Bartell Ranch LLC et al v. McCullough et al, No. 3:2021cv00080 - Document 52 (D. Nev. 2021)
Court Description: PROTECTIVE ORDER granting ECF No. 51 Stipulation. The Court's jurisdiction over this protective order shall cease upon termination of this case. Signed by Magistrate Judge Carla Baldwin on 8/2/2021. (Copies have been distributed pursuant to the NEF - SC)
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Bartell Ranch LLC et al v. McCullough et al Doc. 52 Case 3:21-cv-00080-MMD-CLB Document 52 Filed 08/02/21 Page 1 of 12 1 TODD KIM Assistant Attorney General 2 Environment and Natural Resources Division United States Department of Justice 3 ARWYN CARROLL (MA Bar 675926) 4 LEILANI DOKTOR (HI Bar 11201) Natural Resources Section 5 P.O. Box 7611 Washington, D.C. 20044-7611 6 Phone: (202) 305-0465 Fax: (202) 305-0506 7 arwyn.carroll@usdoj.gov leilani.doktor@usdoj.gov 8 Attorneys for Federal Defendants 9 10 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 11 12 BARTELL RANCH, LLC, et al., 13 14 15 and RENO-SPARKS INDIAN COLONY, et al., 16 17 18 STIPULATED PROTECTIVE ORDER Plaintiff-Intervenors, v. ESTER M. MCCULLOUGH, et al., Defendants, 19 20 Case Nos. 3:21-cv-80-MMD-CLB Plaintiffs, and LITHIUM NEVADA CORP., 21 Defendant-Intervenor. 22 23 24 25 26 27 28 Stipulated Protective Order Dockets.Justia.com Case 3:21-cv-00080-MMD-CLB Document 52 Filed 08/02/21 Page 2 of 12 1 2 3 4 In order to protect the confidentiality of confidential information obtained by the parties in connection with this case or included in the Administrative Record served by Federal Defendants in this case, the parties hereby agree as follows: 1. 5 produced in this action and designated pursuant to this Stipulated Protective 6 Order, including all designated deposition testimony, all designated testimony 7 taken at a hearing or other proceeding, all designated deposition exhibits, 8 interrogatory answers, admissions, documents and other discovery materials, 9 whether produced informally or in response to interrogatories, requests for 10 admissions, requests for production of documents or other formal methods of 11 discovery. This Stipulated Protective Order shall also govern any designated 12 record of information produced, lodged, or served in this action pursuant to 13 required disclosures under any statute, regulation, federal procedural rule, or 14 local rule of the Court, and any supplementary disclosures thereto, including 15 the Administrative Record served and lodged in this case, and any 16 17 18 This Stipulated Protective Order shall govern any record of information supplementary disclosures thereto. 2. Definitions a. 19 proprietary technical, scientific, financial, business, health, medical, or 20 personal privacy or identifying information designated as such by the 21 producing party, any non-public information routinely withheld by 22 Federal Defendants or a third party from the public, or information 23 subject to protection under the Federal Rules of Civil Procedure, 24 25 26 The term “Confidential Information” shall mean confidential or Federal law or regulations, or Nevada law. b. For purposes of this Stipulated Protective Order, the United States Bureau of Land Management shall be considered the “Producing 27 28 Stipulated Protective Order 1 Case 3:21-cv-00080-MMD-CLB Document 52 Filed 08/02/21 Page 3 of 12 1 Party” of the documents served as part of the Administrative Record in 2 3 4 this action and any supplements thereto. 3. Designation of Information a. 5 this action shall be designated as containing Confidential Information 6 by including the legend “Confidential” in the margin of each page or 7 each document (whether in paper or electronic form). Where a 8 document or response consists of more than one page, the first page and 9 each page on which confidential information appears shall be so 10 11 designated. b. 12 Record, briefs, memoranda, and all other papers sent to the court or to 14 opposing counsel as containing Confidential Information when such 15 papers are served or sent. c. 17 transcript at the time of the deposition. d. 20 information is proffered or adduced, to receive the information only in 22 the presence of those persons designated to receive such information 23 25 26 A party shall designate information disclosed at a hearing or trial as Confidential Information by requesting the court, at the time the 21 24 A party may designate information disclosed at a deposition as Confidential Information by requesting the reporter to so designate the 18 19 A producing party shall designate its discovery responses, responses to requests for admission, documents included in the Administrative 13 16 Documents produced, furnished, lodged, or served during the course of and court personnel, and to designate the transcript appropriately. e. In the event that a producing party inadvertently fails to designate any of its information pursuant to paragraphs 3(a)–(d), it may later designate by notifying the receiving parties in writing. The receiving 27 28 Stipulated Protective Order 2 Case 3:21-cv-00080-MMD-CLB Document 52 Filed 08/02/21 Page 4 of 12 1 parties shall take reasonable steps to see that the information is 2 3 4 thereafter treated in accordance with the designation. 