Joseph S. Kistler Jacob A. Reynolds Peccole Professional Park 10080 West Alta Drive, Suite 200 Las Vegas, Nevada 89145 (702) 385-2500 Eric M. Sommers Sommers Law, PLLC 600 State Street, Suite 1 Portsmouth, NH 03801 (603) 570-4854 Yuval H. Marcus Cameron S. Reuber LEASON ELLIS LLP One Barker Avenue, Fifth Floor White Plains, NY 10601 Attorneys for Herb Reed Enterprises, LLC Attorneys for Larry Marshak and Florida Entertainment Management, Inc. 22 23 24 25 IT IS SO ORDERED 26 _____________________________________ UNITED STATES MAGISTRATE JUDGE 27 28 Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169 November 2, 2012 DATED:__________________________ -7- Case 2:12-cv-00560-MMD -GWF Document 82 Filed 11/01/12 Page 8 of 9 1 2 EXHIBIT A 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 7 Plaintiff, 8 9 10 11 vs. FLORIDA ENTERTAINMENT MANAGEMENT, INC, a Nevada company; and LARRY MARSHAK, an individual, Defendants. 12 ACKNOWLEDGMENT OF PROTECTIVE ORDER 13 14 Case No.: 12-CV-560-MMD-GWF HERB REED ENTERPRISES, LLC, a Massachusetts company, I, ________________________, agree and acknowledge that I am bound by the terms of 15 the Protective Order entered by the Court in the above-captioned matter. I specifically and 16 expressly agree and acknowledge as follows: 17 18 19 20 21 22 23 1. I have read the entire Protective Order. I fully understand the terms of that Order, and the obligations that I am entering into pursuant to it. 2. I agree not to disclose Confidential Information to any other person, except to the extent that I am specifically instructed to do so, in writing, by an attorney of record in this matter. 3. If I am entrusted with Highly Confidential Information, I agree not to disclose the Highly Confidential Information to any other person, except an attorney of record in this matter. 4. I agree not to use Confidential Information in any manner whatsoever, except for 24 the sole purpose of performing my responsibilities in this litigation. In other words, I agree to use 25 Confidential Information solely for the specific purpose of this litigation. I agree that, after this 26 litigation ends, I will immediately return any and all Confidential Information within my 27 possession, custody or control to a counsel of record in this case without retaining any copy. 28 Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169 -8- Case 2:12-cv-00560-MMD -GWF Document 82 1 5. Filed 11/01/12 Page 9 of 9 If I receive Highly Confidential Information, I agree and acknowledge that I am 2 being trusted with highly sensitive information, and I absolutely will not use such information, in 3 any manner whatsoever, directly or indirectly, for anything other than matters directly at issue in 4 the litigation. I further agree and acknowledge that I am absolutely prohibited from utilizing, 5 considering, discussing, contemplating, thinking about, implementing, or in any other way using 6 Highly Confidential Information for any business or personal purpose whatsoever, including 7 competing with the disclosing party. 8 9 6. I agree that I will submit to the jurisdiction of this Court, and that, if I breach the terms of the Protective Order, I will be subject to civil sanctions in this Court. 10 I declare under penalty of perjury that the foregoing is true and correct. 11 12 _________________________ 13 Date ________________________________ 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lewis and Roca LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169 -9-

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