Rice et al v. City of North Las Vegas et al, No. 2:2020cv01542 - Document 27 (D. Nev. 2021)
Court Description: ORDER Granting 26 Stipulated Protective Order. Signed by Magistrate Judge Daniel J. Albregts on 3/29/2021. (Copies have been distributed pursuant to the NEF - JQC)
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Rice et al v. City of North Las Vegas et al Doc. 27 Case 2:20-cv-01542-JCM-DJA Document 26 Filed 03/26/21 Page 1 of 10 1 ROBERT W. FREEMAN Nevada Bar No. 3062 2 Robert.Freeman@lewisbrisbois.com E. MATTHEW FREEMAN 3 Nevada Bar No. 14198 Matt.Freeman@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 Defendants 7 8 NORTH LAS VEGAS CITY ATTORNEY MICAELA RUSTIA MOORE 9 Nevada Bar No. 9676 City Attorney 10 moorem@cityofnorthlasvegas.com NOEL E. EIDSMORE 11 Nevada Bar No. 7688 Chief Deputy City Attorney 12 eidsmoren@cityofnorthlasvegas.com 2250 Las Vegas Blvd. North, Suite 810 13 North Las Vegas, Nevada 89030 702 633.1050 14 FAX: 702.649.8879 Attorneys for Defendants 15 UNITED STATES DISTRICT COURT 16 DISTRICT OF NEVADA, SOUTHERN DIVISION 17 *** 18 ASHLEY RICE, individually and as special CASE NO. 2:20-CV-1542-JCM-DJA 19 administrator of the estate of ROBERT WENMAN; PROPOSED STIPULATED PROTECTIVE 20 ORDER Plaintiff, 21 vs. 22 CITY OF NORTH LAS VEGAS (CNLV); 23 ROBERT JAMESON, in his individual capacity; SKYLER LEE, in his official 24 capacity; JASON LAWRENCE, in his individual capacity; BARNEY BRUCKEN, in 25 his individual capacity; ANN TAYLOR, in her individual capacity; MARK SURANOWITZ, 26 in his individual capacity; and DOES 6-10. Defendants. 27 LEWIS 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4829-2672-0737.1 Dockets.Justia.com Case 2:20-cv-01542-JCM-DJA Document 26 Filed 03/26/21 Page 2 of 10 1 2 PROPOSED STIPULATED PROTECTIVE ORDER The parties to this action, by their respective counsel, having agreed to the following, and 3 for good cause shown pursuant to Fed. R. Civ. P 26(c)(1), IT IS HEREBY ORDERED as follows: 4 5 1. PURPOSES AND LIMITATIONS. Disclosure and discovery activity in this action may involve production of confidential, 6 proprietary, or private information for which special protection from public disclosure may be 7 warranted pursuant to Rule 26(c)(1) of the Federal Rules of Civil Procedure. The parties 8 acknowledge that this Order does not confer blanket protections on all disclosures or responses to 9 discovery and that the protection it affords extends only to the limited information or items that 10 are entitled under law to treatment as confidential. 11 12 2. SCOPE. All documents produced in the course of discovery, all responses to discovery requests, 13 and all deposition testimony and exhibits and any other materials which may be subject to 14 discovery (hereinafter collectively “Discovery Material”) shall be subject to this stipulated 15 protective order concerning confidential information as set forth below. Any party, or any third 16 party who produces documents in this litigation, may designate documents as Confidential but 17 only after review of the documents by an attorney who has, in good faith, determined that the 18 documents contain “Confidential Information,” as defined below, and pursuant to the procedure 19 set forth below. 20 21 3. CONFIDENTIAL INFORMATION. “Confidential Information” shall mean information meriting special protection under the 22 Federal Rules of Civil Procedure and applicable case law. Confidential Information does not 23 include information that: (a) is in the public domain at the time of disclosure; (b) becomes part of 24 the public domain through no fault of the Receiving Party; (c) the Receiving Party can show was 25 in its rightful and lawful possession at the time of disclosure; or (d) the Receiving Party lawfully 26 receives from a Non-party later without restriction as to disclosure. 27 LEWIS 4. OTHER DEFINITIONS. 28 Party: any party to this action, including all of its officers, directors, agents, and attorney(s) of BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4829-2672-0737.1 2 Case 2:20-cv-01542-JCM-DJA Document 26 Filed 03/26/21 Page 3 of 10 1 record for a Party in this action (including their associates, paralegals, and support/ clerical staff). 2 Non-party: any individual, corporation, association, or natural person or entity other than a party. 