KBW Associates, Inc. v. Jaynes Corporation, Inc. et al, No. 2:2013cv01771 - Document 28 (D. Nev. 2014)

Court Description: ORDER Granting in part and Denying in part 22 MOTION for Protective Order re: Production of Confidential Information and Order to Seal and Order to Enter Claw Back Agreement. Signed by Magistrate Judge Carl W. Hoffman on 3/6/14. (Copies have been distributed pursuant to the NEF - MMM)
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KBW Associates, Inc. v. Jaynes Corporation, Inc. et al 1 2 3 4 5 6 7 Leon F. Mead II, Esq. Nevada Bar No. 5719 Robin E. Perkins, Esq. Nevada Bar No. 9891 SNELL & WILMER L.L.P. 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, NV 89169 Telephone: (702) 784-5200 Facsimile: (702) 784-5252 lmead@swlaw.com rperkins@swlaw.com Attorneys for Jaynes Corporation, Inc. and Continental Casualty Company 8 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 9 10 L.L.P. LAW OFFICES 3883 HOWARD HUGHES PARKWAY, SUITE 1100 LAS VEGAS, NEV ADA 89169 (702)784-520 0 Snell & Wilmer 11 12 13 14 15 Doc. 28 KBW ASSOCIATES, INC., a North Dakota corporation, Plaintiff, vs. JAYNES CORPORATION, INC., a New Mexico corporation, CONTINENTAL CASUALTY COMPANY, a foreign surety transacting business in the State of Nevada and DOES I THROUGH X, inclusive, CASE NO. 2:13-cv-01771-GMN-CWH PROPOSED PROTECTIVE ORDER RE DISCLOSURE OF CONFIDENTIAL INFORMATION AND PROCEDURE TO REQUEST SEAL AND 16 Defendants. ORDER ENTERING CLAW BACK AGREEMENT 17 18 19 20 21 22 23 JAYNES CORPORATION, INC., a New Mexico corporation, Counterclaimant, vs. KBW ASSOCIATES, INC., a North Dakota corporation, Counterdefendant. 24 25 26 27 28 18690101.2 Dockets.Justia.com 1 JAYNES CORPORATION, INC., a New Mexico corporation, 2 Third-Party Plaintiff, 3 vs. 4 INTERNATIONAL FIDELITY INSURANCE COMPANY, a surety, 5 Third-Party Defendant. 6 7 Defendant Continental Casualty Company (“Continental”), by and through their counsel, Snell & 10 Wilmer, L.L.P., and Plaintiff/Counterdefendant KBW Associates, Inc. (“KBW”) and Third-Party 11 L.L.P. LAW OFFICES 3883 HOWARD HUGHES PARKWAY, SUITE 1100 LAS VEGAS, NEV ADA 89169 (702)784-520 0 Defendant/Counterclaimant/Third-Party Plaintiff, Jaynes Corporation, Inc. (“Jaynes”) and 9 Snell & Wilmer 8 Defendant International Fidelity Insurance Company (“IFIC”), by and through their counsel, 12 Wilson, Elser, Moskowitz, Edelman & Dicker, LLP (collectively the “Parties”) will be required 13 under Federal Rules of Civil Procedure, or pursuant to written discovery requests, to produce 14 documents and/or information that contain proprietary, sensitive, and confidential national 15 security information. Dissemination of this information to the public poses a national security 16 threat to U.S. military operations and national security. 17 Indeed, the U.S. Army Corps of Engineers regulations expressly prohibits disclosure of 18 documents in this matter without obtaining written approval from the U.S. Army Corps of 19 Engineers. (Defense Federal Acquisition Regulation Supplement (“FARS”) § 252.204-7000, 20 included in the Request for Proposal.) Additionally, the Subcontract Agreement between Jaynes 21 and KBW states that “[t]o the extent the Prime Contract provides for the confidentiality of any of 22 the Owner’s proprietary or otherwise confidential information disclosed in connection with the 23 performance of this Agreement, the Subcontractor is equally bound by the Owner’s 24 confidentiality requirements.” (Subcontract Agreement § 3.29.) 25 Prohibiting all parties from disclosing confidential documents and information produced 26 in this litigation to any individual or entity outside of this litigation, or from otherwise using 27 documents produced outside of this litigation is necessary and appropriate in this matter, to 28 preserve the confidentiality of military documents and information, and minimize any threat to -218690101.2 1 national security. See Fed. R. Civ. P. 26(c); Phillips v. General Motors Corp., 307 F.3d 1206 (9th 2 Cir. 2002). Indeed, “[t]he unique character of the discovery process requires that the trial court 3 have substantial latitude to fashion protective orders.” Phillips v. General Motors Corp., 307 4 F.3d 1206, 1212 (9th Cir. 2002) (citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).) 5 The Court finds that there is good cause to enter this protective order, as the threat to 6 national security represents a specific harm that could result if the information is not protected. 