McGinley v. 99 Cents Only Stores LLC, No. 2:2023cv01113 - Document 8 (D. Nev. 2023)
Court Description: STIPULATED PROTECTIVE ORDER granting 6 Stipulated Protective Order. Signed by Magistrate Judge Brenda Weksler on 7/31/2023. (Copies have been distributed pursuant to the NEF - CJS)
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McGinley v. 99 Cents Only Stores LLC Doc. 8 Case 2:23-cv-01113-GMN-BNW Document 8 Filed 07/31/23 Page 1 of 9 1 2 3 4 5 6 7 8 9 10 LEW BRANDON, JR., ESQ. Nevada Bar No. 5880 DANIELLE KOLKOSKI, ESQ. Nevada Bar No. 8506 RYAN VENCI, ESQ. Nevada Bar No. 7547 BRANDON | SMERBER LAW FIRM 139 E. Warm Springs Road Las Vegas, Nevada 89119 (702) 380-0007 (702) 380-2964 – facsimile l.brandon@bsnv.law d.kolkoski@bsnv.law r.venci@bsnvlaw.com Attorneys for Defendant, 99 CENTS ONLY STORES, LLC 11 DISTRICT COURT CLARK COUNTY, NEVADA 12 13 DENNIS MCGINLEY, an individual, 14 15 16 17 18 19 vs. CASE NO.: 2:23-cv-01113-GMN-BNW Plaintiff, 99 CENTS ONLY STORES, LLC; DOES 1 through 100; and ROE CORPORATION 101 through 200, inclusive, STIPULATED PROTECTIVE ORDER Defendant(s). 20 21 In connection with the production of confidential documents and other confidential 22 information in this action, Plaintiff, DENNIS MCGINLEY (“Plaintiff”); and Defendant, 99 23 CENTS ONLY STORES, LLC (“Defendant” or “99 Cents Only Stores”), through their respective 24 counsel, hereby enter into this Stipulated Protective Order. 25 1. Purpose of this Protective Order 26 The purpose of this Stipulated Protective Order is to provide a means for limiting access 27 to and use and disclosure of Confidential Documents or Information produced in this action. Any 28 unauthorized disclosure of Confidential Documents or Information in violation of this Order may Page 1 of 9 Dockets.Justia.com Case 2:23-cv-01113-GMN-BNW Document 8 Filed 07/31/23 Page 2 of 9 1 2 be subject to discipline by the contempt powers of this United States District Court for the District of Nevada. 3 2. Designation of “Confidential Documents or Information” 4 The Parties may designate such documents or information as “Confidential” in accordance 5 with the following procedures: 6 a) “Confidential” Documents or Information. 7 Any Party may designate any documents, records, reports, video tapes, tangible items, or 8 information as “Confidential.” Upon a designation of “Confidential,” the Parties shall treat any 9 designated document, record, report, video tape, tangible item, or information as Confidential and 10 shall only use such document, record, report, video tape, tangible item, or information solely for 11 the prosecution or defense of this matter. 12 Defendant 99 CENTS requests the below documents be deemed “confidential.” 13 b) Time of Designation 14 Unless otherwise agreed between counsel for the Parties, the designation of Confidential 15 Documents or Information shall be made at the time of the production of documents, records, 16 reports, video tapes, tangible items, or information. 17 c) Manner of Designation 18 19 The designation of Confidential Documents or Information shall be made in the following manner: 20 1. For documents, by placing the notation “Confidential” on each page of such document; 21 2. For tangible items, including any video tapes, documents, or information produced on 22 magnetic disks or other computer related media, by placing the notation “Confidential” on the 23 object and, if applicable, on the container thereof or if such are not practicable, as otherwise 24 agreed by the Parties. In the event a Party generates any “hard copy” or printout from any 25 “Confidential Material,” that Party must immediately stamp each page “Confidential,” and the 26 hard copy or printout shall be treated as Confidential Information pursuant to this Stipulated 27 Protective Order. 28 /// Page 2 of 9 Case 2:23-cv-01113-GMN-BNW Document 8 Filed 07/31/23 Page 3 of 9 1 2 3 d) Retroactive Designation 1. Inadvertent production of any Confidential Documents or Information without a designation of confidentiality will not be deemed to waive a later claim as to confidentiality or 4 privilege, or prevent the Party claiming confidentiality from re-designating such documents or 5 information as “Confidential” promptly after discovery of the inadvertent production. 