21st Century Communities, Inc. v. Muzlink, LLC, No. 2:2009cv02458 - Document 24 (D. Nev. 2010)

Court Description: PROTECTIVE ORDER Granting 22 Stipulation Protective Order and Confidentiality Agreement. Signed by Magistrate Judge Robert J. Johnston on 10/15/2010. (Copies have been distributed pursuant to the NEF - DXS)
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21st Century Communities, Inc. v. Muzlink, LLC 1 2 3 4 5 Doc. 24 Michael J. Lemcool Nevada Bar No. 7061 Christopher W. Mixson, Esq. Nev. Bar No. 10685 WOLF, RIFKIN, SHAPIRO & SCHULMAN, LLP 3556 E. Russell Road, Second Floor Las Vegas, Nevada 89120 (702) 341-5200/Fax: (702) 341-5300 mlemcool@wrslawyers.com cmixson@wrslawyers.com 6 Attorneys for Defendant Muzlink, LLC 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 21ST CENTURY COMMUNITIES, INC., a Nevada Corporation, Case No. 2:09-cv-2458 Plaintiff, 12 STIPULATED PROTECTIVE ORDER AND CONFIDENTIALITY AGREEMENT 13 vs. 14 MUZLINK, LLC, a California Limited Liability Company; DOES I through X; and ROE CORPORATIONS I through X, inclusive, 15 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 The parties hereto, through their counsel of record and otherwise, stipulate and agree that, pursuant to Fed. R. Civ. Proc. 26(c), the following confidentiality agreement and protective order shall be entered based on the following understandings: A. The parties to this case are engaged in discovery that has or will include the production of documents, answering of written interrogatories, responding to requests for admission and the taking of depositions; B. Discovery may involve the disclosure of materials containing confidential and nonpublic personal or private information; and C. Discovery should be permitted to proceed without delay occasioned by disputes regarding the confidential and/or proprietary nature and uses of the confidential information. 28 Pag e 1 of 9 Dockets.Justia.com 1 ACCORDINGLY, IT IS HEREBY ORDERED AS FOLLOWS: 2 1. The parties may, after a good faith determination, designate any document, 3 portion of a document, or information produced by them as "CONFIDENTIAL" by stamping the 4 document or information to that effect prior to production, or within a reasonable time thereafter, 5 but no longer than thirty (30) days thereafter, unless good cause shown, notifying all other parties 6 in writing that documents or information are designated as "CONFIDENTIAL." No copy of any 7 such confidential material shall be made except to the extent necessary for the preparation of 8 each party’s case in this action. Any copy made of confidential material shall have the same 9 status as the original. 10 2. "CONFIDENTIAL" information is defined as information from the producing 11 party that is not publicly available, is commercially sensitive (e.g., trade secrets, financial 12 records, financial data, and financial information), or which is likely to contain nonpublic 13 personal or private information (e.g., social security numbers, drivers’ license numbers, tax 14 returns, account numbers, account balances, bank statements, and account applications). Except 15 as set forth below in paragraph 6, confidential information, including the substance or content of 16 the same, is not to be disclosed to any person or entity other than the parties, their counsel of 17 record, employees of counsel, consultants, experts and/or persons subject to deposition in this 18 matter, all of whom are bound by the terms of this Order. 19 3. A party may designate a document as “CONFIDENTIAL” after such document 20 has been produced to another party in the course of this action by noticing each party of the 21 retroactive designation. 22 4. Deposition testimony may be designated "CONFIDENTIAL" in whole or in part 23 at the time of the deposition or within ten business days after receipt of the written transcript. 24 Until that time, all deposition testimony, including video tape of deposition testimony, shall be 25 treated as confidential to permit counsel for the party deposed an opportunity to designate the 26 deposition testimony as "CONFIDENTIAL." Any court reporter who transcribes testimony in 27 this action at a deposition shall agree, before transcribing any such testimony, that all testimony 28 containing confidential information is and shall remain confidential and shall not be disclosed Pag e 2 of 9 1 except as provided herein and that copies of any transcript, reporter’s notes or any other 2 transcription records of any such testimony will be retained in absolute confidentiality and 3 safekeeping by such reporter. 4 5. All documents or information produced by third-parties in response to subpoenas 5 shall be treated as "CONFIDENTIAL" for a period of 60 days after it is received to allow the 6 parties time to evaluate the information. Within the 60-day period, any party may designate any 7 such third-party material as "CONFIDENTIAL" by so notifying the other parties of this 8 designation in writing and setting forth the basis thereof. 