In re: Application of Kate O'Keeffe to Issue Subpoena for Taking Deposition & Production of Documents in Foreign Proceeding, No. 2:2014cv01518 - Document 73 (D. Nev. 2016)
Court Description: ORDER Granting 72 Stipulation for Joint Protective Order. Signed by Magistrate Judge Carl W. Hoffman on 04/27/2016. (Copies have been distributed pursuant to the NEF - NEV)
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In re: Application of Kate O&#039;Keeffe to Issue Subpoena for Takin...cuments in Foreign Proceeding Doc. 73 Case 2:14-cv-01518-RFB-CWH Document 72 Filed 04/26/16 Page 1 of 9 1 2 3 4 5 6 J. Randall Jones, Esq. (#1927) jrj@kempjones.com Mark M. Jones, Esq. (#267) m.jones@kempjones.com KEMP, JONES & COULTHARD, LLP 3800 Howard Hughes Parkway, 17th Floor Las Vegas, NV 89169 Tel: (702) 385-6000 Fax: (702) 385-6001 Attorneys for Venetian Casino Resort, LLC 7 8 UNITED STATES DISTRICT COURT 9 10 11 12 13 DISTRICT OF NEVADA In re Application of Case No.: 2:14-cv-01518-RFB-CWH Kate O’Keeffe To Issue a Subpoena for the Taking of a Deposition and the Production of Documents for Use in a Foreign Proceeding JOINT [PROPOSED] PROTECTIVE ORDER 14 15 16 17 18 19 20 21 22 23 24 25 WHEREAS, Kate O’Keeffe (“O’Keeffe”), the defendant in Sheldon Gary Adelson and Kate O’Keeffe, High Court of the Hong Kong Special Administrative Region (HCA 342/2013) (the “Hong Kong Lawsuit”), applied to the United States District Court for the District of Nevada (the “District Court”) for assistance in obtaining discovery for her defense in that case under 28 U.S.C. § 1782 (the “Application”); and WHEREAS, O’Keeffe filed an Application seeking the issuance of a subpoena to Jonathan Allan Molnar (“Molnar”) to testify at a videotaped deposition and produce documents in a civil action (the “Subpoena”) (The documents and deposition testimony are referred to collectively herein as the “Subpoenaed Materials”); and WHEREAS, third party the Venetian Casino Resort, LLC (the “Venetian”) objected to the Application because, inter alia , it believed that the Subpoenaed Materials could include 26 27 Dockets.Justia.com Case 2:14-cv-01518-RFB-CWH Document 72 Filed 04/26/16 Page 2 of 9 1 information that is subject to confidentiality agreements and which is otherwise proprietary 2 (Dkt. No. 55) (the “Objection”); and 3 WHEREAS, the District Court denied the Objection on April 4, 2016 (Dkt. No. 64); and 4 WHEREAS, the District Court ordered O’Keeffe and the Venetian to meet and confer 5 and submit a proposed protective order in anticipation of any disclosures that might involve 6 confidential commercial information; 7 8 9 NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED by O’Keeffe and the Venetian (collectively, the “Parties”) as follows: 1. The Venetian may designate portions of the Subpoenaed Materials as 10 “CONFIDENTIAL.” Any such “CONFIDENTIAL” designation shall subject the designated 11 portion to the provisions of this Protective Order (hereinafter, the “Order”). 12 2. The “CONFIDENTIAL” designation shall be used only for any portion of the 13 Subpoenaed Materials that the Venetian considers in good faith to contain commercially 14 sensitive and/or proprietary information not otherwise known or available to the public (the 15 “Confidential Commercial Information”). 16 3. The Order is not intended to give any party the right to indiscriminately 17 designate material as “Confidential.” The mere fact that a party might prefer that a document or 18 deposition page be deemed “confidential” is not in and of itself sufficient to justify a 19 confidential designation. Likewise, a party may not designate material as “confidential” under 20 the terms of this Order merely because disclosure might cause discomfort or embarrassment. 21 Instead, this Order is designed to provide relief for confidential proprietary commercial 22 information. 