7 Phillips v. General Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002). Moreover the 8 balancing of protecting both public and private interests weighs in favor of this Order. Phillips v. 9 General Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002). L.L.P. LAW OFFICES 3883 HOWARD HUGHES PARKWAY, SUITE 1100 LAS VEGAS, NEV ADA 89169 (702)784-520 0 Additionally, the Court finds that the Parties motion to seal should be considered upon an 11 Snell & Wilmer 10 in camera review of the confidential information on a case-by-case basis. Finally, there is good 12 cause to require the Parties to abide by the terms set forth in their proposed claw back agreement. 13 Federal Rule of Evidence 502(d) and (e); Great-West Life & Annuity Ins. Co. v. Am. Econ. Ins. 14 Co., 2:11-CV-02082-APG, 2013 WL 5332410, at *4 (D. Nev. Sept. 23, 2013) 15 16 Accordingly, after consideration of the Motion, and for good cause appearing therefore, the Motion is GRANTED IN PART AND DENIED IN PART. 17 IT IS HEREBY ORDERED that the following terms and procedures shall govern the 18 production and non-disclosure of Confidential Information, as defined herein, for the above- 19 captioned litigation: 20 1. Protective Order. Any discovery response, information, document or thing 21 produced, and/or all deposition testimony given in connection with this litigation that contains 22 sensitive information may be designated as Confidential Information. 23 2. Confidential Information entitled to confidential treatment will include all 24 documents and information the Parties deem confidential including: (a) all project paper, tapes, 25 documents, designs, drawings, plans, email correspondence, other correspondence, disks, 26 diskettes, emails and other electronic data, and other tangible things produced by or obtained 27 from any person in connection with this litigation; (b) Rule 26 disclosures, answers to document 28 requests, interrogatories, and requests for admission; (c) transcripts of depositions, in whole or in -318690101.2 1 part, and exhibits thereto; and (d) all copies, extracts, and complete or partial summaries or charts 2 or notes prepared or derived from such papers, documents or things. The handling of such 3 information shall be made in accordance with the terms of this Order. 4 3. A discovery response, information, document or thing produced, and/or all 5 deposition testimony may be designated as Confidential Information by one of the following 6 methods: 7 a. In the case of documents or other materials (apart from depositions or other Confidential Information, except that in the case of multi-page documents bound together by 10 staple or other permanent binding, the word(s) “Confidential” need only be stamped on the first 11 L.L.P. LAW OFFICES 3883 HOWARD HUGHES PARKWAY, SUITE 1100 LAS VEGAS, NEV ADA 89169 (702)784-520 0 pretrial testimony): 9 Snell & Wilmer 8 page of the document in order for the entire document to be treated as Confidential; and, 12 b. by affixing the legend “Confidential” to each page containing any In the case of depositions, including exhibits thereto, or other pretrial 13 testimony: (i) by a statement on the record, by any counsel or the deponent, at the time of such 14 disclosure; or (ii) by written notice from any Party’s counsel or the deponent or his/her counsel, 15 within ten business days after receiving a copy of the transcript thereof, designating all or some of 16 the transcript and/or documents referred to therein as Confidential. Such written notice must be 17 sent to counsel for all Parties, the deponent and counsel for the deponent. Only those portions of 18 the transcripts so designated as “Confidential” must be treated as Confidential. The Parties may 19 modify this procedure for any particular deposition, by a writing signed by counsel for all Parties 20 and by the deponent or counsel for the deponent, without further order from the Court. 21 4. The designation “Confidential” shall apply to materials and information that may 22 be disclosed to the Parties and others identified in this Order for the purposes of the litigation, but 23 which is intended to be protected against disclosure to third parties. Absent a specific order by 24 the Court to the contrary, all documents and information disclosed shall be used by the Parties 25 solely in connection with this litigation, and not for any business, competitive, other litigation or 26 governmental purpose or function, and such information shall not be disclosed to anyone except 27 as expressly provided herein. 