Burr, et al v. Clark County et al, No. 2:2020cv01101 - Document 24 (D. Nev. 2020)
Court Description: ORDER granting 23 Stipulation; PROTECTIVE ORDER. Signed by Magistrate Judge Cam Ferenbach on 11/23/2020. (Copies have been distributed pursuant to the NEF - JM)
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Burr, et al v. Clark County et al Doc. 24 Case 2:20-cv-01101-JCM-VCF Document 24 Filed 11/23/20 Page 1 of 13 1 2 3 4 5 6 FELICIA GALATI, ESQ. Nevada Bar No. 7341 OLSON CANNON GORMLEY & STOBERSKI 9950 West Cheyenne Avenue Las Vegas, Nevada 89129 fgalati@ocgas.com Telephone: 702-384-4012 Facsimile: 702-383-0701 Attorneys for Defendants COUNTY OF CLARK and HEATHER MUMMEY 7 8 9 UNITED STATES DISTRICT COURT 10 CLARK COUNTY, NEVADA 11 12 13 CHRISTOPHER BURR, Individually and as Adoptive Parent and Legal Guardian of L.B., a Minor; and SUSAN HOY Guardian Ad Litem for L.B., a Minor, 14 Plaintiffs, 15 v. 16 CLARK COUNTY DEPARTMENT OF FAMILY SERVICES; COUNTY OF CLARK, a Political Subdivision of the State of Nevada; HEATHER MUMMEY, individually, and in her official capacity; TIM BURCH, individually, and in his official capacity; ROE CLARK COUNTY DEPARTMENT OF FAMILY SERVICES EMPLOYEES I through X, individually and in their official capacities; JONEL KAYE REPOLLO QUERRER, individually; DOES I through XX; and ROE CORPORATIONS I through XX, inclusive, 17 18 19 20 21 22 23 CASE NO.: 2:20-cv-01101-JCM-VCF 24 STIPULATION AND PROTECTIVE ORDER Defendants. 25 26 /// 27 28 1 Dockets.Justia.com Case 2:20-cv-01101-JCM-VCF Document 24 Filed 11/23/20 Page 2 of 13 1 2 1. Plaintiffs CHRISTOPHER BURR, Individually and as Adoptive Parent and Legal Guardian of L.B., a Minor; and SUSAN HOY Guardian Ad Litem for L.B., a Minor, by and 3 through their respective counsel Marjorie Hauf, Esq. and Cara Xidis, Esq. of H&P LAW, 4 5 Defendants COUNTY OF CLARK and HEATHER MUMMEY (“County Defendants”), by and 6 through their respective counsel Felicia Galati, Esq. of OLSON CANNON GORMLEY and 7 STOBERSKI, and JONEL KAYE REPOLLO QUERRER, by and through her respective counsel 8 Jason G. Weiner, Esq. of WEINER LAW GROUP, LLC, and subject to the Court’s approval, 9 hereby stipulate and agree as follows, pursuant to Fed. R. Civ. P. 26(c), with respect to the 10 11 12 13 14 disclosure of Confidential Information. 2. The parties to this action submit this Stipulation and Protective Order (hereinafter “Order”) solely for the purpose of facilitating the exchange of documents and information between the parties in this action without involving the Court unnecessarily in the process. 15 Nothing in this Order nor the production of any information or documents under the terms of this 16 17 Order nor any proceedings pursuant to this Order shall be deemed to have the effect of an 18 admission or waiver by any party or of altering the confidentiality or non-confidentiality of any 19 such document or information or altering any existing obligation of any party or absence thereof. 20 PROCEDURES REGARDING CONFIDENTIAL INFORMATION 21 3. The parties define “DFS case records” as all documents, which are in the custody 22 23 of County Defendants, relating to DFS investigation, custody, and placement of Plaintiffs, 24 including, but not limited to, documents relating to all Plaintiffs’ institutional, foster family, and 25 kin placements; foster family’s licensing files; education, mental health, and health services; and 26 court proceedings. “DFS case records” shall also include the files and documents of any child 27 who has been or is in DFS custody. The term “document” and “documents” include any written, 28 2 Case 2:20-cv-01101-JCM-VCF Document 24 Filed 11/23/20 Page 3 of 13 1 printed, typed, recorded, electronic or graphic material of every type and description, and each 2 and every thing from which information can be processed or transcribed, including computer 3 readable storage material. Documents include, but are not limited to, the following: records, 4 5 6 7 8 handwritten notes, reports, agreements, memoranda, email communications, photographs, and UNITY database entries. 