Anderson v. Department of Corrections et al, No. 2:2021cv00514 - Document 75 (D. Nev. 2023)
Court Description: ORDER Granting 74 Stipulated Protective Order Governing the Confidentiality of Information and Documents. Signed by Magistrate Judge Elayna J. Youchah on 5/8/2023. (Copies have been distributed pursuant to the NEF - JQC)
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Anderson v. Department of Corrections et al 1 2 3 4 5 6 7 Doc. 75 Anthony L. Martin Nevada Bar No. 8177 anthony.martin@ogletree.com Elody C. Tignor Nevada Bar No. 15663 elody.tignor@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 10801 W. Charleston Blvd. Suite 500 Las Vegas, NV 89135 Telephone: 702.369.6800 Fax: 702.369.6888 Attorneys for Plaintiff Anthony K. Anderson 9 UNITED STATES DISTRICT COURT 10 FOR THE DISTRICT OF NEVADA 11 ANTHONY K. ANDERSON, an individual, 13 14 15 16 17 18 Case No. 2:21-cv-00514-CDS-EJY Plaintiff, 12 10801 W. Charleston Blvd. Suite 500 Las Vegas, NV 89135 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 vs. NEVADA DEPARTMENT OF CORRECTIONS; HENRY LANDSMAN, M.D., an individual; ROMEO ARANSAS, M.D., an individual; REBECCA KOZLOFF, an individual; SONYA CARRILO R.N., an individual; GEORGE TIMOTHY KELLY, M.D., an individual; STIPULATED PROTECTIVE ORDER GOVERNING THE CONFIDENTIALITY OF INFORMATION AND DOCUMENTS Defendants. 19 20 Plaintiff Anthony K. Anderson (“Plaintiff”) and Defendants Nevada Department of 21 Corrections; Henry Landsman, M.D.; Romeo Aransas, M.D.; Rebecca Kozloff; Sonya Carrilo R.N.; 22 (collectively “Defendants”); and Defendant George Timothy Kelly, M.D. (“Defendant Kelly”), 23 (collectively referred to as “Parties”), by and through their respective attorneys of record, hereby 24 request the Court enter the following Stipulated Protective Order Governing the Confidentiality of 25 Information and Documents (“Stipulated Protective Order”). This Stipulation is brought pursuant to 26 and in compliance with Local Rule 7-1. 27 Plaintiff is expected to request confidential, non-public information and documents from 28 Defendants, including, but not limited to, medical reports, medical records, information that may Dockets.Justia.com 10801 W. Charleston Blvd. Suite 500 Las Vegas, NV 89135 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 1 contain patient information including patient names, addresses, and financial information, non- 2 public business records, personnel files, and other information and documents regarding certain 3 individuals, including employees who are not, and are not expected to be, parties to this matter. 4 Plaintiff may also request documents related to Defendants’ business operations. Defendants 5 consider this information and these documents to be private and confidential. In addition, Defendants 6 may request confidential, non-public information and documents from Plaintiff and third-parties, 7 including financial records, medical records, and other information and documents regarding certain 8 individuals, who are not, and are not expected to be, individual parties to this action. 9 Discovery in this case will require the production of documents, inspection of tangible things, 10 the answering of Interrogatories and Requests to Admit, and the taking of oral and/or written 11 depositions, during which the aforementioned medical, confidential and/or private information and 12 documents of the Parties will be exchanged and disclosed. To expedite the flow of discovery, 13 facilitate the prompt resolution of disputes over confidentiality, and to adequately protect material 14 entitled to be kept confidential, the Parties agree to limit the disclosure and use of proprietary, 15 confidential, and private information and documents as stipulated, pursuant to this Stipulated 16 Protective Order on the following terms: 17 I. 18 19 20 21 22 23 24 25 DEFINITIONS The following definitions shall apply to this Protective Order: A. This “Action” shall refer to the above-captioned proceeding in the United States District Court for the District of Nevada and any appeal thereof through final judgment. B. “Producing Party” shall mean any person or entity producing documents, information or other materials in this Action, including any Party to this Action or any third parties. C. “Party” shall mean the Plaintiff and Defendants in this Action, and any other person that may become a named Party to this Action. D. “Confidential” information shall be defined as such documents, deposition testimony 26 or other information disclosed during discovery in this Action which the Producing Party or another 27 Party reasonably and in good faith contends contains information that should be protected from 28 disclosure as a public record or to non-parties, counsel, and expert witnesses. Any Party may 2 1 designate any information or documents as Confidential in the reasonable exercise of such Party’s 2 sole discretion; provided, however, by agreeing to this Protective Order, no Party waives the right to 3 challenge any other Party’s designation of any information or document as Confidential. 