Ogden v. Harbor Freight Tools USA, Inc., No. 2:2022cv01129 - Document 22 (D. Nev. 2023)
Court Description: PROTECTIVE ORDER granting 21 Stipulated Protective Order. Signed by Magistrate Judge Cam Ferenbach on 5/1/2023. (Copies have been distributed pursuant to the NEF - AMM)
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Ogden v. Harbor Freight Tools USA, Inc. Doc. 22 Case 2:22-cv-01129-MMD-VCF Document 22 Filed 05/01/23 Page 1 of 7 1 2 3 4 5 6 Morgan T. Petrelli, Esq. Nevada Bar No. 13221 SNELL & WILMER L.L.P. 3883 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 Telephone: 702.784.5200 Facsimile: 702.784.5252 mpetrelli@swlaw.com Attorney for Harbor Freight Tools USA, Inc. 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 JOSEPH OGDEN, Individually; Snell & Wilmer 12 Plaintiff, STIPULATED PROTECTIVE ORDER 13 v. 14 HARBOR FREIGHT TOOLS USA, INC., a Corporation, and DOES I-X, and ROE CORPORATIONS I-X, inclusive, 15 Case No.: 2:22-cv-01129-MMD-VCF 16 Defendants. 17 In order to preserve and maintain the confidentiality of certain confidential, commercial 18 and/or proprietary documents and information produced or to be produced by HARBOR FRIEGHT 19 TOOLS USA, INC. (“Harbor Freight”) in this action, it is ordered that: 20 1. Documents to be produced by Harbor Freight in this litigation that contain 21 confidential, commercially sensitive and/or proprietary information shall hereafter be referred to as 22 “Protected Documents.” A document or portion of a document that Harbor Freight determines in 23 good faith to be a Protected Document may be designated as confidential by marking or placing 24 the applicable notice “Subject to Protective Order,” “Confidential,” or substantially similar 25 language on media containing Protected Documents, on the document itself, or on a copy of the 26 document, in such a way that it does not obscure the text or other content of the document. 27 28 2. As used in this Order, the term “documents” means all written material, videotapes and all other tangible items, produced in whatever format (e.g., hard copy, electronic, digital, etc.) Dockets.Justia.com Case 2:22-cv-01129-MMD-VCF Document 22 Filed 05/01/23 Page 2 of 7 1 and on whatever media (e.g., hard copy, videotape, computer diskette, CD-ROM, DVD, hard drive 2 or otherwise). Snell & Wilmer 3 3. Any document or any information designated as “Subject to Protective Order,” 4 “Confidential,” or substantially similar language in accordance with the provisions of this Order 5 shall only be used, shown or disclosed as provided in this Order. However, nothing in this Order 6 shall limit a party’s use or disclosure of his or her own information designated as Confidential 7 Material. 8 4. If a party disagrees with the "Protected" designation of any document, the party will 9 so notify Harbor Freight in a written letter, within 30 days of receipt of the confidential documents 10 and information, identifying the challenged document(s) with specificity, including Bates- 11 number(s) where available. If the parties are unable to resolve the issue of confidentiality regarding 12 the challenged document(s), Harbor Freight will thereafter timely apply to this Court to set a 13 hearing for the purpose of establishing that the challenged document(s) is/are confidential. Any 14 document so marked as “Protected” will continue to be treated as such pending determination by 15 the Court as to its confidential status. 16 5. Protected Documents and any copies thereof received pursuant to paragraph 6 below 17 shall be maintained confidential by the receiving party, his/her attorney, other representatives, and 18 expert witnesses, and shall be used only for preparation for the trial of this matter, subject to the 19 limitations set forth herein. 20 21 6. Protected Documents shall be disclosed only to “Qualified Persons.” Qualified Persons are limited to: 22 a. Counsel of Record for the parties, and the parties; 23 b. Non-technical and clerical staff employed by Counsel of Record and 24 involved in the preparation and/or trial of this action; 25 c. 26 preparation and/or trial of this case, provided that no disclosure shall be made to any 27 expert or consultant who is employed by a competitor of Harbor Freight; 28 d. Experts and non-attorney consultants retained by the parties for the The Court, the Court’s staff, witnesses, and the jury in this case; and -2- Case 2:22-cv-01129-MMD-VCF Document 22 Filed 05/01/23 Page 3 of 7 1 2 Snell & Wilmer 3 7. Plaintiff’s Counsel must make reasonable efforts to ensure the individuals described in paragraphs 6(c) and 6(e) above are Qualified Persons. 