PRB Supply LLC v. Pale Horse GRS L.L.P. et al, No. 2:2020cv01360 - Document 47 (D. Nev. 2021)
Court Description: ORDER Granting 46 Stipulated Protective Order. Signed by Magistrate Judge Cam Ferenbach on 9/13/2021. (Copies have been distributed pursuant to the NEF - JQC)
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PRB Supply LLC v. Pale Horse GRS L.L.P. et al Doc. 47 Case 2:20-cv-01360-JAD-VCF Document 47 Filed 09/13/21 Page 1 of 12 1 2 3 4 5 6 7 George F. Ogilvie III, Esq. (NSBN 3552) Daniel I. Aquino, Esq. (NSBN 12682) MCDONALD CARANO LLP 2300 West Sahara Avenue, Suite 1200 Las Vegas, Nevada 89102 Telephone: (702) 873-4100 Facsimile: (702) 873-9966 gogilvie@mcdonaldcarano.com daquino@mcdonaldcarano.com Attorneys for Defendants Pale Horse GRS L.L.P., Chris Clark and Aaron Spradlin UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 PRB SUPPLY LLC, a Nevada limited liability company, 11 12 Plaintiff, 13 v. 14 PALE HORSE GRS L.L.P., a Tennessee limited liability company; CHRIS CLARK, an individual; and AARON SPRADLIN, an individual, 15 16 CASE NO. 2:20-cv-01360-JAD-VCF STIPULATION AND PROTECTIVE ORDER TO PROTECT CONFIDENTIAL INFORMATION Defendants. 17 18 Plaintiff PRB Supply LLC (“Plaintiff”) and Defendants Pale Horse GRS L.L.P., Chris 19 Clark, and Aaron Spradlin (“Defendants”) (collectively the “Parties”), through their respective 20 counsel of record in this action, hereby agree to this Stipulation and Protective Order to Protect 21 Confidential Information (“Protective Order”), and further agree that this Court may enter an order 22 on this Protective Order. 23 1. PURPOSE 24 The purpose of this Protective Order is to allow the Parties, to the extent permitted under 25 the Federal Rules of Civil Procedure and the Local Rules of the United States District Court 26 for the District of Nevada, such access to Protected Material, as defined below, as is 27 necessary to prosecute or defend the Action, while at the same time to protect any 28 confidential information contained within the Protected Material that may, and/or already Dockets.Justia.com Case 2:20-cv-01360-JAD-VCF Document 47 Filed 09/13/21 Page 2 of 12 1 has, come into the possession of any Party in connection with the Action. Nothing in the 2 Protective Order shall limit or modify the rights of any Party to use the information, 3 documents, or things which it produces to another Party. 4 5 2. DEFINITIONS 2.1. Action. “Action” means the action pending in the United States District Court for 6 the District of Nevada, Case No. 2:20-cv-01360-JAD-VCF, entitled PRB Supply 7 LLC v. Pale Horse GRS L.L.P., Chris Clark, and Aaron Spradlin. 8 2.2. Counsel. “Counsel” means counsel of record and authorized co-counsel of any 9 Party, and their employees and support personnel, jury consultants, electronic 10 discovery consultants and document vendors, trial graphics personnel and other 11 assistants, who are not employees of a Party and to whom it is necessary to disclose 12 Protected Material in the Action. 13 2.3. Independent Expert. “Independent Expert” means an expert or independent 14 consultant who is not an employee of a Party and is retained solely to advise and 15 assist Counsel in the preparation or trial of the Action, or retained to give expert 16 testimony, or retained for both purposes, and his or her secretarial or other assistants, 17 to whom it is necessary to disclose Protected Material in the Action. 18 2.4. officers, directors, employees and agents (but not Counsel). 19 20 Party. “Party” or “Parties” mean the parties to the Action, including their respective 2.5. Produced Material. “Produced Material” means any information, document, file, 21 electronically stored information (“ESI”), or tangible thing upon which any 22 expression, communication, or representation has been recorded by any means, or 23 any response to any discovery request (including by way of example document 24 requests, interrogatories, requests for admissions, notices of deposition, requests to 25 inspect, and deposition subpoenas), or portions thereof, to be provided, or already 26 provided, by any Producing Party or third party to any other Party, in connection 27 with the Action. 28 Page 2 of 12 Case 2:20-cv-01360-JAD-VCF Document 47 Filed 09/13/21 Page 3 of 12 2.6. 1 Producing Party. “Producing Party” means a Party or third party and its officers, 2 directors, employees and agents (including Counsel), that produces or otherwise 3 makes available Produced Material to a Receiving Party. 2.7. 4 Receiving Party. “Receiving Party” means a Party and all its officers, directors, 5 employees and agents (including Counsel), that receive Produced Material from a 6 Producing Party. 