McCormick v. Anderson Business Advisors, LLC, No. 2:2020cv00471 - Document 29 (D. Nev. 2020)
Court Description: ORDER Granting 28 Stipulated Protective Order. Signed by Magistrate Judge Cam Ferenbach on 10/23/2020. (Copies have been distributed pursuant to the NEF - JQC)
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McCormick v. Anderson Business Advisors, LLC Doc. 29 Case 2:20-cv-00471-JCM-VCF Document 29 Filed 10/23/20 Page 1 of 15 1 2 3 4 5 6 7 CHRISTINA MUNDY-MAMER, ESQ. Nevada Bar No. 13181 RENEE M. FINCH, ESQ. Nevada Bar No. 13118 MESSNER REEVES LLP 8945 W. Russell Road, Suite 300 Las Vegas, Nevada 89148 Telephone: (702) 363-5100 Facsimile: (702) 363-5101 E-mail: cmamer@messner.com rfinch@messner.com Attorneys for Defendant, Anderson Business Advisors, LLC 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA, SOUTHERN DIVISION 10 KATHLEEN MCCORMICK, an individual, 11 Case No. 2:20-cv-00471-JCM-VCF Plaintiff, 12 vs. STIPULATED CONFIDENTIALITY AGREEMENT AND [PROPOSED] ANDERSON BUSINESS ADVISORS, LLC, PROTECTIVE ORDER doing business as a domestic limited-liability company, 13 14 Defendants. 15 16 17 WHEREAS Plaintiff Kathleen McCormick ("Plaintiff') and Defendant Anderson Business 18 Advisors, LLC ("Defendant") believe that discovery conducted during this litigation may involve the 19 disclosure of confidential and/or privileged1 documents and/or information; WHEREAS the Plaintiff and Defendant (jointly the "Parties"), by, between, and among their 20 respective counsel, having stipulated and agreed to the terms set forth herein, and good cause having 21 been shown, wish to provide for the confidential treatment of all such Confidential Material (as 22 defined below); 23 WHEREAS the Parties agree to the entry of an order, pursuant to Federal Rule of Civil 24 Procedure 26(c) and Federal Rule of Evidence 502, governing the review, copying, dissemination, 25 1 Plaintiff’s sole remaining claim is under the ADA arising out of her employment with Defendant. Page 1 of 15 Dockets.Justia.com Case 2:20-cv-00471-JCM-VCF Document 29 Filed 10/23/20 Page 2 of 15 1 2 3 4 5 6 7 8 9 10 11 12 13 and filing of confidential documents and information to be produced by any Party and its respective counsel or by any non-party during the course of discovery in this matter to the extent set forth below; Subject to the Court's approval, the Parties hereby stipulate and agree to the following protective order: I. DEFINITIONS A. DESIGNATING PARTY. "Designating Party" shall mean any person or entity, regardless of whether a Party to this action, who produces Confidential Information (as defined below) in connection with this litigation. B. RECEIVING PARTIES. "Receiving Parties" shall mean all persons or entities, regardless of whether a Party to this action, who receive Confidential Information in connection with this litigation. C. CONFIDENTIAL INFORMATION. "Confidential Information" shall mean all documents and testimony, and all information contained therein or derived therefrom, that is: 1. Produced for or disclosed to Receiving Parties; 14 2. Considered by the Designating Party in good faith to constitute or to contain 15 confidential, proprietary, financial, or otherwise sensitive or 16 privileged information, whether embodied in physical objects, documents, or the factual 17 knowledge of persons, including, but not limited to, medical information, 18 financial information, and privileged communications and work product relating 19 to the Plaintiff’s employment with Defendant; and 20 3. Identified by the Designating Party in the manner described below in Section II. 21 D. CONFIDENTIALITY LEGEND. "Confidentiality Legend" shall refer to the marking 22 on documents or information with the phrase "CONFIDENTIAL-Subject to Court Order" or 23 "CONFIDENTIAL." 24 25 Page 2 of 15 Case 2:20-cv-00471-JCM-VCF Document 29 Filed 10/23/20 Page 3 of 15 1 2 II. A. DESIGNATION OF CONFIDENTIAL INFORMATION DESIGNATION. When the Designating Party produces, discloses, or otherwise 3 reveals Confidential Information, any such document, transcript, material, item, or thing deemed to 4 be confidential shall be clearly designated or marked with the appropriate Confidentiality Legend and 5 treated as confidential. 