Allen-Gleason v. State Farm Mutual Automobile Insurance Company, No. 2:2019cv02131 - Document 24 (D. Nev. 2020)
Court Description: ORDER granting 23 Stipulation; PROTECTIVE ORDER. Signed by Magistrate Judge Brenda Weksler on 12/4/2020. (Copies have been distributed pursuant to the NEF - JM)
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Allen-Gleason v. State Farm Mutual Automobile Insurance Company Doc. 24 Case 2:19-cv-02131-RFB-BNW Document 24 23 Filed 12/04/20 12/01/20 Page 1 of 10 1 ROBERT W. FREEMAN Nevada Bar No. 3062 2 Robert.Freeman@lewisbrisbois.com CHERYL A. GRAMES 3 Nevada Bar No. 12752 Cheryl.Grames@lewisbrisbois.com 4 LEWIS BRISBOIS BISGAARD & SMITH LLP 6385 S. Rainbow Boulevard, Suite 600 5 Las Vegas, Nevada 89118 702.893.3383 6 FAX: 702.893.3789 Attorneys for Defendant 7 State Farm Mutual Automobile Insurance Company 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA, SOUTHERN DIVISION 10 *** 11 MELISSA SUE ALLEN-GLEASON, an CASE NO. 2:19-cv-2131-RFB-BNW 12 individual, STIPULATED CONFIDENTIALITY 13 Plaintiff, AGREEMENT AND PROTECTIVE ORDER 14 vs. 15 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; DOES I through 16 X; and ROE BUSINESS ENTITIES I through X, inclusive, 17 Defendants. 18 19 It appearing to the Court that Plaintiff MELISSA SUE ALLEN-GLEASON (“Plaintiff”) 20 and Defendant STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY (“State 21 Farm”) (collectively, the “Parties”), through their undersigned counsel, hereby submit this 22 Stipulated Confidentiality Agreement and Protective Order (“Protective Order”) and state as 23 follows: 24 1. State Farm possesses certain information and documents that contain confidential, 25 proprietary, or trade secret information that may be subject to discovery in this action, but that 26 should not be made publicly available. 27 LEWIS 2. The parties therefore request that the Court enter this Protective Order to properly 28 balance the discovery rights of the Plaintiff with State Farm’s rights to protect its private, BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4851-8310-1139.1 Dockets.Justia.com Case 2:19-cv-02131-RFB-BNW Document 24 23 Filed 12/04/20 12/01/20 Page 2 of 10 1 confidential, proprietary, or trade secret information. 2 3. All production and disclosure of information designated as CONFIDENTIAL, 3 TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER, by State Farm during this litigation 4 shall be governed by this Order, including, but not limited to, information contained in or derived 5 from documents, deposition testimony, deposition exhibits, trial testimony, computer memory or 6 archives, other written, recorded or graphic matter, and all copies, excerpts, or summaries thereof 7 (collectively, “information”). 8 4. Information subject to this Protective Order shall be designated CONFIDENTIAL, 9 TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER by State Farm by stamping 10 “CONFIDENTIAL,” “TRADE SECRET,” or otherwise indicating confidentiality, trade secret or 11 produced subject to this Protective Order, as appropriate, on the face of a single-page document, 12 on at least the initial page of a multi-page document, and in a prominent location on the exterior of 13 any tangible object. Any electronically stored information may be designated as 14 CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER through a 15 correspondence providing the media and a hard copy or printout shall be treated as protected 16 material of the same designation. Designation may only be made after a good faith review by 17 counsel of record and counsel making a designation shall comply with the standards set forth in 18 Fed. Civ. R. P. 26(g) when designating information as CONFIDENTIAL, TRADE SECRET or 19 SUBJECT TO PROTECTIVE ORDER. 