7 3. PROTECTED MATERIAL. Protected Material as used in this Protective Order shall 8 mean any Produced Material that contains information: (A) in which the Producing Party 9 has a protected privacy interest under federal or state law; or (B) that has not been made 10 publicly available (as a result of legal or ethical means) and from which the Producing Party 11 derives independent economic value, actual or potential, from not being generally known to 12 the public or to other persons who can obtain economic value from its disclosure or use, 13 including but not limited to financial records and projections, contractors’ bid preparation 14 documents, and cost estimating procedures. The use and dissemination of any Protected 15 Material by a Receiving Party is strictly limited to the Action. Protected Material may not 16 be used or disseminated for any other purpose without the written consent of the Producing 17 Party, or by order of the Court. 18 3.1. Designation of Protected Material. A Producing Party, at the time of producing 19 Produced material, or as soon as the Producing Party reasonably determines the need 20 therefore, may designate any Produced Material as Protected Material by producing 21 the 22 “CONFIDENTIAL – Subject to Protective Order.” To the extent possible, the 23 legend should be placed by the Producing Party on each page of the Protected 24 Material. Where the Producing Party is unable to place the legend on each page (or 25 it is commercially unreasonable to do so), for instance where the Producing Party 26 seeks to produce a native electronic file, the Producing Party should take other 27 precautions to flag the information as Protected Material, including, but not limited 28 documents claimed Protected Page 3 of 12 Material marked with the legend Case 2:20-cv-01360-JAD-VCF Document 47 Filed 09/13/21 Page 4 of 12 1 to, placing the legend in the file name of the native electronic file. The Producing 2 Party shall act in good faith in attempting to limit the amount of Produced Material 3 that is designated as Protected Material. If only a portion of certain Produced 4 Material qualifies as Protected Material, the Producing Party shall act in good faith 5 to limit the Protected Material designation to only that portion. 3.2. 6 Designation Not Determinative of Status. The Producing Party’s designation of 7 Produced Material as Protected Material does not create a presumption that the 8 materials are Protected Material, nor shall the Receiving Party’s receipt of Protected 9 Material be a determination or admission by the Receiving Party that such material 10 is in fact protected as Protected Material. The Receiving Party shall not be obligated 11 to challenge a “Protected Material” designation at the time of receipt, and a failure 12 to do so shall not preclude a later challenge to the propriety of such a designation. 13 The fact that Produced Material is not designated as Protected Material shall not, in 14 and of itself, preclude a party from later seeking to designate such material as 15 4. PERSONS WITH ACCESS TO PROTECTED MATERIAL. Protected Material may 16 not be disclosed or discussed in any manner with any entity or person except for the 17 following: 18 4.1. Counsel. Each Party’s respective Counsel shall have access to and may use any 19 Protected Material only for the purposes of prosecuting, defending, or attempting to 20 settle the Action. 21 4.2. Parties. A Party to the litigation, as distinguished from that Party’s Counsel and 22 any Independent Experts, shall have access to and may use Protected Material only 23 for the purposes of the Action and only after complying with Section 5 of this 24 Protective Order. 25 4.3. Independent Experts. Counsel for a Receiving Party may make any Protected 26 Material available to its Independent Expert or to another Party’s Independent 27 Expert only after complying with Section 5 of this Protective Order. 28 Page 4 of 12 Case 2:20-cv-01360-JAD-VCF Document 47 Filed 09/13/21 Page 5 of 12 1 5. ACKNOWLEDGEMENT OF PROTECTIVE ORDER. Except when used in a 2 deposition or court, before obtaining access to any copies of Protected Material covered by 3 this Protective Order, each person (other than Counsel) who is permitted to have access to 4 such material must signify assent to, and agree to be bound by, the terms of this Protective 5 Order by executing the acknowledgement attached as Appendix A hereto, indicating that 6 he or she has read and understood this Protective Order and agrees to be bound by its terms. 7 The acknowledgements shall not be produced in connection with the Action but shall be 8 confidentially maintained by Counsel for the Receiving Party until after complete 9 resolution of the Action, including any appeal. 10 11 6. HANDLING OF PROTECTED MATERIAL 6.1. General. All Protected Material is to be used solely for the purposes of the Action. 12 Persons having access to Protected Material shall not disclose or provide Protected 13 Material to any person not authorized under Section 4 of this Protective Order 14 without written permission from Counsel for the Producing Party. 