6 1. In the case of deposition testimony, the designation shall be made by making an 7 oral statement to such effect on the record during the course of the deposition, 8 or by written notification to all Parties within thirty (30) days following receipt 9 of the transcript of such deposition and the exhibits thereto (or later with leave 10 of Court or by agreement among the Parties). Written designation must be 11 made by reference to the specific page(s) and line number(s). Prior to the 12 expiration of such thirty (30) day period (or until a designation is made by 13 counsel, if such a designation is made in a shorter period of time), all such 14 documents shall be treated as Confidential Information. 15 2. In the case of written documents, including, but not limited to, documentary 16 evidence, affidavits, declarations, statements, written responses to requests for 17 production of documents, and responses to interrogatories or requests for 18 admission, the appropriate Confidentiality Legend shall be placed on each page of 19 any such written documents that contain information deemed by the Designating 20 Party to be Confidential Information. 21 3. If only a part or portion of a written document warrants protection under this 22 Order, the Designating Party, to the extent practicable, shall identify the protected 23 part(s) or portion(s) and clearly designate or mark the same with the appropriate 24 Confidentiality Legend. 25 4. If the document, material, item, or thing is stored or recorded electronically, and a Page 3 of 15 Case 2:20-cv-00471-JCM-VCF Document 29 Filed 10/23/20 Page 4 of 15 1 legend cannot be stamped or affixed upon it, the Designating Party may designate 2 or mark the same as "CONFIDENTIAL-Subject to Court 3 "CONFIDENTIAL" by a cover letter or cover page. Order" or 4 5. Documents produced by third parties shall be deemed Confidential Information 5 for a period of thirty (30) days in order to permit the Parties to review the 6 documents and determine if any portion of the documents shall be designated as 7 Confidential Information. Within the thirty (30) day period, a Party that determines 8 that documents produced by a third party include Confidential Information shall 9 inform all other Parties of the specific documents or information that shall be 10 deemed confidential and provide replacement copies of the Confidential 11 Information that bear the appropriate Confidentiality Legend. 12 B. TIME FOR MAKING DESIGNATION. Any such designation or marking shall take 13 place prior to production or disclosure by the Designating Party; provided, however, that in the event 14 that any document, material, item, or thing that may contain Confidential Information is made 15 available for inspection by a Party, there will be no waiver of confidentiality by the inspecting of such 16 document, material, item, or thing before it is copied and designated or marked with a Confidentiality 17 Legend, and the inspecting Party shall treat the inspected material(s) as confidential, unless otherwise 18 indicated by the Party permitting inspection. 19 C. REPRESENTATION BY DESIGNATING PARTY. By designating or marking any 20 document, transcript, material, item, or thing as containing Confidential Information, the Designating 21 Party is certifying to the Court that there is a good faith basis, both in law and in fact, for the 22 designation or marking within the meaning of F.R.C.P. 26(g). 23 D. WITHDRAWAL OF CONFIDENTIALITY DESIGNATION. A Designating Party 24 may withdraw its previous designation of documents or information as confidential upon written 25 notice to the Receiving Parties and reproduction of the formerly designated documents without a Page 4 of 15 Case 2:20-cv-00471-JCM-VCF Document 29 Filed 10/23/20 Page 5 of 15 1 2 Confidentiality Legend. E. DISPUTE REGARDING CONFIDENTIALITY DESIGNATION. If, at any time, a 3 Party wishes for any reason to dispute the Designating Party's designation of a document, transcript, 4 material, item, or thing as Confidential Information and/or object to the inclusion of Confidential 5 Information in any pleading, motion, brief, memorandum, or other paper filed with the Court, such 6 Party (the "Disputing Party") shall notify the Designating Party of such dispute, in writing. 7 1. The Disputing Party shall, in writing, specifically identify the document, 8 transcript, material, item, or thing designated as Confidential Information that is 9 in dispute, by Bates Number or any other means sufficient to put the other Parties 10 on notice of the information in dispute, and set forth the precise factual and/or legal 11 basis of its dispute with regard to each such document, transcript, material, item, 12 or thing. 