4 E. “Legend” as used herein shall mean a stamp or similar insignia stating “Confidential”. 5 F. When reference is made in this Protective Order to any document or Party, the 6 singular shall include the plural, and plural shall include the singular. 7 II. 10801 W. Charleston Blvd. Suite 500 Las Vegas, NV 89135 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 DESIGNATION OF INFORMATION AND DOCUMENTS A. When any document, deposition testimony, or things produced under this Protective 9 Order are designated as Confidential Information, a Legend shall be affixed to the first page and all 10 pages containing information for which the Producing Party seeks protection. When information 11 produced in answer to an Interrogatory, or response to a Request for Production or Request for 12 Admission is designated as Confidential, the response or answer shall be preceded with the 13 appropriate designation. 14 B. Some documents being produced by both Plaintiff and Defendants may contain social 15 security numbers. Without need of any designation, social security numbers will be deemed to be 16 Confidential. In the event a document is produced without the redaction of a social security number, 17 any Party seeking to use the document will make every effort to redact the social security number 18 before its use in a deposition, court proceeding or court filing. 19 C. The initial failure to designate information or documents as Confidential in 20 accordance with this Stipulated Protective Order shall not preclude the Producing Party from, at a 21 later date, designating any information or documents as Confidential. The Producing Party may, by 22 written notice to counsel of record for the receiving Party, designate previously produced information 23 or documents as Confidential, which it had inadvertently failed to designate. The Producing Party 24 will reproduce any such documents with the Confidential Designation and will advise the non- 25 producing party to destroy previously produced documents if they were inadvertently not marked 26 confidential so as not to require an unnecessary burden on the non-producing party. 27 /// 28 /// 3 1 III. 2 A. materials generated or produced in response to any method of discovery conducted by any Party to 4 this Action and used in the prosecution and defense of this Action. B. Persons obtaining access to Confidential information under this Stipulated Protective 6 Order shall use the information only for the preparation of and the trial in this Action, including 7 motion practice as permitted by the Court. Persons shall not use such information for any other 8 purpose, including business, commercial, personal, administrative or judicial proceedings. 9 10801 W. Charleston Blvd. Suite 500 Las Vegas, NV 89135 Telephone: 702.369.6800 This Stipulated Protective Order shall govern only documents, information and 3 5 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. LIMITATIONS C. Nothing contained in this Stipulated Protective Order shall require any Party to treat 10 as Confidential documents or information lawfully obtained by means other than through discovery 11 in this Action and under circumstances that would lead a reasonable person to conclude that the 12 documents or information were not intended to be kept confidential by the recipient; provided, 13 however, that nothing in this Stipulated Protective Order shall authorize any use of documents or 14 information which is otherwise impermissible. 15 IV. PERMISSIBLE DISCLOSURES/ACCESS 16 Except as set forth herein, Confidential information, and any facts or information contained 17 therein or derived therefrom, shall be disclosed only to the Court on the condition that the Court 18 enters an Order similar to this Stipulated Protective Order and/or to: (a) the Parties in the Action, 19 including their agents, officers, directors, staff, support personnel and employees, but only to the 20 extent that such disclosure is necessary for the conduct of litigation in the Action; (b) outside counsel 21 for the Parties hereto and their agents, employees, paralegals, or other secretarial and clerical 22 employees or agents; (c) experts, independent contractors, consultants, or advisors who are employed 23 or retained by, or on behalf of, one or more of the Parties to the Action or their counsel to assist in 24 preparation of the Action for trial; (d) deponents and their counsel who have a need to review this 25 material during the course of, or in connection with, depositions taken in or for the Action; (e) 26 stenographic reporters who are involved in depositions, the trial or any hearings or proceedings 27 before the Court in the Action; (f) people who have previously received or created the document; 28 and (g) witnesses in the Action who need to review this material in connection with their testimony 4 55584916.v1-OGLETREE in the Action. Confidential information may be disclosed to persons listed in this paragraph only 2 after such person has been shown a copy of this Stipulated Protective Order and agrees to be bound 3 by the terms of this Stipulated Protective Order in the form attached hereto as Exhibit A. In the 4 event an authorized person does not execute Exhibit A expressly agreeing to be bound by this 5 Stipulated Protective Order, the Parties and the Court will nevertheless deem the authorized person 6 to be so bound. 