4. Disclosure and Use of Confidential Information a. All Confidential Information produced or exchanged in the course of 5 this case (other than information that is publicly available) shall be used 6 only by the party or parties to whom the information is produced and 7 8 solely for the purpose of this case. b. Except with the prior written consent of other parties, or upon prior 9 order of this Court obtained upon notice to opposing counsel, 10 Confidential Information shall not be disclosed to any person other 11 12 than: i. 13 house counsel and cocounsel retained for this litigation, and 14 clerical, secretarial, and paralegal support staff working under the 15 16 17 18 19 20 21 22 23 24 25 26 counsel for the respective parties to this litigation, including in- supervision of such counsel in connection with this action; ii. the Court, Court personnel, and court reporters; iii. any party, officer of a party, or employee of a party, to the extent deemed necessary by counsel for the prosecution or defense of this litigation, provided that each such person shall execute a copy of the Certification annexed to this Order as Exhibit A before being shown or given any Confidential Information, which executed copy shall be retained by counsel to the party disclosing the Confidential Information and made available for inspection by opposing counsel during the pendency or after the termination of the action only upon good cause shown and upon order of the Court; 27 28 Stipulated Protective Order 3 Case 3:21-cv-00080-MMD-CLB Document 52 Filed 08/02/21 Page 5 of 12 1 iv. 2 defense of this litigation, provided that each such person shall 3 execute a copy of the Certification annexed to this Order as 4 Exhibit A before being shown or given any Confidential 5 Information, which executed copy shall be retained by counsel to 6 the party disclosing the Confidential Information and made 7 available for inspection by opposing counsel during the pendency 8 or after the termination of the action only upon good cause 9 shown and upon order of the Court; 10 v. 11 document containing Confidential Information. Confidential 13 Information may be disclosed to a witness who will not sign the 14 Certification only in a deposition or court hearing at which the 15 party who designated the Confidential Information is 16 represented. Witnesses shown Confidential Information shall not 17 be allowed to retain copies. c. 19 receive such information, except as set forth herein. d. 22 25 26 27 All documents, including attorney notes and abstracts, that contain information designated by another party as Confidential Information 23 24 Any persons receiving Confidential Information shall not reveal or discuss such information to or with any person who is not entitled to 20 21 witnesses (other than persons described in paragraph 4(b)(iv)). A witness shall sign the Certification before being shown a 12 18 consultants or expert witnesses retained for the prosecution or shall be handled as if they were designated pursuant to paragraph 3. e. The terms of this Order do not preclude, limit, restrict, or otherwise apply to the use of documents at trial or any court hearing, provided the proponent of the evidence gives reasonable notice to all counsel and to the Court. Any party may move the Court for an order that the 28 Stipulated Protective Order 4 Case 3:21-cv-00080-MMD-CLB Document 52 Filed 08/02/21 Page 6 of 12 1 evidence be received in camera or under other conditions to prevent 2 unauthorized disclosure. 3 f. Disclosure of Confidential Information pursuant to this Protective 4 Order shall not be deemed to be a public disclosure under the Freedom 5 6 7 of Information Act, 5 U.S.C. § 552, et seq. 5. Filing Confidential Information a. In the event that any receiving party’s briefs, memoranda, exhibits, or 8 other papers of any kind that are served or filed include, discuss, or 9 summarize information designated by another party as Confidential 10 Information the papers must be appropriately designated pursuant to 11 12 paragraph 3 and governed by Local Rule IA 10-5. b. Subject to the procedures set forth herein, no documents containing, or 13 otherwise disclosing Confidential Information shall be publicly filed 