Greer v. Kohl's Inc. et al, No. 2:2023cv00871 - Document 16 (D. Nev. 2023)

Court Description: ORDER Granting 14 Stipulated Protective Order. Signed by Magistrate Judge Nancy J. Koppe on 7/21/2023. (Copies have been distributed pursuant to the NEF - JQC)

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Greer v. Kohl's Inc. et al 1 2 3 4 5 6 7 8 Doc. 16 Chad R. Fears, Esq. (SBN 6970) Hayley E. LaMorte, Esq. (SBN 14241) EVANS FEARS SCHUTTERT MCNULTY MICKUS 6720 Via Austi Parkway, Suite 300 Las Vegas, NV 89119 Telephone: (702) 805-0290 Facsimile: (702) 805-0291 Email: cfears@efstriallaw.com Email: hlamorte@efstriallaw.com Attorneys for Defendants SharkNinja Sales Company, SharkNinja Management Company, SharkNinja Management LLC, and SharkNinja Operating LLC UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 WENDY GREER, an individual; Plaintiff 12 13 v. 14 KOHL’S INC., a foreign corporation; SHARKNINJA SALES COMPANY, a foreign corporation; SHARKNINJA MANAGEMENT COMPANY, a foreign corporation; SHARKNINJA MANAGEMENT LLC., a foreign corporation; SHARKNINJA OPERATION LLC., a foreign corporation DOE EMPLOYEE; DOES I through X, inclusive; and DOE BUSINESS ENTITIES I through X, inclusive, 15 16 17 18 19 20 21 22 CASE NO. 2:23-cv-00871-JCM-NJK PROPOSED STIPULATED PROTECTIVE ORDER AS AMENDED Defendants. [PROPOSED] STIPULATED PROTECTIVE ORDER 23 Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Plaintiff Wendy Greer 24 (“Plaintiff”), Defendant Kohl’s Inc, and Defendants SharkNinja Management LLC, SharkNinja 25 Operating LLC, SharkNinja Sales Company, and SharkNinja Management Company (collectively 26 “SharkNinja”) hereby request the Court enter the following Stipulated Sharing and Non-sharing 27 Protective Order (“Order”). Disclosure and discovery in this matter may involve production of 28 confidential, commercial and/or proprietary documents and information. In order to preserve and Dockets.Justia.com 1 maintain the confidentiality of certain confidential, commercial and/or proprietary documents and 2 information produced or to be produced by SharkNinja or by any party in this action, it is hereby 3 STIPULATED and ORDERED that: 4 1. Documents or information to be produced or provided by SharkNinja or any party 5 in this litigation that contain confidential, commercially sensitive, private personal information 6 and/or proprietary information may be designated as confidential by marking or placing the 7 applicable notice “Subject to Non-Sharing Protective Order,” “Subject to Protective Order,” or 8 “Confidential,” or substantially similar language on media containing the documents, on the 9 document itself, or on a copy of the document, in such a way that it does not obscure the text or 10 11 other content of the document. 2. As used in this Order, the terms “documents” or “information” mean all written 12 material, electronic data, videotapes and all other tangible items, produced in whatever format (e.g., 13 hard copy, electronic, digital, etc.) and on whatever media (e.g., hard copy, videotape, computer 14 diskette, CD-ROM, DVD, by secure electronic transmission, hard drive or otherwise). Further, the 15 terms shall have the full meaning ascribed to them by the Federal Rules of Civil Procedure. 16 3. Documents or information designated as “Subject to Non-Sharing Protective 17 Order,” “Subject to Protective Order,” or “Confidential” or substantially similar language in 18 accordance with the provisions of this Order (“Protected Documents” or “Protected Information”) 19 shall only be used, shown or disclosed as provided in this Order. However, nothing in this Order 20 shall limit a party’s use or disclosure of his or her own information designated as a Protected 21 Document or Protected Information. 22 4. If a receiving party disagrees with the “Protected” designation of any document or 23 information, the Challenging Party shall initiate the dispute resolution process by providing written 24 notice of each designation it is challenging and describing the basis for each challenge. The Parties 25 shall attempt to resolve each challenge in good faith and must confer within 10 days of the date of 26 service of notice. In conferring, the Challenging Party must explain the basis for its belief that the 27 confidentiality designation was not proper and must give the Designating Party an opportunity to 28 review the designated material, to reconsider the circumstances, and, if no change in designation is -2- 1 offered, to explain the basis for the chosen designation. A Challenging Party may proceed to the 2 next stage of the challenge process only if it has engaged in this meet and confer process first or 3 establishes that the Designating Party is unwilling to participate in the meet and confer process in 4 a timely manner. 5 5. Protected Documents and any copies thereof shall be maintained confidential by the 6 persons authorized to receive the documents pursuant to paragraph 6 and shall be used only for 7 prosecuting, defending, or attempting to settle this litigation, subject to the limitations set forth 8 herein. 