20 5. With respect to deposition testimony and deposition exhibits, State Farm may, 21 either on the record at the deposition or by written notice to counsel for Plaintiff no later than 22 forty-five (45) days after receipt of the transcript of said deposition, designate portions of 23 testimony and/or exhibits from the deposition as CONFIDENTIAL, TRADE SECRET, or 24 SUBJECT TO PROTECTIVE ORDER. All testimony or exhibits, regardless of whether 25 designated as CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER on 26 the record, shall be treated as CONFIDENTIAL, TRADE SECRET, or SUBJECT TO 27 PROTECTIVE ORDER until forty-five (45) days after receipt of the transcript of said deposition LEWIS 28 by all parties. Certain depositions may, in their entirety, be designated CONFIDENTIAL, BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4851-8310-1139.1 2 Case 2:19-cv-02131-RFB-BNW Document 24 23 Filed 12/04/20 12/01/20 Page 3 of 10 1 TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER prior to being taken because of the 2 anticipated testimony. Furthermore, any document designated as CONFIDENTIAL, TRADE 3 SECRET, or SUBJECT TO PROTECTIVE ORDER shall maintain that designation and the 4 protections afforded thereto if introduced or discussed during a deposition. 5 6. The inadvertent or unintentional disclosure by State Farm of information 6 considered to be CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER 7 shall not be deemed a waiver in whole or in part of State Farm’s claim of protection pursuant to 8 this Protective Order, either as to the specific information disclosed or as to any other information 9 relating thereto. Any such inadvertently or unintentionally disclosed information shall be 10 designated as CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER as 11 soon as reasonably practicable after State Farm becomes aware of the erroneous disclosure and 12 shall thereafter be treated as such by all receiving persons absent re-designation pursuant to Court 13 order. Upon receipt of the properly designated documents, the recipient must return or destroy the 14 non-designated set within three (3) days. If the recipient destroys the documents, then the 15 recipient must provide written certification of the destruction to the producer of the information 16 within three (3) days of receipt of the properly designated documents. 17 In addition, the production or disclosure by State Farm or Plaintiff Melissa Sue Allen- 18 Gleason of any attorney-client privileged, attorney work product, or other protected document or 19 information, whether inadvertent or otherwise, shall not be deemed a waiver of the privilege, work 20 product, or other protection or immunity from discovery by State Farm in this or any subsequent 21 state or federal proceeding pursuant to Federal Rule of Evidence 502 regardless of the 22 circumstances of disclosure. If any party becomes aware of the production or disclosure of such 23 protected information by State Farm or Plaintiff Melissa Sue Allen-Gleason, that party shall 24 provide written notice of such production or disclosure within three (3) days after it becomes 25 aware that protected information has been disclosed or produced. 26 7. When information which is CONFIDENTIAL, TRADE SECRET, or SUBJECT 27 TO PROTECTIVE ORDER is presented, quoted or referenced in any deposition, hearing, trial or LEWIS 28 other proceeding, counsel for the offering party shall make arrangements or, when appropriate, BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4851-8310-1139.1 3 Case 2:19-cv-02131-RFB-BNW Document 24 23 Filed 12/04/20 12/01/20 Page 4 of 10 1 request the Court to make arrangements, to ensure that only persons entitled to such information 2 pursuant to Paragraph 10 are present during such presentation, quotation or reference. 3 8. Subject to the requirements of Paragraph 12 of this Agreement, no person receiving 4 information designated as CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE 5 ORDER shall disclose it or its contents to any person other than those described in Paragraph 10 6 below; no such disclosure shall be made for any purposes other than those specified in that 7 paragraph; and in no event shall such person make any other use of such information. Counsel 8 shall be responsible for obtaining prior written agreement to be bound to the terms of this 9 Agreement from all persons to whom any information so designated is disclosed, and shall be 10 responsible for maintaining a list of all persons to whom any information so designated is 11 disclosed and, for good cause shown, such list shall be available for inspection by counsel for 12 State Farm upon order of the Court; provided, however, that the requirements of this sentence 13 shall not apply to disclosures made pursuant to Paragraphs 10(h) and/or 12 of this Protective 14 Order. 