Eliason v. Clark County et al, No. 2:2017cv03017 - Document 40 (D. Nev. 2018)
Court Description: ORDER granting 39 Stipulated Protective Order; Signed by Magistrate Judge Carl W. Hoffman on 7/18/2018. (Copies have been distributed pursuant to the NEF - JM)
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Eliason v. Clark County et al Doc. 40 2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102 ASHCRAFT & BARR |LLP KELLY A. EVANS, ESQ. Nevada Bar No. 7691 kevans@efstriallaw.com CHAD R. FEARS, ESQ. Nevada Bar No. 6970 cfears@efstriallaw.com EVANS FEARS & SCHUTTERT L.L.P. 2300 West Sahara Avenue, Suite 900 Las Vegas, NV 89102 Telephone: (702) 805.0290 Facsimile: (702) 805.0291 JEFFREY F. BARR, ESQ Nevada Bar No. 7269 barrj@AshcraftBarr.com ASHCRAFT & BARR | LLP 2300 West Sahara Avenue, Suite 900 Las Vegas, NV 89102 Telephone: (702) 631.7555 Facsimile: (702) 631.7556 Attorneys for Plaintiff UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ROBERT ELIASON, an individual and in his Case No.: 2:17-cv-03017-JAD-CWH official capacity as Constable of North Las Vegas Township, Plaintiff, v. STIPULATED PROTECTIVE ORDER CLARK COUNTY, a political subdivision of the State of Nevada; STATE OF NEVADA ex rel NEVADA COMMISSION ON PEACE OFFICER STANDARDS & TRAINING, a regulatory agency of the State of Nevada, Defendants. 1. PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. This Order does not confer blanket protections on all disclosures or responses to discovery and the protection it affords from public disclosure and use extends only to the limited Page 1 of 13 Dockets.Justia.com information or items that are entitled to confidential treatment under the applicable legal principles. As set forth below, this Protective Order does not entitle the Parties to file confidential information under seal; LR IA 10-5 sets forth the procedures that must be followed when a party seeks permission from the Court to file material under seal. Confidential information protected by this Protective Order is “declared by law to be confidential” for purposes of NRS ch. 239 and shall not be disclosed pursuant to any public records request or Freedom of Information Act request or any other such statute, law, or regulation. 2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102 ASHCRAFT & BARR |LLP 2. DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.” 2.3 Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter. 2.4 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action; (2) is not a current employee of a Party; and (3) at the time of retention, is not anticipated to become an employee of a Party or of a Party’s competitor. This definition includes a professional jury or trial consultant retained in connection with this litigation. 2.5 HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY Information or Items: extremely sensitive employment, educational, and health information or Items, disclosure of which to another Party or Non-Party requires a high level of protection due to significant privacy interests of the Designating Party. HIGHLY CONFIDENTIAL – Page 2 of 13 ATTORNEYS’ EYES ONLY Information or Items include any documents or information prohibited from disclosure by statute, including but not limited to FERPA and HIPPAA in the possession, custody, or control of any Party or Non-Party. HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY Information or Items may be disclosed to two representatives of a Receiving Party designated in advance, provided that such Receiving Party representative execute an Acknowledgement and Agreement to Be Bound in substantially the form of Exhibit A to this Order. 2.6 Non-Party: any natural person, partnership, corporation, association, or other legal 2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102 ASHCRAFT & BARR |LLP entity not named as a Party to this action. 2.7 Outside Counsel of Record: attorneys who are not employees of a party to this action but are retained to represent or advise a party to this action and have appeared in this action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 2.8 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.9 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.10 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors. 2.11 Protected Material: any Disclosure or Discovery Material that is designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 2.2 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. Page 3 of 13 3. SCOPE The protections conferred by this Order cover not only Protected Material (as defined above), but also any information copied or extracted from Protected Material; all copies, excerpts, summaries, or compilations of Protected Material; and any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. However, the protections conferred by this Order do not cover the following information: (a) any information that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of publication not 2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102 ASHCRAFT & BARR |LLP involving a violation of this Order, including becoming part of the public record through trial or otherwise; and (b) any information known to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality to the Designating Party. Nothing in this Order shall restrict in any way a Producing Party’s use or disclosure of its own Protected Material. 4. DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Final disposition shall be deemed to be the later of (a) dismissal of all claims and defenses in this action, with or without prejudice; and (b) final judgment herein after the completion and exhaustion of all appeals, rehearing’s, remands, trials, or reviews of this action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law. 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. To the extent it is practical to do so, the Designating Party must designate for Page 4 of 13 protection only those parts of material, documents, items, or oral or written communications that qualify – so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order. 