Ferris et al v. Wynn Resorts Limited et al, No. 2:2018cv00479 - Document 192 (D. Nev. 2021)
Court Description: PROTECTIVE ORDER Granting 191 Stipulated Protective Order. Signed by Magistrate Judge Elayna J. Youchah on 11/1/2021. (Copies have been distributed pursuant to the NEF - DRS)
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Ferris et al v. Wynn Resorts Limited et al 1 2 3 4 5 6 7 Doc. 192 Patrick G. Byrne (Nevada Bar #7636) Bradley T. Austin (Nevada Bar #13064) SNELL & WILMER L.L.P. 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 Telephone: 702.784.5200 Facsimile: 702.784.5252 Email: pbyrne@swlaw.com baustin@swlaw.com Attorneys for Defendants Wynn Resorts, Ltd. and Matt Maddox 8 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 11 12 13 JOHN V. FERRIS, et al., Plaintiff(s), 14 vs. 15 WYNN RESORTS LIMITED, et al., 16 17 18 19 Defendant(s). ) Case No. 2:18-CV-00479-APG-EJY ) ) ) ) STIPULATED PROTECTIVE ORDER ) ) ) ) ) ) ) 20 Upon agreement of the parties to the above-captioned action and this Honorable Court to 21 the entry of a protective order, this Stipulated Confidentiality Agreement and Protective Order 22 (“Protective Order”) shall govern the handling and disclosure of all documents, testimony or other 23 information produced or given in the above-captioned action (the “Litigation”) which is designated 24 to be subject to this Order in accordance with the terms herein. 25 For purposes of the Protective Order, each Plaintiff or Defendant is a “Party” (collectively, 26 the “Parties”). Any reference to a Party or “non-party” means—unless otherwise indicated—a 27 natural person, firm, entity, corporation, partnership, proprietorship, association, joint venture, 28 wholly-owned direct or indirect subsidiary, division, affiliate, parent company, and any other form Dockets.Justia.com L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 1 of business organization or arrangement, and includes the Party, person, or non-party’s officers, 2 directors, managers, members, employees, agents, representatives, shareholders, independent 3 contractors, attorneys, accountants and all other persons over which the Party, person, or non-party 4 has control or which act or purport to act on its behalf. 5 Any Party or non-party producing or disclosing confidential documents, materials, items, 6 or other information pursuant to the terms of this Protective Order is the “Producing Party,” and 7 the Party or non-party receiving or being given access to confidential documents, materials, items, 8 or other information pursuant to the terms of this Protective Order is the “Receiving Party.” 9 “Discovery Material” refers to all items or information, regardless of the medium or manner 10 generated, stored, or maintained, including, among other things, documents, testimony, 11 interrogatory responses, transcripts, depositions and deposition exhibits, responses to requests to 12 admit, recorded or graphic matter, electronically stored information, tangible things, and/or other 13 information produced, given, exchanged by, or obtained from any Producing Party during 14 discovery in this Action. 15 A. Purposes and Limitations. Discovery in this Litigation may involve the use, 16 production, and disclosure of Discovery Material containing confidential, financial, proprietary, 17 sensitive, personal, and/or private information for which special protection from public disclosure 18 and from use for any purpose—other than in prosecuting, defending, settling, or otherwise in this 19 Litigation, including any appeals, and/or for enforcing and/or collecting any judgment entered in 20 this Litigation—would be warranted and consistent with the public policy of United States and the 21 State of Nevada. The use, production, and/or disclosure of “Protected Material,” as this term is 22 defined in Section B, could severely injure or damage the Parties and place the Parties at a 23 competitive disadvantage if accomplished in a manner or means inconsistent with the terms and 24 conditions of this Protective Order. 25 Therefore, in the interest of expediting and facilitating discovery, permitting the same to 26 proceed without delay occasioned by possible disputes regarding claims of confidentiality, and 27 balancing the interests of the Parties, this Protective Order establishes a procedure for producing, 28 disclosing, and using Protected Material without involving the Court unnecessarily in the process; -2- 1 imposes obligations upon all Parties, persons, and non-parties receiving or given access to Protected 2 Material to protect it from unauthorized production, disclosure, and/or use; and establishes a 3 procedure for challenging the use, disclosure, or dissemination of Protected Material. L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 4 B. Protected Information. Any Party or non-party may designate for protection under 5 this Protective Order, in whole or in part, any document, information or material that constitutes or 6 includes, in whole or in part, confidential or proprietary information or trade secrets according to 7 the terms herein. 