Lopez v. Home Depot U.S.A., Inc., No. 2:2018cv02047 - Document 16 (D. Nev. 2018)

Court Description: ORDER granting 12 Stipulated Protective Order; Signed by Magistrate Judge George Foley, Jr on 11/29/2018. (Copies have been distributed pursuant to the NEF - JM)

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Lopez v. Home Depot U.S.A., Inc. Doc. 16 Case 2:18-cv-02047-APG-GWF Document 12 Filed 11/28/18 Page 1 of 14 1 2 3 4 5 6 7 SUZANNE L. MARTIN Nevada Bar No. 8833 suzanne.martin@ogletreedeakins.com AMY L. HOWARD Nevada Bar No. 13946 amy.howard@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Wells Fargo Tower, Suite 1500 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Fax: 702.369.6888 8 Attorneys for Defendant Home Depot U.S.A., Inc. UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF NEVADA 11 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 9 12 ISRAEL LOPEZ, Case No.: 2:18-cv-02047-APG-GWF Plaintiff, 13 14 vs. 15 HOME DEPOT U.S.A., INC., and DOES 120, inclusive, 16 Defendants. 17 18 19 20 STIPULATED PROTECTIVE ORDER GOVERNING THE CONFIDENTIALITY OF INFORMATION AND DOCUMENTS Defendant Home Depot U.S.A., Inc. (“Defendant”) and Plaintiff Israel Lopez (“Plaintiff”) (collectively referred to as “Parties”), by and through their respective counsel of record, hereby 21 request the Court enter the following Stipulated Protective Order Governing the Confidentiality of 22 Information and Documents. This Stipulation is brought pursuant to and in compliance with Local 23 Rule 7-1. 24 25 Plaintiff is expected to request confidential, non-public information and documents from Defendant, including, but not limited to, sales reports, information that may contain customer 26 27 28 information, including customer names, addresses, and financial information, non-public business records, personnel files, and other information and documents regarding certain individuals, 1 Dockets.Justia.com Case 2:18-cv-02047-APG-GWF Document 12 Filed 11/28/18 Page 2 of 14 1 including employees who are not, and are not expected to be, parties to this matter. Plaintiff may 2 also request documents related to Defendant’s business operations. Defendant considers this 3 4 information and these documents to be private and confidential. In addition, Defendant may request confidential, non-public information and documents from Plaintiff, including financial 5 6 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 7 records, and other information and documents regarding certain individuals, who are not, and are not expected to be, individual parties to this action. 8 Discovery in this case will require the production of documents, inspection of tangible 9 things, the answering of Interrogatories and Requests to Admit, and the taking of oral and/or 10 written depositions, during which the aforementioned proprietary, trade secret, financial, medical, 11 confidential and/or private information and documents of the Parties will be exchanged and 12 disclosed. To expedite the flow of discovery, facilitate the prompt resolution of disputes over 13 confidentiality, and to protect adequately material entitled to be kept confidential, the Parties agree 14 to limit the disclosure and use of proprietary, confidential, and private information and documents 15 as stipulated, pursuant to this Stipulated Protective Order on the following terms: 16 I. DEFINITIONS 17 The following definitions shall apply to this Stipulated Protective Order: 18 A. 19 The “Action” shall refer to in the instant litigation filed in the United States District Court for the District of Nevada, Case No. 2:18-cv-02047-APG-GWF, and any 20 appeal thereof through final determination. 21 22 B. “Producing Party” shall mean any person or entity producing documents, 23 information or other materials in the Action, including any Party to the Action or 24 any third parties. 25 26 C. “Party” shall mean the Plaintiff and Defendant in this Action, and any other person that may become a named Party to the Action. 27 28 2 Case 2:18-cv-02047-APG-GWF Document 12 Filed 11/28/18 Page 3 of 14 D. 1 2 “Confidential” information shall be defined as such documents, deposition testimony or other information disclosed during discovery in the Action which the 3 Producing Party or another Party reasonably and in good faith contends contains 4 information that should be protected from disclosure pursuant to this Stipulated 5 Protective Order. 6 Confidential in the reasonable exercise of such Party’s sole discretion; provided, 7 8 however, by agreeing to this Stipulated Protective Order, no Party waives the right 9 to challenge any other Party’s designation of any information or document as 10 Confidential. 