7 V. DECLASSIFICATION 8 Unless and until otherwise ordered by the Court, or otherwise agreed by the Parties, all 9 documents and other discovery materials designated Confidential shall be treated as such under this 10 Stipulated Protective Order. In the event that any Party objects to the designation of any document, 11 the objecting Party may seek modification of the designation or the disclosure of the redacted 12 information in accordance with the following procedure: 13 10801 W. Charleston Blvd. Suite 500 Las Vegas, NV 89135 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 1 A. At any time, the receiving Party of any document or information designated as 14 Confidential may notify the Producing Party, in writing, that the receiving Party does not concur in 15 the designation or redaction. The Parties shall attempt to resolve such challenges informally. In the 16 event that such attempts are not successful, the receiving Party may file a motion seeking to remove 17 the designation as Confidential and the Court shall make an independent determination as to whether 18 or not any given document or information is Confidential and/or properly redacted based upon facts 19 then existing and, in so doing, the Court shall not be bound by any Party’s designation; provided, 20 however, that such documents or discovery material shall be deemed Confidential unless and until 21 the Court rules otherwise. The Party or entity making the designation must show that there is good 22 cause for the document or information to have such protection. 23 B. In the event that any Party files a motion to uphold a designation or redaction of 24 information, the document or information shall be submitted to the Court for in camera inspection. 25 VI. 26 DESIGNATED INFORMATION AND DOCUMENTS IN DEPOSITIONS A. In the case where Confidential information or documents are used or revealed during 27 a deposition, designation of the transcript or any portion thereof, including the designated documents 28 or other exhibits, deemed to be Confidential, may be made by a statement by a Party, counsel or the 5 10801 W. Charleston Blvd. Suite 500 Las Vegas, NV 89135 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 1 witness on the record, so that the stenographer transcribing the deposition can affix a Legend to the 2 cover page and all appropriate pages of the transcript and to each copy thereof for dissemination to 3 counsel and in compliance with this Stipulated Protective Order. 4 B. A Party or a witness may designate a deposition or trial transcript, or a portion thereof, 5 disclosing, containing or referring to any Confidential information or documents as “Confidential” 6 by informing counsel for all other Parties to this Action in writing within thirty (30) days after receipt 7 of the transcript as to the specific pages and lines deemed Confidential, and thereafter such pages 8 and lines shall constitute Confidential information or documents pursuant to this Stipulated 9 Protective Order. Upon receipt of such notice, any Party in possession of copies of the transcript 10 with the designated pages and lines shall affix the appropriate Legend thereto. During the 30-day 11 interval following receipt of a transcript, the transcript shall be treated as Confidential. 12 VII. DESIGNATED INFORMATION AND DOCUMENTS IN BRIEFS 13 In the event that any Confidential document or information, or information derived 14 therefrom, is included with or the contents thereof are disclosed in any documents filed with the 15 Clerk of this Court or any other court including, without limitation, any pleadings, motion papers, 16 briefs or deposition transcripts, such documents shall be filed under seal subject to the provisions of 17 LR IA 10-5. Alternatively, the parties may meet and confer in advance of the motion to discuss 18 whether and to what extent the Confidential document or information may be used, e.g., by redacting 19 information not relevant to the motion or argument, so as to avoid the burden of filing the motion 20 under seal. 21 respect to the use of Confidential documents and/or information in law and motion practice. 