Yorker v. Valley Electric Association, Inc., No. 2:2015cv01927 - Document 12 (D. Nev. 2015)

Court Description: ORDER Granting 11 Stipulated Protective Order. Signed by Magistrate Judge Cam Ferenbach on 11/06/2015. (Copies have been distributed pursuant to the NEF - NEV)
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Yorker v. Valley Electric Association, Inc. 1 2 3 4 5 6 Doc. 12 Fennemore Craig, P.C. Ann Morgan, NV Bar No. 933 Shannon S. Pierce, NV Bar No. 12471 300 E. Second Street Suite 1510 Reno, NV 89501 Telephone: (775) 788-2200 Facsimile: (775) 786-5000 Email: amorgan@fclaw.com Email: spierce@fclaw.com Attorneys for Defendant Valley Electric Association, Inc. 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF NEVADA 10 300 East Second Street - Suite 1510 Reno, Nevada 89501 Tel: (775) 788-2200 Fax: (775) 786-1177 FENNEMORE CRAIG JONES VARGAS 11 CYNTHIA LEE YORKER, an individual, 12 Case No. 2:15-cv-01927-RFB-VCF Plaintiff, 13 v. 14 VALLEY ELECTRIC ASSOC., INC., a Nevada corporation; DOES I through X, inclusive; ROE CORPORATIONS I thru X, inclusive, 15 STIPULATED PROTECTIVE ORDER 16 Defendants. 17 / 18 19 Plaintiff Cynthia Lee Yorker, by and through her counsel of record, Andrew L. Rempfer of 20 the Law Offices of Steven J. Parsons; Defendant Valley Electric Association, Inc., by and through 21 its counsel of record, Shannon S. Pierce of Fennemore Craig, P.C., hereby stipulate to the entry of 22 this Stipulated Protective Order as follows: 23 1. 24 “Classified Information” means any information of any type, kind, or character that is 25 designated as “Confidential” or “For Counsel Only1” by any of the supplying or receiving persons, 26 whether it be a document, information contained in a document, information revealed during a Classified Information 27 28 1 For the purposes of this Stipulated Protective Order, a designation of “Attorneys’ Eyes Only” shall have the same meaning and effective of “For Counsel Only.” Page1 of 10 Dockets.Justia.com 1 deposition, information revealed in an interrogatory answer, or otherwise. Provided, however, no 2 documents otherwise available, or retrievable, in the public domain shall be considered 3 “confidential”. 4 2. 5 “Qualified Persons” means: 6 a. 7 Qualified Persons For information designated as “For Counsel Only”: i. 8 in-house or retained counsel for the parties in this litigation and their representative staff; 9 ii. actual or potential independent experts or consultants (and their 300 East Second Street - Suite 1510 Reno, Nevada 89501 Tel: (775) 788-2200 Fax: (775) 786-1177 administrative or clerical staff) engaged in connection with this litigation 11 FENNEMORE CRAIG JONES VARGAS 10 (which shall not include the current employees, officers, members, or agents 12 of parties or affiliates of parties) who are not direct or indirect competitors 13 of any corporate party and who, prior to any disclosure of Classified 14 Information to such person, have signed a document agreeing to bound by 15 the terms of this Protective Order (such signed document to be maintained 16 by the attorney retaining such person); 17 iii. 18 any person who was an author, addressee, or intended or authorized recipient of the designated information. 19 iv. 20 this Court and its staff and any other tribunal or dispute resolution officer duly appointed or assigned in connection with this litigation; and 21 v. 22 b. litigation vendors, court reporters, and other litigation support personnel. For information designated as “Confidential”: 23 i. the persons identified in subparagraph 2(a); 24 ii. the party, if a natural person; and 25 iii. if the party is an entity, such officers or employees of the party who are 26 actively involved in the prosecution or defense of this case; 27 28 c. Such other person as this Court may designate after notice and an opportunity to be heard. Page2 of 10 1 3. Designation Criteria 2 a. Nonclassified Information. Classified Information shall not include information that 3 either: 4 i. 5 is in the public domain at the time of disclosure as evidenced by a written document; 6 ii. 7 becomes part of the public domain through no fault of the recipient, as evidenced by a written document; 8 iii. 9 the receiving party can show by written document was in its rightful and lawful possession at the time of disclosure; or 10 iv. lawfully comes into the recipient’s possession subsequent to the time of 300 East Second Street - Suite 1510 Reno, Nevada 89501 Tel: (775) 788-2200 Fax: (775) 786-1177 FENNEMORE CRAIG JONES VARGAS 11 disclosure from another source without restriction as to disclosure, provided 12 such third party has the right to make the disclosure to the receiving party. 13 b. Classified Information. A party shall designate as Classified Information only such 14 information that the party in good faith believes in fact is confidential. Information that is 15 generally available to the public, such as public filings, catalogues, advertising materials, and the 16 like, shall not be designated as Classified. 