11 E. “Legend” as used herein shall mean a stamp or similar insignia stating Confidential. F. When reference is made in this Stipulated Protective Order to any document or 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Any Party may designate any information or documents as 13 Party, the singular shall include the plural, and plural shall include the singular. 14 G. 15 16 17 II. “Attorneys’ Eyes Only” shall mean only to be reviewed by counsel of record. DESIGNATION OF INFORMATION AND DOCUMENTS A. 18 When any document or things produced under this Stipulated Protective Order are designated Confidential, a Legend shall be affixed to the first page and all pages 19 containing information for which the Producing Party seeks protection. When 20 information produced in answer to an Interrogatory, or response to a Request for 21 Production or Request for Admission is designated as Confidential, the response or 22 answer shall be preceded with the appropriate designation. 23 24 25 26 27 B. Some documents being produced by both Plaintiff and Defendant may contain social security numbers. Without need of any designation, social security numbers will be deemed to be Confidential. In the event a document is produced without the redaction of a social security number, any Party seeking to use the document will 28 3 Case 2:18-cv-02047-APG-GWF Document 12 Filed 11/28/18 Page 4 of 14 1 make every effort to redact the social security number before its use in a deposition, 2 court proceeding or court filing. 3 C. 4 The initial failure to designate information or documents as Confidential in accordance with this Stipulated Protective Order shall not preclude the Producing 5 Party from, at a later date, designating any information or documents as 6 Confidential. The Producing Party may, by written notice to counsel of record for 8 the receiving Party, designate previously produced information or documents as 9 Confidential, which it had inadvertently failed to designate. The Producing Party 10 will reproduce any such documents with the Confidential Designation and will 11 advise the non-producing party to destroy previously produced documents if they 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 7 were inadvertently not marked confidential so as not to require an unnecessary 13 burden on the non-producing party. 14 15 16 III. LIMITATIONS A. This Stipulated Protective Order shall govern only documents, information and 17 materials generated or produced in response to any method of discovery conducted 18 by any Party to the Action, and used in the prosecution and defense of the Action. 19 B. Persons obtaining access to Confidential information under this Stipulated 20 Protective Order shall use the information only for the preparation of their case and 21 the trial in the Action. Persons shall not use such information for any other purpose, 22 including business, commercial, personal, administrative or judicial proceedings. 23 24 25 26 27 C. Nothing contained in this Stipulated Protective Order shall require any Party to treat as Confidential documents or information lawfully obtained by means other than through discovery in the Action and under circumstances that would lead a reasonable person to conclude that the documents or information were not intended 28 4 Case 2:18-cv-02047-APG-GWF Document 12 Filed 11/28/18 Page 5 of 14 1 to be kept confidential by the recipient; provided, however, that nothing in this 2 Stipulated Protective Order shall authorize any use of documents or information 3 4 which is otherwise impermissible. IV. PERMISSIBLE DISCLOSURES/ACCESS 5 6 therein or derived therefrom, shall be disclosed only to the Court on the condition that the Court 8 enters an order similar to this Stipulated Protective Order and/or to: (a) the Parties in the Action, 9 including their agents, officers, directors, staff, support personnel and employees, but only to the 10 extent that such disclosure is necessary for the conduct of litigation in the Action; (b) outside 11 counsel for the Parties hereto and their agents, employees, paralegals, or other secretarial and 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 7 Except as set forth herein, Confidential information, and any facts or information contained clerical employees or agents; (c) experts, independent contractors, consultants, or advisors who are 13 14 employed or retained by, or on behalf of, one or more of the Parties to the Action or their counsel 15 to assist in preparation of the Action for trial; (d) deponents and their counsel who have a need to 16 review this material during the course of, or in connection with, depositions taken in or for the 17 Action; (e) stenographic reporters who are involved in depositions, the trial or any hearings or 18 proceedings before the Court in the Action; (f) people who have previously received or created the 19 document; and (g) witnesses in the Action who need to review this material in connection with 20 their testimony in the Action. Confidential information may be disclosed to persons listed in this 21 22 paragraph only after such person has been shown a copy of this Stipulated Protective Order and 23 agrees to be bound by the terms of this Stipulated Protective Order in the form attached hereto as 24 Exhibit A. In the event an authorized person does not execute Exhibit A expressly agreeing to be 25 bound by this Stipulated Protective Order, the Parties and the Court will nevertheless deem the 26 authorized person to be so bound. 