6 2. Within a reasonable time after production, a Party may retroactively designate (or 7 withdraw a designation) of Confidential Documents or Information, regarding any material that 8 it has produced, provided however, that such retroactive designation (or withdrawal) shall be in 9 accordance with the terms of this Order. Such retroactive designation (or withdrawal) shall be 10 accomplished by notifying counsel for the non-designating Parties in writing of such retroactive 11 designation (or withdrawal). Upon receipt of any such written re-designation, counsel (i) shall 12 not make any further disclosure or communication of such retroactively designated material 13 except as provided for in this Order; (ii) shall take reasonable steps to notify all persons known 14 to have possession of any retroactively designated material of the effect of such re-designation 15 under this Order; and (iii) shall take reasonable steps to procure all copies of such retroactively 16 designated material from any persons known to have possession of any such retroactively 17 designated material who are not entitled to receipt under this Order. 18 e) Resolution of Disputes Regarding Designation 19 If a Party, at any time, wishes to have the “Confidential” designation of any particular 20 Confidential Documents or Information removed or changed, that Party shall first request in 21 writing that the Party having made the designation at issue change its designation. Thereafter, 22 the Parties shall make good faith efforts to resolve the dispute. If the designating Party refuses to 23 agree to remove or change the designation, then the Party that requests that the designation be so 24 removed may make a motion before this Court for an order removing or changing the designation; 25 provided, however, that the designating Party shall have the burden of proving that such particular 26 Confidential Document or Information are properly designated as “Confidential” pursuant to infra 27 Part III. At all times during the process of challenging a designation, the Parties shall treat the 28 Confidential Documents or Information as originally designated until a change is agreed to or the Page 3 of 9 Case 2:23-cv-01113-GMN-BNW Document 8 Filed 07/31/23 Page 4 of 9 1 motion is decided by the Court and written notice of such decision is served on the Parties. 2 3 4 Any motion filed with respect to this Stipulated Protective Order or documents labeled “Confidential” must comply with the local rules of the United States District Court for the District of Nevada. 5 f) Designation of Third Party Documents. 6 Documents and/or information produced by a third party in response to a subpoena or 7 during deposition in the course of this litigation may involve receipt of information, documents, 8 things or testimony which include, contain or comprise protected information that may or may 9 not be appropriate for “Confidential” designation under this Order. Unless otherwise agreed in 10 writing between counsel for the parties, documents and information so produced by a third party 11 shall be treated as follows: First of all, all such documents and information shall automatically 12 be deemed to be and shall be treated as “Confidential” for twenty (20) business days following 13 their actual receipt by both counsel for Plaintiff and counsel for Defendants in this action, in order 14 to enable each such counsel to determine whether in their view any protected information is 15 embodied therein. If no designation of the information as “Confidential” by the Designating Party 16 is received by a non-Designating Party within twenty (20) business days after production, then 17 the information will not be protected by this Protective Order except pursuant to subsequent 18 designation by a party hereto or pursuant to a subsequent agreement of the parties or Court order; 19 if however a written designation of “Confidential” is made by a Designating Party and is received 20 by the non-Designating Party within twenty (20) business days after production of documents or 21 information by the non-party, then the information will be subject to this Protective Order and 22 will be deemed to be “Confidential” (as requested by the Designating Party); provided, however, 23 that the designation may be challenged as any such designation. 24 Lastly, to the extent third party documents or information contains information that is 25 confidential and/or proprietary to the third party, the third party can avail itself of the protections 26 set forth in this Order and designate documents and/or information it produces accordingly by 27 executing this Order and agreeing to be bound by its terms. 28 /// Page 4 of 9 Case 2:23-cv-01113-GMN-BNW Document 8 Filed 07/31/23 Page 5 of 9 1 2 3 4 3. Persons to Whom Confidential Documents or Information may be Disclosed a) Disclosure of Documents or Information Designated as “Confidential” Documents or Information designated as “Confidential” may be disclosed and copies may be provided only to: 5 1. Counsel of record and their personnel; 6 2. Expert witnesses or consultants retained by the Parties or their respective counsel in 7 8 9 10 11 connection with this action who have complied with infra Section III.C.; 3. Outside court reporting services and court reporters as may be reasonably necessary in connection with the preparation or conduct of this action; 4. This Court and its personnel, or any other tribunal of competent jurisdiction having involvement in this matter and its personnel; 12 5. Any mediator or arbitrator selected by the Parties to mediate or arbitrate this action; and 13 6. Representatives of the Parties. 