15 6.2. Protected Materials Filed With Court. Any Party that wishes to file or lodge 16 Protected Material with the Court must file or lodge the Protected Material under 17 seal in accordance with Section 7 of this Protective Order. This includes any briefs, 18 transcripts, exhibits, depositions, or documents that contain, comprise, summarize, 19 or quote from Protected Material. To Parties agree to work in good faith concerning 20 sealing issues. To the extent the Court denies any motion or application to seal, the 21 Parties agree to work in good faith to explore alternatives for protecting the Protected 22 Material. 23 6.3. Deposition Transcripts. Protected Material may be used at a deposition in 24 accordance with this Protective Order. During the deposition, counsel seeking to 25 use or refer to Protected Material shall state, on the record, that such Protected 26 Material is subject to this Protective Order and Order and that deposition questions 27 and answers relating to the Protected Material are to be treated as Protected Material, 28 Page 5 of 12 Case 2:20-cv-01360-JAD-VCF Document 47 Filed 09/13/21 Page 6 of 12 1 and that the portion of the deposition transcript which relates to the Protected 2 Material shall also be marked and treated as Protected Material. To the extent the 3 deponent has not already complied with Section 5 of this Protective Order, the Party 4 seeking to introduce the Protected Material as an exhibit at the deposition shall seek 5 to have the deponent comply with Section 5 of this Protective Order. Whether the 6 Party seeking to introduce the exhibit is successful in obtaining the deponent’s 7 compliance with Section 5 of this Protective Order, the Parties should work together 8 to ensure that the deponent does not leave the deposition with a physical or electronic 9 copy of the Protected Material and the confidential portion of the deposition 10 transcript relating to the Protected Material is not retained by the deponent (whether 11 in physical or electronic format). 12 6.4. Return of Protected Material After Final Disposition or Termination of 13 Participation in the Action. Once participation in the Action by any Receiving 14 Party that obtained Protected Material has been terminated or otherwise finally 15 concluded, Counsel for the Receiving Party shall either return all Protected Material 16 in the possession of the Receiving Party or its agents to Counsel for the Producing 17 Party or dispose of all Protected Material in some other manner agreed upon with 18 Counsel for the Producing Party. Protected Material retained by Counsel of a 19 Receiving Party shall retain the status of Protected Material despite termination of 20 this Action, and shall be treated in accordance with the terms of this Protective 21 Order, unless the Parties otherwise agree or the Court otherwise orders. However, 22 (a) the Parties further agree that any information learned from that Protected 23 Material that has been returned or destroyed shall remain confidential pursuant to 24 the terms of this Protective Order; and (b) this Protective Order shall survive the 25 termination of this action, including any appeals thereof, and the Court shall retain 26 continuing jurisdiction to enforce or resolve any dispute concerning the use of 27 information disclosed hereunder. 28 Page 6 of 12 Case 2:20-cv-01360-JAD-VCF Document 47 Filed 09/13/21 Page 7 of 12 1 6.5. Advice of Counsel. Nothing in this Protective Order shall bar or otherwise restrict 2 Counsel from rendering advice to a Party with respect to the Action, and in the 3 course thereof, relying upon any Protected Material. However, in rendering such 4 advice and in otherwise communicating with a Party, such Counsel shall not disclose 5 the contents of any Protected Material contrary to the terms of intent of this 6 Protective Order. 7 6.6 Other Actions And Proceedings. If a Receiving Party (a) is subpoenaed in another 8 action or proceeding, (b) is served with a demand in another action or proceeding in 9 which it is a party, or (c) is served with any legal process by one not a party to this 10 Protective Order, seeking discovery materials which were produced or designated 11 as containing Protected Material pursuant to this Protective Order, the Receiving 12 Party shall give prompt written notice by e-mail or facsimile transmission to Counsel 13 for the Producing Party within five (5) business days of receipt of such subpoena, 14 demand or legal process or such shorter notice as may be required to provide the 15 Producing Party with the opportunity to object to the immediate production of the 16 requested discovery materials to the extent permitted by law. The Receiving Party 17 shall advise the Producing Party in writing of the following: (i) the information, 18 documents, materials, items and things sought by the subpoena, demand or other 19 legal process; (ii) the date on which compliance with the subpoena, demand or other 20 legal process is requested or required; (iii) the location at which compliance with the 21 subpoena, demand or other legal process is requested or required; (iv) the identity 22 