15 9. Except as agreed by State Farm or as otherwise provided herein, including in 16 Paragraphs 10(h) and 12 of this Protective Order, information designated as CONFIDENTIAL, 17 TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER shall (1) only be used in the 18 preparation for trial and/or any appeal of this Action and (2) be maintained in confidence by the 19 party(ies) to whom it is produced and not disclosed by such party(ies) except to persons entitled 20 to access thereto pursuant to Paragraph 10 below. Except as provided in Paragraphs 10(h), (g), 21 (k), and 12 of this Protective Order, information which is CONFIDENTIAL, TRADE SECRET, or 22 SUBJECT TO PROTECTIVE ORDER may not be used by any person receiving such material for 23 any business or competitive purpose or for use in matters other than this lawsuit, including other 24 matters involving State Farm. 25 10. Information designated as CONFIDENTIAL, TRADE SECRET, or SUBJECT TO 26 PROTECTIVE ORDER by State Farm shall be disclosed only to the following persons: LEWIS 27 (a) attorneys actively working on or supervising the work on this case; 28 (b) persons regularly employed or associated with the attorneys actively BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4851-8310-1139.1 4 Case 2:19-cv-02131-RFB-BNW Document 24 23 Filed 12/04/20 12/01/20 Page 5 of 10 1 working on this case whose assistance is required by said attorneys in the 2 preparation for trial, at trial, or at other proceedings in this case; 3 (c) 4 the parties, including designated representatives and counsel for the entity defendant; 5 (d) expert witnesses and consultants retained in connection with this 6 proceeding, to the extent such disclosure is necessary for preparation, trial 7 or other proceedings in this case and the expert or consultant has signed a 8 written acknowledgement attached as Exhibit A; 9 (e) the Court and its employees (“Court Personnel”); 10 (f) stenographic and video reporters who are engaged in proceedings 11 necessarily incident to the conduct of this action; 12 (g) deponents, witnesses, or potential witnesses, who have first-hand 13 knowledge of the document and have signed a written acknowledgment 14 attached as Exhibit A; 15 (h) the Nevada Division of Insurance, Nevada Attorney General, law 16 enforcement officers, and/or other government agencies, as permitted or 17 required by applicable state and federal law, including, but not limited to, 18 NRS 686A.283 to NRS 686A.289, inclusively; 19 (i) 20 a jury involved in litigation concerning the claims and any defenses to any claims in this lawsuit; 21 (j) anyone as otherwise required by law; 22 (k) as authorized by State Farm in writing; and 23 (l) other persons by written agreement of the parties when the person has 24 25 signed a written acknowledgement attached as Exhibit A. 11. Subject to Paragraph 12 of this Protective Order, the recipient of any information 26 designated CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER 27 pursuant to this Agreement shall maintain information in a secure and safe area and shall exercise LEWIS 28 due and proper care with respect to the storage, custody and use of all such information. BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4851-8310-1139.1 5 Case 2:19-cv-02131-RFB-BNW Document 24 23 Filed 12/04/20 12/01/20 Page 6 of 10 1 12. Nothing in this Protective Order disallows State Farm’s maintenance or use of 2 information and documents in or pursuant to: its electronic claim system; the privacy requirements 3 of the Nevada Division of Insurance and other applicable state and federal laws; the records 4 retention requirements of the Nevada Division of Insurance, the Nevada Rules of Professional 5 Conduct, or other applicable state and federal laws; the records retention practices of State Farm; 6 and any written Court Order. Further, nothing in this Protective Order disallows reporting of 7 information by State Farm as permitted and/or required by applicable state and federal law, 8 including NRS 686A.283 to NRS 686A.289, inclusively, or reporting to the Insurance Services 9 Office, Inc. 10 13. Plaintiff may at any time request from State Farm, in writing, the release of 11 information designated as CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE 12 ORDER from the requirements of the terms and provisions of this Protective Order. Upon receipt 13 of such request, counsel for State Farm and counsel for Plaintiff shall attempt to meet and confer. 