17 Information and documents that may be designated as Classified Information include, but 18 are not limited to, personal medical information, trade secrets, confidential or proprietary financial 19 information, operational data, business plans, and competitive analyses, personnel files, personnel 20 or personal information that is protected by law, and other sensitive information that, if not 21 restricted as set forth in this order may subject the producing or disclosing person to competitive or 22 financial injury or potential legal liability to third parties. 23 Correspondence and other communications between the parties or with nonparties may be 24 designated as Classified Information if the communication was made with the understanding or 25 reasonable expectation that the information would not become generally available to the public. 26 c. For Counsel Only. The designation “For Counsel Only” shall be reserved for 27 information that is believed to be unknown to the opposing party or parties, or any of the 28 employees of a corporate party. Page3 of 10 1 4. 2 All Classified Information provided by any party or nonparty in the course of this litigation 3 shall be used solely for the purpose of preparation, trial, and appeal of this litigation and for no 4 other purpose, and shall not be disclosed except in accordance with the terms hereof. Use of Classified Information 5 5. 6 Documents provided in this litigation may be designated by the producing person or by any 7 party as Classified Information by marking each page of the documents so designated with a stamp 8 or label indicating that the information is “Confidential” or “For Counsel Only”. In lieu of 9 marking the original of a document, if the original is not provided, the designating party may mark 10 Marking of Documents the copies that are provided. Originals shall be preserved for inspection. 300 East Second Street - Suite 1510 Reno, Nevada 89501 Tel: (775) 788-2200 Fax: (775) 786-1177 FENNEMORE CRAIG JONES VARGAS 11 6. 12 Information disclosed at (a) the deposition of a party or one of its present or former 13 officers, directors, employees, agents, consultants, representatives, or independent experts retained 14 by counsel for the purpose of this litigation, or (b) the deposition of a nonparty may be designated 15 by any party as Classified Information by indicating on the record at the deposition that the 16 testimony is “Confidential” or “For Counsel Only” and is subject to the provisions of this Order. Disclosure at Depositions 17 Any party may also designate information disclosed at a deposition as Classified 18 Information by notifying all parties in writing not later than 10 days of receipt of the transcript of 19 the specific pages and lines of the transcript that should be treated as Classified Information 20 thereafter. Each party shall attach a copy of each such written notice to the face of the transcript 21 and each copy thereof in that party’s possession, custody, or control. All deposition transcripts 22 shall be treated as if designated “For Counsel Only” for a period of 10 days after initial receipt of 23 the transcript. 24 To the extent possible, the court reporter shall segregate into separate transcripts 25 information designated as Classified Information with blank, consecutively numbered pages being 26 provided in a nondesignated main transcript. The separate transcript containing Classified 27 Information shall have page numbers that correspond to the blank pages in the main transcript. 28 Counsel for a party or a nonparty witness shall have the right to exclude from depositions Page4 of 10 1 any person who is not authorized to receive Classified Information pursuant to this Protective 2 Order, but such right of exclusion shall be applicable only during periods of examination or 3 testimony during which Classified Information is being used or discussed. 4 7. Disclosure to Qualified Persons 5 a. To Whom. Classified information shall not be disclosed or made available by the applicable law or the valid order of a court of competent jurisdiction; provided, however, that in 8 the event of a disclosure compelled by law or court order, the receiving party will so notify the 9 producing party as promptly as practicable (and in any event, prior to making such disclosure) and 10 shall seek a protective order or confidential treatment of such information. Information designated 11 300 East Second Street - Suite 1510 Reno, Nevada 89501 Tel: (775) 788-2200 Fax: (775) 786-1177 receiving party to persons other than qualified persons except as necessary to comply with 7 FENNEMORE CRAIG JONES VARGAS 6 as For Counsel Only shall be restricted in circulation to Qualified Persons described in 12 subparagraph 2(a). 13 b. Retention of Copies During this Litigation. Copies of For Counsel Only 14 information shall be maintained only in the offices of outside counsel for the receiving party and, 15 to the extent supplied to experts described in subparagraph 2(a)(ii), in the offices of those experts. 16 Any documents produced in this litigation, regardless of classification, that are provided to 17 Qualified Persons shall be maintained only at the office of such Qualified Person(s) and only 18 necessary working copies of any such documents shall be made. Copies of documents and exhibits 19 containing Classified Information may be prepared by independent copy services, printers, or 20 illustrators for the purpose of this litigation. 