Holmes v. USAA Savings Bank, No. 2:2021cv00446 - Document 24 (D. Nev. 2021)
Court Description: PROTECTIVE ORDER Granting 23 Stipulated Protective Order. Signed by Magistrate Judge Nancy J. Koppe on 12/14/2021. (Copies have been distributed pursuant to the NEF - JQC) Modified text on 12/15/2021 (MR).
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Holmes v. USAA Savings Bank Doc. 24 Case 2:21-cv-00446-JAD-NJK Document 24 23 Filed 12/14/21 Page 1 of 9 1 ROBERT W. FREEMAN Nevada Bar No. 3062 2 PRISCILLA L. O’BRIANT Nevada Bar No. 10171 3 LEWIS BRISBOIS BISGAARD & SMITH LLP 6385 S. Rainbow Boulevard, Suite 600 4 Las Vegas, Nevada 89118 Telephone: (702) 893-3383 5 Fax: (702) 893-3789 E-Mail: Robert.Freeman@lewisbrisbois.com 6 E-Mail: Priscilla.Obriant@lewisbrisbois.com Attorneys for Defendant USAA SAVINGS BANK 7 and USAA FEDERAL SAVINGS BANK 8 UNITED STATES DISTRICT COURT 9 10 11 12 13 DISTRICT OF NEVADA HENRY HOLMES, CASE NO.: 2:21-cv-00446-JAD-NJK Plaintiff, STIPULATED PROTECTIVE ORDER vs. USAA SAVINGS BANK and USAA 14 FEDERAL SAVINGS BANK, 15 Defendants. 16 17 The parties to this Stipulated Protective Order have agreed to the terms of this Order; 18 accordingly, it is ORDERED: 19 1. Scope. All documents produced in the course of discovery, including initial 20 disclosures, all responses to discovery requests, all deposition testimony and exhibits, other 21 materials which may be subject to restrictions on disclosure for good cause and information 22 derived directly therefrom (hereinafter collectively “documents”), shall be subject to this Order 23 concerning confidential information as set forth below. The Order is subject to the Local Rules 24 of this Court and the Federal Rules of Civil Procedure with regard to matters of procedure. 25 2. Form and Timing of Designation. A party or third-party producing documents 26 or information may designate documents as confidential and restricted in disclosure under this 27 Order by placing or affixing the word “CONFIDENTIAL” on the document in a manner that will LEWI28 S BRISBOI S BISGAAR Dockets.Justia.com Case 2:21-cv-00446-JAD-NJK Document 24 23 Filed 12/14/21 Page 2 of 9 1 not interfere with the legibility of the document and that will permit complete removal of the 2 CONFIDENTIAL designation. Documents shall be designated CONFIDENTIAL prior to or at 3 the time of the production or disclosure of the documents. A party or third-party producing 4 documents may remedy an inadvertent failure to identify documents as CONFIDENTIAL by 5 supplemental written notice within a reasonable time after production by submitting to the 6 receiving party properly marked documents or copies thereof, for which there was an inadvertent 7 failure to identify the documents as CONFIDENTIAL. The designation “CONFIDENTIAL” 8 does not mean that the document has any status or protection by statute or otherwise except to 9 the extent and for the purposes of this Order. A party which, prior to this Court’s entry of this 10 Order, has previously produced documents in the course of discovery which would properly be 11 designated as CONFIDENTIAL pursuant to the terms of this Order shall be permitted a period of 12 ten (10) calendar days from entry of this Order to re-designate any documents previously 13 produced. In such circumstances, the designating party shall provide written notice to the other 14 party of such documentation, and shall provide new copies of the documents to be designated in 15 accordance with the terms of this Order. 16 3. Documents Which May Be Designated CONFIDENTIAL. Any party or third- 17 party producing documents may designate them as CONFIDENTIAL if the documents contain 18 information protected from disclosure by statute or that should be protected from disclosure 19 including confidential personal information, medical or psychiatric information, trade secrets, 20 personnel records, or such other sensitive commercial information that is not publicly available. 21 Public records and other information or documents that are publicly available may not be 22 designated as CONFIDENTIAL. 23 4. Depositions. Portions of depositions shall be deemed CONFIDENTIAL only if 24 designated as such when the deposition is taken or within seven (7) business days after receipt of 25 the transcript. Such designation shall be specific as to the portions to be protected. 26 27 5. Protection of Confidential Material. (a) General Protections. Documents designated CONFIDENTIAL under this LEWI28 S BRISBOI S BISGAAR 2 Case 2:21-cv-00446-JAD-NJK Document 24 23 Filed 12/14/21 Page 3 of 9 1 Order shall not be used or disclosed by the parties, counsel for the parties, or any other 2 persons identified in ¶ 5(b) for any purpose whatsoever other than to prepare for and 3 conduct discovery and trial in this action, including any appeal thereof. 