14 If the parties are unable to agree as to whether the information at issue is properly designated 15 CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER, State Farm may 16 raise the issue of such designation with the Court pursuant to Fed. R. Civ. P. 26. Any information 17 submitted to the Court for review shall be submitted under seal and for in camera review. Pending 18 a ruling from the Court, State Farm’s designation shall control. 19 14. Nothing in this Protective Order shall preclude any party from responding to a 20 validly issued subpoena, provided, however, that the party responding to the subpoena shall 21 provide written notice of such subpoena to the attorney of the party that originally produced the 22 documents within three (3) days of receipt of a subpoena, which seeks production or disclosure of 23 the information which is designated CONFIDENTIAL, TRADE SECRET, or SUBJECT TO 24 PROTECTIVE ORDER. Production or disclosure of information which is designated 25 CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER may not occur 26 until the deadline set forth in a validly issued subpoena, absent agreement of the parties. 27 LEWIS 15. Nothing in this Protective Order shall be construed as a limitation on the use of 28 evidence in a submission to the Court or at trial, subject to such confidentiality provisions as may BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4851-8310-1139.1 6 Case 2:19-cv-02131-RFB-BNW Document 24 23 Filed 12/04/20 12/01/20 Page 7 of 10 1 be ordered by the Court. However, prior to utilizing or filing a document which is designated 2 CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER, the party 3 intending to utilize the document shall comply with LR IA 10-5(b) and Kamakana v. City and 4 County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), or must provide notice to Counsel for State 5 Farm within a reasonable time, but in any event not fewer than 10 judicial days, to file a motion 6 pursuant to LR IA 10-5(b) and Kamakana to show particularized good cause or particularized 7 compelling reasons to file those documents under seal. 8 LR IA 10-5(a) provides: 9 Unless otherwise permitted by statute, rule or prior court order, papers filed with the court under seal must be accompanied by a motion for leave to file those documents under seal. If papers are filed under seal under prior court order, the papers must state on the first page, directly under the case number: “FILED UNDER SEAL UNDER TO COURT ORDER (ECF No.____.” All papers filed under seal will remain sealed until the court either denies the motion to seal or enters an order unsealing them. 10 11 12 13 14 Pursuant to Kamakana and LR IA 10-5(a), any documents designated as 15 “CONFIDENTIAL” and attached to a non-dispositive motion shall be accompanied by a motion 16 showing a particularized good cause for leave to file those documents under seal. Furthermore, 17 any documents designated as “CONFIDENTIAL” and attached to a dispositive motion shall be 18 accompanied by a motion showing a particularized compelling reason for leave to file those 19 documents under seal. 20 16. The obligations of this Protective Order shall survive the termination of this action 21 and continue to bind the parties and their counsel. The Court will have continuing jurisdiction to 22 enforce this Protective Order irrespective of the manner in which this action is terminated. 23 17. Within thirty-five (35) days of the final determination of this action, each person or 24 party who has received information designated CONFIDENTIAL, TRADE SECRET, or 25 SUBJECT TO PROTECTIVE ORDER shall return all documents and information subject to this 26 Protective Order, including any copies or extracts or summaries thereof, or to destroy such 27 information and certify that it has been destroyed, except that the recipient need not destroy or LEWIS 28 return transcripts of depositions and materials filed with the Court, and any party may retain one BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4851-8310-1139.1 7 Case 2:19-cv-02131-RFB-BNW Document 24 23 Filed 12/04/20 12/01/20 Page 8 of 10 1 archival copy of all pleadings in the action, regardless of whether such pleadings (including 2 appendices) contain or refer to information designated