14 with the Court. Confidential Information shall be submitted to the 15 16 Court under seal as follows: i. 17 to, or otherwise disclosing Confidential Information shall be 18 electronically filed with the Clerk of the Court in the normal 19 manner under the Local Rules of this Court, but the Confidential 20 Information contained, referred to, or otherwise disclosed therein 21 shall be redacted (and bear the stamp “redacted”) so that it does 22 23 24 25 26 27 The original signed copy of any pleadings containing, referring not appear in the publicly filed copy of the pleading or filing; and ii. Unless otherwise permitted by statute, rule or prior court order, the party shall electronically file the unredacted document under seal, along with a contemporaneous motion for leave to file those documents under seal, consistent with and following the court's electronic filing and service procedures in Local Rule IA 10-5. 28 Stipulated Protective Order 5 Case 3:21-cv-00080-MMD-CLB Document 52 Filed 08/02/21 Page 7 of 12 1 iii. 2 seeking to file a paper under seal bears the burden of overcoming 3 the presumption in favor of public access to papers filed in court. 4 Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 5 2006); Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677–78 (9th Cir. 6 7 8 2010). 6. Challenges to Confidential Information a. If a party contends that any material is not entitled to confidential 9 treatment, such party may at any time give written notice to the party or 10 non-party who designated the material. The party or non-party who 11 designated the material shall have twenty-one (21) days from the receipt 12 of such written notice to apply to the Court for an order designating the 13 material as confidential. The party or non-party seeking the order has 14 15 the burden of establishing that the material is entitled to protection. b. Notwithstanding any challenge to the designation of material as 16 Confidential Information, all documents so designated shall be treated 17 as such and shall be subject to the provisions hereof unless and until one 18 19 of the following occurs: i. 20 21 The party or non-party claims that the material is Confidential Information withdraws such designation in writing; or ii. 22 The party or non-party who claims that the material is Confidential Information fails to apply to the Court for an order 23 designating the material confidential within the time period 24 specified above after receipt of a written challenge to such 25 26 Notwithstanding any agreement among the parties, the party designation; or iii. The Court rules the material is not confidential. 27 28 Stipulated Protective Order 6 Case 3:21-cv-00080-MMD-CLB Document 52 Filed 08/02/21 Page 8 of 12 1 c. 2 when made, and failure to do so shall not preclude a subsequent 3 4 challenge to the propriety of such designation. 7. 5 this action, including through all appeals, unless otherwise agreed or ordered. 7 Upon conclusion of the litigation, a party in the possession of Confidential 8 Information, other than that which is contained in pleadings, correspondence, 9 and deposition transcripts, shall either (a) return such documents no later than 10 sixty (60) days after conclusion of this action to counsel for the party or non- 11 party who provided such information, or (b) destroy such documents within 12 the time period upon consent of the party who provided the information and 13 certify in writing within sixty (60) days that the documents have been 14 destroyed. The provisions of this paragraph shall not be binding on the United 15 States, any insurance company, or any other party to the extent that such 16 provisions conflict with applicable Federal or State law. The Department of 17 Justice, any insurance company, or any other party shall notify the producing 18 party in writing of any such conflict it identifies in connection with a particular 19 matter so that such matter can be resolved either by the parties or by the 20 Court. 8. 22 inadvertent disclosure of material protected by privilege or work product 24 26 27 Nothing herein shall be deemed to waive any applicable privilege or work product protection, or to affect the ability of a party to seek relief for an 23 25 All provisions of this Order restricting the communication or use of Confidential Information shall continue to be binding after the conclusion of 6 21 No party shall be obligated to challenge the propriety of any designation protection. 9. This Order shall survive the termination of this Action and continue in full force and effect thereafter, and the Court shall retain jurisdiction to enforce this Order. 28 Stipulated Protective Order 7 Case 3:21-cv-00080-MMD-CLB Document 52 Filed 08/02/21 Page 9 of 12 1 10. 