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Deans v. Las Vegas Clark County Library District

United States District Court, D. Nevada

May 1, 2017

WILLIAM DEANS, an individual, Plaintiff,
v.
LAS VEGAS CLARK COUNTY LIBRARY DISTRICT, Defendant.

          Dennis L. Kennedy Nevada Bar No. 1462 KellyB. Stout Nevada Bar No. 12105 BAILEY*KENNEDY 8984 Spanish Ridge Avenue Las Vegas, Nevada Attorneys for Defendants

          By: Kelly B. Stout Dennis L. Kennedy Kelly B. Stout Attorneys for Defendants LAS VEGAS-CLARK COUNTY

          By: Alex J. Shepard Marc J. Randazza Dr. Gill Sperlein Admitted Spanish Ridge Avenue Alex J. Shepard Las Vegas, Nevada South El Capital Way Las Vegas, Attorneys for Plaintiff

          STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER

         Plaintiff William Deans, by and through his counsel, Marc J. Randazza, D. Gill Sperlein, and Alex J. Shepard, of the law firm Randazza Legal Group, PLLC, and Defendant Las Vegas Clark County Library District, by and through its counsel, Dennis L. Kennedy and Kelly B. Stout, of the law firm Bailey ♦Kennedy, hereby stipulate and agree, pursuant to Rules 26(c) and 29 of the Federal Rules of Civil Procedure and LR 7-1, that the disclosure, production, use, and handling of "Confidential Information, " as that term is defined below, in connection with the above-captioned action, shall be governed by and subject to the terms and conditions of this Stipulated Confidentiality Agreement and Protective Order ("Protective Order").

         For purposes of the Protective Order, Plaintiff and Defendant are each a "Party" (jointly, the "Parties"). Any reference to a Party, "person, " or "non-party" means, unless otherwise indicated, a natural person, firm, entity, corporation, partnership, proprietorship, association, joint venture, wholly-owned direct or indirect subsidiary, division, affiliate, parent company, and any other form of business organization or arrangement, and includes the Party, person, or non-party's officers, directors, managers, members, employees, agents, representatives, shareholders, independent contractors, attorneys, accountants and all other persons over which the Party, person, or non-party has control or which act or purport to act on their behalf.

         Any Party, person, or non-party producing or disclosing confidential documents, materials, items, or other information pursuant to the terms of this Protective Order is the "Producing Party, " and the Party, person, or non-party receiving or being given access to confidential documents, materials, items, or other information pursuant to the terms of this Protective Order is the "Receiving Party."

         1. Purposes and Limitations.

Discovery in this case may involve the use, production, and disclosure of confidential, financial, proprietary, sensitive, personal, and/or private information for which special protection from public disclosure and from use for any purpose other than in prosecuting, defending, settling, or otherwise litigating this case, including any appeals, and/or for enforcing and/or collecting any judgment entered in this case, would be warranted and consistent with the public policy of this State. The use, production, and/or disclosure of "Confidential Information, " as this term is defined in Section 2, could severely injure or damage the Producing Party and place the Producing Party at a competitive disadvantage if accomplished in a manner or means inconsistent with the terms and conditions of this Protective Order.

         Therefore, in the interest of expediting and facilitating discovery, permitting the same to proceed without delay occasioned by possible disputes regarding claims of confidentiality, and balancing the interests of the Parties, this Protective Order establishes a procedure for producing, disclosing, and using Confidential Information without involving the Court unnecessarily in the process; imposes obligations upon all Parties, persons, and non-parties receiving or given access to Confidential Information to protect it from unauthorized production, disclosure, and/or use; and establishes a procedure for challenging confidentiality designations or markings.