23 24 4. Treatment of Documents Produced in Response to the Subpoena a. Any documents produced by Molnar in response to the Subpoena will be 25 provisionally treated as CONFIDENTIAL for up to ten (10) business days after their 26 service to enable review by the parties’ counsel. Within ten (10) business days of being 27 served with any documents produced in response to the Subpoena, the Venetian may Page 2 of 9 Case 2:14-cv-01518-RFB-CWH Document 72 Filed 04/26/16 Page 3 of 9 1 request that specific documents or portions thereof, identified by bates number, be 2 stamped with the words “CONFIDENTIAL” on the face of the document and treated 3 according to that designation. b. 4 The Venetian shall in good faith determine whether specific Confidential 5 Commercial Information may be redacted from any documents, such that redacted 6 versions of those documents would not be designated “CONFIDENTIAL.” In the event 7 that any party disagrees with any of the requested designations and/ or redactions, that 8 party may so notify the Venetian in writing of the objection within thirty (30) business 9 days of receipt of the “CONFIDENTIAL” designation/redaction. In the event the 10 parties are unable to reach agreement as to re-designation and/or redactions, the parties 11 may seek intervention from the Magistrate Judge as set forth in Section 11 herein. 12 5. 13 Treatment of Deposition Testimony a. Deposition testimony, any portion of deposition testimony or exhibits to 14 depositions may be designated as “CONFIDENTIAL” by advising the reporter and 15 counsel of such designation during the course of the deposition or by advising counsel 16 in writing within ten (10) business days of the receipt of the deposition transcript. 17 b. The Venetian shall in good faith determine whether specific Confidential 18 Commercial Information may be redacted from any deposition testimony, any portion 19 of deposition testimony or exhibits to depositions, such that redacted versions of the 20 same would not be designated “CONFIDENTIAL.” In the event that any party 21 disagrees with any of the requested designations and/or redactions, that party may so 22 notify the Venetian of the objection in writing within thirty (30) business days of receipt 23 of the ”CONFIDENTIAL” designation of the deposition testimony, any portion of 24 deposition testimony or exhibits to depositions In the event the parties are unable to 25 reach agreement as to re-designation and/or redactions, the parties may seek 26 intervention from the Magistrate Judge as set forth in Section 11 herein 27 Page 3 of 9 Case 2:14-cv-01518-RFB-CWH Document 72 Filed 04/26/16 Page 4 of 9 1 6. Whenever any Subpoenaed Material designated as “CONFIDENTIAL” is used 2 or submitted to any court in conjunction with any filing or proceeding, the designating party 3 shall have the burden of justifying the sealing of any such filing, pursuant to this Order, 4 applicable local laws and/or court rules, if any. Before seeking to maintain the sealing of any 5 documents filed with a court, the designating party must assess whether redaction is a viable 6 alternative to complete sealing. The mere fact that a party stamped “CONFIDENTIAL” on a 7 document, or deposition testimony, any portion of deposition testimony or exhibits to 8 depositions even if done in good faith, will not be sufficient to justify the sealing of a filing. 9 7. Any Subpoenaed Material designated “CONFIDENTIAL” shall be and remain 10 confidential and shall not be disclosed in any fashion, in writing or orally, except as explicitly 11 permitted by this Order, and may not be used for any purpose other than in connection with 12 prosecution or defense of or in discovery related to or in connection with the Hong Kong 13 Lawsuit. 