9 6. Unless otherwise agreed upon by the parties, or ordered by the Court, any 10 confidential material required to be submitted or presented to or filed with the Court (e.g., as 11 exhibits to Declarations or Affidavits) shall be placed under seal, following the filing and 12 granting of an appropriate motion seeking such relief, and not made available to persons other 13 than the Court and persons authorized by this Order. 14 7. Documents stamped "CONFIDENTIAL" or any other information or materials so 15 designated shall not be used for any purpose other than the defense or prosecution of this action 16 in accordance with the provisions of this Order and shall not be discussed or disclosed to any 17 person except as specifically authorized by this Order. All documents, deposition testimony, or 18 other material subject to this Order shall not be used, directly or indirectly, by any party for any 19 business, commercial, or competitive purpose whatsoever. 20 21 8. Confidential information shall be disclosed only to: (a) The Court, its staff and the designated document repository in this case and in any appeal therefrom; (b) The jury in this case (if this case goes to trial); ( c) The named parties in this litigation; (d) Counsel of record for the parties in this case, and other partners, associates, secretaries, paralegals, legal assistants, and other personnel of their respective law firms who are working under the supervision of said counsel and assisting such counsel in this action; (e) Any independent contractors, such as attorneys, paralegals, secretaries, and legal assistants who are not members, shareholders, or employees of the law firms of counsel of record but who have been hired or retained by 22 23 24 25 26 27 28 Pag e 3 of 9 1 counsel of record and are working under the supervision of counsel of record and are actively engaged in assisting such counsel in this action; 2 (f) Outside consultants, technical advisors, fact witnesses, and expert witnesses and consultants (whether designated as trial witnesses or not) employed or retained by the parties or counsel; (g) Any insurance company adjuster(s) or representative(s) working with any counsel in connection with this action; and (h) Any other person or entity as to whom counsel for the producer or provider of the confidential information agrees in writing, or as to whom the Court directs, to be provided access to that information. 3 4 5 6 7 8 9 9. Disclosure of any confidential information to persons described in subparagraphs 8(e), 8(f), 8(g), and 8(h) of this Order shall be solely for evaluation, testing, testimony, 10 preparation for trial, or other services or purposes directly related to this litigation. All such 11 persons shall sign a document in the form of Exhibit A attached hereto, stating that they have 12 read and understand this Order and agree to be bound by its terms. Counsel must retain such 13 executed agreements in their offices. 14 10. This Order shall be without prejudice to the right of the parties or other persons 15 to: (a) bring before the Court at any time the question of whether any particular document or 16 information is confidential, or whether its use should be confidential, or (b) present a motion to 17 the Court under Fed. R. Civ. P. 26(c) to compel information or for a separate protective order as 18 to any particular document or information, including restrictions differing from those specified 19 herein. This Order shall not be deemed to prejudice the parties in any way in any future 20 application for relief or modification of this Order. 21 11. A party or other person objecting to the designation of confidential information 22 shall provide written notice of the objection to the designating party, specifying the materials that 23 are the subject of the objection. The parties and any other objecting person(s) shall confer in 24 good faith in an effort to resolve the objection. If such conference does not resolve the objection, 25 either the party objecting to the “CONFIDENTIAL” designation, the designating party, or any 26 other affected party, may file a motion seeking judicial intervention as to whether the 27 "CONFIDENTIAL" designation shall remain in place. Pending determination by the Court, 28 material designated by a party as "CONFIDENTIAL" shall be treated as provided in this Order. Pag e 4 of 9 1 12. Nothing herein shall impose any restrictions on the use or disclosure by a party of 2 material obtained by such party independent of discovery in this action, whether or not such 3 material is also obtained through discovery in this action, or from disclosing its own confidential 4 information as it deems appropriate. 5 13. In the event of a disclosure of confidential documents or materials to a person or 6 entity not authorized to have had such disclosure made to him, her, or it under the provisions of 7 this Order, the party responsible for having made such disclosure shall immediately procure the 8 return of the material and immediately inform counsel for the designating party whose 9 confidential information has thus been disclosed of all relevant information concerning the nature 10 and circumstances of such disclosure. The responsible party shall also take all reasonable 11 measures promptly to ensure that no further or greater unauthorized disclosure of the confidential 12 information occurs therefrom. 