22 VIII. DESIGNATED INFORMATION AND DOCUMENTS IN THE RECORD OF THE ACTION 23 24 25 26 27 28 The parties agree to cooperate in good faith to reach a reasonable compromise with Confidential information or documents may be offered in evidence at any hearing or the trial in the Action. The designating Party shall initiate a meet and confer conference in advance of any hearing or trial that will provide the Parties a reasonable amount of time to meet and confer in advance of a hearing and/or trial as to how the information or documents will be used including, by way of example, requesting that the Court designate that portion of the transcript containing the 6 10801 W. Charleston Blvd. Suite 500 Las Vegas, NV 89135 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 1 Parties’ discussion of the Confidential information or documents as Confidential and maintain it 2 under seal, only to be produced to the Parties’ at their request. If the Parties cannot agree about how 3 the information or documents will be used during a hearing, before or at the time of the hearing, the 4 Party designating such Confidential status may move the Court for an Order that the evidence be 5 received in camera or under other conditions to prevent unnecessary disclosure. If such a motion is 6 made regarding evidence to be introduced at the time of trial, then the Party designating such 7 Confidential status shall notify opposing counsel and the Court of its intent to make the motion 8 sufficiently in advance of and outside the presence of the jury so that counsel has the opportunity to 9 object to the evidence and/or an opportunity to seek appropriate protection from the Court outside 10 the presence of the jury and before the information or documents are offered into evidence in open 11 court. The Court will then determine whether the proffered evidence should continue to be treated 12 as Confidential and, if so, what protection, if any, may be afforded to such information at the hearing. 13 IX. SUBPOENA BY COURT OR OTHER AGENCIES 14 If at any time any document or information protected by this Stipulated Protective Order is 15 subpoenaed by any court, administrative or legislative body, or is requested by any other person or 16 entity purporting to have authority to require the production of such information, the Party to whom 17 the subpoena or other request is directed shall give written notice thereof in no less than five calendar 18 days to any Party which has designated such information Confidential. After receipt of the notice 19 specified under this paragraph, the designating Party shall be responsible for obtaining any Order it 20 believes necessary to prevent disclosure of documents designated, and the Party to whom the 21 referenced subpoena or other request is directed shall produce such document or information only 22 upon an Order issued by a judge of a court of competent jurisdiction requiring such production. 23 X. CLIENT CONSULTATION 24 Nothing in this Protective Order shall prevent or otherwise restrict counsel from rendering 25 advice to their clients and, in the course thereof, relying generally on examination of stamped 26 Confidential Information or documents; provided, however, that in rendering such advice and 27 otherwise communicating with such clients, counsel shall not make specific disclosure of any items 28 so designated except pursuant to the procedures in Paragraph IV above. 7 1 10801 W. Charleston Blvd. Suite 500 Las Vegas, NV 89135 Telephone: 702.369.6800 COPIES OF DESIGNATED INFORMATION 2 The attorneys of record are responsible for employing reasonable measures, consistent with 3 this Stipulated Protective Order, to control duplication of, access to, and distribution of copies of 4 Confidential information. Parties shall not duplicate Confidential information or documents except 5 working copies and for filing in Court under seal. All copies of any Confidential information or 6 documents shall be treated as provided in this Stipulated Protective Order. 7 XII. 8 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. XI. NO WAIVER A. No Confidential information or documents shall lose such status under this Stipulated 9 Protective Order as the result of the use of such information or documents in any hearing, trial, or 10 other court proceeding in this Action, provided that such use is consistent with the terms of this 11 Protective Order. 12 B. Notwithstanding anything to the contrary contained herein, all objections as to 13 admissibility in evidence of the discovery material subject to this Stipulated Protective Order are 14 reserved and are not waived by any terms of this Stipulated Protective Order. The use of Confidential 15 information and documents as evidence at trial shall be subject to this Stipulated Protective Order 16 unless otherwise agreed to by the Parties or modified by the Court. 17 C. The inadvertent disclosure of Confidential information and documents shall not, 18 under any circumstances, be deemed a waiver, in whole or in part, of any Party’s claims of 19 confidentiality. 20 D. The inadvertent production of any document or other information during discovery 21 in this Action shall be without prejudice to any claim that such material is privileged, prohibited or 22 protected from disclosure as privileged or work product, and no Party shall be held to have waived 23 any rights by reason of such inadvertent production. 