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Aerodynamics Inc. v. Caesars Entertainment Operating Co., Inc.

United States District Court, D. Nevada

January 17, 2017

AERODYNAMICS INCORPORATED, a Michigan corporation; ADI HOLDINGS COMPANY INC., a Georgia corporation, Plaintiffs,
v.
CAESARS ENTERTAINMENT OPERATING COMPANY, INC., a Delaware corporation; STEVEN MARKHOFF, an individual; INTERNATIONAL MANAGEMENT SOLUTIONS LLC, a Delaware corporation; VIA AIRLINES, INC., a Colorado corporation; VIA AIR, LLC, a Delaware corporation; and AMOS VIZER, an individual, Defendants.

          HOBART LINZER LLP, C. Dana Hobart, Esq., Mary H. Chu, Esq., FENNEMORE CRAIG, P.C. Christopher H. Byrd, Esq., Anthony W. Austin, Esq., Attorneys for Aerodynamics Incorporated and ADI Holdings Company, Inc.

          PISANELLI BICE PLLC, James J. Pisanelli, Esq., Debra L. Spinelli, Esq., M. Magali Mercera, Esq. Attorneys for Defendants Caesars Entertainment Operating Company, Inc.

          PEARSON BITMAN LLP., Ronnie J. Bitman, Esq. Matthew T. Dushoff, Esq. KOLESAR & LEATHAM, CHTD Attorneys for Defendants Via Airlines, Inc., Via Air, LLC, and Amos Vizer [*]

          SCHWARTZ FLANSBURG PLLCFrank M. Flansburg III, Esq., Brian Blank, Troy P. Domina, Esq. Attorneys for Defendants Steven Markhoff, International Management Solutions, LLC

          STIPULATED AMENDED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER; [PROPOSED] ORDER THEREON

          PEGGY LEEN UNITED STATES MAGISTRATE JUDGE.

         COME NOW, Plaintiffs Aerodynamics Incorporated (“ADI”) and ADI Holdings Company, Inc. (collectively “ADI” or “Plaintiffs”), by and through their undersigned, and Defendants Caesars Entertainment Operating Company, Inc. (“Caesars”), Steven Markhoff (“Markhoff”), International management Solutions, LLC (“International Management Solutions”), Via Airlines, Inc. (“Via Airlines”), Via Air, LLC (“Via Air”), and Amos Vizer (“Vizer”) (collectively “Defendants”), by and through their undersigned counsel of record, hereby enter into this Stipulated Confidentiality Agreement and Protective Order pursuant to FRCP 26(c) and FRCP 29. Plaintiffs and Defendants are collectively referred to as the “Parties” in this Stipulation and individually as “Party.”

         The Parties agree that good cause exists to protect the confidential nature of the information contained in documents, interrogatory responses, responses, responses to requests for admission, or deposition testimony. This action concerns claims for misappropriation of trade secrets and breach of nondisclosure agreements. The parties may request and/or exchange documents and information relating to aircraft lease/sale terms, financial information, FAA manuals, customer lists and agreements, agreements with vendors and suppliers of air charter companies, business plans, budgets, strategies, and other trade secret or confidential information not generally known to third parties. Thus, the Parties have agreed and stipulated to the entry of this Order for the protection of business records, information, financial records, trade secrets, confidential records, commercial information, and related information produced or otherwise disclosed by the Parties in this action.

         Whereas, the Parties desire to produce certain documents or other materials which contain proprietary and/or confidential information;

         It is hereby stipulated and agreed, by and between the Parties hereto, through their respective counsel of record, that:

         1. Applicability of this Protective Order. Subject to Section 2 below, this Protective Order does not and will not govern any trial proceedings in this action but will otherwise be applicable to and govern the handling of documents, depositions, deposition exhibits, interrogatory responses, responses to requests for admissions, responses to requests for production of documents, and all other discovery obtained pursuant to Federal Rules of Civil Procedure or other legal process by or from, or produced on behalf of, a party or witness in connection with this action (this information hereinafter shall be referred to as “Discovery Material”). As used herein, “Producing Party” or “Disclosing Party” shall refer to the parties and nonparties that give testimony or produce documents or other information in connection with this action; “Receiving Party” shall refer to the parties in this action that receive such information, and “Authorized Recipient” shall refer to any person or entity authorized by Sections 8 and 9 of this Protective Order to obtain access to Confidential Information, Highly Confidential Information, or the contents of such Discovery Material.