         2. Confidential Information.

"Confidential Information" means and includes any and all information, testimony, documents, materials, items, and things produced, disclosed, or otherwise revealed in this case, including, but not limited to, all copies, excerpts, and summaries thereof, regardless of the medium or manner generated, stored, or maintained, including, but not limited to, testimony adduced at depositions upon oral examination or upon written questions, answers to interrogatories, answers to requests for admission, or other forms of discovery responses (collectively, the "Discovery Materials"), (i) which have not been made public; (ii) which constitute information deemed confidential by statute, non-public financial, and/or highly personal and sensitive information; (iii) which the Producing Party maintains in confidence; (iv) which the Producing Party in good faith believes constitutes Confidential Information; (v) which the Producing Party in good faith believes that the unprotected disclosure of which might result in economic or competitive injury and/or harm to or invasion of privacy rights of the Producing Party; and (vi) which cannot be ascertained from an inspection of publicly-available documents, material, or other devices.

         3. Designation of Confidential Information.

When the Producing Party produces, discloses, or otherwise reveals Confidential Information, it shall be clearly designated at the expense of the Producing Party as "CONFIDENTIAL - Subject to Court Order" and treated as confidential by the Receiving Party. The legend "CONFIDENTIAL - Subject to Court Order" shall be stamped or affixed to each page of the document, item, and/or materials to be designated, but it shall not obliterate or obscure any part of the text. A designation shall subject the document, item, and/or material, and its contents, to the terms and conditions of this Protective Order without any further act on the part of the person desiring confidentiality.

         With respect to a multi-page document that contains Confidential Information, the designation should be made, to the extent possible, on each page of the document that contains the Confidential Information. The Producing Party shall, in good faith, designate as "CONFIDENTIAL - Subject to Court Order" only such Discovery Materials as reasonably require confidential treatment. If a document, material, item, or thing is stored electronically, or a confidential legend cannot otherwise by stamped or affixed upon it, the Producing Party may designate or mark the same as "CONFIDENTIAL - Subject to Court Order" by cover letter.

         Any designation or marking under this Section shall take place prior to production or disclosure by the Producing Party; however, in the event that any Discovery Materials are made available for inspection by a Party, there will be no waiver of confidentiality by the inspection of such Discovery Materials by the inspecting Party before the same is copied and produced with a confidentiality designation by the Producing Party.

         If the Producing Party determines that any Discovery Materials produced in the course of discovery in this action should have been, but was not, designated as Confidential Information as provided herein, it shall advise the Receiving Party of this fact in writing within 60 days of the production. Such notice shall be accompanied by substitute copies of the Discovery Material at issue, properly designated or marked as "CONFIDENTIAL - Subject to Court Order." The inadvertent failure of a Producing Party to designate any Discovery Materials as "CONFIDENTIAL - Subject to Court Order" shall not be deemed, by itself, in whole or in part, to be a waiver or impairment of any claim of the Producing Party's right to so designate such Discovery Materials.

         Upon receiving notice from a Producing Party that any Discovery Materials have not been appropriately designated as "CONFIDENTIAL - Subject to Court Order, " the Receiving Party shall promptly destroy or return the previously undesignated copies upon receipt of the substitute copies properly designated as "CONFIDENTIAL - Subject to Court Order." The Parties, persons, and/or non-parties who received or were given access to Confidential Information previously undesignated or unmarked shall treat the designated Discovery Materials as confidential, subject to their right to dispute such designation or marking as provided under Section 12 of this Protective Order. Disclosure by a Receiving Party to any other person or non-party of any unmarked or undesignated Confidential Information prior to later designation of the Discovery Materials by the Producing Party in accordance with this Protective Order shall not violate the terms of this Protective Order; however, written notice shall promptly be given to the other person or non-party of the confidentiality in accordance with Section 6 of this Protective Order.

         If the Producing Party determines that any Discovery Materials that it previously designated as confidential do not qualify for such protection, it will promptly notify the Receiving Party and all other parties that received or were given access to such information that it is withdrawing such confidential designation.