13 2. The Designating Party shall have fourteen (14) business days to respond. If the 14 Designating Party refuses to remove the Confidential Legend, the Parties must 15 participate in a discovery dispute conference at a mutually agreeable date and time. 16 3. If the Parties are thereafter unable to amicably resolve the dispute, the Disputing 17 Party may apply by motion to the Court for a ruling as to whether the designated 18 material may, in accordance with this Order, be properly treated as confidential, 19 provided such motion is made within thirty (30) days from the date on which the 20 Parties, after their good faith attempt, were unable to resolve the dispute, or such 21 other time period as the Parties may agree. The Designating Party shall have the 22 burden of establishing that the disputed document, transcript, material, item, or 23 thing contains Confidential Information entitled to protection under this Order. 24 25 F. DOCUMENTS AND MATERIALS PREVIOUSLY DESIGNATED CONFIDENTIAL. This Order shall apply to any document, transcript, material, item, or thing Page 5 of 15 Case 2:20-cv-00471-JCM-VCF Document 29 Filed 10/23/20 Page 6 of 15 1 designated as Confidential Information prior to the entry of this Order. 2 3 III. A. USE OF CONFIDENTIAL INFORMATION USE GENERALLY. All Confidential Information shall be used by the Parties, or non- 4 parties to whom Confidential Information is produced, disclosed, or otherwise made available as 5 permitted by this Order, solely for the purposes of this litigation and for no other purpose without 6 prior written approval from the Court or the prior written consent of the Parties. Except as otherwise 7 provided in this Order, Confidential Information shall not be disclosed or revealed to anyone other 8 than as provided under Section IV of this Order, and shall be handled in the manner set forth herein 9 until such Confidentiality Legend is removed by the Designating Party or by order of the Court, as 10 11 well as any other court which may be handling appeals in this Case. B. 12 1. Store and maintain such Confidential Information in a secure manner, within their 13 exclusive possession and control; 14 2. Take all measures reasonably necessary and appropriate to maintain the 15 confidentiality of such Confidential Information; and 16 3. Not permit or participate in the unauthorized production, disclosure, or use of such 17 18 PROCEDURE. The Receiving Parties must proceed as follows: Confidential Information. C. LIMITED PURPOSE. Confidential Information shall be utilized by the Receiving 19 Parties and/or its counsel only for purposes of this litigation and for no other purposes except that the 20 Receiving Parties, if necessary, may show Confidential Information to parties identified in Section 21 IV. Extracts, summaries, copies, abstracts, or other documents, derived in whole or in part from 22 material designated as Confidential Information, shall also be treated as confidential in accordance 23 with the provisions of this Stipulated Order. 24 25 D. FILED DOCUMENTS. Any Party seeking to file with the Court, a pleading, motion, or other paper containing or disclosing such Confidential Information shall request leave to file the Page 6 of 15 Case 2:20-cv-00471-JCM-VCF Document 29 Filed 10/23/20 Page 7 of 15 1 information under seal. The documents and/or information shall be filed under seal and shall bear the 2 legend: 3 THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION COVERED BY A PROTECTIVE ORDER OF THE COURT AND IS SUBMITTED UNDER SEAL PURSUANT TO THAT PROTECTIVE ORDER. THE CONFIDENTIAL CONTENTS OF THIS DOCUMENT MAY NOT BE DISCLOSED WITHOUT EXPRESS ORDER OF THE COURT. 4 5 6 7 Any such filing of Confidential Information shall be done in a manner consistent with 8 federal custom and procedures regarding the filing of information under seal. Moreover, said 9 Confidential Information shall be kept under seal until further order of the Court; however, such 10 Confidential Information shall be available to the Court and counsel of record, and to all other 11 persons entitled to receive Confidential Information under the terms of this Order. Upon failure 12 of the filing of lodging Party to properly file Confidential Information under seal, any other Party 13 may do so after learning of the defective filing or lodging. Notice of such action shall be given 14 to all parties. IV. 15 16 A. ACCESS TO CONFIDENTIAL INFORMATION. PERSONS ALLOWED ACCESS TO CONFIDENTIAL INFORMATION. Any 17 