3 Protected Material: any Discovery Material containing Confidential Information that is designated 4 by a Party or Non-party as “CONFIDENTIAL,” unless the Receiving Party challenges the 5 confidentiality designation and (a) the Court decides such material is not entitled to protection as 6 confidential; (b) the Designating Party fails to apply the Court for an order designating the 7 material confidential within the time period specified below; or (c) the Designating Party 8 withdraws its confidentiality designation in writing. 9 Producing Party: a Party or Non-party that produces Discovery Material in this action. 10 Receiving Party: a Party that receives Discovery Material from a Producing Party. 11 Designating Party: a Party or Non-party that designates Discovery Material as 12 “CONFIDENTIAL”. The Party or Non-party designating information or items as Protected 13 Material bears the burden of establishing good cause for the confidentiality of all such items. 14 Challenging Party: a party that elects to initiate a challenge to a Designating Party’s confidentiality 15 designation. 16 17 5. FORM AND TIMING OF DESIGNATION. Protected Material shall be so designated by the Producing Party by placing or affixing the 18 word “CONFIDENTIAL” on the document in a manner which will not interfere with the legibility 19 of the document and which will permit complete removal of the “Confidential” designation. 20 Documents shall be designated “Confidential” prior to, or contemporaneously with, the production 21 or disclosure of the documents. 22 A Designating Party must exercise restraint and make good faith efforts to limit 23 CONFIDENTIAL designations to specific materials that qualify for protection under the 24 appropriate standard. Further, a Designating Party must use good faith efforts to designate for 25 protection only those parts of material, documents, items, or communications that qualify – so that 26 other portions of the materials, documents, items, or communications for which protection is not 27 warranted are not swept unjustifiably within the ambit of this Order. If only a portion or portions LEWIS 28 of materials on a page or within a document merit protection, a Producing Party must so indicate BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4829-2672-0737.1 3 Case 2:20-cv-01542-JCM-DJA Document 26 Filed 03/26/21 Page 4 of 10 1 by making appropriate markings in the margins but not over text. 2 A Producing Party that makes original documents or materials available for inspection 3 need not designate them for protection until after the inspecting Party has indicated which material 4 it would like copied and produced. During the inspection and before the designation, all of the 5 material made available for inspection shall be deemed “Confidential.” After the inspecting Party 6 has identified the documents it wants copied and produced, the Producing Party must determine 7 which documents, or portions thereof, qualify for protection under this Order, and, before 8 producing the specified documents, the Producing Party must affix the appropriate legend on each 9 page that contains Protected Material. If only a portion or portions of the material on a page 10 qualifies for protection, the Producing Party also must clearly identify the protected 11 portion(s) (e.g., by making appropriated markings in the margins or by redacting protected 12 portions). 13 Portions of depositions shall be designated Confidential when the deposition is taken or 14 within fourteen (14) business days after receipt of the transcript, if feasible. Such designation shall 15 be specific as to the portions to be protected. A Designating Party must exercise restraint and 16 make good faith efforts to limit “CONFIDENTIAL” designations to specific materials that qualify 17 for protection under the appropriate standards. 18 Inadvertent or unintentional production of Protected Material without prior designation as 19 “Confidential” shall not be deemed a waiver, in whole or in part, of the right to designate 20 documents as Protected Material as otherwise allowed by this Order. Further, a Party may assert 21 that disclosures or discovery material produced by another Party constitute Protected Material by 22 informing the opposing Party by following the procedures set forth herein for a Designated Party. 23 6. Protection of PROTECTED Material. 24 a. General Protections. Protected Material shall not be used or disclosed by the parties or counsel 25 for the parties or any other persons identified below (¶ 6.b.) for any purposes whatsoever other 26 than preparing for and conducting litigation in the above-entitled action (including any appeal). 