21 8. 22 Documents unintentionally produced without designation as Classified Information later 23 may be designated and shall be treated as Classified Information from the date written notice of the 24 designation is provided to the receiving party. Unintentional Disclosures 25 9. 26 In the event documents are produced for inspection prior to designation, the documents 27 shall be treated as For Counsel Only during inspection. At the time of copying for the receiving 28 parties, Classified Information shall be marked prominently “Confidential” or “For Counsel Only” Documents Produced for Inspection Prior to Designation Page5 of 10 1 by the producing party. 2 10. 3 Nothing in this order shall prevent disclosure beyond the terms of this order if each party 4 designating the information as Classified Information consents to such disclosure or if the Court, 5 after notice to all affected parties and nonparties, orders such disclosure. Nor shall anything in this 6 order prevent any counsel of record from utilizing a document with any person that created or 7 received the document. Nor shall anything in this order prevent any counsel of record from 8 utilizing Classified Information in trial if the Court allows the usage after the parties have had an 9 opportunity to raise any concerns. Consent to Disclosure and Use in Examination 300 East Second Street - Suite 1510 Reno, Nevada 89501 Tel: (775) 788-2200 Fax: (775) 786-1177 11. Challenging the Designation 11 FENNEMORE CRAIG JONES VARGAS 10 a. Classified Information. A party shall not be obligated to challenge the propriety of a 12 designation of Classified Information at the time such designation is made, and a failure to do so 13 shall not preclude a subsequent challenge to the designation. In the event that any party to this 14 litigation disagrees at any stage of these proceedings with the designation of any information as 15 Classified Information, the parties shall first try to resolve the dispute in good faith on an informal 16 basis. If the dispute cannot be resolved, the objecting party may invoke this Protective Order by 17 moving the Court for an order changing the designated status of the disputed information. The 18 disputed information shall remain Classified Information unless and until the Court orders 19 otherwise. 20 b. Qualified Persons. In the event that any party in good faith disagrees with the 21 designation of a person as a Qualified Person or the disclosure of particular Classified Information 22 to such person, the parties shall first try to resolve the dispute in good faith on an informal basis. If 23 the dispute cannot be resolved, the objecting party shall have 14 days from the date of the 24 designation or, in the event particular Classified Information is requested subsequent to the 25 designation of the Qualified Person, 14 days from service of the request to move the Court for an 26 order denying the disposed person (a) status as a Qualified Person, or (b) access to particular 27 Classified Information. The objecting person shall have the burden of demonstrating that 28 disclosure to the disputed person would expose the objecting party to the risk of serious harm. Page6 of 10 1 Upon the timely filing of such a motion, no disclosure of classified information shall be made to 2 the disputed person unless and until the Court enters an order preserving the designation. 3 12. 4 In the event a party wishes to use any Classified Information affidavits, declarations, briefs, 5 memoranda of law, or other papers filed in this litigation, the party shall do one of the following: 6 (1) with the consent of the producing party, file only a redacted copy of the information; (2) where 7 appropriate (e.g., in connection with discovery and evidentiary motions) provide the information 8 solely for in camera review; or (3) file such information under seal with the Court consistent with 9 the sealing requirements of the Court. Manner of Use in Proceedings 300 East Second Street - Suite 1510 Reno, Nevada 89501 Tel: (775) 788-2200 Fax: (775) 786-1177 13. 11 FENNEMORE CRAIG JONES VARGAS 10 Unless otherwise permitted by statute, rule or prior court order, papers filed with the Court 12 under seal shall be accompanied by a contemporaneous motion for leave to file those documents 13 under seal, and shall be filed consistent with the Court’s electronic filing procedures in accordance 14 with Local Rule 10-5(b). Notwithstanding any agreement among the parties, the party seeking to 15 file a paper under seal bears the burden of overcoming the presumption in favor of public access to 16 papers filed in Court. See Kamakana v. City and County of Honolulu, 447 F.2d 1172 (9th Cir. 17 2006). Filing Under Seal 18 14. 