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Board of Trustees of the Plumbers and Pipefitters Union Local 525 Health and Welfare Trust and Plan v. Strong Man Services, Inc.

United States District Court, D. Nevada

January 6, 2017

BOARD OF TRUSTEES OF THE LOCAL PLUMBERS AND PIPEFITTERS LOCAL 525 HEALTH AND WELFARE TRUST AND PLAN; BOARD OF TRUSTEES OF THE PLUMBERS AND PIPEFITTERS UNION LOCAL 525 PENSION PLAN; AND BOARD OF TRUSTEES OF PLUMBERS AND PIPEFITTERS LOCAL UNION 525 APPRENTICE AND JOURNEYMAN TRAINING TRUST FOR SOUTHERN NEVADA, Plaintiffs,
v.
STRONG MAN SERVICES, INC. dba SMS Mechanical, a Nevada corporation, Defendant.

          Adam P. Segal, Esq. Bryce C. Loveland, Esq. Christopher M. Humes, Esq., Attorneys for Plaintiffs.

          Rick D. Roskelley, Esq. Roger L. Grandgenett II, Esq. Matthew T. Cecil, Esq. Littler Mendelson, P.C. Attorneys for Defendant.

          STIPULATED PROTECTIVE ORDER

          THE HONORABLE C. FERENBACH UNITED STATES MAGISTRATE JUDGE.

         Defendant STRONG MAN SERVICES, INC., dba SMS Mechanical (hereinafter “Defendant”), and Plaintiffs BOARD OF TRUSTEES OF THE LOCAL PLUMBERS AND PIPEFITTERS LOCAL 525 HEALTH AND WELFARE TRUST AND PLAN; BOARD OF TRUSTEES OF THE PLUMBERS AND PIPEFITTERS UNION LOCAL 525 PENSION PLAN; AND BOARD OF TRUSTEES OF PLUMBERS AND PIPEFITTERS LOCAL UNION 525 APPRENTICE AND JOURNEYMAN TRAINING TRUST FOR SOUTHERN NEVADA (hereinafter “Plaintiffs”) by and through their respective attorneys of record hereby submit the following Stipulated Protective Order regarding the confidentiality of information and discovery materials[1] (hereafter “discovery material”) provided in this litigation.

         I. SCOPE OF PROTECTION

         On December 13, 2016, the Defendant and its counsel met with Plaintiffs' counsel and Plaintiffs' Auditor (Stewart, Archibald, and Barney (hereafter “Auditor”)) to discuss what additional information the Auditor need to complete the audit. Defendant agreed to produce the information directly to the Auditor. The information which will be produced to the Plaintiffs' Auditor includes confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than completing the audit and/or prosecuting this litigation may be warranted. The parties agree that with limited exception, Plaintiffs do not need to see, review, or possess the documents and/or information that Defendant provides directly to the Plaintiffs' Auditor. The purpose of this protective order is to protect the documents and information Defendant provides directly to Plaintiffs' Auditor, as well as other documents produced in discovery.

         This Stipulated Protective Order shall govern any record of information produced in this action, including those records provided directly to Plaintiffs' Auditor, and designated pursuant to this Stipulated Protective Order, including all designated deposition testimony, all designated testimony taken at a hearing or other proceeding, all designated deposition exhibits, interrogatory answers, admissions, documents and other discovery materials, whether produced informally or in response to interrogatories, requests for admissions, requests for production of documents or other formal methods of discovery.

         This Stipulated Protective Order shall also govern any designated record of information produced in this action pursuant to required disclosures under any federal procedural rule or local rule of the Court and any supplementary disclosures thereto.

         This Stipulated Protective Order shall apply to the parties and to any nonparty from whom discovery may be sought who desires the protection of this Protective Order.

         Nonparties may challenge the confidentiality of the protected information by filing a motion to intervene and a motion to remove designation.

         II. DEFINITIONS

         (a) The term PROTECTED INFORMATION shall mean confidential or proprietary, technical, scientific, financial, business, health, personnel, or medical information designated as such by the producing party.