28 -418690101.2 1 5. Any Party may, at any time, request or contest in writing that any Confidential contention shall be referred to in this Order as the “Requesting Party”. Upon written contention, 4 the Party claiming that information is “Confidential” shall meet and confer with the Requesting 5 Party within ten (10) days of receipt of a written request therefor. If an agreement cannot be 6 reached by negotiation, and the Court has not provided for a different procedure to handle such 7 disputes, then the Requesting Party may make an application for a ruling from the Court on the 8 continued application of the “Confidential” designation of such information or document. The 9 Requesting Party shall submit the contested Confidential Information to the Court for in camera 10 inspection, and the terms of this Stipulation and Protective Order shall continue to apply to such 11 L.L.P. LAW OFFICES 3883 HOWARD HUGHES PARKWAY, SUITE 1100 LAS VEGAS, NEV ADA 89169 (702)784-520 0 Information be released from the requirements of this Order. 3 Snell & Wilmer 2 Confidential Information until the Court rules on the application. 12 6. A Party who makes such a Confidential Information and information derived from Confidential Information, 13 including without limitation any testimony about an exhibit designated as Confidential, shall not 14 be disclosed except as set forth herein. All Confidential Information produced and information 15 related thereto disclosed by any Party shall be used solely for this litigation and may not be used 16 for any other purpose. 17 7. Confidential Information may only be disclosed to the following persons: 18 a. any Party and counsel of record for any Party to this action; 19 b. paralegal, stenographic, clerical and secretarial personnel currently 20 employed by a Party to the case, (including but not limited to photocopy service personnel and 21 document management vendors, such as coders and data-entry personnel, retained by outside 22 counsel); 23 24 c. stenographic, video or audio court reporters engaged to record depositions in this litigation, and certified interpreters and/or translators for those depositions, if any; 25 d. non-party expert(s) or consultant(s) and their secretarial, technical and 26 clerical employees (including but not limited to photocopy service personnel and document 27 management vendors, such as coders and data-entry personnel, retained by outside counsel) who 28 actively assist in the preparation of this action; -518690101.2 1 2 e. any person identified on the face of any such Confidential Information as an author or recipient thereof; 3 f. any person who is determined to have been an author and/or previous 4 recipient of the Confidential Information, but who is not identified on the face thereof, provided 5 there is prior testimony of actual authorship or receipt of the Confidential Information by such 6 person prior to such person being shown any Confidential Information; 7 g. any non-party engaged by the Parties or appointed by the Court for 8 purposes of acting as a Discovery Referee, Special Master, and/or neutral arbitrator or mediator in 9 any alternative dispute resolution procedures in which the Parties may participate; and 10 L.L.P. LAW OFFICES 3883 HOWARD HUGHES PARKWAY, SUITE 1100 LAS VEGAS, NEV ADA 89169 (702)784-520 0 Snell & Wilmer 11 h. any other person by written agreement among all Parties’ counsel, or by order of the Court; 12 8. Each individual identified in paragraphs 7 (a) - (h) above to whom Confidential 13 Information is furnished, shown, or disclosed shall, prior to the time he or she receives access to 14 such materials, be provided by counsel furnishing him or her such material a copy of this Order. 15 Counsel disclosing Confidential Information shall advise said persons of the provisions of this 16 Order and secure adequate assurance of confidentiality and agreement from that person or entity: 17 (1) to be bound by the terms hereof, (2) to maintain the received Confidential Materials in 18 confidence, and (3) not to disclose the received Confidential Materials to anyone other than in 19 accordance with the terms of this Order. 20 9. The foregoing is without prejudice to the right of any Party to this Order to: 21 a. seek to modify or obtain relief from any aspect of this Order; or 22 b. object to the use, relevance, or admissibility at trial or otherwise of any 23 material, whether or not designated in whole or in part as Confidential Information governed by 24 this Protective Order. 25 10. Nothing in this Order shall prohibit a Party from using Confidential Materials for 26 deposition preparation, use during a deposition, or from marking any Confidential Materials as an 27 exhibit to a deposition and examining the deponent thereon. Likewise, nothing in this Order shall 28 prohibit a Party from using Confidential Materials for examination of a witness at trial, or from -618690101.2 1 marking any Confidential Materials as an exhibit during trial and examining a trial witness 2 thereon. 