27 28 5 Case 2:18-cv-02047-APG-GWF Document 12 Filed 11/28/18 Page 6 of 14 1 V. DECLASSIFICATION 2 Unless and until otherwise ordered by the Court, or otherwise agreed by the Parties, all 3 documents and other discovery materials designated Confidential or Attorneys’ Eyes Only shall be 4 treated as such under this Stipulated Protective Order. In the event that any Party objects to the 5 6 7 designation of any document, the objecting Party may seek modification of the designation or the disclosure of the redacted information in accordance with the following procedure: A. At any time, the receiving Party of any document or information designated 9 Confidential may notify the Producing Party, in writing, that the receiving Party 10 does not concur in the designation or redaction. The Parties shall attempt to resolve 11 such challenges informally. In the event that such attempts are not successful, the 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 receiving Party may file a motion seeking to remove the designation as 13 Confidential, and the Court shall make an independent determination as to whether 14 15 or not any given document or information is Confidential and/or properly redacted 16 based upon facts then existing, and in so doing, the Court shall not be bound by any 17 Party’s designation; provided, however, that such documents or discovery material 18 shall be deemed Confidential unless and until the Court rules otherwise. The Party 19 or entity making the designation must show that there is good cause for the 20 document or information to have such protection. 21 B. 22 In the event that any Party files a motion to remove a designation or redaction of 23 information, the document or information shall be submitted to the Court for in 24 camera inspection. 25 26 27 VI. DESIGNATED INFORMATION AND DOCUMENTS IN DEPOSITIONS A. In the case where Confidential information or documents are used or revealed during a deposition, designation of the transcript or any portion thereof, including 28 6 Case 2:18-cv-02047-APG-GWF Document 12 Filed 11/28/18 Page 7 of 14 1 the designated documents or other exhibits, as Confidential, may be made by a 2 statement by a Party, counsel or the witness on the record, so that the stenographer 3 transcribing the deposition can affix a Legend to the cover page and all appropriate 4 pages of the transcript and to each copy thereof for dissemination to counsel and in 5 compliance with this Stipulated Protective Order. 6 B. A Party or a witness may designate a deposition or trial transcript, or a portion 8 thereof, disclosing, containing or referring to any Confidential information or 9 documents as “Confidential” by informing counsel for all other Parties to this 10 Action in writing within thirty (30) days after receipt of the transcript as to the 11 specific pages and lines deemed Confidential, and thereafter such pages and lines 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 7 shall constitute Confidential information or documents pursuant to this Stipulated 13 Protective Order. Upon receipt of such notice, any Party in possession of copies of 14 15 the transcript with the designated pages and lines shall affix the appropriate Legend 16 thereto. During the 30-day interval following receipt of a transcript, the transcript 17 shall be treated as Confidential. 18 19 VII. DESIGNATED INFORMATION AND DOCUMENTS IN BRIEFS In the event that any Confidential document or information, or information derived 20 therefrom is included with, or the contents thereof are disclosed in any documents filed with the 21 22 Clerk of this Court or any other court, including, without limitation, any pleadings, motion papers, 23 briefs or deposition transcripts, such documents shall be filed under seal subject to the provisions 24 of LR IA 10-5. 