         (b) The term CONFIDENTIAL INFORMATION-ATTORNEYS' EYES ONLY, shall mean PROTECTED INFORMATION that is so designated by the producing party, and shall automatically include all information Defendant provides and/or has provided directly to Plaintiff's Auditor (Stewart, Archibald, & Barney), including but not limited to: (1) Defendant's financial information and history (e.g. Defendant's QuickBooks and backup records); (2) confidential reports about financial obligations; (3) confidential employee information and reports; (4) private contractual information; (5) private billing and invoicing information; and/or (6) private information regarding Defendant's financial obligations/relationships with third parties. The designation CONFIDENTIAL-ATTORNEYS' EYES ONLY may also be used for the following types of past, current, or future PROTECTED INFORMATION: (1) sensitive technical information, including current research, development and manufacturing information and patent prosecution information, (2) sensitive business information, including highly sensitive financial or marketing information and the identity of suppliers, distributors and potential or actual customers, (3) competitive technical information, including technical analyses or comparisons of competitor's products, (4) competitive business information, including customer lists, lease documents, forms, business leads, pending transactions, completed transactions, methodologies, strategies, formulas, business contracts, computer data, funding source lists, vendor contact lists, non-public financial or marketing analyses or comparisons of competitor's products and strategic product planning, or (5) any other PROTECTED INFORMATION the disclosure of which to non-qualified people subject to this Stipulated Protective Order the producing party reasonably and in good faith believes would likely cause harm.

         (c) The term CONFIDENTIAL INFORMATION shall mean all PROTECTED INFORMATION that is not designated as "CONFIDENTIAL-ATTORNEYS' EYES ONLY" information.

         (d) The term TECHNICAL ADVISOR shall refer to any person who is not a party to this action and/or not presently employed by the receiving party or a company affiliated through common ownership, who has been designated by the receiving party to receive another party's PROTECTED INFORMATION, including CONFIDENTIAL INFORMATION-ATTORNEYS' EYES ONLY, and CONFIDENTIAL INFORMATION. Each party's TECHNICAL ADVISORS shall be limited to such person as, in the judgment of that party's counsel, are reasonably for development and presentation of that party's case. These persons include outside experts or consultants retained to provide technical or other expert services such as expert testimony or otherwise assist in trial preparation. Plaintiffs' Auditor, Stewart, Archibald, & Barney, is for the purpose of this Stipulated Protective Order, a TECHNICAL ADVISOR(S). Plaintiffs are not TECHNICAL ADVISORS.

         III. DISCLOSURE AGREEMENTS

         (a) Each receiving party's TECHNICAL ADVISOR shall sign a disclosure agreement in the form attached hereto as Exhibit A. Copies of any disclosure agreement in the form of Exhibit A signed by any person or entity to whom PROTECTED INFORMATION is disclosed shall be provided to the other party promptly after execution by facsimile and overnight mail. No disclosures shall be made to a TECHNICAL ADVISOR for a period of five (5) business days after the disclosure agreement is provided to the other party. The five (5) day restriction does not apply when Defendant provides CONFIDENTIAL INFORMATION-ATTORNEYS' EYES ONLY information directly to Plaintiffs' Auditor.

         (b) Before any PROTECTED INFORMATION is disclosed to outside TECHNICAL ADVISORS, the following information must be provided in writing to the producing party and received no less than five (5) business days before the intended date of disclosure to that outside TECHNICAL ADVISOR: the identity of that outside TECHNICAL ADVISOR, business address and/or affiliation and a current curriculum vitae of the TECHNICAL ADVISOR, and, if not contained in the TECHNICAL ADVISOR's curriculum vitae, a brief description, including education, present and past employment and general areas of expertise of the TECHNICAL ADVISOR. If the producing party objects to disclosure of PROTECTED INFORMATION to an outside TECHNICAL ADVISOR, the producing party shall within five (5) business days of receipt serve written objections identifying the specific basis for the objection, and particularly identifying all information to which disclosure is objected. Failure to object within five (5) business days shall authorize the disclosure of PROTECTED INFORMATION to the TECHNICAL ADVISOR. As to any objections, the parties shall attempt in good faith to promptly resolve any objections informally. If the objections cannot be resolved, the party seeking to prevent disclosure of the PROTECTED INFORMATION to the expert shall move within five (5) business days for an Order of the Court preventing the disclosure. The burden of proving that the designation is proper shall be upon the producing party. If no such motion is made within five (5) business days, disclosure to the TECHNICAL ADVISOR shall be permitted. In the event that objections are made and not resolved informally and a motion is filed, disclosure of PROTECTED INFORMATION to the TECHNICAL ADVISOR shall not be made except by Order of the Court. The requirement in this section does not apply when Defendant provides CONFIDENTIAL INFORMATION-ATTORNEYS' EYES ONLY information directly to Plaintiffs' Auditor.