9 10 6. Protected Documents shall be disclosed only to “Qualified Persons.” Qualified Persons are limited to: 11 a. Counsel of Record for the parties, and the parties; 12 b. Attorneys, paralegals and staff employed by Counsel of Record’s firm and 13 14 involved in the preparation and trial of this action; c. A vendor hired by a party to host data and maintain a database of electronic 15 data or perform other work related to the collection, review or production of documents in 16 the case; 17 d. Experts and non-attorney consultants retained by the parties for the 18 preparation and/or trial of this case, provided that no disclosure shall be made to any expert 19 or consultant who is employed by a competitor of SharkNinja; 20 e. Any deponent may be shown or examined on any information, document or 21 thing designated Confidential if it appears that the witness authored or received a copy of 22 it, the witness was involved in the subject matter described therein or the witness is 23 employed by the party who produced the information, document or thing, or if the producing 24 party consents to such disclosure, which consent cannot be unreasonably withheld; 25 f. The Court, the Court’s staff, witnesses, and the jury in this case; 26 g. Any mediator, special master or other third parties (collectively, 27 “Mediators”) appointed by the Court or retained by the parties for settlement purposes or 28 resolution of discovery or other disputes and their staff; and -3- 1 testimony is received, or (ii) by written notice served on counsel of record in this Litigation within 2 thirty (30) business days after the receipt of the draft or final transcript (whichever is received 3 earlier) of such proceeding (as used herein, the term “draft transcript” does not include an ASCII 4 or rough transcript). However, before such thirty (30) day period expires, all testimony, exhibits 5 and transcripts of depositions or other testimony shall be treated as Protected Documents. All 6 portions of transcripts not designed as Confidential within the time frame provided herein shall be 7 deemed not confidential. 8 11. If any party disagrees with the designation of all or part of a deposition transcript 9 designated as “Protected” pursuant to Paragraph 10 above, the Challenging Party shall initiate the 10 dispute resolution process by providing written notice of each designation it is challenging and 11 describing the basis for each challenge. The Parties shall attempt to resolve each challenge in good 12 faith and must confer within 10 days of the date of service of notice. In conferring, the Challenging 13 Party must explain the basis for its belief that the confidentiality designation was not proper and 14 must give the Designating Party an opportunity to review the designated material, to reconsider the 15 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 16 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 17 has engaged in this meet and confer process first or establishes that the Designating Party is 18 unwilling to participate in the meet and confer process in a timely manner. If the parties are unable 19 to resolve the issue of confidentiality regarding the challenged deposition testimony, the designated 20 deposition testimony at issue, and any related exhibits, will continue to be treated as a Protected 21 Document, in accord with its respective designation, pending determination by the Court as to the 22 confidential status. 23 12. In the event that any receiving party desires that any Confidential materials be with, or the contents thereof be in any way disclosed, in any hearing, pleading, motion or See order issued concurrently herewith p per filed with the Clerk of this Court, in connection with a motion or otherwise, documents, 25 26 depositions or other discovery materials that have been marked “CONFIDENTIAL” or to file any 27 document which quotes or substantially summarizes the substance of such Confidential material, 28 shall do so by filing the documents or pleadings under seal according to Local Rule 10-5. Any -5- 1 a. The production of documents (including both paper documents and 2 electronically stored information or “ESI”) subject to protection by the attorney-client 3 and/or work product doctrine or by another legal privilege protecting information from 4 discovery, shall not constitute a waiver of any privilege or other protection, provided that 5 the producing party notifies the receiving party, in writing, of the production within 14 days 6 after its discovery of the same. 7 b. If the producing party notifies the receiving party within 14 days after 8 discovery that privileged materials (hereinafter referred to as the “Identified Materials”) 9 have been produced, the Identified Materials and all copies of those materials shall be 10 returned to the producing party or destroyed or deleted, on request of the producing party. 11 The producing party will provide a privilege log providing information upon request or if 12 required by the Federal Rules of Civil Procedure and applicable case law to the receiving 13 party at the time the producing party provides the receiving party notice of the Identified 14 Materials. If the receiving party has any notes or other work product reflecting the contents 15 of the Identified Materials, the receiving party will not review or use those materials unless 16 a court later designates the Identified Materials as not privileged or protected. 17 18 19 c. This Stipulation and Order does not preclude a Party from intentionally waiving any claims of privilege or protection. d. The receiving party shall upon notice of the Identified Materials, (i) 20 immediately cease the review and use of the disclosed document or information, except to 21 the extent necessary to determine and/or contest the privilege or protection; (ii) if the 22 receiving party does not challenge the assertion, return, sequester, or destroy the disclosed 23 document or information forthwith, as well as any and all copies thereof; and (iii) if the 24 receiving party does not challenge the assertion, destroy or sequester any references to the 25 erroneously or inadvertently disclosed document or its contents, to the extent such 26 references exist in other materials prepared by the producing party. 