14 15 b) Additional Authorized Disclosure of Documents or Information Designated as “Confidential” 16 Notwithstanding anything to the contrary in supra Section III.A., particular Confidential 17 Documents or Information that have been designated as “Confidential” may be disclosed and 18 copies may be provided: 19 20 1. To persons who are explicitly named on the document as the authors or addressees or to persons who may be shown to be an author or recipient of any particular document; 21 2. To any other persons with the prior written consent of the designating Party; 22 3. To any other persons with the prior authorization of this Court or any other tribunal of 23 competent jurisdiction having involvement in this matter; and 24 4. If a document designated as “Confidential” refers to the conduct or affairs of a potential 25 witness, the Party’s counsel of record may and shall discuss such conduct or affairs with such 26 person without revealing the existence of the document, or its authors or source. 27 28 c) Disclosure to Experts or Consultants Prior to disclosing or providing copies of any Confidential Documents or Information to Page 5 of 9 Case 2:23-cv-01113-GMN-BNW Document 8 Filed 07/31/23 Page 6 of 9 1 2 3 any expert or consultant pursuant to supra Sections III.A. or III.B., the Parties shall first obtain the agreement of the expert, consultant or anyone else to whom such disclosure will be made to be bound by the terms of this Stipulated Protective Order as set forth in the attached 4 “Acknowledgment and Agreement to Be Bound.” Specifically, the expert or consultant shall 5 acknowledge that, during the course of his or her retention, the expert or consultant may have 6 access to, and become acquainted with Confidential Documents or Information, which are 7 regularly used in the operation of the businesses of the designating Party and in which the 8 designating Party has an expectation of confidentiality. The expert or consultant shall agree not 9 to disclose such Confidential Documents or Information, directly or indirectly, to any person or 10 entity not subject to this Stipulated Protective Order or use them in any way outside the specific 11 scope of his/her retention as an expert witness in this action, or at any time thereafter. 12 13 d) Return of Confidential Documents or Information by Experts and Consultants 14 Confidential Documents or Information disclosed to any expert or consultant may be 15 retained by such expert or consultant provided that such expert or consultant subsequently 16 destroys any and all copies of such Confidential Documents or Information upon the termination 17 of their engagement. 18 19 4. Use of Confidential Documents or Information a) Use of Confidential Documents or Information Generally 20 Confidential Documents or Information shall only be used by the Parties, their respective 21 agents, and any other persons to whom such Confidential Documents or Information may be 22 disclosed pursuant to this Stipulated Protective Order: (1) in this action; (2) as otherwise 23 compelled by lawful process (provided the designating Party is given a reasonable notice to 24 object); or (3) as otherwise required by law. Notwithstanding the foregoing, nothing in this 25 Stipulated Protective Order shall prevent or limit the designating Party from disclosing 26 Confidential Documents or Information they so designate. 27 b) Use of Confidential Documents or Information in the Conduct of this Action 28 1. Confidential Documents or Information may be used by counsel for the non-designating Page 6 of 9 Case 2:23-cv-01113-GMN-BNW Document 8 Filed 07/31/23 Page 7 of 9 1 2 3 Parties in good faith in connection with investigating this action, provided that the Confidential Documents or Information are protected pursuant to the terms and conditions of this Stipulated Protective Order. 4 2. The terms of this Stipulated Protective Order do not apply to evidence presented at or for 5 court proceedings and/or trial in this matter unless so designated by the Court. Any protective 6 measures relating to Confidential Documents or Information should be taken up with the judicial 7 officer conducting the particular proceeding at the appropriate time. 8 3. If a Party seeks to file pleadings or other documents with this Court that contains another 9 Party’s Confidential Documents or Information, it may do so only if: (a) the pleading and other 10 documents that contains another Party’s Confidential Documents or Information are filed under 11 seal in the manner prescribed by the Court; and (b) the filing Party informs the designating Party 12 of such filing prior to the filing of such documents with the Court. 