of the party serving the subpoena, demand or other legal process; and (v) the case 23 name, jurisdiction, and other information reasonably necessary to identify the other 24 action or proceeding in which the subpoena, demand or other legal process has been 25 issued. Should the person seeking access to the Protected Material take action 26 against the Receiving Party or anyone else covered by this Protective Order to 27 enforce such a subpoena, demand or other legal process, the Receiving Party shall 28 Page 7 of 12 Case 2:20-cv-01360-JAD-VCF Document 47 Filed 09/13/21 Page 8 of 12 1 respond by setting forth the existence of this Protected Material. However, where 2 the Producing Party has been given notice pursuant to this paragraph, the Parties 3 agree that the Producing Party shall bear the time and expense of any motion practice 4 or other court action associated with protecting its Protected Material from discovery 5 by any party seeking the Protected Material through subpoena, demand, or other 6 legal process. 7 7. 7.1. 8 A Party that wishes to file or lodge its own Protected Material with the Court must comply with all applicable rules for submitting materials under seal, including, but LR IA 10-5 not limited to the requirements under federal law and the Local Rules. 9 10 11 PROCEDURE FOR FILING PROTECTED MATERIAL UNDER SEAL 8. CHALLENGING A PROTECTED MATERIAL DESIGNATION. A Receiving Party 12 wishing to challenge a Protected Material designation must first attempt to meet and confer 13 in good faith with the Producing Party in an effort to informally resolve such designation. 14 If reasonable meet and confer efforts are unsuccessful, the Party challenging the Protected 15 Material designation may move or apply to the Court to have such materials stripped of their 16 Protected Material designation. In the event of such a motion or application, the Producing 17 Party shall bear the burden of proving that the materials qualify as Protected Material. Until 18 the Court rules on such motion or application, the materials shall remain Protected Material. 19 9. CLAWBACK PROVISION. If a Producing Party contends that it has inadvertently 20 disclosed or produced material that it alleges is protected by the attorney-client privilege, 21 the work product doctrine, or any other privilege or protection provided under applicable 22 law, or is otherwise immune to discovery (the “Subject Privileged Material”), then the 23 Producing Party shall immediately notify the Receiving Party in writing upon its discovery 24 of the inadvertent disclosure or production. It is agreed that either a Producing Party or a 25 Receiving Party may challenge the claim to inadvertent disclosure as having been waived 26 and such waiver may be analyzed under applicable law. Upon receiving notification of the 27 inadvertent disclosure of the Subject Privileged Material, and in no event later than three 28 Page 8 of 12 Case 2:20-cv-01360-JAD-VCF Document 47 Filed 09/13/21 Page 9 of 12 1 (3) business days, the Receiving Party shall immediately return, sequester, or destroy any 2 and all copies of the Subject Privileged Material identified in the notice, and may not use, 3 produce or disclose to other persons or non-parties the Subject Material until the claim of 4 privilege or protection is resolved. If the Receiving Party produces, discloses, or uses the 5 Subject Material before being notified of its alleged privileged or protected nature, then it 6 shall take reasonable measures necessary to retrieve it and preclude its further use. Upon 7 request, the Receiving Party shall certify, in writing, that is has complied with the terms and 8 conditions set forth in this paragraph; however, the Receiving Party shall not waive or 9 prejudice any right it may have to challenge the alleged privilege or protected nature of the 10 Subject Privileged Material, nor shall it waive or prejudice any right it may have to 11 challenge or contest the Producing Party’s claim of inadvertent production or disclosure. If, 12 after undertaking an appropriate meet-and-confer process, a resolution cannot be reached 13 concerning the production or disclosure of the Subject Privileged Material, any party may 14 file a motion with the Court for a determination of the claim and the Parties agree that the 15 Subject Privileged Material shall be protected via appropriate sealing or in camera 16 submission. The Subject Privileged Material shall be preserved until the claim is resolved. 17 If a Receiving Party believes in good faith that material received from a Producing Party or 18 person or non-party is potentially covered by the attorney-client privilege, the work product 19 doctrine or any other privilege or protection provided under applicable law, then the 20 Receiving party shall notify the other party or person or non-party in writing within a 21 reasonable time that it has possession of the material in question. If, in response to this 22 notification, the party asserts that the material may be privileged or protected under 23 applicable law, then the parties shall comply with the process set forth in this paragraph. 