8 Any Party may, subject to the provisions of this Order, designate as “CONFIDENTIAL” 9 any Discovery Material that the Party believes in good faith is confidential and where the Party 10 would not normally reveal the information to third parties except in confidence or has undertaken 11 with others to maintain it in confidence (“Confidential Material”). 12 Any Party may, subject to the provisions of this Order, designate as “RESTRICTED – 13 ATTORNEYS’ EYES ONLY” any Discovery Material that meets the requirements for 14 Confidential Material, and which a Producing Party believes in good faith would likely cause 15 competitive, or financial injury if disclosed (“Restricted – Attorneys’ Eyes Only Material”). This 16 designation is intended for information that constitutes proprietary financial, technical, competitive, 17 or commercially sensitive information that the Producing Party maintains as highly confidential in 18 its business, including, but not limited to (i) proprietary business information or confidential trade 19 secrets; or (ii) any other Discovery Material that qualifies for protection under Federal Rule of Civil 20 Procedure 26(c). Restricted – Attorneys’ Eyes Only Material includes information for which 21 applicable law—whether foreign or domestic—requires the equivalent of “Restricted – Attorneys’ 22 Eyes Only Material” treatment as set forth in this Order 23 “Protected Material” is any Discovery Material that is designated as “Confidential” or 24 “Restricted – Attorneys’ Eyes Only Material,” provided, however, that “Protected Material” does 25 not include information that is publicly available (except information that became publicly 26 available as a result of a breach of this Order or any other confidentiality agreement or undertaking). 27 Subject to the provisions herein and unless otherwise stated, this Protective Order governs, without 28 limitation: (a) all documents, electronically stored information, and/or things as defined by the -3- 1 Federal Rules of Civil Procedure; (b) all pretrial, hearing or deposition testimony, or documents 2 marked as exhibits or for identification in depositions and hearings; (c) all pretrial pleadings, 3 exhibits to pleadings and other court filings; (d) all affidavits; and (e) all stipulations. All copies, 4 reproductions, extracts, digests and complete or partial summaries prepared from any Protected 5 Material shall also be considered Protected Material and treaded as such under this Protective 6 Order. L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 7 C. Designation of Protected Material. Protected Material shall be designated by the 8 Producing Party by affixing a legend or stamp on such document, information or material as 9 follows: “CONFIDENTIAL,” for Confidential Material, or “RESTRICTED – ATTORNEYS’ 10 EYES ONLY,” for Restricted – Attorneys’ Eyes Only Material. For information produced in non- 11 native documentary form, the Producing Party shall affix the legend “CONFIDENTIAL” or 12 “RESTRICTED – ATTORNEYS’ EYES ONLY on each page of the Protected Material, and 13 include the applicable designation in the metadata produced for such document. For documents or 14 other Discovery Material produced in native format, the Producing Party shall include the 15 applicable designation on the exterior of the container or containers in which the information or 16 item is stored, in the file name for such material, and on placeholder pages or slip-sheet associated 17 with such natively produced material. A designation of material as “CONFIDENTIAL” or 18 “RESTRICTED – ATTORNEYS’ EYES ONLY”, and any objection to such designation made 19 under this Protective Order, may be made at any time. An inadvertent or unintentional production 20 of documents, information or material that has not been designated as Protected Material shall not 21 be deemed a waiver in whole or in part of a claim for confidential treatment. Any Producing Party 22 that designates Discovery Material as Protected Material is the “Designating Party.” 23 D. Objection to designations. In the event that any Party to this litigation disagrees at 24 any point in these proceedings with any designation made under this Protective Order, the Parties 25 shall first try to resolve such dispute in good faith on an informal basis in accordance with Civil 26 Local Rule 26-7. If the dispute cannot be resolved, the Party objecting to the designation may seek 27 appropriate relief from this Court. The Party asserting that particular information or documents 28 should be designated as confidential bears the burden of proof to establish that the information is -4- 1 entitled to such protection. During the pendency of any challenge to the designation of a document 2 or information, the designated document or information shall continue to be treated as 3 “Confidential” subject to the provisions of this Protective Order. For the avoidance of doubt, a 4 Party may object at any time to any designation of material as “CONFIDENTIAL” or 5 “RESTRICTED – ATTORNEYS’ EYES ONLY.” L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 6 E. Use of Protected Material Generally. The Parties, and the law firms appearing as 7 their counsel in this Litigation, may make such use of the Protected Material produced by the Parties 8 or non-parties subject to this Protective Order as the preparation of this Litigation may reasonably 9 require. The Parties, and the law firms appearing as their counsel in this Litigation, may not use 10 any Protected Material received from another Party or a non-party for any purposes other than this 11 Litigation. 