         (c) Any disclosure agreement executed by any person affiliated with a party shall be provided to any other party who, based upon a good faith belief that there has been a violation of this order, requests a copy.

         (d) No party shall attempt to depose any TECHNICAL ADVISOR until such time as the TECHNICAL ADVISOR is designated by the party engaging the TECHNICAL ADVISOR as a testifying expert. Notwithstanding the preceding sentence, any party may depose a TECHNICAL ADVISOR as a fact witness provided that the party seeking such deposition has a good faith, demonstrable basis independent of the disclosure agreement of Exhibit A or the information provided under subparagraph (a) above that such person possesses facts relevant to this action, or facts likely to lead to the discovery of admissible evidence; however, such deposition, if it precedes the designation of such person by the engaging party as a testifying expert, shall not include any questions regarding the scope or subject matter of the engagement. In addition, if the engaging party chooses not to designate the TECHNICAL ADVISOR as a testifying expert, the non-engaging party shall be barred from seeking discovery or trial testimony as to the scope or subject matter of the engagement. The parties agree that Defendant may depose Plaintiffs' Auditor during the appropriate discovery time limits or as ordered by the Court or as agreed upon by the parties.

         IV. DESIGNATION OF INFORMATION

         (a) Documents and things produced or furnished during the course of this action shall be designated as containing CONFIDENTIAL INFORMATION by placing on each page, each document (whether in paper or electronic form), or each thing a legend substantially as follows:

         CONFIDENTIAL INFORMATION

         (b) Documents and things produced or furnished during the course of this action shall be designated as containing information which is CONFIDENTIAL INFORMATION-ATTORNEYS' EYES ONLY by placing on each page, each document (whether in paper or electronic form), or each thing a legend substantially as follows:

         CONFIDENTIAL INFORMATION-ATTORNEYS' EYES ONLY

         Notwithstanding the foregoing, the parties agree that any information Defendant provides or has provided directly to Plaintiffs' Auditor shall be treated as CONFIDENTIAL INFORMATION-ATTORNEYS' EYES ONLY and that the official/formal designation is not necessary for such information. Additionally, all information Defendant provides directly to the Plaintiffs' Auditor shall be held in confidence by Plaintiffs' attorneys and Plaintiffs' Auditor and shall be used only for purposes of this action, to complete the audit and all required collection efforts.

         (c) During discovery a producing party shall have the option to require that all or batches of materials be treated as containing CONFIDENTIAL INFORMATION-ATTORNEYS' EYES ONLY during inspection and to make its designation as to particular documents and things at the time copies of documents and things are furnished.

         (d) A party may designate information disclosed at a deposition as CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATION-ATTORNEYS' EYES ONLY by requesting the reporter to so designate the transcript at the time of the deposition.

         (e) A producing party shall designate its discovery responses, responses to requests for admission, briefs, memoranda and all other papers sent to the court or to opposing counsel as containing CONFIDENTIAL INFORMATION or CONFIDENTIAL INFORMATION-ATTORNEYS' EYES ONLY when such papers are served or sent.

         (f) A party shall designate information disclosed at a hearing or trial as CONFIDENTIAL INFORMATION or as CONFIDENTIAL INFORMATION-ATTORNEYS' EYES ONLY by requesting the court, at the time the information is proffered or adduced, to receive the information only in the presence of those persons designated to ...


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