information, documents, transcripts, materials, items, or things designated or marked as containing 18 Confidential Information shall not be used or shown, disclosed, revealed, disseminated, copied, or in 19 any way communicated to any person or entity for any purpose whatsoever; provided, however, that 20 Confidential Information may be disclosed, revealed or otherwise made available to the following 21 recipients: 22 23 1. Personnel of the Parties actually engaged in assisting in the preparation of this action for trial or other proceeding herein; 24 2. Counsel for the Parties to this action and their associated attorneys, paralegals, and 25 other professional personnel (including support staff) who are directly assisting Page 7 of 15 Case 2:20-cv-00471-JCM-VCF Document 29 Filed 10/23/20 Page 8 of 15 1 such counsel in the preparation of this action for trial or other proceeding herein, 2 and are under the supervision or control of such counsel; 3 3. Expert witnesses or consultants (and their associated personnel and staff) retained 4 by the Parties or their counsel to furnish technical or expert services in connection 5 with this action or to give testimony with respect to the subject matter of this action 6 at the trial of this action or other proceeding herein; 7 4. The Court and its personnel, jurors, and alternate jurors; 8 5. An officer before whom a deposition is taken, including stenographic reporters 9 and any necessary secretarial, clerical, or other personnel of such officer; 10 6. Outside photocopying, graphic production services, or litigation support services; 11 7. Trial and deposition witnesses; and 12 8. Any other person or non-party as to whom the Parties to this Order agree in writing 13 may be given access to any discovery material(s) containing Confidential 14 Information. 15 Notwithstanding the foregoing, if Confidential Information is disclosed to a witness, expert, 16 or other third party pursuant to subparagraphs (3), (7), or (8), the witness, expert, or third party must 17 execute the "Acknowledgment and Agreement to Be Bound," attached hereto as Exhibit A, prior to 18 the disclosure of any Confidential Information to such witness, expert, or third party. The executed 19 Acknowledgment and Agreement to be Bound must be disclosed to all Parties by no later than: (a) 20 for testifying experts - the date of the disclosure of the expert's report; (b) for deposition or trial 21 witnesses - the date of the deposition and/or the offering of testimony at trial, prior to the disclosure 22 of the Confidential Information; and (c) for all other third parties - at least 7 days prior to the 23 disclosure of the Confidential Information. With regard to the disclosure to witnesses and other third 24 parties, under subparagraphs (b) and (c) in the preceding paragraph, the Designating Party shall have 25 five (5) business days from receipt of the Acknowledgment and Agreement to Be Bound to serve a Page 8 of 15 Case 2:20-cv-00471-JCM-VCF Document 29 Filed 10/23/20 Page 9 of 15 1 written objection to disclosure and/or a request for further information. Any written objection shall 2 state with specificity the reason(s) for such objection. No disclosure of Confidential Information may 3 be made to the witness or third party until the Designating Party's objection is resolved by agreement 4 of the Parties or court order. 5 If the Designating Party requests further information, the Party intending to disclose or reveal 6 the Confidential Information must, within 10 business days of the request, provide the Designating 7 Party with the following: (a) the specific Confidential Information intended to be disclosed or 8 revealed; and (b) the general purpose for making the disclosure to the witness or other third party. 9 Within five (5) days of receipt of the objection, the Parties shall meet and confer to attempt to 10 resolve the objection. If an agreement is not reached, the Party proposing disclosure to the witness or 11 other third party may file a motion seeking permission to make the disclosure of Confidential 12 Information. On any such motion, the Designating Party shall bear the burden of showing why 13 disclosure to the witness or other third party should be precluded. 