         2. No Waiver. This Protective Order is entered solely for the purpose of facilitating the exchange of documents and information among the parties to this action without involving the Court unnecessarily in the process. Nothing in this Protective Order, nor the production of any information or document under the terms of this Protective Order, nor any proceedings pursuant to this Protective Order shall be deemed to be a waiver of any rights or objections to challenge the authenticity or admissibility of any document, testimony or other evidence at trial. Additionally, this Protective Order will not prejudice the right of any party or nonparty to oppose production of any information on the ground of attorney-client privilege; work product doctrine or any other privilege or protection provided under the law.

         3. Designation of Information. Any Producing Party may designate Discovery Material that is in its possession, custody, or control produced to a Receiving Party as “Confidential” or “Highly Confidential” under the terms of this Protective Order if the Producing Party in good faith reasonably believes that such Discovery Material contains nonpublic, confidential information as defined in Sections 4 and 5 below.

         4. Confidential Information. For the purposes of this Order, “Confidential Information” shall mean all information or material which is or has been produced or disclosed to a Receiving Party during the course of this litigation, whether embodied in physical objects, documents, or the factual knowledge of persons, which has been designated in writing as “Confidential” by the Disclosing Party. “Confidential Information” means any information that constitutes, reflects, or discloses nonpublic information, trade secrets, know-how, or other financial, proprietary, commercially sensitive, confidential business, marketing, regulatory, or strategic information, the disclosure of which the Disclosing Party (or its affiliates, personnel, or clients) and which is not publicly known and cannot be ascertained from an inspection of publically available sources, documents, material, or devices. Confidential Information shall also include sensitive personal information that is not otherwise publically available, such as home addresses; social security numbers; dates of birth; employment personnel files; medical information; home telephone records/numbers; employee disciplinary records; family court documents sealed by the family court pursuant to NRS 125.110 or designated Confidential by agreement of the parties to the family court proceeding at issue; wage statements or earnings statements; employee benefits data; tax records; and other similar personal financial information. Any Party that produces information during discovery in this action and has a good faith and reasonable basis for claiming that such information constitutes confidential and/or proprietary information may designate such information as “Confidential.”

         5. Highly Confidential Information. For the purposes of this Order, “Highly Confidential Information” is any Confidential Information as defined in Section 4 above that also includes (a) extremely sensitive, highly confidential, nonpublic information, consisting either of trade secrets or proprietary or other highly confidential business, financial, regulatory, private, or strategic information (including information regarding business plans, technical data, and nonpublic designs), the disclosure of which would create a substantial risk of competitive, business, or personal injury to the Disclosing Party, and/or (b) nonpublic documents or information reflecting the substance of conduct or communications that are the subject of state, federal, or foreign government investigation. Any Party that produces information during discovery in this action and has a good faith and reasonable basis for claiming that such information constitutes confidential and/or proprietary information may designate such information as “Highly Confidential.” A party may re-designate material originally “CONFIDENTIAL” as “HIGHLY CONFIDENTIAL” by giving notice of such a re-designation to all parties.

         6. Designating Confidential Information or Highly Confidential Information. Confidential documents shall be so designated by stamping copies of the document (whether produced in hard copy or electronic form) to a party with the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” Stamping the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” on the cover of any multi-page document shall designate all pages of the document as confidential, unless otherwise indicated by the Producing Party. If Confidential or Highly Confidential Information is produced via an electronic form on a computer readable medium (e.g., CD-ROM), other digital storage medium, or via Internet transmission, the Producing Party or Designating Party shall affix in a prominent place on the storage medium or container file on which the information is stored, and on any container(s) for such medium, the legend “Includes CONFIDENTIAL INFORMATION” or “Includes HIGHLY CONFIDENTIAL INFORMATION.” Nothing in this section shall extend confidentiality or the protections associated therewith to any information that does not otherwise constitute “Confidential Information” or “Highly Confidential Information” as defined in Sections 4 and 5 herein.

         7. Inadvertent Failure to Designate. A Party's inadvertent or unintentional failure to designate information as Confidential shall not be deemed, by itself, to be a waiver of the right to so designate such discovery materials as Confidential Information or Highly Confidential Information. Within a reasonable time of learning of any such inadvertent failure, the Producing Party shall notify all Receiving Parties of such inadvertent failure and take such other steps as necessary to correct such failure after becoming aware of it. Disclosure of such discovery materials to any other person prior to later designation of the discovery materials in accordance with this section shall not violate the terms of this Protective Order. However, immediately upon being notified of an inadvertent failure to designate, all parties shall treat such information as though properly designated, and shall take any actions necessary to prevent any future unauthorized disclosure, use, or possession.

         8. Persons Authorized to Receive Confidential Information. Confidential Information produced pursuant to this Protective Order may be disclosed or made available only to the Court, its employees, other court personnel, any discovery referee, mediator or ...


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