4. The parties acknowledge that DFS case records and the files and documents of any child who has been or is in DFS custody contain sensitive information that is generally 9 protected from disclosure pursuant to federal and state law, including without limitation: 10 11 (a) Information that identifies by name or address, or could reasonably lead to 12 the disclosure of the name or address of any applicant for or recipient of child 13 welfare, foster care, or adoption assistance services [45 C.F.R. 1355.21]; 14 (b) The names and addresses of applicants for and recipients of child welfare, 15 foster care, or adoption assistance services and the amounts of financial assistance 16 17 18 19 20 provided to them [45 C.F.R. 205.50]; (c) Information related to the social and economic conditions or circumstances of particular individual applicants for or recipients of child welfare, foster care, or adoption services [45 C.F.R. 205.50]; 21 (d) Agency evaluations of information about particular individual applicants 22 23 for or recipients of child welfare, foster care, or adoption assistance services [45 24 C.F.R. 205.50]; 25 (e) 26 of child welfare, foster care, or adoption assistance services [45 C.F.R. 205.50]; Medical data concerning particular individual applicants for or recipients 27 and 28 3 Case 2:20-cv-01101-JCM-VCF Document 24 Filed 11/23/20 Page 4 of 13 1 (f) 2 investigating reports of child abuse and neglect [45 C.F.R. 1340.14; Nev. Rev. All records of child abuse reports and all information obtained in 3 Stat. Ann. § 432B.280]. 4 5 6 7 8 The parties also acknowledge that all files or documents of any child who has been or is in DFS custody shall come within the provisions and protections of this Order. 5. DFS case records shall be deemed to be Confidential Information pursuant to this Order and Defendants shall label each page as Confidential upon production. 9 6. A party may also label as “Confidential” any discovery that is served or produced 10 11 in this litigation (including subpoenas and deposition testimony), if the marking party believes 12 that the information contained in such discovery qualifies for protection under standards 13 developed under Fed. R. Civ. P. 26(c) or state or federal law, including the right to privacy. 14 Such information shall be deemed to be Confidential Information pursuant to this Order. 15 The fact that a document is stamped “Confidential” by one party shall not be construed 16 17 as an admission by any other party that such document is confidential, nor shall it limit or 18 preclude the right of any party to object to the “Confidential” designation and to file any 19 appropriate motion(s) to determine the propriety of such designation. If the producing party 20 inadvertently fails to stamp or otherwise appropriately designate or list certain documents, 21 material, or information as “Confidential” upon their production or disclosure, such inadvertent 22 23 24 failure to designate shall not constitute nor be deemed a waiver of a subsequent claim of protected treatment under this Order. 25 Any party may contest a designation of “Confidential” by serving a written objection (by 26 letter to the designating Party) to the Confidentiality designation at any time. Upon service of 27 such objection, the Parties shall make a good faith effort to resolve the issue informally. If that 28 4 Case 2:20-cv-01101-JCM-VCF Document 24 Filed 11/23/20 Page 5 of 13 1 effort fails, the confidentiality designation shall expire unless, within three weeks of service of 2 the objection, or such additional time as may be agreed upon the Parties, the Party seeking 3 confidentiality applies to the Court or Magistrate Judge for an order designating the document 4 5 or information confidential. If such an application is made, the document or other information 6 marked “Confidential” which is in dispute shall remain “Confidential,” as the case may be, until 7 the dispute is resolved by and between or among the parties and so confirmed in writing or, if 8 necessary, until order of the Court or any Magistrate Judge. On any such application, the 9 proponent of confidentiality shall have the burden of showing, by a preponderance of the 10 11 12 13 14 evidence, good cause for the claimed protection. 