12 1. In addition to any restrictions imposed by the Protective Order, all Protected 13 Material shall remain subject to any and all restrictions imposed by statute, 14 regulation, agreement, or other legal duty. 15 2. Notwithstanding any existing restriction imposed by statute, regulation, 16 agreement, or other legal duty, this Protective Order shall not further restrict 17 the Party’s use/disclosure of Protected Material that was already in a Party’s 18 care, custody, and/or control at the commencement of this Litigation or 19 otherwise prior to receiving such Protected Material from the Producing 20 Party. 21 All Parties or non-parties obtaining, receiving, inspecting, examining or being given access 22 to any Protected Material in accordance with this Protective Order, (i) shall first agree to submit 23 himself or herself to the jurisdiction of this Litigation for purposes of enforcing this Protective 24 Order, and (ii) shall agree to be bound by this Protective Order. 25 F. Storage and Maintenance of Protected Material. All Protected Material designated 26 or marked as provided herein shall not be disclosed to anyone other than those persons identified 27 in Section F and G of this Protective Order, and they shall be handled in the manner set forth herein. 28 -5- 1 The Receiving Party, or any non-party who receives or is given access to any Protected Material 2 under this Protective Order shall: 3 1. 4 manner within their exclusive possession and control; 5 2. custody, use, and/or dissemination of such information as is exercised by the 7 recipient with respect to its own Protected Material; 3. 9 4. 11 12 Take all measures reasonably necessary to maintain the confidentiality of such information, documents, materials, items, and things; and 10 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Exercise the same standard of due and proper care with respect to the storage, 6 8 Snell & Wilmer Store and maintain such Protected Material in a secure and safe area and Not permit or participate in the unauthorized production, disclosure, or use of such Protected Material. G. Use of Protected Material in Depositions. Any Party shall have the right to use 13 Protected Material during depositions unless otherwise agreed to by the Parties in writing or on the 14 record at the deposition. 15 unauthorized to receive Protected Material pursuant to Section G) is present at the deposition, that 16 third party deponent and/or non-party shall be required to execute a copy of the form Attachment 17 “A,” affixed to this Protective Order, or agree to its terms on the record at the deposition, prior to 18 dissemination or disclosure of any Protected Material. Counsel for the affected Party may 19 otherwise request that all individuals not qualified to obtain, receive, or be given access to Protected 20 Material under this Protective Order, except for the deponent and his or her counsel, leave the 21 deposition session during any portions where Protected Material is used or referred to. The failure 22 of such other persons to comply with such requests shall constitute substantial justification for 23 counsel to advise the witness that he or she need not answer the question pending. 24 To the extent a deponent (and/or any other non-party otherwise i. Designations of Deposition Transcripts and/or Deposition Exhibits 25 The Designating Party may designate any portions of the testimony relating to Protected 26 Material as “CONFIDENTIAL” or “RESTRICTED – ATTORNEYS’ EYES ONLY” on the record 27 of the deposition, or in writing on or before the later of (i) thirty (30) calendar days after receipt of 28 the final transcript, or (ii) the date by which any review by the witness and statement of changes to -6- L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 1 the transcript are to be completed under Fed. R. Civ. P. 30(e). Only those portions of the testimony 2 that contain Protected Material and are designated for protection in accordance with the preceding 3 sentence shall be protected by the provisions of this Order. The entire testimony shall be deemed 4 to have been designated CONFIDENTIAL until the time within which the transcript may be 5 designated has elapsed. If testimony is not designated within the prescribed time period, then such 6 testimony shall not be deemed Protected Material except as ordered by the Court or until the 7 Designating Party designates such Discovery Material as Confidential Material or Restricted – 8 Attorneys’ Eyes Only Material as otherwise provided herein. Transcript pages containing Protected 9 Material must be separately bound by the court reporter, who must affix to each such page the 10 legend “CONFIDENTIAL” or “RESTRICTED – ATTORNEYS’ EYES ONLY” as instructed by 11 the Designating Party. 