14 If a Party wishes to disclose Confidential Information to a consultant or consulting expert, the 15 consultant or consulting expert must execute the Acknowledgment and Agreement to Be Bound prior 16 to disclosure of the Confidential Information, a copy of which must be maintained by counsel for the 17 Party. The consultant's or consulting expert's Acknowledgment and Agreement to Be Bound need not 18 be disclosed to the other Parties except upon agreement of the Parties or court order. 19 B. ENDORSEMENT OF STIPULATION AND PROTECTIVE ORDER. All persons or 20 entities obtaining, receiving, or being given access to Confidential Information, in accordance with 21 the terms and conditions of this Order, consent to the continuing jurisdiction of the Court for the 22 purpose(s) of enforcing this Order and/or remedying any violations thereof. 23 V. INADVERTENT PRODUCTION OF CONFIDENTIAL INFORMATION WITHOUT 24 25 A DESIGNATION A. In the event a Designating Party inadvertently produces documents or information that Page 9 of 15 Case 2:20-cv-00471-JCM-VCF Document 29 Filed 10/23/20 Page 10 of 15 1 it considers to be or to contain Confidential Information, without having first designated the material 2 as such, the Designating Party may so designate it. Within thirty (30) days of learning of the 3 inadvertent production of such material (or later with leave of Court or by agreement among the 4 Parties), the Designating Party must give written notice to all Parties that it claims that the material 5 is or contains Confidential Information, in whole or in part. Upon such notice, the Designating Party 6 shall provide all Parties who have received a copy of such materials with a replacement copy marked 7 with the Confidentiality Legend. All Parties receiving the replacement copy shall promptly destroy, 8 sequester, or return to the Designating Party, the unmarked copy of the material. 9 10 VI. A. RESERVATION OF RIGHTS Notwithstanding the foregoing, this Order shall not be construed: 11 1. To apply to any document(s) or information that has been or become part of the 12 public domain by publication or otherwise and not due to any unauthorized act or 13 omission on the part of the Receiving Parties; or 14 2. To apply to any document(s) or information that, under law, has been declared to 15 16 17 be in the public domain. B. Producing or receiving documents and other information in accordance with this Order or failing to object thereto, shall not: 18 1. Constitute a waiver by any person or Party of any right to object to or seek a further 19 protective order with respect to any request for information in this or in any other 20 action; 21 2. Operate as an admission by any Party that any particular documents or other 22 information comprise or reflect trade secrets, proprietary information or any other 23 type of confidential information; 24 3. Prejudice or waive in any way, the rights of the Parties to object to the production 25 of documents they consider not subject to discovery for any reason other than the Page 10 of 15 Case 2:20-cv-00471-JCM-VCF Document 29 Filed 10/23/20 Page 11 of 15 1 confidentiality of the documents; 2 4. Prejudice or waive in any way, the rights of any Party to object to the authenticity, 3 relevancy, or admissibility into evidence of any document, testimony, or other 4 evidence subject to the Stipulated Order; or 5 6 7 8 5. Prejudice or waive in any way, any claim or defense with respect to the proceeding. C. Nothing in this Order shall prevent any Party from using or disclosing its own documents or information. D. In the event that disclosure of any Confidential Information is sought from anyone 9 who is subject to this Order pursuant to a lawful subpoena, demand by governmental authority or 10 their legal process, such person or entity shall, upon receipt of such request, notify the Designating 11 Party within seven (7) days of the request for disclosure. The Designating Party may then seek to 12 prevent disclosure by filing a motion for protective order or take other appropriate action and, if so, 13 the Confidential Information shall not be disclosed until the Designating Party’s objection and/or 14 motion for protective order has been resolved by agreement of the Parties or court order. 15 16 17 18 19 E. This Order may be modified or amended by agreement of all parties, subject to approval by the Court, or by order of the Court for good cause shown. F. This Order shall not act as a shield for any person or entity to refuse to disclose any information that it is, by law, rule, and/or court order, obligated to disclose. G. This Order shall not be interpreted in a manner that would violate any applicable 20 canons of ethics or codes of professional responsibility. Nothing in this Order shall prohibit or 21 interfere with the ability of counsel for any Party, or of experts specially retained for this case, to 22 represent any individual , corporation, or other entity adverse to any Party of its affiliate(s) in 23 connection with any other matters. 