7. Confidential Information shall only be used for purpose of prosecution, defense, or settlement of this action, and for no other purpose. 8. Confidential Information may be disclosed or made available only to the Court; 15 to counsel for a party (including paralegal, clerical, and secretarial staff employed by such 16 17 18 19 20 counsel), and to the “qualified persons” designated below: (a) a party, or an officer, director, agent, or employee of a party deemed necessary by counsel to aid in the prosecution, defense, or settlement of this action; (b) experts or consultants (and their clerical staff) consulted and/or retained 21 by such counsel to assist in the prosecution, defense, or settlement of this action; 22 (c) court reporter(s) employed in this action; or 24 (d) a witness at any deposition or court proceeding in this action. 25 9. 23 26 Any person other than a party, counsel for a party, or a direct employee of such counsel, having access to information pursuant to paragraph 8, shall be provided a copy of this 27 Order by the party providing access to the information. Such persons shall be bound by this 28 5 Case 2:20-cv-01101-JCM-VCF Document 24 Filed 11/23/20 Page 6 of 13 1 Order and shall not disclose the information to any persons not authorized under state or federal 2 law or order of this Court to receive such information. Furthermore, any such person shall sign 3 a copy of the Statement of Confidentiality attached hereto and made a part hereof as Exhibit A, 4 5 6 7 8 prior to being furnished with any such information. 10. All documents meeting the definition of Confidential Information that are produced in this case shall be clearly labeled or stamped “Confidential” prior to production. 11. In connection with proceedings in this action, testimony taken at a deposition, 9 hearing, or trial relating to Confidential Information or disclosing the identities of plaintiffs, any 10 11 other child who has been or is in DFS custody, or any individual not a named party to this action, 12 may be designated as Confidential Information by making a statement to that effect on the record 13 at the deposition or other proceeding. Arrangements shall be made with the court reporter taking 14 and transcribing such proceeding to label confidential portions of the transcript as containing 15 Confidential Information. 16 17 12. Any party’s inadvertent or unintentional failure to designate protected 18 information shall not be deemed a waiver in whole or in part of that party’s claim of 19 confidentiality, as long as the disclosing party notifies all parties in writing that such protected 20 information constitutes confidential information within 7 days after learning that the protected 21 information was inadvertently or unintentionally produced without an appropriate 22 23 24 confidentiality designation and replaces the disclosure with a properly designated document. 13. The terms of this Stipulated Protective Order apply, without limitation to all 25 documents and information exchanged between the parties in the course of this litigation. 26 whether or not such documents and/or information were exchanged prior to the entry of this 27 28 6 Case 2:20-cv-01101-JCM-VCF Document 24 Filed 11/23/20 Page 7 of 13 1 Order and/or were designated as “Confidential.” This provision allows a party to designate a 2 previously produced document as “Confidential.” 3 14. If any party or non-party includes in papers to be filed with the Court: (i) 4 5 documents designated as containing Confidential Information, (ii) any portion of a deposition 6 transcript designated as containing Confidential Information, (iii) or information derived from 7 confidential documents or deposition testimony, such papers, or the confidential portion thereof, 8 shall be filed under seal. Hard copies shall be submitted to the parties in accordance with Local 9 Rule 10-5 and local e-filing instructions. Parties and nonparties shall also comply with all 10 11 12 13 14 requirements of Fed. R. Civ. P. 5.2 with regard to all documents that are filed with the court. 