12 “CONFIDENTIAL” or “RESTRICTED – ATTORNEYS’ EYES ONLY,” the DVD or any other 13 media on which it is stored, plus any container, shall be so labeled. 14 H. If all or a part of a videotaped deposition is designated as Disclosure of Protected Material—Generally. “CONFIDENTIAL” documents, 15 information and material may be disclosed by the Receiving Party only to the following persons, 16 except upon receipt of the prior written consent of the designating party or upon order of the Court: 17 1. Retained counsel for the Parties (including attorneys associated with the law 18 firm of counsel and the paralegal, clerical, and secretarial staff employed by 19 such counsel); 20 2. The Parties and their officers, directors, agents, representatives, and 21 employees who are deemed reasonably necessary by counsel for the Parties 22 to aid in the prosecution, defense, or settlement of this Litigation; 23 3. The current and former officers, directors, or employees of each Receiving 24 Party, to the extent that such disclosure is reasonably necessary in 25 connection with the prosecution, defense, or settlement of this Litigation; 26 4. Independent investigators, experts and/or consultants (together with their 27 clerical and secretarial staff) retained by counsel for a Party to assist in the 28 prosecution, defense, or settlement of this Litigation, but only to the extent -7- 1 reasonably necessary to perform their work in connection with this 2 Litigation; 3 5. 4 involved in the production, reproduction, organizing, filing, coding, 5 cataloging, converting, storing, retrieving, and review of Discovery 6 Materials, but only to the extent reasonably necessary to assist a Party or its 7 counsel in this Litigation; 8 6. The Court; 9 7. Court reporters and videographers employed to record depositions or live 10 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 11 Snell & Wilmer Clerical and data processing personnel, including third party vendors, testimony in this Litigation; 8. A non-party (and his or her counsel) preparing to appear or appearing at a 12 deposition, hearing, or other proceeding in this Litigation for whom 13 disclosure is reasonably necessary to the preparation or testimony of such 14 witness; 15 9. Any other non-party as to whom the Parties in writing agree; 16 10. The author, signatory, or prior recipient of the document or the original 17 source of the CONFIDENTIAL information; such person shall be given 18 access only to the specific document or information therein except as 19 otherwise provided herein; and 20 11. Any governmental agency or regulating authority to the extent disclosure is 21 required by such governmental agency or regulatory authority or applicable 22 law. 23 Any non-party to whom Protected Material is disclosed or revealed pursuant to this 24 subsection shall be given a copy of this Protective Order and advised as follows: (i) that the 25 Protected Material is being disclosed pursuant to this Confidentially Agreement; (ii) that the 26 Protected Material may not be disclosed or disseminated orally, or by any other means, by such 27 non-party to any other non-party not permitted to have access to the Protected Material pursuant to 28 this Protective Order; (iii) that the Protected Material may not be used except for the purposes of -8- L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 1 this Litigation as provided in this Protective Order; (iv) that the Protected Material must remain in 2 the non-party’s custody until returned to counsel from whom the Protected Material was received; 3 and (v) that any violation of this Protective Order may result in the imposition of sanctions as the 4 Arbitrator or a court (if such sanctions are sought after the conclusion of the Litigation) deems 5 proper. Any non-party to whom Protected Material is or will be disclosed pursuant to this Section 6 shall also be required to execute a copy of the form Exhibit A affixed to this Protective Order prior 7 to dissemination of Protected Material. 8 Counsel providing Protected Material to any non-party pursuant to this Section shall retain 9 copies of the executed form Attachment “A” and shall, to the extent practicable and requested by 10 the Producing Party, provide it to counsel for the Producing Party prior to the disclosure of the 11 Protected Material to the non-party no more than three business days following such request. 