24 25 H. In the event that any person or entity subject to this Order violates or gives reason to believe that he or she will violate this Order, the aggrieved Party shall be entitled to petition the Court Page 11 of 15 Case 2:20-cv-00471-JCM-VCF Document 29 Filed 10/23/20 Page 12 of 15 1 for an appropriate remedy. 2 VII. 3 4 DURATION OF ORDER A. survive and remain in effect after the termination of this Case, including any appeals, except that: 5 1. There shall be no restriction on documents that are used as exhibits in Court (unless 6 such exhibits were filed under seal); and 7 2. A Party may seek the written permission of the Designating Party or further order 8 9 Absent prior written consent of all Parties, the terms and conditions of this Order shall of the Court with respect to dissolution or modification of this Order. B. This Order shall be binding upon the Parties, their counsel, successors, executors, 10 personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions, 11 employees, agents, independent contractors, or other persons or entities over which the Parties have 12 control or which purport to act on the Parties’ behalves. 13 14 (Remainder of Page Intentionally Left Blank) 15 16 17 18 19 20 21 22 23 24 25 Page 12 of 15 Case 2:20-cv-00471-JCM-VCF Document 29 Filed 10/23/20 Page 13 of 15 1 C. The Court shall retain continuing jurisdiction to enforce this Order, make any such 2 amendment(s), modification(s) and/or alteration(s) to this Order as may be appropriate, and/or resolve 3 any dispute(s) arising out of or concerning the use, production and/or disclosure of Confidential 4 Information as provided under this Order. 5 6 7 8 9 10 11 DATED this 22nd day of October 2020. DATED this 22nd day of October 2020. By: :/s/ Phillip J. Trenchak, Esq. Philip J. Trenchak, Esq. Nevada Bar No. 9924 Victoria C. Mullins, Esq. MULLINS & TRENCHAK, Attorneys at Law 1614 S. Maryland Parkway Las Vegas, Nevada 89104 By:/s/ Christina Mundy-Mamer Christina Mundy-Mamer, Esq. Nevada Bar No. 13181 Renee M. Finch, Esq. Nevada Bar No. 13118 8945 W. Russell Road, Suite 300 Las Vegas, Nevada 89148 Attorneys for Plaintiff Attorneys for Defendant, Anderson Business Advisors, LLC 12 13 IT IS SO ORDERED: 14 15 16 UNITED STATES MAGISTRATE JUDGE 10-23-2020 DATED:______________________________ 17 18 19 20 21 22 23 24 25 Page 13 of 15 Case 2:20-cv-00471-JCM-VCF Document 29 Filed 10/23/20 Page 14 of 15 1 EXHIBIT A 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 14 of 15 Case 2:20-cv-00471-JCM-VCF Document 29 Filed 10/23/20 Page 15 of 15 1 ENDORSEMENT OF STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER 2 I, _______________________(print or type name), hereby acknowledge and certify that I have 3 received and read in its entirety a copy of the Stipulated Confidentiality Agreement and Protective 4 Order (the "Order") entered on the __________ day of __________________, 2020, in the matter 5 entitled McCormick v. Anderson Business Advisors, LLC, Case No. 2:20-cv-00471-JCM-VCF (the 6 "Case"), which is pending before the U.S. District Court in the District of Nevada (the "Court"). 7 I understand the terms and conditions of the Order, agree to comply with and be bound by all 8 of its provisions, and consent to the continuing jurisdiction of the Court with respect to enforcement 9 of the Order, even if such enforcement proceeding(s) occur after the case is terminated. I further 10 acknowledge that failure to comply with the terms and/or conditions of the Order could expose me to 11 sanctions and punishment in the nature of contempt. 12 I agree that I shall not use or disclose any Confidential Information (as defined in the Order) 13 for any purpose other than as provided in the Order. I will maintain any Confidential Information in a 14 safe and secure manner. 15 DATED this ______ day of ___________________, 2020 16 17 ________________________ Signature 18 19 20 ________________________ Printed Name ________________________ Company 21 22 23 ________________________ Street Address ________________________ City, State Zip Code 24 25 ________________________ Phone Number Page 15 of 15
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