27 b. Qualified Receiving Parties and Limited Third Party Disclosures. Protected Material shall LEWIS 28 be held in confidence by each qualified Receiving Party to whom it is disclosed, shall be used only BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4829-2672-0737.1 4 Case 2:20-cv-01542-JCM-DJA Document 26 Filed 03/26/21 Page 5 of 10 1 for purposes of this action, and shall not be disclosed to any person who is not a qualified 2 recipient. All Protected Material shall be carefully maintained so as to preclude access by persons 3 who are not qualified Receiving Parties. Subject to these requirements, in addition to Parties and the Court, the following 4 5 categories of persons may be allowed to review Protected Material pursuant to this Order after 6 executing an acknowledgment (in the form set forth at Exhibit A hereto), that he or she has read 7 and understands the terms of this Order and is bound by it: (1) Any officers, directors, or designated employees of a Party deemed 8 necessary by counsel of record in this action to aid in the prosecution, 9 defense, or settlement of this action; 10 (2) Professional outside vendors for attorneys of record (such as copying 11 12 services and translators and interpreters), 13 (3) Court reporters, deposition notaries and staff; 14 (4) The author of any document designated as CONFIDENTIAL or the original source of Confidential Information contained therein; 15 (5) Persons other than legal counsel who have been retained or specially 16 17 employed by a party as an expert witness for purposes of this lawsuit or to 18 perform investigative work or fact research; 19 (6) Deponents during the course of their depositions; 20 (7) Counsel for issuers of insurance policies under which any issuer may be 21 liable to satisfy part or all of a judgment that may be entered in these 22 proceedings or indemnify or reimburse payments or costs associated with 23 these proceedings; (8) Any private mediator or arbitrator appointed by the Court or selected by 24 25 mutual agreement of the parties and the mediator or arbitrator’s secretarial 26 and clerical personnel; 27 (9) Any other person as to whom the Producing Party has consented to disclosure in advance and LEWIS 28 in writing, on notice to each Party hereto. BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4829-2672-0737.1 5 Case 2:20-cv-01542-JCM-DJA Document 26 Filed 03/26/21 Page 6 of 10 1 c. Control of Documents. Counsel for Parties shall take reasonable efforts to prevent 2 unauthorized disclosure of Protected Material pursuant to the terms of this Order. No copies of 3 Protected Material shall be made except by or on behalf of attorneys of record, in-house counsel or 4 the parties in this action. 5 d. Copies. Any person making copies of Protected Material shall maintain all copies within their 6 possession or the possession of those entitled to access to such information under the Protective 7 Order. All copies shall be immediately affixed with the designation “CONFIDENTIAL” if the 8 word does not already appear on the copy. All such copies shall be afforded the full protection of 9 this Order. 10 11 7. UNAUTHORIZED DISCLOSURE. If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 12 Material to any person or in any circumstance not authorized under this Stipulated Protective 13 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 14 unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) 15 inform the person or persons to whom unauthorized disclosures were made of all the terms of this 16 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to 17 Be Bound by Stipulated Protective Order” (Exhibit A). 18 19 8. Filing PROTECTED Material The Parties shall follow Rule 10-5 of the Local Rules of Practice for the U.S. District 20 Court of Nevada, and must file documents under seal under the Court’s electronic filing 21 procedures. 