24 This Parties further agree that this paragraph’s clawback rights and procedures shall apply 25 to all material produced in discovery whether or not it is designated “CONFIDENTIAL – 26 Subject to Court Order.” 27 28 Page 9 of 12 Case 2:20-cv-01360-JAD-VCF Document 47 Filed 09/13/21 Page 10 of 12 1 10. RIGHT TO FURTHER RELIEF. This Protective Order, and any order hereon, is without 2 prejudice to the right of any Party to apply to the Court for relief from any of its provisions 3 or to seek different or additional protection for any particular Produced Material. Further, 4 the Parties agree that this Protective Order may be amended from time to time by written 5 agreement of counsel for the Parties, which agreement shall be submitted to the Court and 6 only effective upon the Court’s approval. 7 11. RIGHT TO ASSERT OTHER OBJECTIONS. This Protective Order, and any order 8 thereon, shall not waive or limit the Parties’ rights to assert a claim of privilege, other 9 recognized protection, or other evidentiary objection to production, Protective Order, or other use of Produced Material. 10 11 12. Application to Third Parties. This Protective Order shall inure to the benefit of and may 12 be invoked and enforced by third parties with respect to documents and information 13 produced by them in the course of pretrial discovery in this action (e.g., in response to 14 subpoena) and designated by them in the manner provided herein. Any third party invoking 15 the Protective Order shall comply with, and be subject to, all other applicable sections of 16 the Protective Order. 17 13. No Waiver of Privilege. This Protective Order will not prejudice the right of any party or 18 nonparty to oppose production of any information on the ground of attorney-client privilege, 19 work product privilege or any other privilege or protection provided under the law. 20 14. Injunctive Relief Available. Each Party acknowledges that monetary remedies may be 21 inadequate to protect each party in the case of unauthorized disclosure or use of Protected 22 Material and that seeking injunctive relief may be appropriate to protect each party’s rights 23 in the event there is any such unauthorized disclosure or use of Confidential Information, in 24 addition to whatever relief may be available at law or in equity. 25 /// 26 /// 27 /// 28 Page 10 of 12 Case 2:20-cv-01360-JAD-VCF Document 47 Filed 09/13/21 Page 11 of 12 1 IT IS SO STIPULATED. 2 3 4 Dated this ____ day of ________, 2021 Dated this ____ day of ________, 2021 McDONALD CARANO LLP RICE REUTHER SULLIVAN & CARROLL, LLP By: /s/ Daniel I. Aquino George F. Ogilvie III, Esq. (# 3552) Daniel I. Aquino, Esq. (# 12682) 2300 West Sahara Avenue, Suite 1200 Las Vegas, Nevada 89102 Attorneys for Defendants Pale Horse GRS L.L.P., Chris Clark, and Aaron Spradlin By: /s/ Anthony J. DiRaimondo David A. Carroll, Esq. (#7643) Anthony J. DiRaimondo, Esq. (#10875) Robert E. Opdyke, Esq. (#12841) 3800 Howard Hughes Parkway, Suite 1200 Las Vegas, Nevada 89169 Attorneys for Plaintiff PRB Supply LLC 5 6 7 8 9 10 11 12 ORDER 13 14 IT IS SO ORDERED. 15 17 ______________________________ Cam Ferenbach United States Magistrate Judge 18 9-13-2021 DATED ________________________ 16 19 20 21 22 23 24 25 26 27 28 Page 11 of 12 Case 2:20-cv-01360-JAD-VCF Document 47 Filed 09/13/21 Page 12 of 12 1 APPENDIX A TO PROTECTIVE ORDER 2 3 I, _____________, have received, read, understand, and hereby agree to be bound by the 4 terms of the foregoing Protective Order (and any Court Order entered on the Protective Order), 5 entered in Case No. 2:20-cv-01360-JAD-VCF, entitled PRB Supply LLC v. Pale Horse GRS L.L.P., 6 Chris Clark, and Aaron Spradlin. which I acknowledge have been provided to me. I agree not to 7 disclose, discuss, or otherwise use Protected Material (as defined in the Protective Order) except to 8 the extent allowed under, and in compliance with, the Protective Order. I further agree to take 9 reasonable precautions to ensure that any Protected Material provided to me remains in a secure 10 and confidential location so as to prevent unauthorized access to such material. 11 I understand that my access to Protected Materials in this case is solely as a result of, and 12 conditioned upon, my acceptance of, and agreement to be bound by, the terms of this Protective 13 Order. I recognize that any failure to comply with the Protective Order, and any Court Order 14 entered thereon, may result in action being taken against me. I hereby consent to the jurisdiction 15 of the United States District Court, District of Nevada, for the sole purpose of enforcing the 16 Protective Order and any Court Order entered thereon. 17 18 Dated: ___________________ Signed: ___________________________ 19 20 21 22 23 24 25 26 27 28 Page 12 of 12
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