12 I. Disclosure of Protected Material—Restricted Attorneys’ Eyes Only Material. To 13 the extent a Producing Party believes that certain Protected Material qualifying to be designated 14 CONFIDENTIAL is so sensitive that its dissemination deserves even further limitation such that it 15 is “Restricted – Attorneys’ Eyes Only Material,” the Producing Party may designate such Protected 16 Material as “RESTRICTED – ATTORNEYS’ EYES ONLY,” and access to, and disclosure of, 17 such documents shall be limited to those parties identified in Section G(1), and G(4)-(11) above, 18 and up to two (2) in-house counsel for the parties, provided the in-house counsel are assisting 19 outside counsel in the Litigation and exercise no competitive decision-making authority on behalf 20 of the client. 21 J. Disclosure of Protected Material—Court Filings. To the extent any motions, 22 briefs, pleadings, deposition transcripts, or other papers to be filed with the Court incorporate 23 documents or information subject to this Protective Order, all Parties shall comply with the 24 requirements of Local Rule IA 10-5 with respect to any documents filed under seal, as well the 25 requirements cited in the Ninth Circuit’s decision in Kamakana v. City & Cty. of Honolulu, 447 26 F.3d 1172, 1176 (9th Cir. 2006). 27 28 K. Knowledge of Unauthorized Use or Possession of Protected Material. The Receiving Party or its counsel shall immediately notify counsel for the Producing Party in writing -9- L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 1 if it learns of any unauthorized possession, knowledge, use, or disclosure of any Protected Material 2 in any manner inconsistent with the terms of this Protective Order. The Receiving Party shall 3 promptly furnish the Producing Party in writing with the full details of such unauthorized 4 possession, knowledge, use, or disclosure. 5 knowledge, use, or disclosure, the Receiving Party shall assist the Producing Party in preventing 6 its recurrence of and shall cooperate fully with the Producing Party in any litigation to prevent 7 unauthorized use or further dissemination of Protected Material. The Receiving Party: (i) shall 8 further use its best efforts to retrieve all copies of Protected Material obtained by non-parties not 9 authorized to possess, know or otherwise receive Protected Material under this Protective Order, 10 (ii) shall provide such non-party with a copy of this Protective Order, and (iii) shall notify counsel 11 for the Producing Party of the failure to retrieve any such information (if applicable). With respect to such unauthorized possession, 12 L. 13 Pursuant to the Court’s October 4, 2021 Order, “the inadvertent waiver of privilege shall be 14 governed by Fed. R. Evid. 502(b) and case law interpreting the same. Pursuant to Fed. R. Evid. 15 502(d), upon a determination by the Court that there has been an inadvertent waiver of privilege, 16 such waiver shall not effect a general waiver of privilege.” (ECF 184). Fed. R. Evid. 502(b) 17 provides: 18 19 20 21 22 23 Inadvertent Production of Privileged Material “When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26 (b)(5)(B). 24 If a Producing Party becomes aware that it has inadvertently produced such disclosed 25 privileged or protected information (“Disclosed Protected Information”), the Producing Party will 26 promptly notify each Receiving Party in writing of the inadvertent production, and, with such notice, 27 provide each Receiving Party with a replacement production containing overlay files to replace 28 files claimed to be inadvertently produced Disclosed Protected Information. Within 10 business - 10 - L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 1 days of receipt of such notice and replacement production, each Party to which such notice is 2 directed: (a) must undertake reasonable efforts to return, sequester, or destroy the Disclosed 3 Protected Information and any copies; (b) must not use or disclose the Disclosed Protected 4 Information until the claim is resolved; (c) must take reasonable steps to recall the Disclosed 5 Protected Information if the Party disclosed it before being notified; and (d) must provide a written 6 certification of counsel that all such Disclosed Protected Information has been returned, sequestered, 7 or destroyed to the best of counsel’s knowledge and belief. Any notes or summaries referring or 8 relating to any such Disclosed Protected Information identified by the Receiving Party’s reasonable 9 search shall be destroyed or sequestered within the ten (10) business day period provided for. 10 If a Receiving Party receives materials that reasonably appear to be subject to an attorney- 11 client privilege, the common interest privilege, work product protection, or otherwise protected by 12 a discovery privilege or immunity; the Receiving Party must refrain from further examination of 13 the materials that may be privileged or protected, and shall immediately notify the Producing Party, 14 in writing, that the Receiving Party possesses such material. 15 Within 5 court days of the Producing Party’s notification that such Disclosed Protected 16 Information has been inadvertently produced, that Party shall produce a privilege log with respect 17 to the Disclosed Protected Information setting forth all of the information required under Fed. R. 18 Civ. P. 26(b)(5)(A)(ii) and as required under the Protocol for Production of Electronically-Stored 19 Information and Hard-Copy entered in this action on October 25, 2021 (Dkt. No. 187). 