24 XIII. NON-TERMINATION 25 The termination of proceedings in the Action shall not relieve the Parties from the obligation 26 of maintaining the confidentiality of all information and documents produced and designated 27 pursuant to this Stipulated Protective Order, unless the Parties otherwise agree or the Court orders 28 or permits otherwise. Upon the final disposition of the Action, all information and documents, 8 1 including any summaries or abstracts of materials, however maintained, shall be kept completely 2 confidential. Counsel for either Party may use the Confidential information and documents only for 3 the purpose of defending ethical charges or professional malpractice charges, and may not use 4 Confidential information or documents in any subsequent lawsuit. 5 XIV. INADVERTENT PRODUCTION OF PRIVILEGED MATERIALS A. The inadvertent production of information that is subject to a claim of any privilege 7 or other protection as trial-preparation material shall not constitute a waiver of any privilege or 8 protection, provided that – consistent with the provisions of Fed. R. Civ. P. 26(b)(5) – the Producing 9 Party notifies the receiving Party in writing of the inadvertent production as soon as practicable 10 following the Producing Party’s discovery of the inadvertent production. 11 10801 W. Charleston Blvd. Suite 500 Las Vegas, NV 89135 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 6 B. Following the Producing Party’s written notice of the inadvertent production, the 12 receiving Party shall promptly return, destroy, or delete from its databases all copies of the specified 13 information and shall make reasonable efforts to retrieve the information if the receiving Party 14 previously provided the information to third parties. 15 C. The receiving Party shall not assert a claim or argument in this or any other court or 16 legal proceeding that the Producing Party’s act of inadvertently producing the information 17 constituted a waiver of the Producing Party’s privilege or other protection over the information. 18 D. If there is a disagreement as to whether the specified information is privileged or 19 subject to protection, the receiving Party may present the information under seal to the Court for a 20 determination. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 9 1 Until the Court makes a determination of the privileged or protected status of the 2 information, the receiving Party shall not use in any way (including, but not limited to, using the 3 information in depositions or at trial) nor disclose the information to other Parties. 4 IT IS SO STIPULATED. 5 DATED this 8th day of May, 2023. 6 NEVADA ATTORNEY GENERAL'S OFFICE 7 /s/ Victoria C. Corey 8 9 10 11 12 DATED this 8th day of May, 2023. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. /s/ Elody C. Tignor Victoria C. Corey Nevada Bar No. 16364C 555 E. Washington Ave., Suite 3900 Las Vegas, NV 89101 Telephone: 702.486.3326 Attorney for Defendants Nevada Dept. of Corrections, Henry Landsman, M.D., Romeo Aransas, M.D., Rebecca Kozloff, Sonya Carrilo R.N. Anthony L. Martin Nevada Bar No. 8177 Elody C. Tignor Nevada Bar No. 15663 10801 W. Charleston Blvd., Suite 500 Las Vegas, NV 89135 Telephone: 702.369.6800 Fax: 702.369.6888 13 10801 W. Charleston Blvd. Suite 500 Las Vegas, NV 89135 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. E. 14 15 16 17 18 19 20 Attorneys for Plaintiff Anthony K. Anderson DATED this 8th day of May, 2023. MCCORMICK, BARSTOW, WAYTE & CARRUTH LLP SHEPPARD, /s/ Cheryl A. Grames Katherine J. Gordon Cheryl A. Grames 8337 West Sunset Road, Suite 350 Las Vegas, NV 89113 Telephone: 702.949.1100 Attorneys for Defendant George Timothy Kelly, M.D. 21 ORDER 22 23 IT IS SO ORDERED. 24 25 26 UNITED STATES MAGISTRATE JUDGE DATED: May 8, 2023 27 28 10 1 EXHIBIT A 2 UNDERSTANDING AND AGREEMENT REGARDING CONFIDENTIAL DOCUMENTS AND INFORMATION 3 I hereby state that I have read and received a copy of the Stipulated Protective Order 4 5 vs. Nevada Department OF Corrections; Henry Landsman, M.D.; Romeo Aransas, M.D.; Rebecca 7 Kozloff; Sonya Carrilo R.N; and George Timothy Kelly, M.D., Case No. 2:21-cv-00514-CDS-EJY, 8 which case is currently pending in the United States District Court for the District of Nevada (the 9 “Court”). I understand the terms of the Order, agree to be bound by those terms, and consent to the 10 jurisdiction of the Court with respect to enforcement of the Order. 11 12 13 10801 W. Charleston Blvd. Suite 500 Las Vegas, NV 89135 Telephone: 702.369.6800 Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 6 Governing the Confidentiality of Documents and Information (the “Order”) in Anthony K. Anderson 14 15 ___________________________________________ Signature ___________________________________________ Printed Name ___________________________________________ Dated 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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