8. Before receiving access to any Protected Document or the information contained 4 therein, each person described in paragraphs 6(c) and 6(e) above shall execute a “Written 5 Assurance” in the form contained in Exhibit A, attached hereto. Counsel for Plaintiff shall retain 6 each such executed Written Assurance and shall keep a list identifying (a) all persons described in 7 paragraphs 6(c) and 6(e) above to whom Protected Documents have been disclosed, and (b) all 8 Protected Documents disclosed to such persons. Each such executed Written Assurance and list 9 shall be submitted to counsel for Harbor Freight at the termination of this litigation or upon Order 10 of the Court requiring production, whichever comes first. However, for consulting experts who 11 were not designated as testifying experts, Plaintiff’s counsel may redact the name, address, and 12 signature of the consultant before disclosing the executed Exhibit A and document list for that 13 person. To the extent the “Qualified Persons” described in paragraph 6(c) or 6(e) above include 14 privileged non-testifying expert consultants, Counsel for Plaintiff shall retain each such executed 15 Exhibit A and shall keep a list identifying (a) all such non-testifying expert consultants described 16 in paragraphs 6(c) and 6(e) above to whom Protected Documents have been disclosed, and (b) all 17 Protected Documents disclosed to such persons. In the event that Harbor Freight seeks to compel 18 the production of each unredacted and executed Exhibit A for good cause, Counsel for Plaintiff 19 shall submit each unredacted and executed Exhibit A and list to the Court for in camera inspection. 20 Persons described in paragraph 6(b) shall be covered under the signature of Counsel of Record. 21 9. As the Protected Documents may only be distributed to Qualified Persons, 22 Plaintiff’s Counsel, and all persons described in paragraph 6 above, may not post Protected 23 Documents on any website or internet accessible document repository and shall not under any 24 circumstance sell, offer for sale, advertise, or publicize either the Protected Documents and the 25 Confidential information contained therein or the fact that such persons have obtained Harbor 26 Freight’s Protected Documents and Confidential information. 27 28 10. To the extent that Protected Documents or information obtained therefrom are used in the taking of depositions and/or used as exhibits at trial, such documents or information shall -3- Case 2:22-cv-01129-MMD-VCF Document 22 Filed 05/01/23 Page 4 of 7 1 remain subject to the provisions of this Order, along with the transcript pages of the deposition 2 testimony and/or trial testimony dealing with, referring to or referencing the Protected Documents 3 or information. Snell & Wilmer 4 11. In conjunction with filing any documents with the Court that contain any portion of 5 any Protected Document or information taken from any Protected Document, the filing party must 6 file a motion for an order sealing the documents consistent with the Ninth Circuit opinions of 7 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) and Pintos v. 8 Pacific Creditors Association, 605 F.3d 665, 678 (9th Cir. 2010) and consistent with Local Rule 9 10-5(b). A copy of the motion to seal must be served on all parties, who have appeared in the case. 10 When filing the motion, the filing party will cite to the Court the grounds for filing any Protected 11 Document under seal. The parties agree that any motion will be narrow in scope to ensure that the 12 only information withheld from public inspection is information expressly authorized by law. 13 Whenever possible, disputes regarding confidentiality designations should be resolved before any 14 Protected Document or any document containing or referencing it is filed with the Court. For any 15 item of any Protected Document which a designation dispute has not been resolved, that item and 16 any document containing or referencing it will be filed under seal (at least provisionally), pursuant 17 to local court practice or in a sealed envelope or other appropriate sealed container on which shall 18 be endorsed the title of the action to which it pertains, an indication of the nature of the contents of 19 such sealed envelope or other container, the phrase “Subject To Protective Order,” and a statement 20 substantially in the following form: “This envelope or container shall not be opened without order 21 of the Court, except by officers of the Court and counsel of record, who, after reviewing the 22 contents, shall return them to the clerk in a sealed envelope or container.” 23 12. Any attorney wishing to file or submit to the Court any Protected Document, or any 24 affidavits, memoranda, exhibits or other papers containing or making reference to Protected 25 Document, then such attorney shall first consider whether redacting portions of such materials that 26 contain or refer to confidential information is practical and will protect the Protected Document 27 while leaving other non-confidential information meaningful, as required by Foltz v. State Farm 28 -4- Case 2:22-cv-01129-MMD-VCF Document 22 Filed 05/01/23 Page 5 of 7 1 Mut. Auto. Ins. Co., 331 F.3d 1122 (9th Cir. 2003). If so, redacted versions of such materials shall 2 be filed with the Court according to the standard filing procedures. 