Blue et al v. Smith et al, No. 2:2020cv00401 - Document 43 (D. Nev. 2020)
Court Description: ORDER Granting 38 Stipulated Confidentiality Agreement and Protective Order. Signed by Magistrate Judge Nancy J. Koppe on 7/2/2020. (Copies have been distributed pursuant to the NEF - JQC)
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Blue et al v. Smith et al 1 2 3 4 5 6 7 8 9 10 Doc. 43 MARK E. FERRARIO Nevada Bar No. 1625 KARA B. HENDRICKS Nevada Bar No. 7743 WHITNEY L. WELCH-KIRMSE Nevada Bar No. 12129 GREENBERG TRAURIG, LLP 10845 Griffith Peak Drive, Ste. 600 Las Vegas, NV 89135 Tel: (702) 792-3773 Fax: (702) 792-9002 Email: ferrariom@gtlaw.com hendricksk@gtlaw.com welchkirmsew@gtlaw.com Attorneys for Defendants Clark County School District, Stephanie Garni, Kathy Konowalow, Pat Skorkowsky, and Vail Pittman Elementary School 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 14 HATTIE BLUE, individual and natural parent and SUSAN HOY as Guardian Ad Litem for J.B., a minor, CASE NO. 2:20-CV-00401-GMN-NJK 15 Plaintiffs, 16 17 v. 18 PAMELA SMITH, in her official capacity; STEPHANIE GARNI, in her officer capacity; KATHY KONOWALOW, in her official capacity; PAT SKORKOWSKY, in his official capacity; VAIL PITTMAN ELEMENTARY SCHOOL; CLARK COUNTY SCHOOL DISTRICT, a Political Subdivision of the State of Nevada; PROGRESSUS THERAPY, LLC, a Foreign Limited-Liability Company; INVO HOLDINGS, LLC, a domestic Limited-Liability Company; PROGRESSUS, INC, a Florida Corporation; DOES I through X, inclusive; and ROES I through X, inclusive, 19 20 21 22 23 24 25 STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER Defendants. 26 27 28 /// ACTIVE 49087427v1 Dockets.Justia.com 1 Pursuant to the Stipulation contained herein, by and among counsel for Plaintiffs Hattie Blue 2 and Susan Hoy, Guardian Ad Litem for J.B., a minor, and counsel for Defendants Clark County 3 School District (“CCSD”), Stephanie Garni, Kathy Konowalow, Pat Skorkowsky, and Vail Pittman 4 Elementary School, the Court hereby finds as follows: 5 1. The “Litigation” shall mean the above-captioned case, Hattie Blue, et al. v. Clark 6 County School District, et al., filed in the United States District Court, District of Nevada, Case 7 Number 2:20-CV-00401-GMN-NJK. 8 2. “Documents” or “Information” shall mean and include any documents (whether in 9 hard copy or electronic form), records, correspondence, analyses, assessments, statements (financial 10 or otherwise), responses to discovery, tangible articles or things, whether documentary or oral, and 11 other information provided, served, disclosed, filed, or produced, whether voluntarily or through 12 discovery or other means, in connection with this Litigation. A draft or non-identical copy is a 13 separate document within the meaning of these terms. 14 3. “Party” (or “Parties”) shall mean one party (or all parties) in this Litigation, and their 15 in-house and outside counsel. “Producing Party” shall mean any person or entity who provides, 16 serves, discloses, files, or produces any Documents or Information. “Receiving Party” shall mean 17 any person or entity who receives any such Documents or Information. 18 4. It is CCSD’s position that the privacy of students is protected under federal law, 19 whether they are parties to the Litigation or not. As a school district that receives federal funding, 20 it is CCSD’s position that it is bound by the Family Educational Rights and Privacy Act (“FERPA”) 21 and is not at liberty to disclose personally identifying information of its students without written 22 consent or court order. The Parties acknowledge that information that could be reasonably likely to 23 lead to admissible evidence in this Litigation could contain information that is protected by FERPA. 24 In addition, personnel files of employees involved in an incident are confidential and private in 25 nature. As a result, their disclosure and use must be limited to protect the individuals’ right to 26 privacy. See, El Dorado Savings & Loan Assoc. v. Superior Court of Sacramento County, 190 Cal. 27 App. 3d 342 (1987). Accordingly, the Parties agree that, in conjunction with discovery proceedings 28 in this Litigation, the Parties may designate any Document, thing, material, testimony, or other -2- 1 Information derived therefrom as “CONFIDENTIAL” under the terms of this Confidentiality 2 Agreement and Protective Order (hereinafter “Order”), that anything designated as such shall not be 3 provided or made available to third parties except as permitted by, and in accordance with, the 4 provisions of this Order. Confidential information includes any information contained in personnel 5 files of CCSD employees and/or information that has not been made public and contains trade secret, 6 proprietary and/or sensitive business or personal information, and/or any (personal) information 7 about students that is protected by FERPA. 