         4. Use of Confidential Information Generally.

The Parties, and the law firms appearing as their counsel in this case, may make such use of the Discovery Materials produced by the Parties or other persons subject to this Protective Order as the preparation of this case and trial may reasonably require. The Parties, and the law firms appearing as their counsel in this case, may not use any Confidential Information obtained in discovery from another Party or non-party for any purposes other than this Lawsuit. All Confidential Information designated or marked as provided herein shall not be disclosed to anyone other than those persons identified herein in Section 6, and they shall be handled in the manner set forth herein until such designation or marking is removed by the Producing Party or by Order of the Court. The Receiving Party, or any person or non-party who receives or is given access to any Confidential Information under this Protective Order shall:

a. Store and maintain such Confidential Information in a secure and safe area and manner within their exclusive possession and control;
b. Exercise the same standard of due and proper care with respect to the storage, custody, use, and/or dissemination of such information as is exercised by the recipient with respect to its own Confidential Information;
c. Take all measures reasonably necessary to maintain the confidentiality of such information, documents, materials, items, and things; and
d. Not permit or participate in the unauthorized production, disclosure, or use of such Confidential Information.

         All Parties, persons, or non-parties obtaining, receiving, inspecting, examining or being given access to any Confidential Information in accordance with this Protective Order, (i) shall first agree to submit himself or herself to the jurisdiction of this Court for purposes of enforcing this Protective Order, and (ii) shall agree to be bound by this Protective Order.

         Nothing herein shall preclude the Producing Party from using its own Confidential Information.

         5. Use of Confidential Information in Depositions.

Any Party shall have the right to use Confidential Information during depositions unless otherwise agreed to by the Parties in writing or on the record at the deposition. To the extent a deponent (and/or any other person or non-party otherwise unauthorized to receive Confidential Information pursuant to Section 6) is present at the deposition, that third party deponent, person, and/or non-party shall be required to execute a copy of the form Attachment "A, " affixed to this Protective Order, prior to dissemination or disclosure of any Discovery Materials designated "CONFIDENTIAL - Subject to Court Order." Counsel for the affected Party may otherwise request that all individuals not qualified to obtain, receive, or be given access to Confidential Information under this Protective Order leave the deposition session during any portions where Confidential Information is used or referred to. The failure of such other persons to comply with such requests shall constitute substantial justification for counsel to advise the witness that he or she need not answer the question pending.

         At any deposition session, upon inquiry with regard to any Discovery Materials marked "CONFIDENTIAL - Subject to Court Order, " or whenever counsel for a Party deems that the answer to a question may result in the disclosure of Confidential Information, the deposition (or portions thereof) may be designated by the affected Party as containing Confidential Information subject to the provisions of this Protective Order. When such designation or marking has been made, the testimony of the transcript of such testimony shall be disclosed only to those Parties, persons, and/or non-parties as herein described in Section 6 and to the testifying third-party deponent, and the Confidential Information contained therein shall be used only as specified in this Protective Order. All portions of deposition transcripts that relate to information protected by this Protective Order shall be kept confidential provided that those specific portions of the transcript are marked or designated as provided herein. Moreover, all originals and copies of deposition transcripts that contain Confidential Information, and/or exhibits containing Discovery Materials designated or marked as "CONFIDENTIAL - Subject to Court Order, " shall be prominently marked "CONFIDENTIAL-Subject to Court Order" on the cover thereof and, if and when filed with the Court, the portions of such transcript so designated shall not be made part of the public record and shall be filed under seal as required under Section 7 of this Protective Order.

         Counsel must designate or mark portions of a deposition transcript, by page and line numbers, including any confidential exhibits attached thereto, as "CONFIDENTIAL-Subject to Court Order" within 30 days of receiving the transcript and corresponding exhibits. Designations or markings may be made by letter to counsel of record for the Parties or on the record during the deposition. Portions of deposition transcripts so designated or marked shall be treated as Confidential Information by the Parties as set forth herein. If all or a portion of a videotaped deposition is intended to be designated as "CONFIDENTIAL- Subject to Court Order, " the videocassette, videotape, DVD, CD-ROM or other electronic medium storing or maintaining the deposition testimony shall be stamped or affixed "CONFIDENTIAL-Subject to Court Order." All copies of deposition transcripts that contain Confidential Information shall be prominently marked "CONFIDENTIAL-Subject to Court Order" on the cover thereof. During the 30-day review period provided herein, the entire deposition transcript, including exhibits, shall be treated as confidential. If no confidential designations are made within the 30-day period, the transcript shall be considered non-confidential unless later designated by a Party (subject to any other Party's right to challenge such untimely designation).

         6. Disclosure of ...


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