22 Further, the Parties recognize the presumption of public access inherent in judicial records 23 and that a Protective Order does not establish that documents meet the “standard for sealing set 24 forth in Rule 10-5 of the Local Rules of Practice for the U.S. District Court of Nevada and the 25 Ninth Circuit’s decisions in Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 26 2006) and Ctr. for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir. 2016), cert. 27 denied sub nom. FCA U.S. LLC v. Ctr. for Auto Safety, 137 S. Ct. 38 (2016). “A party seeking to LEWIS 28 seal a judicial record then bears the burden of overcoming this strong presumption by meeting the BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4829-2672-0737.1 6 Case 2:20-cv-01542-JCM-DJA Document 26 Filed 03/26/21 Page 7 of 10 1 ‘compelling reasons' standard.” Kamakana, 447 F.3d at 1178. The only exception to this rule is 2 that only good cause need be established “for sealed materials attached to a discovery motion 3 unrelated to the merits of a case.” Chrysler Group¸809 F. 3d at 1097 (citing Phillips ex rel. Estates 4 of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1213–14 (9th Cir.2002).). Further, the Court should 5 make an independent determination regarding whether documents merits sealed status, and thus 6 expressly reserves the right to do so. Kamakana 447 F.3d at 1186-87. 7 In recognition of this legal standard, and the fact that the party filing Protected Material 8 may not be the party that designated it confidential (and thus, may not believe good cause exists 9 for sealing), the Parties suggest that the procedure set forth below is followed if the sole ground 10 for a motion to seal is that the opposing party (or non-party) has designated a document as subject 11 to protection pursuant to this Stipulated Protective Order: The Party filing such Protected 12 Materials may assert in the accompanying motion any reasons why the Protected Materials should 13 not, in fact, be kept under seal and the Designating Party, who must be properly noticed, may 14 likewise file a response asserting its position that the Protected Material merits protection under 15 Rule 26(c) of the Federal Rules of Civil Procedure and attaching a declaration supporting the 16 assertion that the designated material meets the applicable standard. 17 18 9. Challenges to PROTECTED MATERIAL. Any designation of Protected Material is subject to challenge. The following procedures 19 shall apply to any such challenge: 20 a. Burden. The burden of proving the necessity of a “CONFIDENTIAL” designation remains 21 with the party asserting confidentiality. 22 b. Notice; Opportunity to Challenge. A party who contends that Protected Material is not 23 entitled to confidential treatment shall give written notice to the party who affixed the 24 “CONFIDENTIAL” designation of the specific basis for the challenge. The party who so 25 designated the documents shall have ten (10) days from service of the written notice to determine 26 if the dispute can be resolved without judicial intervention and, if not, to move for an Order 27 confirming the “CONFIDENTIAL” designation, and the status as Protected Material. LEWIS 28 c. Treatment as Protected Material until Order or Withdrawal. Notwithstanding any BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4829-2672-0737.1 7 Case 2:20-cv-01542-JCM-DJA Document 26 Filed 03/26/21 Page 8 of 10 1 challenge to the designation of documents as such, all material previously designated 2 “CONFIDENTIAL” shall continue to be treated as Protected Material subject to the full 3 protections of this Order until one of the following occurs: (1) the Party who claims that the 4 documents are Protected Material withdraws such designation in writing; (2) the Party who claims 5 that the documents are confidential fails to move timely for an Order designating the documents as 6 confidential as set forth in paragraph 9.b. above; or (3) the Court rules that the documents are not 7 Protected Material and/or should no longer be designated as “Confidential.” 8 d. No Waiver. Challenges to the confidentiality of documents may be made at any time and are 9 not waived by the failure to raise the challenge at the time of initial disclosure or designation. 10 11 10. DURATION; Conclusion of Litigation. All provisions of this Order restricting the use of Protected Material shall continue to be 12 binding after the conclusion of the litigation unless otherwise agreed or ordered. However, the 13 dismissal of this action will terminate the jurisdiction of this Court, including over this Order. 