20 Nothing herein shall prevent the receiving party from challenging the propriety of the 21 attorney-client privilege or work product immunity or other applicable privilege designation by 22 submitting a challenge to the Court. If the underlying claim of privilege or protection is contested, 23 the Parties shall comply with Fed. R. Civ. P. 26(b)(5)(B), and if after undertaking an appropriate 24 meet-and-confer process, the Parties are unable to resolve any dispute they have concerning the 25 protection of documents for which a claim of inadvertent disclosure of Disclosed Protected 26 Information has been asserted, the Receiving Party may file the appropriate motion or application 27 as provided by the Court’s procedures to compel production of such material (a “Privilege 28 Motion”). Any Privilege Motion concerning Disclosed Protected Information shall not assert as a - 11 - 1 ground for granting the motion the fact or circumstance of the production in this Action of the 2 Discovery Material claimed to be Disclosed Protected Information. 3 The Party asserting privilege retains the burden of establishing the privileged or protected 4 nature of any Disclosed Protected Information. Nothing in Section L shall limit the right of any 5 Party to petition the Court for an in camera review of the Disclosed Protected Information. L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 6 M. Copies, Summaries, or Abstracts. Protected Material shall not be copied, 7 reproduced, summarized, or abstracted, except to the extent that such copying, reproduction, 8 summarization, or abstraction is reasonably necessary for the conduct of this Litigation. All such 9 copies, reproductions, summarizations, extractions and abstractions shall be subject to the terms of 10 this Protective Order, and labeled in the same manner as the designated material on which they are 11 based. Attorney-client communications and attorney work product regarding Protected Material 12 shall not be subject to this Section, regardless of whether they summarize, abstract, paraphrase, or 13 otherwise reflect Protected Material. 14 N. 15 Nothing in this Protective Order, nor the production or disclosure of any information or 16 documents under the terms of this Protective Order, nor any proceedings pursuant to this Protective 17 Order, shall be deemed or construed: (i) to have the effect of an admission or a waiver by either 18 Party of the confidentiality or non-confidentiality of any such information or document; (ii) to alter 19 the confidentiality or the non-confidentiality of any such information or document; (iii) to alter any 20 existing or pending obligation of any party or the absence thereof; or (iv) to affect in any way the 21 authenticity or admissibility of any document, testimony or other evidence at any stage of this 22 Litigation. Reservation of Rights. The Parties hereby reserve the following rights: 23 The entry of this Protective Order shall be without prejudice to the rights of the Parties, or 24 any of them, or of any non-party, to seek additional or different protection for protected documents 25 or information from the Court (if such protection is sought after the conclusion of the Litigation). 26 This Protective Order shall neither enlarge nor affect the proper scope of discovery in this 27 Litigation or any other litigation, nor shall this Protective Order be construed to suggest that 28 - 12 - 1 protected documents or information subject to this Protective Order are discoverable, relevant, or 2 admissible in this Litigation or any other litigation. 3 Nothing contained herein shall prejudice the right of any Party to object to the admissibility 4 of Protected Material subject to this Protective Order for any reason permissible under applicable 5 state or federal law. 6 The Parties, by agreeing to this Protective Order, are not waiving any rights they have to 7 obtain information or materials, in whatever form, through the discovery rules under state or federal 8 law. L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 9 O. Amendment. Any Party for good cause shown may apply to the Court for 10 modification of this Protective Order, or the Protective Order may be modified by consent of the 11 Parties in writing (subject to approval by the Court). 