25 VIII. DESIGNATED INFORMATION AND DOCUMENTS IN THE RECORD 26 27 Confidential information or documents may be offered in evidence at any hearing or the trial in the Action. The designating Party shall initiate a meet and confer conference in advance of 28 7 Case 2:18-cv-02047-APG-GWF Document 12 Filed 11/28/18 Page 8 of 14 1 any hearing or trial that will provide the Parties a reasonable amount of time to meet and confer in 2 advance of a hearing and/or trial as to how the information or documents will be used, including, 3 4 5 6 Parties’ discussion of the Confidential information or documents as Confidential and maintain it under seal, only to be produced to the Parties’ at their request. If the Parties cannot agree about how the information or documents will be used during a hearing, before or at the time of the 8 hearing, the Party designating such Confidential status may move the Court for an order that the 9 evidence be received in camera or under other conditions to prevent unnecessary disclosure. If 10 such a motion is made regarding evidence to be introduced at the time of trial, then the Party 11 designating such Confidential status shall notify opposing counsel and the Court of its intent to 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 7 by way of example, requesting that the Court designate that portion of the transcript containing the make the motion sufficiently in advance of and outside the presence of the jury so that counsel has 13 14 the opportunity to object to the evidence and/or an opportunity to seek appropriate protection from 15 the Court outside the presence of the jury and before the information or documents are offered into 16 evidence in open court. The Court will then determine whether the proffered evidence should 17 continue to be treated as Confidential and, if so, what protection, if any, may be afforded to such 18 information at the hearing. 19 IX. SUBPOENA BY COURT OR OTHER AGENCIES 20 If at any time any document or information protected by this Stipulated Protective Order is 21 22 subpoenaed by any court, administrative or legislative body, or is requested by any other person or 23 entity purporting to have authority to require the production of such information, the Party to 24 whom the subpoena or other request is directed shall give written notice thereof in no less than five 25 calendar days to any Party which has designated such information Confidential. After receipt of 26 27 the notice specified under this paragraph, the designating Party shall be responsible for obtaining any order it believes necessary to prevent disclosure of documents designated, and the Party to 28 8 Case 2:18-cv-02047-APG-GWF Document 12 Filed 11/28/18 Page 9 of 14 1 whom the referenced subpoena or other request is directed shall produce such document or 2 information only upon an order issued by a judge of a court of competent jurisdiction requiring 3 4 such production. X. CLIENT CONSULTATION 5 Nothing in this Stipulated Protective Order shall prevent or otherwise restrict counsel from 6 rendering advice to their clients and, in the course thereof, relying generally on examination of 8 stamped Confidential information or documents; provided, however, that in rendering such advice 9 and otherwise communicating with such clients, counsel shall not make specific disclosure of any 10 11 items so designated except pursuant to the procedures in Paragraph IV above. XI. COPIES OF DESIGNATED INFORMATION 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 7 The attorneys of record are responsible for employing reasonable measures, consistent with 13 14 this Stipulated Protective Order, to control duplication of, access to, and distribution of copies of 15 Confidential information. Parties shall not duplicate Confidential information or documents except 16 working copies and for filing in Court under seal. All copies of any Confidential information or 17 documents shall be treated as provided in this Stipulated Protective Order. 18 XII. 19 NO WAIVER A. No Confidential information or documents shall lose such status under this 20 Stipulated Protective Order as the result of the use of such information or 21 documents in any hearing, trial, or other court proceeding in this Action, provided 22 that such use is consistent with the terms of this Stipulated Protective Order. 23 24 25 26 27 B. Notwithstanding anything to the contrary contained herein, all objections as to admissibility in evidence of the discovery material subject to this Stipulated Protective Order are reserved and are not waived by any terms of this Stipulated Protective Order. The use of Confidential information and documents as evidence 28 9 Case 2:18-cv-02047-APG-GWF Document 12 Filed 11/28/18 Page 10 of 14 1 at trial shall be subject to this Stipulated Protective Order unless otherwise agreed to 2 by the Parties or modified by the Court. 3 C. 4 The inadvertent disclosure of Confidential information and documents shall not, under any circumstances, be deemed a waiver, in whole or in part, of any Party’s 5 claims of confidentiality. 6 D. The inadvertent production of any document or other information during discovery 8 in the Action shall be without prejudice to any claim that such material is 9 privileged, prohibited or protected from disclosure as privileged or work product, 10 and no Party shall be held to have waived any rights by reason of such inadvertent 11 production. 