8 5. In addition, if any party requests documents or other evidence that are subject to 9 FERPA, the Parties acknowledge that a Court Order requiring such a disclosure must first be 10 obtained. If such a court order is granted, and disclosure of FERPA protected information is required, 11 the Parties acknowledge FERPA protected information will be marked confidential pursuant to the 12 Stipulated Confidentiality Agreement and Protective Order. 13 14 6. CONFIDENTIAL Documents shall be so designated by marking or stamping each page of the Document produced to or received from a Party with the legend “CONFIDENTIAL.” 15 7. Testimony taken at a deposition may be designated as CONFIDENTIAL by any Party 16 making a statement to that effect on the record at the deposition or within ten (10) business days of 17 receipt of the transcript. Arrangements shall be made with the court reporter taking and transcribing 18 such deposition to separately bind such portions of the transcript and deposition exhibits containing 19 Information designated as CONFIDENTIAL, and to label such portions appropriately. Counsel for 20 the Parties may also designate an entire deposition transcript as CONFIDENTIAL at the time of the 21 deposition or within ten (10) business days of receipt of the transcript. 22 8. CONFIDENTIAL Information shall be maintained in strict confidence by the Parties 23 who receive such information, shall be used solely for the purposes of this Litigation, and shall not 24 be disclosed to any person except: 25 a. The United States District Court, District of Nevada, or any other court to which 26 this matter may be transferred (the “Court”). 27 28 /// -3- 1 2 3 b. In the event of an appeal, the United States Court of Appeals (the “Appellate 4 Court”) and/or the United States Supreme Court (the “Supreme Court”), so long 5 as that document is filed under seal; 6 c. The attorneys of record in this Litigation and their co-shareholders, co-directors, 7 partners, employees, and associates who are assisting in the Litigation 8 (collectively hereafter referred to as “Outside Counsel”); 9 d. A Party, or an officer, director, or employee of a Party or of a Party’s affiliate, as 10 long as any such person agrees to be bound by the terms and conditions of this 11 Agreement, however, no copies may be made; 12 e. Subject to the terms of Paragraph 13 below, experts or consultants and their staff, 13 retained by the Parties and/or Outside Counsel in this Litigation for the purposes 14 of this Litigation; 15 f. Any other person, only if the Receiving Party has given written notice to the 16 Producing Party of an intent to disclose specified CONFIDENTIAL Information 17 to said person, who shall be identified by name, address, phone number, and 18 relationship, if any, to the Receiving Party, and the Producing Party has not 19 provided a written objection to the disclosure within ten (10) business days of 20 delivery of the notification. In the event of an objection, no disclosure shall be 21 made pending the resolution of the objection. If the disclosure includes 22 information that is protected by FERPA, the objection can only be resolved by 23 stipulation of the parties or court order which includes a provision allowing CCSD 24 to provide no less than thirty (30) days’ notice to the parents of the children that 25 may be implicated in any disclosure. Before any person may receive Documents 26 or Information pursuant to this subparagraph, he or she must comply with the 27 requirements of Paragraph 13 below. 28 /// -4- 1 9. If a witness is providing, or is provided with, CONFIDENTIAL Information during 2 a deposition, counsel for the Producing Party may request that all persons other than the witness and 3 persons entitled by this Order to have access to the CONFIDENTIAL Information leave the 4 deposition room during that portion of the deposition other than the court reporter. Failure of any 5 person to comply with such a request will constitute sufficient justification for the witness to refuse 6 to answer the question, or for the Producing Party to demand that CONFIDENTIAL Information not 7 be provided to the witness, pending resolution of the issue. 8 9 10. All designations of Information as CONFIDENTIAL by the Producing Party must be made in good faith. 