12 P. Return or Destruction of Protected Material. This Litigation shall be deemed 13 finally terminated after both (i) final judgment, and (ii) the completion and exhaustion of all 14 appeals, or the period within which to appeal has expired. Except as provided by law or other 15 regulatory authority or unless otherwise ordered or agreed in writing by the Producing Party, within 16 thirty (30) calendar days after the final termination of this Litigation, each Receiving Party shall 17 undertake best efforts to return to the Producing Party all Discovery Material or, at the option of 18 the Receiving Party, to destroy all Discovery Material. In either case, the Receiving Party shall, 19 upon request by the Producing Party and within fourteen (14) days of such party’s request, provide 20 the Producing Party with a certification stating that it has taken commercially reasonable efforts to 21 destroy or return the Discovery Material, except (i) for such information or material that was 22 transmitted electronically and whose removal or destruction from a Party’s electronic systems 23 would violate applicable federal or state law, rule or regulation, or policies and procedures 24 reasonably designed to ensure compliance with such law, rule, or regulation, and (ii) that 25 information saved on backup media in an electronically-stored format will be certified to have 26 complied with the 60-day destruction period if the Party has a data-destruction policy for the backup 27 media resulting in the eventual destruction or overwriting of the electronically-stored information; 28 provided, however, that these materials will continue to be subject to the terms of this Order. - 13 - 1 Notwithstanding this provision, counsel for the parties may keep a full and complete record of all 2 documents generated as a result of this Litigation, including Discovery Materials that constitute 3 correspondence, handwritten notes, e-mails, deposition and court transcripts and exhibits thereto, 4 attorney work product, and documents filed in this Litigation so long as those documents are kept 5 in a manner consistent with their confidentiality and subject to the terms of this Protective Order. 6 be inadequate to protect each Party in the Litigation from unauthorized disclosure or use of 8 Protected Material and that injunctive relief may be appropriate to protect each Party’s rights in the 9 event there is any such unauthorized disclosure or use of Protected Material, in addition to whatever 11 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Injunctive Relief Available. Each Party acknowledges that monetary remedies may 7 10 Snell & Wilmer Q. relief may be available at law or in equity. R. Other Actions and Proceedings. If the Receiving Party, or its counsel or expert, is 12 served with a subpoena or other process by any court, administrative, or legislative body, or any 13 other person or organization which calls for production of Protected Material produced by another 14 Party, the Party to whom the subpoena or other process is directed shall, to the extent permitted by 15 applicable law, notify the Designating Party in writing (by electronic mail, if possible), and include 16 with that notice a copy of the discovery request, subpoena, order, or other form of legal process as 17 soon as reasonably practicable and in any event no later than five (5) business days after receipt or 18 ten (10) days prior to the deadline for a response, whichever date is earlier. To the extent permitted 19 by applicable law, the Receiving Party shall not produce the requested Protected Material unless 20 and until a court of competent jurisdiction so directs, except if the Designating Party (a) consents, 21 or (b) fails to file a motion to quash or fails to notify the Receiving Party in writing of its intention 22 to contest the production of the Protected Material prior to the date designated for production of 23 the Protected Material, in which event the Receiving Party may produce on the production date, 24 but no earlier. The Designating Party shall bear the burdens and the expenses of seeking protection 25 in that matter or proceeding of its Protected Material. Nothing in these provisions should be 26 construed as authorizing, requiring, or encouraging a Receiving Party to disobey, or to risk 27 contempt of, a lawful directive from another court. 28 - 14 - 1 S. 2 effect and each Party and non-party subject to this Protective Order shall continue to be subject to 3 the obligations contained herein even after the conclusion of this Litigation. Disputes regarding 4 this Protective Order that arise after the conclusion of this Litigation shall be brought in the Eighth 5 Judicial District Court in Clark County, Nevada. 6 T. comply with the terms of this Protective Order, and ensure that their clients, and the non-parties 8 receiving or being given access to Protected Material pursuant to Section G, similarly comply 9 herewith. The Parties shall not utilize any portion of Protected Material for their own personal or business advantage or gain, aside from purposes related to this Litigation. 11 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Compliance with Protective Order. All counsel of record in this Litigation shall 7 10 Snell & Wilmer Order Survives Termination. This Protective Order shall remain in full force and 12 In the event of a change in counsel, new counsel shall agree in writing to be bound by and subject to the terms of this Protective Order. 13 U. 14 Miscellaneous. When interpreting this Protective Order: 1. 15 The term “and” includes the term “or” and the term “or” includes the term “and”; 16 2. 