5.2 Manner and Timing of Designations. Designation of Protect Material shall be performed as follows: (a) For information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), the Producing Party shall affix the legend “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to 2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102 ASHCRAFT & BARR |LLP each page that contains protected material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection being asserted. A Party or Non-Party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, the Producing Party must affix the appropriate legend “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection being asserted. (b) For testimony given in deposition or in other pretrial or trial proceedings, the Designating Party shall identify on the record, before the close of the deposition, hearing, or other proceeding, all protected testimony and specify the level of protection being asserted. Page 5 of 13 When it is impractical to identify separately each portion of testimony that is entitled to protection and it appears that substantial portions of the testimony may qualify for protection, the Designating Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right to have up to 30 days to identify the specific portions of the testimony as to which protection is sought and to specify the level of protection being asserted. Only those portions of the testimony that are appropriately designated for protection within the 30 days shall be covered by the provisions of this Protective Order. Alternatively, a Designating Party may specify, at the deposition or up to 30 days afterwards if that period is 2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102 ASHCRAFT & BARR |LLP properly invoked, that the entire transcript shall be treated as r “HIGHLY CONFIDENTIAL– ATTORNEYS’ EYES ONLY.” Counsel for the Producing Party shall have the right to exclude from oral depositions other than the deponent, the deponent’s counsel, the reporter and the videographer (if any), any person who is not authorized by this Protective Order to receive or access Protected Material based on the designation of such Protected Material. Such right of exclusion shall be applicable only during periods of examination or testimony regarding such Protected Material. Transcripts containing Protected Material shall have an obvious legend on the title page that the transcript contains Protected Material, and the title page shall be followed by a list of all pages (including line numbers as appropriate) that have been designated as Protected Material and the level of protection being asserted by the Designating Party. The Designating Party shall inform the court reporter of these requirements. Any transcript that is prepared before the expiration of a 30-day period for designation shall be treated during that period as if it had been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After the expiration of that period, the transcript shall be treated only as actually designated. (c) For information produced in some form other than documentary and for any other tangible items, the Producing Party shall affix in a prominent place on the exterior of the container or containers in which the information or item is stored the legend “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions of the Page 6 of 13 information or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the level of protection being asserted. 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the Designating Party’s right to secure protection under this Order for such material. Upon timely correction of a designation, the Receiving Party must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order. Pursuant to Rule 502(d) of the Federal Rules of Evidence, an inadvertent failure to designate qualified information or items as 2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102 ASHCRAFT & BARR |LLP “HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY” does not waive the Designating Party’s right to secure protection under this Order for such material. Additionally, inadvertent production of information or materials to which a Party or Non-Party may make a claim of privilege or of protection from discovery shall not operate as a waiver of that privilege or protection and shall not operate as any subject matter waiver of that privilege or protection. 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed. 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by providing written notice of each designation it is challenging and describing the basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the challenge to confidentiality is being made in accordance with this specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) within 14 days of the date of service of notice. In Page 7 of 13 conferring, the Challenging Party must explain the basis for its belief that the confidentiality designation was not proper and must give the Designating Party an opportunity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first or establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely manner. 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102 ASHCRAFT & BARR |LLP intervention, the Designating Party shall file and serve a motion to retain confidentiality under LR 7-2 (and in compliance with LR IA 10-5, if applicable) within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a competent declaration affirming that the movant has complied with the meet and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a motion including the required declaration within 21 days (or 14 days, if applicable) shall automatically waive the confidentiality designation for each challenged designation. In addition, the Challenging Party may file a motion challenging a confidentiality designation at any time if there is good cause for doing so, including a challenge to the designation of a deposition transcript or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a competent declaration affirming that the movant has complied with the meet and confer requirements imposed by the preceding paragraph. The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the Designating Party has waived the confidentiality designation by failing to file a motion to retain confidentiality as described above, all parties shall continue to afford the material in Page 8 of 13 question the level of protection to which it is entitled under the Producing Party’s designation until the court rules on the challenge. 