13 14. The parties hereto agree that the rights and privileges with respect to the 14 disclosure of confidential information pursuant to this Order and agreement are of a special, 15 unique, and extraordinary character, which gives such confidential information a peculiar value, 16 the loss of which cannot be reasonably or adequately compensated in damages in any action at 17 law, and that a breach by a party, person, or entity subject to this Order will cause the non- 18 breaching party great and irreparable injury and damage. The parties therefore expressly agree 19 that the non-breaching party shall be entitled to the remedies of injunction, specific performance, 20 and other equitable relief to prevent a breach of the agreement underlying this Order. Nothing 21 herein shall be construed as a waiver of any other rights or remedies which the non-breaching 22 party may have for damages or otherwise. 23 15. The inadvertent production of any privileged or attorney work product documents 24 shall be without prejudice to any claims that the document is privileged and shall constitute 25 neither a waiver of any privilege or work product that may otherwise attach thereto, nor a general 26 waiver of such privilege or work product. Upon demand of the producing party, all copies of any 27 inadvertently-produced documents shall be immediately returned forthwith and such documents 28 shall not be introduced into evidence or subject to production in this or any other proceeding. Pag e 5 of 9 1 16. Within sixty (60) days after the final disposition of all claims and defenses by 2 settlement or expiration of time to appeal, and upon request, all documents designated 3 “CONFIDENTIAL,” including any reproductions of such documents, shall be returned to the 4 designating party who produced the confidential documents or information. The provisions of 5 this Order shall continue to be binding and remain in full force and effect after the conclusion of 6 this lawsuit. 7 8 17. Nothing in this Order shall prevent any party from objecting to discovery that it believes is improper and moving the Court for an Order thereon. 9 18. This Order is entered solely for the purpose of facilitating the exchange of 10 documents and information between the parties to this action so as to avoid the need for 11 unnecessary judicial intervention. Nothing in this Order shall have any effect in any other 12 litigation or proceeding, and nothing in this Order shall be construed as requiring the disclosure 13 of documents or information that any party reasonably believes is not subject to disclosure or 14 discovery pursuant to prevailing law, the rules of evidence, and/or the rules of procedure. 15 16 19. The filing and entry of this Order shall not constitute an admission or waiver of any rights under any applicable law, court rules, or both. 17 20. The terms of this Order shall be binding on the parties, their attorneys, and all 18 persons designated in this Order. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// Pag e 6 of 9 1 STIPULATED AND AGREED: 2 3 4 5 6 7 8 9 10 11 Dated this 12th day of October, 2010. WOLF, RIFKIN, SHAPIRO, SCHULMAN & RABKIN, LLP Dated this 12th day of October, 2010 GREENBERG TRAURIG, LLP /s/ Christopher Mixson Michael J. Lemcool, Esq. Nev. Bar No. 7061 Christopher W. Mixson, Esq. Nev. Bar No. 10685 3556 East Russell Rd. 2nd Floor Las Vegas, NV 89120 Ph: (702) 341-5200 Fx: (702) 341-5300 mlemcool@wrslawyers.com cmixson@wrslawyers.com Attorneys for Defendant Muzlink, LLC /s/ Kara Hendricks (with consent) Mark E. Ferrario Nev. Bar No. 1625 Kara B. Hendricks Nev. Bar No. 7743 3773 Howard Hughes Pkwy. Suite 400 North Las Vegas, NV 89169 Ph: (702) 792-3773 Fx: (702) 792-9002 ferrariom@gtlaw.com hendricksk@gtlaw.com Attorneys for Plaintiff 21st Century Communities, Inc. 12 13 14 15 Submitted by: 16 /s/ Christopher Mixson Michael J. Lemcool, Esq. Nev. Bar No. 7061 Christopher W. Mixson, Esq. Nev. Bar No. 10685 Wolf, Rifkin, Shapiro, Schulman & Rabkin, LLP Attorneys for Defendant Muzlink, LLC 17 18 19 20 21 22 IT IS SO ORDERED. 15th Oct. DATED this _____ day of _____________, 2010. 23 24 25 _____________________________________ Magistrate Judge Robert J. Johnston 26 27 28 Pag e 7 of 9 1 EXHIBIT A 2 AGREEMENT TO BE BOUND BY ORDER 3 I have read the Protective Order in the above-captioned case. I understand the terms of 4 the Order, I agree to be fully bound by the terms of the Order, and I hereby submit to the 5 jurisdiction of the United States District Court for the District of Nevada for purposes of 6 enforcement of the Order. 7 8 Date: Signature: 9 10 Signatory’s Name, Business Affiliation, and Business Address: 11 12 13 14 Signatory’s Residential Address: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pag e 8 of 9