15. In all documents that are made part of the public record (unless under seal) and in all references in open court, when referring to individual children or families, or other persons whose names or other identifying information is contained in DFS case records, the parties shall 15 use initials agreed to by the parties. 16 17 16. This Order does not affect access to Confidential Information by individuals, 18 including employees of Clark County or the State of Nevada, who are otherwise authorized 19 under state law or regulation to have such access. 20 17. The parties acknowledge that DFS information and material, which are the 21 subject of this Confidentiality Order, contain sensitive information that is generally protected 22 23 from disclosure by Federal statutes, and Nevada Statutes and Administrative Code, and that all 24 such information should be and hereby is deemed confidential and may not be discussed with or 25 disclosed, either orally or in writing, to anyone, including but not limited to the news or 26 publication media in any format, except in the strict accordance with the provisions of this 27 Confidentiality Order. This Order does not apply to policies and procedures of DFS which are 28 7 Case 2:20-cv-01101-JCM-VCF Document 24 Filed 11/23/20 Page 8 of 13 1 otherwise deemed public record pursuant to Nev. Rev. Stat. 179A.110, Nev. Rev. Stat. 29.010, 2 Nev. Rev. Stat. 432B.290(2) and Nev. Rev. Stat. 432B.407. This Order shall be without 3 prejudice to the right of the parties (i) to bring before the Court at any time the question of 4 5 whether any particular document or information is, in fact, Confidential or whether its use 6 should be restricted in any manner whatsoever; or (ii) to present a motion to the Court for a 7 separate protective order as to any particular document or information, including restrictions 8 differing from those specified herein. This Order shall not be deemed to prejudice the parties in 9 any way in any future application for modification of this Order. 10 11 18. This Order shall be without prejudice to any party to claim that a document that 12 a party marked as containing Confidential Information is also protected by the attorney-client 13 privilege, work product doctrine, or any other privilege or limitation recognized under state or 14 federal law. Determinations of confidentiality and privilege are separate, and nothing in this 15 Order constitutes a waiver of privilege. 16 17 19. At the conclusion of this case, all discovery material made confidential pursuant 18 to this Order, or another court order, all documents reflecting such material, and all copies thereof 19 (including without limitation, copies provided to testifying or consulting experts or consultants) 20 shall be returned to the person or party that produced the confidential material, or, in the 21 alternative, destroyed. Notwithstanding the foregoing, counsel for plaintiffs may retain, until the 22 23 expiration of the statute of limitations applicable to attorney malpractice, including any period 24 for which the statute may be tolled, one copy of the named plaintiffs’ case records, including the 25 confidential material contained therein, and one copy of any attorney work product reflecting 26 Confidential Information, provided that such case records and attorney work product is 27 prominently marked with the statement: 28 8 Case 2:20-cv-01101-JCM-VCF Document 24 Filed 11/23/20 Page 9 of 13 1 CONFIDENTIAL This envelope contains documents that are subject to a Protective Order entered by the Court in this action governing the use of confidential discovery material. 