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Non-Party in connection with this case only for prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of persons and under the conditions described in this Order. Nothing in this Order shall bar or otherwise restrict any attorney from rendering advice to his or her client with 2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102 ASHCRAFT & BARR |LLP respect to this litigation and, in the course thereof, referring to or relying upon his or her examination of Protected Material produced by another party or a third-party; provided, however, that in rendering such advice and in otherwise communicating with his client, the attorney shall not make specific disclosure of any item of the Protected Material except for the designated representatives of the Receiving Party pursuant to Section 2.6 who have signed the Acknowledgement and Agreement to Be Bound in substantially the form of Exhibit A to this Order. When the litigation has been terminated, a Receiving Party must comply with the provisions of Section 11 below. Counsel for a Receiving Party which provides Protected Material to a permitted person below shall maintain a copy of the Acknowledgement and Agreement to Be Bound in substantially the form of Exhibit A to this Order. 7.2 Disclosure of HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to the following: (a) The Receiving Party’s Outside Counsel of Record in this action, as well as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this litigation; Page 9 of 13 (b) Experts of the Receiving Party to whom disclosure is reasonably necessary for this litigation, who have executed the Acknowledgement to Be Bound in substantially the form of Exhibit A to this Order.; (c) The Court and its personnel; (d) Court reporters and their staff, professional jury or trial consultants, and Professional Vendors to whom disclosure is reasonably necessary for this litigation; (e) The author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information, or any deposition 2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102 ASHCRAFT & BARR |LLP witness who is an employee of the Producing Party (or the Designating Party, if different); and (f) Any mediator who is assigned to hear this matter and his or her staff. (g) The designated representatives of the Receiving Party pursuant to Section 2.6 who have signed the Acknowledgement and Agreement to Be Bound in substantially the form of Exhibit A to this Order 7.3 Duty to Maintain Protected Material Securely. A Receiving Party shall store and maintain Protected Material at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a Party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this action as HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY that Party must: (a) Promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) Promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this Protective Order. Such notification shall include a copy of this Protective Order; and (c) Cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. Page 10 of 13 The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from which the subpoena or order issued. If the Designating Party timely seeks a protective order, the party served with the subpoena or court order shall not produce any information designated in this action as HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY before a determination by the court from which the subpoena or order issued, unless the party has obtained the Designating Party’s permission. The Designating Party shall bear the burden and expense of seeking protection in 2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102 ASHCRAFT & BARR |LLP that court of its confidential material – and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court. 9. NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION The terms of this Order apply to information produced by a Non-Party in this action and designated as HIGHLY CONFIDENTIAL –ATTORNEYS’ EYES ONLY. Such information produced by Non-Parties in connection with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional protections. 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or persons to execute Exhibit A. The Designated Party reserves all rights against the Receiving Party for its violations. In the event any Party or Non-Party violates or threatens to violate any term of this Order, any Party may seek immediate injunctive relief against any such Party or Non-Party. Page 11 of 13 11. FINAL DISPOSITION Unless otherwise ordered by the Court or agreed to in writing by the Producing Party, within 60 days after the final disposition of this action, as defined in Section 4, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. As used in this Section, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if not the same person or entity, to the 2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102 ASHCRAFT & BARR |LLP Designating Party) by the 60-day deadline that affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected Material. Notwithstanding this provision, Outside Counsel of Record are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Protected Material. Outside Counsel of Record need not purge its document management system or backup tapes to eliminate Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Protective Order as set forth in Section 4. 12. MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 12.2 Right to Assert Other Objections. No Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Protective Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Protective Order. 12.3 Filing Protected Material. Without written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Party may not file Page 12 of 13 in the public record in this action any Protected Material. A Party that seeks to file under seal 2300 WEST SAHARA AVENUE • STE 900 • LAS VEGAS, NV 89102 ASHCRAFT & BARR |LLP any Protected Material must comply with LR IA 10-5. EVANS FEARS & SCHUTTERT| LLP OLSON, CANNON, GORMLEY, ANGULO & STOBERSKI /s/ Chad R. Fears_____________________ KELLY A. EVANS, ESQ. CHAD R. FEARS, ESQ. 2300 West Sahara Avenue, Suite 900 Las Vegas, NV 89102 Telephone: (702) 805.0290 And _/s/ Thomas D. Dillard___________ THOMAS D. DILLARD, JR., ESQ. 9950 W. Cheyenne Avenue Las Vegas, NV 89129 (702-384-4012 Attorneys for Defendant Clark County ASHCRAFT & BARR | LLP ADAM P. LAXALT, ATTORNEY GENERAL /s/ Jeffrey F Barr______________________ JEFFREY F. BARR, ESQ. 2300 West Sahara Avenue, Suite 900 Las Vegas, NV 89102 Telephone: (702) 631.7555 Attorneys for Plaintiff Robert Eliason /s/ Michael D. Jensen______________ MICHAEL D. JENSEN, ESQ. 555 Wright Way Carson City, NV 89711 (775) 684-1100 Attorneys for Defendant State of Nevada ex rel. Nevada Commission on Peace Officers Standards and Training IT IS SO ORDERED. UNITED STATES MAGISTRATE JUDGE DATED: Page 13 of 13 July 18, 2018
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