3 11. If Confidential Information is disclosed at a deposition, only the stenographic, 4 video or audio reporter and those persons who are authorized by the terms of this Order to receive 5 such material may be present. The portions of the transcripts of all testimony designated as 6 Confidential Information shall be labeled with the appropriate designation by the reporter. If any 7 document or information designated as Confidential Information pursuant to this Order is used 8 during the course of a deposition, that portion of the deposition record reflecting such material 9 shall be labeled with the appropriate “Confidential” designation. 10 12. Request to Seal. Any filing made with the Clerk of the Court, as such filing may L.L.P. LAW OFFICES 3883 HOWARD HUGHES PARKWAY, SUITE 1100 LAS VEGAS, NEV ADA 89169 (702)784-520 0 Snell & Wilmer 11 be required or permitted by the local rules of this Court, which contains or has attached to it 12 Confidential Information, shall be submitted to this Court for an in camera review and a case-by- 13 case determination as to whether the Confidential Information submitted shall be sealed. For 14 good cause shown, the Court may order that such f Confidential Information shall be sealed. 15 13. In the event of a hearing or trial in this matter at which any Party intends to present 16 information or materials designated hereunder as Confidential, counsel for the Parties will meet 17 and confer to determine what safeguards are necessary to protect against the disclosure of the 18 designated information or materials, and shall attempt to determine the least intrusive and 19 burdensome means of protecting such materials during the proceeding. Counsel for the Parties 20 shall confer on appropriate procedures for protecting the confidentiality of any documents, 21 information and transcripts used in the course of any court proceedings, and shall incorporate 22 such procedures into the pre-trial order. For trial, the Party seeking to use information designated 23 Confidential without redacting the Confidential portion of the information, shall, via written 24 motion in limine filed and served pursuant to the Court’s trial scheduling order, submit all such 25 information (document, transcript, interrogatory answer, etc.) to the trial judge under seal for in 26 camera review, and a decision on whether such information can be used at trial, and if so, what 27 limitations, if any, shall apply. 28 -718690101.2 1 14. This Order shall survive the termination of this action and shall continue in full the expiration of any and all rights of appeal or further appeal or the expiration of time to seek 4 leave to appeal, all persons or entities that have received Confidential Materials shall return all 5 such Confidential Materials to counsel for the designated Party. As an alternative to returning all 6 or part of such Confidential Materials, persons or entities may certify in writing for the producing 7 Party that they have destroyed all unreturned Confidential Materials. Where a Party has provided 8 Confidential Materials to a retained expert or consultant or any other person or entity, it shall be 9 the responsibility of that Party to obtain the return or destruction of the Confidential Materials 10 from such expert or consultant. This paragraph does not apply to the copies of Confidential 11 L.L.P. LAW OFFICES 3883 HOWARD HUGHES PARKWAY, SUITE 1100 LAS VEGAS, NEV ADA 89169 (702)784-520 0 force and effect thereafter. Within thirty (30) calendar days after the termination of this action and 3 Snell & Wilmer 2 Materials that have been submitted to and are in the possession of the Court. This Order shall not 12 preclude the use or disclosure of any Confidential Materials during the trial of this action, subject 13 to the right of any Party to seek an Order governing use of the Confidential Materials at trial. 14 15. Within fifteen (15) days of the close of this action, whether by judgment, order, 15 settlement or other means, the Parties must return all information, and copies thereof, in their 16 possession to the Party that served the Confidential Information. 