4 (b) Limited Third-Party Disclosures of Confidential Documents. The parties 5 and counsel for the parties shall not disclose or permit the disclosure of any 6 CONFIDENTIAL documents to any person or entity except as set forth in subparagraphs 7 (i) - (v) below. Subject to these requirements, the following categories of persons may be 8 allowed to review documents that have been designated CONFIDENTIAL: 9 (i) Counsel. Counsel for the parties and employees and those agents 10 of counsel who have responsibility for the preparation and trial of the action, 11 including, but not limited to, any in-house counsel for a party who has 12 responsibility for the action; 13 14 15 16 17 18 19 (ii) Parties. Parties and employees of a party to this Order who are involved in the preparation and trial of this action; (iii) The Court. Any personnel from a court having jurisdiction over this action or witnesses involved in this action; (iv) Court Reporters and Recorders. Court reporters and recorders engaged for depositions; (v) Consultants, Investigators, and Experts. Consultants, 20 investigators, or experts (collectively, “experts”) employed by the parties or 21 counsel for the parties to assist in the preparation and trial of this action, but only 22 after the experts review Attachment A. 23 (vi) Copying Services; and 24 (vii) Others by Consent. Other persons only by the consent of the 25 producing party or upon order of the Court and on such conditions as may be 26 ordered or agreed. All such persons shall execute a form of the certification 27 contained in Attachment A. LEWI28 S BRISBOI S BISGAAR 3 Case 2:21-cv-00446-JAD-NJK Document 24 23 Filed 12/14/21 Page 4 of 9 (c) 1 Copies. Prior to production to another party, all copies, electronic images, 2 duplicates, extracts, summaries, or descriptions (collectively, “copies”) of documents 3 designated as CONFIDENTIAL under this Order, or any individual portion of such a 4 document, shall be affixed with the designation “CONFIDENTIAL” if the word does not 5 already appear on the copy. All such copies shall thereafter be entitled to the protection 6 of this Order. 7 documents provided that they do not contain substantial portions or images of the text of 8 confidential documents or otherwise disclose the substance of the confidential 9 information contained in those documents. 10 6. “Copies” shall not include indices, electronic databases, or lists of Filing of CONFIDENTIAL Documents Under Seal. To the extent that a brief, 11 memorandum of law, or pleading references any document marked as CONFIDENTIAL, then 12 the brief,concurrently memorandum, or pleading shall refer the Court to the particular exhibit filed under seal See order issued herewith. 13 without disclosing the contents of any confidential information. (a) 14 Before any document marked as CONFIDENTIAL is filed under seal with 15 the Clerk, the filing party must first consult with the party or third-party that originally 16 designated the document as CONFIDENTIAL to determine whether, with the consent of 17 that party or third-party, the document or a redacted version of the document may be filed 18 with the Court not under seal. 19 (b) Before a CONFIDENTIAL document is filed with the Court, or if a party 20 seeks a prior agreement and such is not possible or adequate, the party seeking to file the 21 document shall comply with Local Rule IA 10-4. 22 7. Challenges by a Party to Designation as Confidential. Any CONFIDENTIAL 23 designation is subject to a challenge by any party or nonparty with standing to object. Before 24 filing any motions or objections to a confidentiality designation with the Court, the objecting 25 party shall have an obligation to meet and confer in good faith to resolve the objection by 26 agreement within ten (10) business days from the date the challenge is made. If agreement is 27 reached confirming or waiving the CONFIDENTIAL designation as to any documents or LEWI28 S BRISBOI S BISGAAR 4 Case 2:21-cv-00446-JAD-NJK Document 24 23 Filed 12/14/21 Page 5 of 9 1 testimony subject to the objection, the designating party shall serve on all parties a notice 2 specifying the documents and the nature of the agreement. If any party disputes the other party’s 3 designation of a document as CONFIDENTIAL, the burden of proof resides with the party 4 asserting confidentiality to prove that it deserves such treatment. Within twenty-one (21) 5 calendar days after the meet and confer as discussed above, the party asserting confidentiality 6 may file a motion seeking a protective order concerning the specific document, seeking to have 7 the Court designate it as CONFIDENTIAL. All parties shall continue to maintain the material in 8 question as CONFIDENTIAL until the Court rules on the challenge. 