14 8. Except upon prior written consent of the Venetian, any Subpoenaed Material 15 designated as “CONFIDENTIAL” shall be held in confidence and shall be used solely for the 16 purpose of prosecution or defense of or discovery for the Hong Kong Lawsuit. Access to 17 Subpoenaed Materials designated as “CONFIDENTIAL” shall be limited to: 18 (a) counsel for the parties, including in-house counsel and employees of such 19 counsel; 20 (b) the Magistrate Judge, District Court and court personnel as allowed herein; 21 (c) counsel for the parties in the Hong Kong Lawsuit, including in-house counsel 22 and employees of such counsel who are assisting in the prosecution or defense of or in 23 discovery for the Hong Kong Lawsuit; 24 (d) Molnar and his counsel; 25 (e) Applicant Kate O’Keeffe; 26 (f) experts and consultants (including independent experts and consultants and 27 employees or clerical assistants of experts) who are employed, retained or otherwise Page 4 of 9 Case 2:14-cv-01518-RFB-CWH Document 72 Filed 04/26/16 Page 5 of 9 1 consulted by counsel identified in subsections (a) or (c) for the purpose of analyzing 2 data, conducting studies or providing opinions to assist in the Hong Kong Lawsuit; 3 (g) 4 either in deposition or at trial; 5 (h) 6 Subpoenaed Material designated as “CONFIDENTIAL”; 7 (i) the insurers of any of the parties to the Hong Kong Lawsuit; and 8 (j) any person to whom the Venetian agrees in writing, although no disclosure of 9 any Subpoenaed Materials designated as “CONFIDENTIAL” may be made to such witnesses for the limited purpose of preparing for testimony or giving testimony the author, addressee or recipient or person who previously had access to the 10 person until written agreement is provided by the Venetian. 11 9. In the event that O’Keeffe seeks to disclose Subpoenaed Materials designated 12 “CONFIDENTIAL” to a specific individual not otherwise authorized under this Order, and the 13 Venetian refuses to consent to such disclosure after reasonable notice, then O’Keeffe may 14 submit a written request to the Magistrate Judge with a copy to the Venetian. Such request shall 15 identify the individual or entity and state the reason for the request. No “CONFIDENTIAL” 16 information shall be provided or disclosed to said individual or entity for a period of ten (10) 17 business days following the written request to the Magistrate Judge. During that ten (10) 18 business day period, the Venetian and any other person or entity that opposes the request may 19 file an objection with the Magistrate Judge. Until such objection is resolved by the parties or 20 the Magistrate Judge, no “CONFIDENTIAL” information may be disclosed to the individual or 21 entity who is the subject of the pending objection. Access to Subpoenaed Materials designated 22 as “CONFIDENTIAL” shall further be limited to all persons given access under Sections 8 (f), 23 (g), (i), (j) and 9 after they have executed the Confidentiality Agreement attached hereto as 24 Exhibit “1”. 25 10. This Agreement shall be interpreted, applied and enforced by the Magistrate 26 Judge. The parties agree that jurisdiction over this action is to be retained by the Magistrate 27 Judge for purposes of enabling any party or persons affected by this Order, to apply to the Page 5 of 9 Case 2:14-cv-01518-RFB-CWH Document 72 Filed 04/26/16 Page 6 of 9 1 Magistrate Judge at any time for such direction or further decree as may be appropriate for the 2 construction or enforcement of this Order or for such additional relief as may be appropriate. 3 11. If any party disagrees with the designation of any Subpoenaed Materials as 4 “CONFIDENTIAL,” that party may at any time within thirty (30) business days of receipt of 5 the designation give written notice to the Venetian, specifically describing the designated 6 Subpoenaed Material along with the basis for the request to re-designate. The Venetian shall 7 thereafter advise the party whether it will change the designation. Unless the parties agree 8 otherwise, the Venetian shall have ten (10) business days from the receipt of such written 9 notice to apply to the Magistrate Judge for an order designating the material as 10 “CONFIDENTIAL”. If such an application is made, the “CONFIDENTIAL” designations 11 shall remain “CONFIDENTIAL” until there is a ruling by the Magistrate Judge. The Venetian 12 will have the burden of establishing that the document or information is entitled to be 13 designated as “CONFIDENTIAL.” If the Venetian does not make a timely motion in the 14 Magistrate Judge, then the documents or information will be effectively de-designated. Any 15 party can appeal a decision of the Magistrate Judge to the District Court, but must seek and 16 obtain a stay of disclosure if the party wishes to stay disclosure pending the appeal to the 17 District Court. 