13 5. Return of Confidential Documents, Testimony, or Information 14 Upon written request after the final conclusion of this action, the Parties shall: 15 A. Return to the designating Party any and all Confidential Documents or 16 Information so designated by that Party and all copies thereof in its possession, custody and 17 control or otherwise destroy such documents; 18 B. Ensure that all Confidential Documents or Information in the possession, custody 19 or control of any permitted parties or third parties are returned to the designating Party or are 20 otherwise destroyed; and 21 C. Destroy all notes, memoranda or other documents that contain excerpts from any 22 of the Confidential Documents or Information. Notwithstanding the foregoing, attorney work 23 product, attorney-client communications, and information derived from Confidential Documents 24 or Information may be retained by the non-designating Party and its counsel. 25 6. No Probative Value 26 This Stipulated Protective Order shall not aggregate or diminish any contractual, statutory 27 or other legal obligation or right of any party or person with respect to any Confidential 28 Documents or Information. The fact that information is designated “Confidential” under the Page 7 of 9 Case 2:23-cv-01113-GMN-BNW Document 8 Filed 07/31/23 Page 8 of 9 1 2 3 Stipulated Protective Order shall not be deemed to be determinative of what a trier of fact may determine to be confidential or proprietary. This Stipulated Protective Order shall be without prejudice to the right of any party to bring information before this Court, regardless of (a) whether 4 any particular material is or is not Confidential, or (b) whether any particular information or 5 material is or is not entitled to a greater or lesser degree of protection under the terms of this 6 Stipulated Protective Order, provided that in doing so, the party complies with the procedures set 7 forth herein. The fact that any information is disclosed, used, or produced in any proceeding in 8 this action shall not be offered in any other action or proceeding before this or any other Court, 9 agency or tribunal as evidence of or concerning whether or not such information is admissible, 10 confidential or proprietary. 11 7. No Implied Waiver of Admission 12 No party shall be obligated to challenge the proprietary nature of any designation of 13 “Confidential” information, and the failure to do so shall not constitute a waiver or otherwise 14 preclude a subsequent challenge to the designation. 15 8. Modification of this Stipulated Protective Order 16 The Parties hereto may modify the terms of this Stipulated Protective Order by further 17 stipulation. However, no modification by the parties shall have the force or effect of a court order 18 unless the Court approves the modification. Alternatively, any party hereto may seek an order of 19 this Court to modify the terms of this Stipulated Protective Order. Any motion seeking such 20 modification must be served upon all counsel of record and filed in accordance with this Court’s 21 filing procedures. 22 9. Execution and Counterpart 23 This Stipulated Protective Order may be executed in one or more counterparts, each of 24 which shall be deemed to be an original, but all of which together shall constitute one and the 25 same instrument. 26 /// 27 /// 28 Page 8 of 9 Case 2:23-cv-01113-GMN-BNW Document 8 Filed 07/31/23 Page 9 of 9 1 2 3 Facsimile or electronic signatures shall be binding upon the Parties hereto and may be submitted and considered as originals. IT IS SO STIPULATED. 4 5 DATED this 28th day of July 2023. DATED this 28th day of July 2023. 6 7 BRANDON | SMERBER LAW FIRM HIGH STAKES INJURY LAW 8 /s/ Lew Brandon, Jr., Esq. __________________________ LEW BRANDON, JR., ESQ. Nevada Bar No. 5880 RYAN VENCI, ESQ. Nevada Bar No. 7547 DANIELLE KOLKOSKI, ESQ. Nevada Bar No. 8506 139 E. Warm Springs Road Las Vegas, Nevada 89119 Attorneys for Defendant, 99 CENTS ONLY STORES, LLC /s/ Amber N. King, Esq. ___________________________ SCOTT L. POISSON, ESQ. Nevada Bar No. 10188 AMBER N. KING, ESQ. Nevada Bar No. 14070 320 S. Jones Blvd. Las Vegas, Nevada 89107 Attorneys for Plaintiff, DENNIS MCGINLEY 9 10 11 12 13 14 15 16 17 ORDER 18 19 20 IT IS SO ORDERED DATED: Dated thisJuly ____31, day2023. of ________________, 2023. 21 22 23 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 Page 9 of 9
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