17 16. If at any time any Confidential Information protected by this Order or information 18 produced in this litigation is subpoenaed from the receiving party by any court, administrative or 19 legislative body, or is requested, via formal discovery request or otherwise, by any other person 20 or entity purporting to have authority to require the production of such information, the party to 21 whom the subpoena or other request is directed shall, within three (3) business days of receipt, 22 give the other party hereto notice of said request. The party receiving the discovery request or 23 subpoena shall in the interim take all necessary steps to protect the potentially Confidential 24 Information and all information so designated in this case as if it were its own confidential 25 information. The party receiving notice of a pending discovery request, subpoena, or other 26 inquiry, shall have three (3) business days to, in writing, advise the party from whom the 27 discovery was requested of its intent to protect the confidentiality of the information sought, or of 28 its decision to allow it to be disclosed. The party objecting to the disclosure of the Confidential -818690101.2 1 Information shall take all steps it deems necessary at its own expense, including incurring and 2 paying its own attorney’s fees. It is acknowledged and agreed that any violation or threatened 3 violation of this provision by any Party will cause immediate and irreparable harm entitling the 4 other party to obtain injunctive relief, including a temporary restraining order without notice 5 pending a hearing on an application for preliminary injunction in addition to all other legal 6 remedies available. 7 17. Claw Back Agreement. The parties agree that in the event that any Party (the confidentiality, the Discloser does not waive any claim of privilege or confidentiality if, within a 10 reasonable amount of time after the Discloser actually discovers that such material or documents 11 L.L.P. LAW OFFICES 3883 HOWARD HUGHES PARKWAY, SUITE 1100 LAS VEGAS, NEV ADA 89169 (702)784-520 0 “Discloser”) produces material or documents without intending to waive a claim of privilege or 9 Snell & Wilmer 8 were produced, the Discloser notifies all other Parties (the “Recipient(s)”) of the inadvertent 12 disclosure of privileged or confidential items, identifying the material or documents produced and 13 stating the privilege or confidentiality provision asserted. 14 documents before producing them does not waive a claim of privilege or confidentiality. Mere failure to diligently screen 15 If the Discloser asserts that it inadvertently produced privileged or confidential items in 16 accordance with this Claw Back Agreement, the Recipient(s) must return the specified material or 17 documents and any copies within ten days of the notification. The Recipient(s) must further 18 permanently destroy any electronic copies of such specified material or documents and affirm in 19 writing to counsel for the Discloser of such destruction. 20 In the event that the Recipient(s) contends the documents are not subject to privilege or 21 confidentiality as asserted by the Discloser in accordance with this Claw Back Agreement, the 22 Recipient(s) may, following the return and destruction described above, challenge the privilege 23 claim through a Motion to Compel or other pleading with the District Court in which the 24 Litigation is currently pending. The Parties agree that any review of items by the judge shall be 25 an in camera review. 26 Should the Recipient(s) not challenge the Discloser’s claim of privilege or confidentiality, 27 or should the presiding judge determine that the documents are in fact subject to privilege or 28 -918690101.2 Case 2:13-cv-01771-GMN-CWH Document 27 Filed 03/03/14 Page 10 of 10 1 confidentiality, the documents, or information contained therein or derived therefrom, may not be 2 used in the Litigation or against the Discloser in any future litigation or arbitration brought by the 3 Recipient(s). Nothing contained within this Claw Back Agreement shall be deemed to waive any 4 objection that any Party may wish to assert under applicable state or federal law. 5 6 18. immediately upon its execution by counsel for such parties. 7 8 19. 20. L.L.P. LAW OFFICES 3883 HOWARD HUGHES PARKWAY, SUITE 1100 LAS VEGAS, NEV ADA 89169 (702)784-520 0 This Order may only be amended or modified by written agreement of the parties hereto and approved by this Court, or by order of this Court. 11 Snell & Wilmer All persons subject to the terms of this Order agree that this Court shall retain jurisdiction over them for the purpose of enforcing this Order. 9 10 The terms of this Order shall be effective and enforceable as between the Parties IT IS SO ORDERED. 12 13 March 6 Dated: _______________, 2014 ____________________________________ U.S. Hoffman, Jr. C.W.District Court Judge United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 Respectfully submitted, SNELL & WILMER L.L.P. By: /s/ Robin E. Perkins Leon F. Mead II, Esq. Nevada Bar No. 5719 Robin E. Perkins, Esq. Nevada Bar No. 9891 3883 Howard Hughes Parkway Suite 1100 Las Vegas, NV 89169 Telephone: (702) 784-5200 Facsimile: (702) 784-5252 lmead@swlaw.com rperkins@swlaw.com Attorneys for Jaynes Corporation, Inc. and Continental Casualty Company 26 27 28 - 10 18690101.2