10 11. A party may object to the designation of particular Information as CONFIDENTIAL 11 by giving written notice to the party designating the disputed Information at any time. The written 12 notice shall identify the Information to which the objection is made and shall specify the basis for 13 the objection. If the parties cannot resolve the objection within ten (10) business days after the time 14 the notice is received, it shall be the obligation of the party designating the Information as 15 CONFIDENTIAL to file an appropriate motion requesting that the Court determine whether the 16 disputed Information should be subject to the terms of this Protective Order. If such a motion is filed 17 within ten (10) business days after the date the parties fail to resolve the objection, the disputed 18 Information shall be treated as CONFIDENTIAL under the terms of this Protective Order until the 19 Court rules on the motion. If the designating party fails to file such a motion within the prescribed 20 time, the disputed Information shall lose its designation as CONFIDENTIAL and shall not thereafter 21 be treated as CONFIDENTIAL in accordance with this Protective Order. In connection with a 22 motion filed under this provision, the party designating the Information as CONFIDENTIAL shall 23 bear the burden of establishing that good cause exists for the disputed Information to be treated as 24 CONFIDENTIAL. 25 12. While protected by this Order, any Information designated CONFIDENTIAL shall 26 be held in strict confidence by each person to whom it is disclosed; shall be used solely for the 27 purposes of this Litigation; and shall not be used for any other purpose, including, without limitation, 28 /// -5- 1 use in any other lawsuit. Documents and Information previously produced by the parties may be 2 designated “Confidential” within thirty (30) days after the date of this Order. 3 13. With respect to outside experts or other persons pursuant to Paragraph 8(e), to become 4 an authorized expert or other person entitled to access to CONFIDENTIAL Information, the expert 5 or other person must be provided with a copy of this Order and must sign a certification 6 acknowledging that he/she has carefully and completely read, understands, and agrees to be bound 7 by this Order. The Party on whose behalf such a Certification is signed shall retain the original 8 Certification. 9 14. Notwithstanding any other provision herein, nothing shall prevent a Party from 10 revealing CONFIDENTIAL Information to a person who created or previously received (as an 11 addressee or by way of copy) such Information. 12 15. The inadvertent production of any Information without it being properly marked or 13 otherwise designated shall not be deemed to waive any claim of confidentiality with respect to such 14 Information. If a Producing Party, through inadvertence, produces any CONFIDENTIAL 15 Information without marking or designating it as such in accordance with the provisions of this 16 Order, the Producing Party may, promptly on discovery, furnish a substitute copy properly marked 17 along with written notice to all Parties (or written notice alone as to non-documentary Information) 18 that such Information is deemed CONFIDENTIAL and should be treated as such in accordance with 19 the provisions of this Order. Each receiving person must treat such Information as CONFIDENTIAL 20 in accordance with the notice from the date such notice is received. Disclosure of such 21 CONFIDENTIAL Information prior to the receipt of such notice shall not be deemed a violation of 22 this Confidentiality Agreement. A Receiving Party who has disclosed such CONFIDENTIAL 23 Information prior to the receipt of such notice shall take steps to cure such disclosure by requesting 24 return of the original document and substituting it with the properly marked one. 25 16. A copy of this Order shall be shown to each attorney acting as counsel for a Party and 26 to each person to whom CONFIDENTIAL Information will be disclosed. 27 /// 28 /// -6- 1 17. Nothing in this Order shall be construed as an admission or agreement that any 2 specific Information is or is not confidential, subject to discovery, relevant, or admissible in evidence 3 in any future proceeding. 4 18. See order issued concurrently herewith. Any Party seeking to include CONFIDENTIAL Information in a motion or other 5 pleading or as an exhibit or attachment to a motion or other pleading shall seek to file it under seal 6 pursuant to the Nevada Rules Governing Sealing and Redacting Court Records or by other proper 7 means. The Parties agree not to oppose such motions if the document is properly marked as 8 CONFIDENTIAL Information. 