2 3 4 5 or some substantially similar statement. The provisions of this Order shall continue to apply to 6 all confidential materials not returned or destroyed in accordance with this paragraph. After the 7 expiration of the statute of limitations applicable to attorney malpractice, including any period 8 for which the statute may be tolled, plaintiffs’ counsel shall return or destroy all confidential 9 case records in accordance with the terms of this paragraph. 10 11 /// 12 /// 13 /// 14 /// 15 /// 16 17 /// 18 /// 19 /// 20 /// 21 /// 22 23 /// 24 /// 25 /// 26 /// 27 /// 28 9 Case 2:20-cv-01101-JCM-VCF Document 24 Filed 11/23/20 Page 10 of 13 1 2 20. This Protective Order also applies to any and all documents and other discovery, including but not limited to depositions and written discovery, previously 3 conducted and/or disclosed in L.B., minor by and through his Adoptive Parent, Legal 4 5 Guardian and Guardian Ad Litem, before the United States District Court, District of 6 Nevada, Case No. 2:20-cv-01101-JCM-VCF, which the parties stipulate shall have full 7 force and effect in this matter and is subject to the Federal Rules of Civil Procedure. 8 Dated this 20th day of November, 2020. Dated this 20th day of November, 2020. 9 10 H&P LAW OLSON CANNON GORMLEY & STOBERSKI 11 12 13 14 By: /s/ Cara Xidis, Esq.____ MARJORIE HAUF, ESQ. CARA XIDIS, ESQ. 8950 W. Tropicana Avenue, Suite 1 Las Vegas, NV 89147 Attorneys for Plaintiffs By: /s/ Felicia Galati, Esq. FELICIA GALATI, ESQ. 9950 West Cheyenne Avenue Las Vegas, NV 89129 Attorneys for Defendants/Cross-Claimant COUNTY OF CLARK and HEATHER MUMMEY 15 16 Dated this 20th day of November, 2020. 17 WEINER LAW GROUP, LLC. 18 19 20 21 22 23 By:_/s/ Jason G. Weiner, Esq.___ JASON G. WEINER, ESQ. 2820 W. Charleston Blvd., #35 Las Vegas, NV 89102 Attorney for Defendant JONEL KAYE REPOLLO QUERRER 24 25 26 27 28 10 Case 2:20-cv-01101-JCM-VCF Document 24 Filed 11/23/20 Page 11 of 13 1 2 ORDER IT IS HEREBY ORDERED, ADJUDGED and DECREED that, 3 The records of the Clark County Department of Family Services (“CCDFS”), which may 4 5 be discoverable in this action in L.B., minor by and through his Adoptive Parent, Legal 6 Guardian and Guardian Ad Litem, before the United States District Court, District of 7 Nevada, Case No. 2:20-cv-01101-JCM-VCF, as well as any other documents so marked by 8 the Parties, are deemed confidential to this litigation, and may be released and disclosed only in 9 accordance with the terms and provisions of the foregoing Stipulation, said terms and provisions 10 11 12 being incorporated into this Order by this reference as though fully set forth herein. IT IS SO ORDERED this 23rd day of November, 2020. 13 14 ____________________________________ UNITED STATES MAGISTRATE JUDGE 15 Submitted by: 16 17 OLSON CANNON GORMLEY & STOBERSKI 18 19 20 21 By: /s/ Felicia Galati, Esq. FELICIA GALATI, ESQ. 9950 West Cheyenne Avenue Las Vegas, NV 89129 Attorneys for Defendants COUNTY OF CLARK and HEATHER MUMMEY 22 23 24 25 26 27 28 11 Case 2:20-cv-01101-JCM-VCF Document 24 Filed 11/23/20 Page 12 of 13 1 Exhibit A STATEMENT OF CONFIDENTIALITY 2 3 By signing this document, I hereby certify that I have read the 4 Confidentiality Order entered by the Court in in L.B., minor by and through his Adoptive 5 Parent, Legal Guardian and Guardian Ad Litem, before the United States District 6 Court, District of Nevada, Case No. 2:20-cv-01101-JCM-VCF, on 7 8 9 10 ____________________, 20____. I understand this Order and agree to abide by its terms by not disclosing confidential information to anyone other than counsel, employees or clerical staff subject to this order, except as required by lawful judicial process. 11 12 13 14 15 _______________________________ Signature ___________________________________ Date _______________________________ Print Name/Title 16 17 18 19 20 21 22 23 24 25 26 27 28 12 Case 2:20-cv-01101-JCM-VCF Document 24 Filed 11/23/20 Page 13 of 13 1 2 ECF CERTIFICATION I hereby attest that I have obtained concurrence regarding the filing of this document 3 from each of the signatories within the e-filed document. 4 5 6 Dated: November 20, 2020 By: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 /s/ Erika Parker
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