3 Any court reporter or transcriber who reports or transcribes testimony in this action 4 shall agree that all “confidential” information designated as such under this Order shall remain 5 “confidential” and shall not be disclosed by them, except pursuant to the terms of this Order, and 6 that any notes or transcriptions of such testimony (and any accompanying exhibits) will be retained 7 by the reporter or delivered to counsel of record. 8 9 10 11 Snell & Wilmer 13. 14. Counsel for the parties shall not be required to return the Protected Documents to Harbor Freight after the conclusion of this case and may retain the documents pursuant to the terms of this Order. 15. To the extent Harbor Freight is requested to produce documents it feels should not 12 be subject to the sharing provisions of this protective order, Harbor Freight does not waive and 13 specifically reserves its right to subsequently request that the parties enter into a non-sharing 14 protective order prior to the production of any such documents. 15 16. Inadvertent or unintentional production of documents or information containing 16 confidential information which should have been designated as Protected Document(s) shall not be 17 deemed a waiver in whole or in part of the party's claims of confidentiality. 18 17. This Protective Order may not be waived, modified, abandoned or terminated, in 19 whole or part, except by an instrument in writing signed by the parties. If any provision of this 20 Protective Order shall be held invalid for any reason whatsoever, the remaining provisions shall 21 not be affected thereby. 22 18. After termination of this litigation, the provisions of this Order shall continue to be 23 binding. This Court retains and shall have jurisdiction over the parties and recipients of the 24 Protected Documents for enforcement of the provisions of this Order following termination of this 25 litigation. 26 19. This Protective Order shall be binding upon the parties hereto, upon their attorneys, 27 and upon the parties’ and their attorneys’ successors, executors, personal representatives, 28 administrators, heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, -5- Case 2:22-cv-01129-MMD-VCF Document 22 Filed 05/01/23 Page 6 of 7 1 2 3 4 5 6 7 8 independent contractors, or other persons or organizations over which they have control. Respectfully submitted this 1st day of May, 2023. SNELL & WILMER L.L.P. By: /s/ Morgan Petrelli Morgan T. Petrelli, Esq. Nevada Bar No. 13221 3883 Howard Hughes Pkwy., Ste. 1100 Las Vegas, Nevada 89169 Attorney for Harbor Freight Tools USA, Inc. 9 10 ARIAS SANGUINETTI WANG & TORRIJOS, LLP By: /s/ Christopher A.J. Swift Gregg A. Hubley, Esq. Christopher A.J. Swift, Esq. 7210 W. Lake Mead Blvd. #570 Las Vegas, NV 89128 Eddie B. Dennis, Esq. LEDERER & NOJIMA LLP 12100 Wilshire Boulevard, Ste. 480 Los Angeles, CA 90025 Attorneys for Plaintiff 11 Snell & Wilmer 12 13 14 ORDER 1st IT IS SO ORDERED this ________ day of May, 2023. 15 16 U.S. MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 -6- Case 2:22-cv-01129-MMD-VCF Document 22 Filed 05/01/23 Page 7 of 7 1 EXHIBIT A TO STIPULATED PROTECTIVE ORDER 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 JOSEPH OGDEN, Individually; Plaintiff, 5 v. 7 8 HARBOR FREIGHT TOOLS USA, INC., a Corporation, and DOES I-X, and ROE CORPORATIONS I-X, inclusive, 9 Defendants. 11 12 Snell & Wilmer STIPULATED PROTECTIVE ORDER 6 10 13 14 15 16 17 18 Case No.: 2:22-cv-01129-MMD-VCF AFFIDAVIT OF _______________________________________, being duly sworn and personally appearing before the undersigned attesting officer, duly authorized by law to administer oaths, deposes and says that the within statements are true and correct: 1. I have read the Stipulated Protective Order attached hereto, and I understand its terms and meanings. 2. I agree that my signature below submits me to the jurisdiction of the UNITED STATES DISTRICT COURT DISTRICT OF NEVADA, in the above captioned case and binds me to the provisions of the Stipulated Protective Order, including to all promises undertaken in the Order, as if originally agreed by me. 19 20 Further Affiant sayeth not. This __ day of _______________, ____. ____________________________ AFFIANT 21 22 23 24 25 SUBSCRIBED AND SWORN to before me this ___ day of _________________, ____. _______________________________ NOTARY PUBLIC My Commission Expires: 26 27 28 -7-
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