18 12. In the event a dispute arises under this Order, no party to the dispute will 19 proceed by motion to the court with respect to such dispute without first promptly meeting and 20 conferring with the other party(-ies) to the dispute in an attempt to resolve the dispute. 21 13. This Order shall not be construed to prevent the parties from applying to the 22 Magistrate Judge for relief therefrom or for further or additional protective orders, or from 23 agreeing between themselves to modification, provided however that any such modifications 24 must be in writing and agreed upon by both parties. 25 14. This Order shall be binding on, and inure to benefit of, the parties hereto and his 26 or its agents, employees, employers, successors, assigns, heirs, administrators and 27 representatives. Page 6 of 9 Case 2:14-cv-01518-RFB-CWH Document 72 Filed 04/26/16 Page 7 of 9 1 15. This Order shall survive the termination of the Hong Kong Lawsuit, and the 2 Magistrate Judge shall retain jurisdiction to resolve any dispute concerning the use of 3 information disclosed hereunder. 4 DATED this 26th day of April, 2016. 5 KEMP JONES & COULTHARD, LLP DAVIS WRIGHT TREMAINE LLP 6 /s/ Mark M. Jones ________________________________ J. Randall Jones, Esq. (#1927) jrj@kempjones.com Mark M. Jones, Esq. (#267) m.jones@kempjones.com KEMP, JONES & COULTHARD, LLP 3800 Howard Hughes Parkway, 17th Floor Las Vegas, NV 89169 Tel: (702) 385-6000 Fax: (702) 385-6001 Attorneys for Venetian Casino Resort, LLC /s/ Constance M. Pendleton _____________________________ Laura R. Handman Constance M. Pendleton 1919 Pennsylvania Avenue, NW 8th Floor Washington, DC 20006 Telephone: (202) 973-4224 Facsimile: (202) 973-4499 laurahandman@dwt.com conniependleton@dwt.com admitted pro hac vice) 7 8 9 10 11 12 13 14 15 16 17 Pat Lundvall (NSBN 3761) Kristen T. Gallagher (NSBN 9561) McDONALD CARANO WILSON LLP 2300 W. Sahara Avenue, Suite 1200 Las Vegas, NV 89102 Telephone: (702) 873-4100 Facsimile: (702) 873-9966 lundvall@mcdonaldcarano.com kgallagher@mcdonaldcarano.com Attorneys for Kate O’Keeffe 18 19 20 21 22 23 24 IT IS SO ORDERED: UNITED STATES MAGISTRATE JUDGE DATED: __________________________________ United States Magistrate Judge DATED: April 27, 2016 25 26 27 Page 7 of 9 Case 2:14-cv-01518-RFB-CWH Document 72 Filed 04/26/16 Page 8 of 9 1 EXHIBIT “1” 2 CONFIDENTIALITY AGREEMENT 3 4 5 I, _________________________ do hereby acknowledge and agree, under penalty of perjury, as follows: 1. I have read the Stipulated Protective Order entered in In re Application of Kate 6 O’Keefe To Issue a Subpoena for the Taking of a Deposition and the Producing of Documents 7 for Use in a Foreign Proceeding, Case No.: 2:14-cv-01518-RFB-CWH, pending in the United 8 States District Court for the District of Nevada, on _____________, ____________, and I fully 9 understand its contents. 10 11 12 2. I hereby agree and consent to be bound by the terms of the Protective Order and to comply with it in all respects. 3. I understand that by signing this instrument, I will be eligible to receive 13 information marked “CONFIDENTIAL” under the terms and conditions of the Protective 14 Order. I further understand and agree that I must treat any information marked 15 “CONFIDENTIAL” in accordance with the terms and conditions of the Protective Order. 16 DATED: 17 (Signature) 18 (Printed Name) 19 (Address) 20 21 22 23 24 25 26 27 Page 8 of 9 Case 2:14-cv-01518-RFB-CWH Document 72 Filed 04/26/16 Page 9 of 9 CERTIFICATE OF SERVICE 1 The undersigned hereby certifies that service of the foregoing JOINT [PROPOSED] 2 3 PROTECTIVE ORDER was made on the 26th day of April, 2016, via the United States 4 District Court’s CM/ECF electronic filing system addressed to all parties on the e-service 5 list. 6 7 8 /s/ David Blake ______________________________________ An employee of Kemp, Jones & Coulthard 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Page 9 of 9
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