27 28 e. The contents of the Identified Materials shall not be disclosed to anyone who was not already aware of the contents of them before the notice was made. The receiving -7- 1 party must take reasonable steps to retrieve the Identified Materials if the receiving party 2 disclosed the Identified Materials before being notified. f. 3 If any receiving party is in receipt of a document from a producing party 4 which the receiving party has reason to believe is privileged, the receiving party shall in 5 good faith take reasonable steps to promptly notify the producing party of the production of 6 that document so that the producing party may make a determination of whether it wishes 7 to have the documents returned or destroyed pursuant to this Stipulation and Order. g. 8 9 The party returning the Identified Materials may move the Court for an order compelling production of some or all of the Identified Material returned or destroyed. h. 10 Pursuant to Rule 502(d) of the Federal Rules of Evidence, the disclosure of 11 Identified Materials in this action is not a waiver of the attorney-client privilege, work 12 product doctrine or any other asserted privilege in any other federal or state proceeding. i. 13 Notwithstanding the foregoing, the Parties agree that any document used by 14 any Party in a deposition, expert report, or court filing in this action that a producing party 15 does not claw back within 7 calendar days of its use, (“Used Document”) shall not be 16 eligible for clawback of that document under this Stipulated Protective Order. Such 17 ineligibility for clawback of that document under this Stipulated Protective Order shall not 18 result in a subject matter waiver in any other state or federal proceeding. The producing 19 party reserves its rights to utilize FRE 502(b) and the receiving party reserves its rights 20 under FRE 502(b), including but not limited to establishing whether and to what extent a 21 court order recognizing waiver of privilege under FRE 502(b) with respect to a document 22 effects a subject matter waiver. 23 18. No provision of this Order shall constitute a concession by any party that any 24 documents are subject to protection by the attorney-client privilege, the work product doctrine or 25 any other potentially applicable privilege or doctrine. No provision of this stipulated order is 26 intended to waive or limit in any way either party’s right to contest any privilege claims that may 27 be asserted with respect to any of the documents produced except to the extent set forth herein. 28 -8- 19. 1 2 In the event that a party produces a document without a confidentiality designation as permitted by this Order, the following procedures shall apply: a. 3 The producing party shall, within fourteen (14) days of the discovery of the 4 disclosure, notify the other party in writing. The party receiving such notice shall promptly 5 destroy the document, including any copies it has, or return the document on request of the 6 producing party. Within ten (10) days after such document is returned or its destruction 7 certified, the producing party will produce a new version of any such document that was 8 returned or destroyed, which will contain the appropriate confidentiality designation. b. 9 If the receiving party disputes the producing party’s claim of confidentiality, 10 that party may move the Court to challenge the confidential designation in accordance with 11 Paragraph 4 of this Order. If the receiving party elects to file such a motion, the receiving 12 party may retain possession of the document, but shall treat it in accordance with the terms 13 of the Protective Order pending resolution of the motion. If the receiving party’s motion is 14 denied, the parties shall promptly comply with Paragraph 19(a) of this Order. c. 15 The production of such document does not constitute a waiver of any claim 16 of confidentiality as set forth in this order or any other matter in any other jurisdiction, 17 unless otherwise ordered by the Court. 18 20. This Order may not be waived, modified, abandoned or terminated, in whole or part, 19 except by an instrument in writing signed by the parties. If any provision of this Order shall be held 20 invalid for any reason whatsoever, the remaining provisions shall not be affected thereby. 21. 21 22 binding. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// After termination of this litigation, the provisions of this Order shall continue to be -9- 1 22. This Order shall be binding upon the parties hereto, upon their attorneys, and upon 2 the parties’ and their attorneys’ successors, executors, personal representatives, administrators, 3 heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents, independent 4 contractors, or other persons or organizations over which they have control 5 Dated: July 20, 2023. 6 SO STIPULATED: 7 8 9 10 11 12 13 14 EVANS FEARS SCHUTTERT MCNULTY MICKUS LEWIS BRISBOIS BISGAARD & SMITH LLP /s/ Chad R. Fears Chad R. Fears, Esq. (SBN 6970) Hayley E. LaMorte, Esq. (SBN 14241) 6720 Via Austi Parkway, Suite 300 Las Vegas, NV 89119 Attorneys for Defendants SharkNinja Sales Company, SharkNinja Management Company, SharkNinja Management LLC, and SharkNinja Operating LLC /s/ Micah K. Mtatabikwa-Walker Josh Cole Aicklen, Esq (SBN 7254) David B. Avakian, Esq. (SBN 9502) Micah K. Mtatabikwa-Walker, Esq. (SBN 13731) 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 Attorneys for Defendant KOHL’S, INC. 15 16 DEAVER CRAFTON 17 /s/ Colton J. Wilstead Brice J. Crafton, Esq. (SBN 10558) Colton J. Wilstead, Esq. (SBN 16024) 810 E. Charleston Boulevard Las Vegas, NV 89104 Attorneys for Plaintiff Wendy Greer 18 19 20 21 22 23 IT IS SO ORDERED 24 25 26 ____________________________________ UNITED STATES MAGISTRATE JUDGE July 21, 2023 DATED: ____________________________ 27 28 - 10 -

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