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 7 XIII. NON-TERMINATION 13 14 The termination of proceedings in the Action shall not relieve the Parties from the 15 obligation of maintaining the confidentiality of all information and documents produced and 16 designated pursuant to this Stipulated Protective Order, unless the Parties otherwise agree or the 17 Court orders or permits otherwise. Upon the final disposition of the Action, all information and 18 documents, including any summaries or abstracts of materials, however maintained, shall be kept 19 completely confidential. Counsel for either Party may use the Confidential information and 20 documents only for the purpose of defending ethical charges or professional malpractice charges, 21 22 23 24 and may not use Confidential information or documents in any subsequent lawsuit. XIV. INADVERTENT PRODUCTION OF PRIVILEGED MATERIALS A. The inadvertent production of information that is subject to a claim of any privilege 25 or other protection as trial-preparation material shall not constitute a waiver of any 26 privilege or protection, provided that – consistent with the provisions of Fed. R. 27 Civ. P. 26(b)(5) – the Producing Party notifies the receiving Party in writing of the 28 10 Case 2:18-cv-02047-APG-GWF Document 12 Filed 11/28/18 Page 11 of 14 1 inadvertent production as soon as practicable following the Producing Party’s 2 discovery of the inadvertent production. 3 B. 4 Following the Producing Party’s written notice of the inadvertent production, the receiving Party shall promptly return, destroy, or delete from its databases all copies 5 of the specified information and shall make reasonable efforts to retrieve the 6 information if the receiving Party previously provided the information to third 7 parties. 8 C. The receiving Party shall not assert a claim or argument in this or any other court or 10 legal proceeding that the Producing Party’s act of inadvertently producing the 11 information constituted a waiver of the Producing Party’s privilege or other 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 9 protection over the information. 13 14 D. If there is a disagreement as to whether the specified information is privileged or 15 subject to protection, the receiving Party may present the information under seal to 16 the Court for a determination. 17 18 19 E. Until the Court makes a determination of the privileged or protected status of the information, the receiving Party shall not use in any way (including, but not limited to, using the information in depositions or at trial) nor disclose the information to 20 other Parties. 21 22 23 24 IT IS SO STIPULATED. Dated this 28th day November, 2018. FREIMAN LEGAL OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. /s/ Lawrence W. Freiman Lawrence W. Freiman 100 Wilshire Blvd. Suite 700 Santa Monica, CA 90401 Attorneys for Plaintiff Israel Lopez /s/ Amy L. Howard Suzanne L. Martin Amy L. Howard 3800 Howard Hughes Parkway, Suite 1500 Las Vegas, NV 89169 Attorneys for Defendant Home Depot U.S.A., Inc. 25 26 27 28 11 Case 2:18-cv-02047-APG-GWF Document 12 Filed 11/28/18 Page 12 of 14 1 2 3 4 Tisha R. Black 10777 W. Twain Avenue Suite 300 Las Vegas, NV 89135 Attorney Designated for Service in Nevada Only for Plaintiff Israel Lopez ORDER 5 6 IT IS SO ORDERED. 8 UNITED STATES MAGISTRATE JUDGE 9 11/29/2018 DATED 10 11 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 7 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Case 2:18-cv-02047-APG-GWF Document 12 Filed 11/28/18 Page 13 of 14 1 2 3 4 5 6 7 8 10 11 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 9 13 14 15 16 17 18 19 20 21 Exhibit A 22 23 24 25 UNDERSTANDING AND AGREEMENT REGARDING CONFIDENTIAL DOCUMENTS AND INFORMATION 26 27 28 13 Case 2:18-cv-02047-APG-GWF Document 12 Filed 11/28/18 Page 14 of 14 1 EXHIBIT A 2 UNDERSTANDING AND AGREEMENT REGARDING CONFIDENTIAL DOCUMENTS AND INFORMATION 3 4 I hereby state that I have read and received a copy of the Stipulated Protective Order Governing the Confidentiality of Documents and Information (the “Order”) in Israel Lopez vs. 5 Home Depot U.S.A., Inc., Case No. 2:1-cv-02047-APG-GWF, which case is currently pending in 7 the United States District Court for the District of Nevada (the “Court”). I understand the terms of 8 the Order, agree to be bound by those terms, and consent to the jurisdiction of the Court with 9 respect to enforcement of the Order. 10 11 12 Wells Fargo Tower Suite 1500, 3800 Howard Hughes Parkway Las Vegas, NV 89169 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 6 13 14 ___________________________________________ Signature ___________________________________________ Printed Name: ___________________________________________ Dated 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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