9 8. Action by the Court. Applications to the Court for an order relating to any 10 documents designated CONFIDENTIAL shall be by motion and any other procedures set forth 11 in the Court’s standing orders or other relevant orders. To the extent such a motion is made 12 regarding materials produced by a third-party, the third-party shall be provided with a reasonable 13 notice and opportunity to be heard. Nothing in this Order or any action or agreement of a party 14 under this Order limits the Court’s power to make any orders that may be appropriate with 15 respect to the use and disclosure of any documents produced or used in discovery or at trial. 16 9. Use of Confidential Documents or Information at Hearings or Trial. All 17 hearings and trials are open to the public. Absent an order of this Court, there will be no 18 restrictions on the use of any document that may be introduced by any party during hearings or 19 trial. If a party intends to present at trial CONFIDENTIAL documents or information derived 20 therefrom, such party shall provide advance notice to the other party or the third-party producing 21 said CONFIDENTIAL records at least fifteen (15) calendar days before the commencement of 22 the hearing or trial by identifying the documents or information at issue as specifically as 23 possible (i.e., by bates number, page range, deposition transcript lines, etc.) without divulging the 24 actual CONFIDENTIAL documents or information. The Court may thereafter make orders as 25 are necessary to govern the use of such documents or information at the hearing or trial. 26 27 10. Objections on Conclusion of Litigation. (a) Unless otherwise agreed by the parties or ordered, this Order shall remain LEWI28 S BRISBOI S BISGAAR 5 Case 2:21-cv-00446-JAD-NJK Document 24 23 Filed 12/14/21 Page 6 of 9 1 in force after dismissal or entry of final judgment not subject to further appeal. (b) 2 Return of Confidential Information. Within thirty (30) calendar days 3 after dismissal or entry of final judgment not subject to further appeal, all documents 4 treated as CONFIDENTIAL under this Order, including copies as defined in ¶ 5(c), shall 5 be returned to the producing party if the producing party requests them, in writing, 6 unless: (1) the document has been offered into evidence or filed without restriction as to 7 disclosure; (2) the parties agree to destruction in lieu of return; (3) the documents are 8 pleadings, attachments to pleadings, or deposition transcripts or exhibits thereto; or (4) as 9 to documents bearing the notations, summations, or other mental impressions of the 10 receiving party, that party elects to destroy the documents and certifies to the producing 11 party that it has done so. Notwithstanding the above requirements to return or destroy 12 documents, counsel may retain attorney work product, including an index which refers or 13 relates to information designated as CONFIDENTIAL, so long as that work product does 14 not duplicate verbatim substantial portions of the text or images of CONFIDENTIAL 15 documents. This work product shall continue to be CONFIDENTIAL under this Order. 16 An attorney may use his or her work product in subsequent litigation provided that its use 17 does not disclose or use CONFIDENTIAL documents. (c) 18 Return of Documents Filed Under Seal. After dismissal or entry of final 19 judgment not subject to further appeal, the Court may return to counsel for the parties or, 20 after notice, destroy documents filed or offered at trial under seal or otherwise restricted 21 by the Court as to disclosure. 22 11. Inadvertent Production of Privileged Material. Any inadvertent production of 23 documents otherwise subject to the attorney-work-product doctrine or the attorney-client 24 privilege (“Privileged Material”) shall not on its own constitute a waiver of such immunity or 25 privilege. The receiving party is obligated to notify the producing party in writing via facsimile 26 or electronic mail, with confirmation by mail, of the receipt of documents that the receiving party 27 reasonably believes may be Privileged Material. Such notification shall be provided within ten LEWI28 S BRISBOI S BISGAAR 6 Case 2:21-cv-00446-JAD-NJK Document 24 23 Filed 12/14/21 Page 7 of 9 1 (10) calendar days of discovering such documents may be Privileged Material. The producing 2 party then has ten (10) calendar days after receipt of such notification to request the return of 3 such documents in writing via facsimile, certified mail, or electronic mail. Failure to request the 4 return of such documents in the aforementioned manner and time period may result in a waiver 5 of the immunity or privilege. The parties agree to return any Privileged Material inadvertently 6 produced within ten (10) calendar days of receiving a timely request from the producing party to 7 return the Privileged Material. The receiving party shall not maintain any copies of any 8 Privileged Material returned pursuant to this Order. 