17 Defined terms shall have the meanings ascribed to such terms where used or defined; 18 3. 19 The paragraph headings are for convenience only and in no way limit or enlarge the scope or meaning of the language thereof; and 20 /// 21 /// 22 /// 23 24 25 26 27 28 - 15 - 1 4. 2 The terms herein shall be construed as a whole according to their fair and ordinary meaning and not strictly for or against any Party. 3 IT IS SO STIPULATED. 4 DATED this 1st day of November, 2021. 5 POMERANTZ LLP 6 7 8 9 10 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 11 12 13 /s/ Eric Gottlieb Jeremy Alan Lieberman (Pro Hac Vice) Murielle J. Steven Walsh (Pro Hac Vice) Eric D. Gottlieb (Pro Hac Vice) 600 Third Avenue, 20th Floor New York, New York 10016 MUEHLBAUER LAW OFFICE, LTD. Andrew R. Muehlbauer (Nevada Bar #10161) 7915 West Sahara Avenue, Suite 104 Las Vegas, Nevada 89117 Lead Counsel for Plaintiffs 16 THE ROSEN LAW FIRM, P.A. Laurence M. Rosen (Pro Hac Vice to be filed) Phillip Kim (Pro Hac Vice to be filed) Daniel Tyre-Karp (Pro Hac Vice to be filed) 275 Madison Ave., 40th Floor New York, NY 10016 17 Additional Counsel 14 15 18 19 20 21 22 SNELL & WILMER L.L.P. By: /s/ Bradley Austin________________ Patrick G. Byrne, Esq. Bradley T. Austin, Esq. 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 23 24 25 26 KIRKLAND ELLIS LLP Mark Holscher, Esq. Michael J. Shipley, Esq. 333 South Hope Street Los Angeles, CA 90071 27 28 - 16 - 1 3 Matthew Solum, Esq. KIRKLAND ELLIS LLP 601 Lexington Avenue New York, NY 10022-4611 4 Attorneys for Defendants Wynn Resorts, Ltd. and Matt Maddox 5 LATHAM & WATKINS LLP 2 6 7 8 9 10 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 11 By: /s/ Michele Johnson____________________ Michele D. Johnson, Esq. 650 Town Center Drive, 20th Floor Costa Mesa, CA 92626-1925 Colleen C. Smith, Esq. LATHAM & WATKINS LLP 12670 High Bluff Drive San Diego, CA 92130 13 J. Colby Williams CAMPBELL & WILLIAMS 710 South Seventh Street Las Vegas, NV 89101 14 Attorneys for Defendant Stephen A. Wynn 15 MCNUTT LAW FIRM, P.C. 12 16 17 18 By: /s/ Daniel McNutt________________________ Daniel R. McNutt, Esq. Matthew C. Wolf, Esq. 11441 Allerton Park Drive, #100 Las Vegas, NV 89135 19 20 21 Attorneys for Defendant Stephen Cootey /// 22 /// 23 /// 24 25 26 27 28 - 17 - 1 2 3 4 5 6 GARMAN TURNER GORDON LLP By: __/s/ Erika Pike Turner____________________ Erika Pike Turner, Esq. Dylan T. Ciciliano, Esq. 7251 Amigo Street, Ste. 210 Las Vegas, NV 89119 8 ORRICK, HERRINGTON & SUTCLIFFE LLP James N. Kramer, Esq. 405 Howard Street San Francisco, CA 94105 9 Attorneys for Defendant Kimmarie Sinatra 7 10 IT IS SO ORDERED. L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 11 12 DATE: November 1, 2021 13 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 18 - 1 EXHIBIT A 2 Agreement to Be Bound by Protective Order 3 L.L.P. LAW OFFICES 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 702.784.5200 Snell & Wilmer 4 1. I, _____________________________, have been given a copy of the Protective 5 Order in this case (“Order”) and have read it. I agree to abide by the obligations of the Order as 6 they apply to me, and to be bound by the Order as it applies to me. I understand that information 7 and/or documents which are disclosed to me and are designated as “Confidential” are 8 CONFIDENTIAL or “Restricted Attorneys’ Eyes Only” are RESTRICTED – ATTORNEYS’ 9 EYES ONLY and to be used by me solely to assist in the matter Ferris v. Wynn Resorts Ltd., et 10 al., Case No. 2:18-CV-00479-APG-EJY. I further understand that the Protective Order entered by 11 the Court, prohibits me from revealing such information or documents to any person, except as 12 specifically allowed by the Order. I further acknowledge that I will not use any Confidential 13 document, transcript, or information obtained from my involvement in the matter of Ferris v. Wynn 14 Resorts for any purpose other than assisting with the matter. I will maintain all such Confidential 15 Information in a secure manner to prevent unauthorized access to it. Except as provided by law or 16 other regulatory authority or unless otherwise ordered or agreed in writing by the Producing Party, 17 no later than thirty (30) days after the final conclusion of this matter, I will, using commercially 18 reasonable efforts, return the Confidential Information to the counsel who provided me with the 19 Confidential Information or destroy the Confidential Information. 20 2. In accepting disclosure of information and/or documents designated as Confidential, 21 I agree to be subject to the jurisdiction of the United States District Court for the District of Nevada 22 for the purpose of the Protective Order’s enforcement and the enforcement of my obligations under 23 this Confidentiality Agreement. 24 I declare under penalty of perjury that the foregoing is true and correct. 25 Executed on ________ (date) at ______________________ (time/location). 26 Signature: _______________________________ 27 Printed Name: ____________________________ 28 - 19 -
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