2 may be informed of and may obtain the protection of this Order by written 3 advice to the parties’ respective counsel or by oral advice at the time of any 4 5 6 Any witness or other person, firm or entity from which discovery is sought deposition or similar proceeding. 11. The parties agree to be bound by the terms of this Stipulated Protective Order pending its approval by the Court. 7 8 Respectfully submitted this 2nd day of August, 2021. 9 10 11 12 13 14 15 s/ Dominic M. Carollo DOMINIC M. CAROLLO (Or. Bar. No. 093057), Pro Hac Vice dcarollo@carollolegal.com Carollo Law Group LLC P.O. Box 2456 630 SE Jackson Street, Suite 1 Roseburg, Oregon 97470 Ph: (541) 957-5900 Fax: (541) 957-5923 16 17 18 19 20 O. KENT MAHER (Nev. Bar No. 316) kent@winnemuccalaw.com PO Box 130 33 W Fourth Street Winnemucca, Nevada 89446 Ph: (775) 623-5277 Fax: (775) 623-2468 TODD KIM Assistant Attorney General United States Department of Justice Environment and Natural Resources Div. s/ Arwyn Carroll ARWYN CARROLL (Mass. Bar # 675926) LEILANI DOKTOR (HI Bar # 11201) Trial Attorney Natural Resources Section P.O. Box 7611 Washington, D.C. 20044-7611 Phone: 202-305-0465 Fax: 202-305-0506 arwyn.carroll@usdoj.gov leilani.doktor@usdoj.gov 21 22 Attorneys for Plaintiffs Bartell Ranch, LLC, and Edward Bartell Attorneys for Federal Defendants 23 24 25 26 27 s/ Christopher Mixson (NV Bar#10685) KEMP JONES, LLP 3800 Howard Hughes Parkway, Suite 1700 Las Vegas, Nevada 89169 702-385-6000 c.mixson@kempjones.com 28 Stipulated Protective Order 8 Case 3:21-cv-00080-MMD-CLB Document 52 Filed 08/02/21 Page 10 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Attorney for Plaintiffs Great Basin Resource Watch, Basin and Range Watch, Wildlands Defense, and Western Watersheds Project s/ Roger Flynn (CO Bar#21078) Pro Hac Vice Jeffrey C. Parsons (CO Bar#30210), Pro Hac Vice WESTERN MINING ACTION PROJECT P.O. Box 349, 440 Main St., #2 Lyons, CO 80540 (303) 823-5738 wmap@igc.org s/ Laura K. Granier (SBN 7357) Erica K. Nannini, Esq (SBN 13922) Holland & Hart LLP 5441 Kietzke Lane, 2nd Floor Reno, Nevada 89511 Tel: 775-327-3000 lkgranier@hollandhart.com eknannini@hollandhart.com Attorneys for Lithium Nevada Corp. Attorneys for Plaintiffs Great Basin Resource Watch, Basin and Range Watch, and Wildlands Defense s/ Talasi B. Brooks (ISB#9712), Pro Hac Vice Western Watersheds Project P.O. Box 2863 Boise ID 83714 (208) 336-9077 tbrooks@westernwatersheds.org Attorney for Plaintiff Watersheds Project Western Julie Cavanaugh-Bill (State Bar No. 11533) Cavanaugh-Bill Law Offices Henderson Bank Building 401 Railroad Street, Suite 307 Elko, NV 89801 (775) 753-4357 julie@cblawoffices.org s/ William Falk William Falk, Esq (Utah Bar No . 16678), Pro Hac Vice 2980 Russet Sky Trail Castle Rock, CO 80101 Stipulated Protective Order 9 Case 3:21-cv-00080-MMD-CLB Document 52 Filed 08/02/21 Page 11 of 12 1 2 3 4 5 6 7 (319) 830-6086 falkwilt@gmail.com Terry J. Lodge, Esq. (Ohio Bar No. 29271) 316 N. Michigan St., Suite 520 Toledo, OH 43604-5627 (419) 205-7084 tjlodge50@yahoo.com Co-Counsel for Plaintiff-Intervenors 8 9 10 The Court's jurisdiction over this protective order shall cease upon termination of this case. 11 12 IT IS SO ORDERED 13 14 15 _______________________________________ UNITED STATES MAGISTRATE JUDGE August 2, 2021 _____________ Date 16 17 18 19 20 21 22 23 24 25 26 27 28 Stipulated Protective Order 10 Case 3:21-cv-00080-MMD-CLB Document 52 Filed 08/02/21 Page 12 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 CERTIFICATION I hereby certify my understanding that Confidential Information is being provided to me pursuant to the terms and restrictions of the Protective Order dated __________________, in Bartell Ranch LLC, et al. v. McCullough et al., Civil No. 3:21cv-80-MMD-CLB. I have been given a copy of that Order and have read it. I agree to be bound by the Order. I will not reveal the Confidential Information to anyone, except as allowed by the Order. I will maintain all such Confidential Information – including copies, notes, or other transcriptions made therefrom – in a secure manner to prevent unauthorized access to it. No later than thirty (30) days after the conclusion of this action, I will return the Confidential Information –- including copies, notes or other transcriptions made therefrom – to the counsel who provided me with the Confidential Information. I hereby consent to the jurisdiction of the United States District Court for the District of Nevada for the purpose of enforcing the Protective Order. 16 17 18 DATED:____________________________. 19 _______________________________ 20 21 22 23 24 25 26 27 28 Stipulated Protective Order 11
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