CONFIDENTIAL, TRADE SECRET, or 3 SUBJECT TO PROTECTIVE ORDER; provided, however, that the requirements of this 4 Paragraph are subject to the requirements of Paragraphs 10(h) and 12 of this Protective Order and 5 to the routine business practices of State Farm, and also subject to the regular business practices 6 for maintenance and destruction of client files by the parties’ counsel. Within seven (7) days of 7 the final determination of this action, counsel of record who has provided information designated 8 CONFIDENTIAL, TRADE SECRET, or SUBJECT TO PROTECTIVE ORDER to other 9 individuals must inform those individuals that the matter has reached final determination and 10 remind them of the return or destruction obligation. To the extent that this Protective Order 11 requires the destruction or return of documents at the conclusion of this case, this requirement is 12 not intended to require State Farm or its counsel to return or destroy any documents that they are 13 otherwise required by law to maintain. 14 18. This Protective Order may be modified by the Court at any time for good cause 15 shown following notice to all parties and an opportunity for them to be heard. The Court shall 16 retain jurisdiction to modify the terms of this Protective Order. 17 19. Nothing in this Protective Order shall prohibit any party from filing a motion 18 seeking further or different protection from the Court, or from filing a motion with respect to the 19 manner in which the information designated CONFIDENTIAL, TRADE SECRET, or SUBJECT 20 TO PROTECTIVE ORDER shall be treated at trial. 21 20. Subject to the requirements of Paragraph 16 of this Protective Order, State Farm or 22 any party wishing to use any CONFIDENTIAL, TRADE SECRET, or SUBJECT TO 23 PROTECTIVE ORDER information or document in any brief, memorandum, motion, affidavit, or 24 other paper filed with the Court shall file a motion to restrict access pursuant to LR IC 1-1(i) and 25 referencing this Protective Order, and shall request access restriction to limit access to the parties 26 and the court in ECF/PACER. 27 LEWIS 21. This Protective Order may be executed in counterparts, each of which shall 28 constitute one and the same agreement. BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4851-8310-1139.1 8 Case 2:19-cv-02131-RFB-BNW Document 24 23 Filed 12/04/20 12/01/20 Page 9 of 10 1 Dated this 1st day of December, 2020. Dated this 1st day of December, 2020. 2 LEWIS BRISBOIS BISGAARD & SMITH LLP PRINCE LAW GROUP 3 /s/ Cheryl A. Grames 4 Robert W. Freeman, Esq. 5 Nevada Bar No. 03062 Cheryl A. Grames 6 Nevada Bar No. 12752 6385 S. Rainbow Boulevard, Suite 600 7 Las Vegas, Nevada 89118 Attorney for Defendant State Farm Mutual 8 Automobile Insurance Company /s/ Kevin T. Strong Dennis M. Prince, Esq. Nevada Bar No. 5092 Kevin T. Strong, Esq. Nevada Bar No. 12107 10801 West Charleston, Suite 560 Las Vegas, Nevada 89135 Attorney for Plaintiff Melissa Sue Allen-Gleason 9 10 11 12 13 ORDER 14 IT IS SO ORDERED 15 DATED: 12:59 pm, December 04, 2020 16 17 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 LEWIS 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4851-8310-1139.1 9 Case 2:19-cv-02131-RFB-BNW Document 24 23 Filed 12/04/20 12/01/20 Page 10 of 10 1 EXHIBIT A 2 ACKNOWLEDGMENT OF RECEIPT AND AGREEMENT TO COMPLY WITH STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER 3 4 5 The undersigned, , hereby acknowledges that he/she has 6 been provided with a copy of the Parties’ Stipulated Confidentiality Agreement and Protective 7 Order entered in the case no. 2:19-cv-2131-RFB-BNW, captioned MELISSA SUE ALLEN8 GLEASON v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, in the United 9 States District Court for the District of Nevada. The undersigned has reviewed said Stipulated 10 Confidentiality Agreement and Protective Order and hereby agrees to be bound by the terms 11 thereof. 12 DATED this ____ day of ________________, 20__. 13 By: 14 15 ________________________ 16 Name (Printed) 17 18 ________________________ Street Address 19 20 ________________________ State Zip 21 City 22 ________________________ 23 Occupation / Business 24 25 26 27 LEWIS 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4851-8310-1139.1 10 __________________________ Litigation Participant - Signature
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