19 Not later than 120 days after the conclusion of this litigation and/or any appeal related to it, 20 any Classified Information, all reproductions of such information, and any notes, summaries, or 21 descriptions of such information in the possession of any of the persons specified in paragraph 2 22 (except subparagraph 2(a)(iii)) shall be returned to the producing party or destroyed, except as this 23 Court may otherwise order or to the extent such information has been used as evidence at any trial 24 or hearing. Notwithstanding this obligation to return or destroy information, Counsel may retain 25 attorney work product, including document indices, so long as that work product does not 26 duplicate verbatim substantial portions of the text of any classified information. Return of Documents 27 15. 28 Insofar as the provisions of the Protective Order, or any other protective orders entered in Ongoing Obligations Page7 of 10 1 this litigation, restrict the Communication and use of the information protected thereby, such 2 provisions shall continue to be binding after the conclusion of this litigation, except that (a) there 3 shall be no restriction on documents that are used as exhibits in open court unless such exhibits 4 were filed under seal, and (b) a party may seek the written permission of the producing party or 5 order of the Court with respect to dissolution of modification of this, or any other, protective order. This order shall not bar any attorney in the course of rendering advice to such attorney’s 8 client with respect to this litigation from conveying to any party client attorney’s evaluation in a 9 general way of Classified Information produced or exchanged under the terms of this order; 10 provided, however, that in rendering such advice and otherwise communicating with the client, the 11 300 East Second Street - Suite 1510 Reno, Nevada 89501 Tel: (775) 788-2200 Fax: (775) 786-1177 16. 7 FENNEMORE CRAIG JONES VARGAS 6 attorney shall not disclose the specific contents of any Classified Information produced by another 12 party if such disclosure would be contrary to the terms of this Protective Order. Advice to Clients 13 17. 14 Any party designating any person as a Qualified Person shall have the duty to reasonably 15 ensure that such person observes the terms of this Protective Order and shall be responsible upon 16 breach of such duty for the failure of such person to observe the terms of this Protective Order. Duty to Ensure Compliance 17 18. 18 Pursuant to Federal Rule of Evidence 502, neither the attorney-client privilege nor work 19 product protection is waived by disclosure connected with this litigation. Moreover the parties 20 specifically include this “Clawback” Provision to expedite and facilitate the production of 21 electronic and hard copy data, information and documents, and to protect against inadvertent 22 disclosure of attorney-client privileged communications or work product materials. The 23 inadvertent disclosure or production of any information or document that is subject to an objection 24 on the basis of attorney-client privilege or work-product protection, including but not limited to 25 information or documents that may be considered Confidential Information under the Protective 26 Order will not be deemed to waive a party’s claim to its privileged or protected nature or estop that 27 party or the privilege holder from designating the information or document as attorney-client 28 privileged or subject to the work product doctrine at a later date. Any party receiving any such Waiver Page8 of 10 1 information or document shall return and/or destroy it upon request from the producing party. 2 Upon receiving such a request as to specific information or documents, the receiving party shall 3 return the information or documents to the producing party within 72 hours, regardless of whether 4 the receiving party agrees with the claim of privilege and/or work-product protection. Disclosure 5 of the information or document by the other party prior to such later designation shall not be 6 deemed a violation of the provisions of this Order. 7 19. 8 The parties may, by stipulation, provide for exceptions to this order and any party may seek 9 an order of this Court modifying this Protective Order. // 11 300 East Second Street - Suite 1510 Reno, Nevada 89501 Tel: (775) 788-2200 Fax: (775) 786-1177 10 FENNEMORE CRAIG JONES VARGAS Modification and Exceptions // 12 // 13 // 14 // 15 // 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // Page9 of 10 1 2 IT IS SO STIPULATED. Dated this 5th day of November, 2015. 3 4 LAW OFFICES OF STEVEN J. PARSONS 5 /s/ Andrew L. Rempfer Andrew L. Rempfer, Esq. State Bar No. 8628 7201 Lake Mead Blvd., Suite 108 Las Vegas, NV 89128-8354 6 7 8 9 Attorneys for Plaintiff Cynthia Lee Yorker 10 300 East Second Street - Suite 1510 Reno, Nevada 89501 Tel: (775) 788-2200 Fax: (775) 786-1177 FENNEMORE CRAIG JONES VARGAS 11 FENNEMORE CRAIG, P.C. 12 /s/ Shannon S. Pierce__________________ ANN MORGAN State Bar No. 933 SHANNON S. PIERCE State Bar No. 12471 300 East Second Street - Suite 1510 Reno, Nevada 89501 Tel: (775) 788-2200 Fax: (775) 786-1177 13 14 15 16 17 18 Attorneys for Defendant Valley Electric Association, Inc. 19 IT IS SO ORDERED. 20 21 __________________________________ 22 UNITED STATES Dated: ____________________________ 23 24 JUDGE 10979149.2 25 26 27 28 Page10 of 10