14 Within sixty (60) days of the final termination of in the above-entitled action, which would be 15 either a final judgment on all claims or stipulation and order for dismissal with prejudice, all 16 documents and information designated as CONFIDENTIAL by a Designating Party and which has 17 not been challenged, including any copies, or documents containing information taken therefrom, 18 shall be returned to the Designating Party. In the alternative, within sixty (60) days of the final 19 termination of this case, which would be either a final judgment on all claims or stipulation and 20 order for dismissal with prejudice, all such documents, including copies, may be shredded or 21 disposed of in a manner to ensure the destruction thereof and a declaration certifying such 22 destruction or disposal provided to the Designating Party. To the extent a party has designated 23 portions of a deposition transcript as CONFIDENTIAL, the non-designating party is under no 24 obligation or duty to shred or dispose of the deposition transcript, however, the CONFIDENTIAL 25 designation will remain. 26 11. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION. 27 LEWIS 28 If a Party is served with a subpoena or an order issued in other litigation that would compel BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4829-2672-0737.1 8 Case 2:20-cv-01542-JCM-DJA Document 26 Filed 03/26/21 Page 9 of 10 1 disclosure of Protected Material designated by another Party or Non-party, the Party must so 2 notify the Designating Party, in writing (by e-mail or fax, if possible) within three (3) court days 3 after receiving the subpoena or order. Such notification must include a copy of the subpoena or 4 court order. 5 6 12. ORDER SUBJECT TO MODIFICATION. This Order shall be subject to modification on motion of any Party or any other person 7 who may show an adequate interest in in the above-entitled action to intervene for purposes of 8 addressing the scope and terms of this Order. The Order shall not, however, be modified until the 9 Parties shall have been given notice and an opportunity to be heard on the proposed modification. 10 11 13. NO JUDICIAL DETERMINATION. This Order is entered based on the representations and agreements of the Parties and for 12 the purpose of facilitating discovery. Nothing herein shall be construed or presented as a judicial 13 determination that any specific document or item of information designated as CONFIDENTIAL 14 by counsel is subject to protection under Rule 26(c) of the Federal Rules of Civil Procedure or 15 otherwise until such time as a document-specific ruling shall have been made. 16 17 14. MISCELLANEOUS. a. Public Health and Safety. Nothing in this Order is intended to prevent any Party from 18 raising with the Court any concern that the non-disclosure of certain Protected Material may have 19 a possible adverse effect upon the general public health or safety, or the administration or 20 operation of government or public office. 21 b. Right to Further Relief. Nothing is this Order abridges the right of any person to seek 22 its modification by the Court in the future. 23 c. Right to Assert Other Objections. By stipulating to the entry of this Order, no Party 24 waives any right it otherwise would have to object to disclosing or producing any information or 25 item on any ground not addressed in this Order. Similarly, no Party waives any right to object on 26 any ground to use in evidence of any of the material covered by this Protective Order. 27 LEWIS 15. PERSONS BOUND UPON ENTRY OF ORDER. 28 This Order shall take effect when entered and shall be immediately binding upon the Parties (as BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4829-2672-0737.1 9 Case 2:20-cv-01542-JCM-DJA Document 26 Filed 03/26/21 Page 10 of 10 1 defined herein). 2 IT IS SO STIPULATED. 3 DATED the 26th day of March, 2021. DATED the 26th day of March, 2021. 4 PETER GOLDSTEIN LAW CORP LEWIS BRISBOIS BISGAARD & SMITH LLP 5 _/s/ Peter Goldstein__ 6 Peter Goldstein Nevada Bar No. 6992 7 10161 Park Run Drive, Ste 150 Las Vegas, NV, 89145 8 Attorney for Plaintiff /s/ Robert W. Freeman Robert W. Freeman, Nevada Bar Number: 3062 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, NV 89118 Attorneys for Defendants 9 ORDER 10 IT IS SO ORDERED. 11 DATED this 29thday dayofof______________________, March, 2021. Dated this _____ 2021. 12 13 _______________________________ ____________________________________________ U.S. DISTRICT COURT JUDGE DANIEL J. ALBREGTS UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 LEWIS 28 BRISBOIS BISGAARD & SMITH LLP ATTORNEYS AT LAW 4829-2672-0737.1 10
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