9 CONFIDENTIAL Information, such designated portions shall be redacted to the extent necessary to 10 conceal such information in any motion or pleading filed publicly with the Court, pending ruling by 11 the Court on a motion to file it under seal. 12 CONFIDENTIAL Information shall be filed under seal, if the Court agrees after proper motion. 13 When a Party, in good faith, determines that it is necessary to bring the specific content of such 14 CONFIDENTIAL Information to the attention of the Court in the body of a motion or other pleading, 15 then it shall file a motion seeking to disclose the CONFIDENTIAL Information to the Court in 16 camera or by such other means as the Court may deem appropriate. Such motion may disclose the 17 general nature, but shall not disclosure the substance, of the CONFIDENTIAL Information at issue. 18 19. If a motion or pleading filed with the Court discloses Unredacted motions or pleadings containing If a Party wishes to use CONFIDENTIAL Information at a public proceeding, such 19 as a hearing before the Court or at trial, it shall notify the Court and the other Parties to this action 20 of that fact at the time the hearing or trial commences, and the Court may then take whatever steps 21 it may deem necessary to preserve the confidentiality of said information during the course of, and 22 after, the public proceeding. 23 20. The Parties shall comply with the requirements of Local Rule 10-5(b), and the Ninth 24 Circuit’s decision in Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006), 25 with respect to any documents filed under seal in this matter. 26 21. This Order shall not be construed to prevent any Party from making use of or 27 disclosing Information that was lawfully obtained by a Party independent of discovery in this 28 /// -7- 1 Litigation, whether or not such material is also obtained through discovery in this Litigation, or from 2 using or disclosing its own CONFIDENTIAL Information as it deems appropriate. 3 22. If either Party becomes required by law, regulation, or order of a court or 4 governmental entity to disclose any CONFIDENTIAL Information that has been produced to it 5 under the terms of this Order, such Party will reasonably notify the other Parties, in writing, so that 6 the original Producing Party has an opportunity to prevent or restrict such disclosure. The Party 7 required to disclose any CONFIDENTIAL Information shall use reasonable efforts to maintain the 8 confidentiality of such CONFIDENTIAL Information and shall cooperate with the Party that 9 originally produced the Information in its efforts to obtain a protective order or other protection 10 limiting disclosure; however, the Party required to disclose the Information shall not be required to 11 seek a protective order or other protection against disclosure in lieu of, or in the absence of, efforts 12 by the Producing Party to do so. 13 23. Upon termination of this Litigation, either by settlement or other action, Counsel may 14 retain CONFIDENTIAL Information solely for archival purposes. The restrictions of this Protective 15 Order shall apply to Counsel for as long as they hold such archival Documents. 16 24. The obligation to treat all Information designated as CONFIDENTIAL in accordance 17 with the terms of this Order and not to disclose such CONFIDENTIAL Information shall survive 18 any settlement or other termination of this Litigation. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// -8- 1 2 3 25. The Parties may seek modification of this Order by the Court at any time, by stipulation or for good cause. IT IS SO STIPULATED. 4 DATED this 1st day of July, 2020. DATED this 1st day of July, 2020. 5 GREENBERG TRAURIG, LLP GANZ & HAUF /s/ Whitney L. Welch-Kirmse MARK F. FERRARIO Nevada Bar No. 1625 KARA B. HENDRICKS Nevada Bar No. 7743 WHITNEY L. WELCH-KIRMSE Nevada Bar No. 12129 10845 Griffith Peak Drive, Suite 600 Las Vegas, NV 89135 /s/ Marjorie Hauf ADAM GANZ Nevada Bar No. 6650 MARJORIE HAUF Nevada Bar No. 8111 8950 West Tropicana Avenue, Suite 1 Las Vegas, NV 89147 6 7 8 9 10 11 12 13 14 Attorneys for Plaintiff Attorneys for Clark County School District, Stephanie Garni, Kathy Konowalow, Pat Skorkowsky, and Vail Pittman Elementary School 15 ORDER 16 In consideration of the stipulation by the Parties, and with good cause appearing, 17 IT IS SO ORDERED. 18 2nd DATED this _______ day of _________________, 2020. July 19 20 21 _______________________________________ UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 -9-
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