9 12. Order Subject to Modification. This Order shall be subject to modification by 10 this Court on its own motion or on motion of a party or any other person with standing 11 concerning the subject matter. 12 13. No Prior Judicial Determination. This Order is entered based on the 13 representations and agreements of the parties and for the purpose of facilitating discovery. 14 Nothing herein shall be construed or presented as a judicial determination that any documents or 15 information designated CONFIDENTIAL by counsel or the parties is subject to protection under 16 Rule 26(c) of the Federal Rules of Civil Procedure or otherwise until such time as the Court may 17 rule on a specific document or issue. 18 14. Persons Bound. This Order shall take effect when entered and shall be binding 19 upon all counsel, the parties, those legally associated with the parties, and persons made subject 20 to this Order by its terms. 21 15. Breach. If a party breaches this Agreement by breaching confidentiality and/or 22 filing CONFIDENTIAL information without obtaining leave to file under seal, the designating 23 party may request that the CONFIDENTIAL information be stricken, as well as any other relief 24 that the Court deems just and proper. IT IS SO ORDERED. 25 So Ordered. Dated: December 14, 2021 . 26 . Dated: 27 ______________________________ UNITED STATES DISTRICT JUDGE United States Magistrate Judge 28 LEWI S BRISBOI S BISGAAR 7 Case 2:21-cv-00446-JAD-NJK Document 24 23 Filed 12/14/21 Page 8 of 9 1 WE SO STIPULATE and agree to abide by the 2 terms of this Order 3 WE SO STIPULATE and agree to abide by the terms of this Order Respectfully submitted, 4 s/ Priscilla L. O’Briant 5 Robert W. Freeman (NV 3062) Priscilla L. O’Briant (NV 10171) 6 LEWIS BRISBOIS BISGAARD & SMITH LLP 6385 S. Rainbow Blvd., Suite 600 7 Las Vegas, NV 89118 T: (702) 893-3383 8 F: (704) 893-3789 E: robert.freeman@lewisbrisbois.com priscilla.obriant@lewisbrisbois.com 9 10 -- and -- Steven A. Alpert, NV #8353 PRICE LAW GROUP, APC 5940 S. Rainbow Blvd., Suite 3014 Las Vegas, NV 89118 T: (702) 794-2008 E: alpert@pricelawgroup.com 11 David M Krueger (admitted pro hac vice) Allyson R. Cady (admitted pro hac vice) 12 Benesch, Friedlander, Coplan & Aronoff LLP 200 Public Square, Suite 2300 13 Cleveland, Ohio 44114-2378 T: (216) 363-4500 14 F: (216) 363-4588 E:dkrueger@beneschlaw.com; acady@beneschlaw.com 15 Attorneys for Plaintiff Henry Holmes 16 Attorneys for Defendants USAA Savings Bank and USAA Federal Savings Bank 17 18 19 20 21 22 23 24 25 26 27 LEWI28 S BRISBOI S BISGAAR By: /s/ Michael J. Plati Michael J. Plati (admitted pro hac vice) Arizona Bar No. 016705 PRICE LAW GROUP, APC 8245 N. 85th Way Scottsdale, AZ 85258 T: (818) 600-5561 F: (818) 600-5461 E: plati@pricelawgroup.com 8 Case 2:21-cv-00446-JAD-NJK Document 24 23 Filed 12/14/21 Page 9 of 9 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 4 HENRY HOLMES, CASE NO.: 2:21-cv-00446-JAD-NJK Plaintiff, 5 STIPULATED PROTECTIVE ORDER — ATTACHMENT A vs. 6 USAA SAVINGS BANK and USAA 7 FEDERAL SAVINGS BANK, Defendants. 8 9 10 The undersigned hereby acknowledges that he/she has read the Stipulated Protective 11 Order (“Protective Order”) dated ______________, in the above-captioned action and attached 12 13 14 15 hereto, understands the terms thereof, and agrees to be bound by the terms. The undersigned submits to the jurisdiction of the District of Nevada for matters relating to the Protective Order and understands that the terms of the Protective Order obligate him/her to use documents 16 designated CONFIDENTIAL in accordance with the Protective Order solely for the purposes of 17 the above-captioned action, and not to disclose any such documents or information derived 18 therefrom to any other person, firm, or concern. The undersigned acknowledges that violation of 19 the Protective Order may result in penalties for contempt of court. 20 21 22 23 Name: Job Title/Employer: 24 25 Date: 26 Signature 27 LEWI28 S BRISBOI S BISGAAR 9
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