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BGC Partners, Inc. v. Avison Young (Canada) Inc.

United States District Court, D. Nevada

August 31, 2017

BGC PARTNERS, INC., G&E ACQUISITION COMPANY, LLC, and BGC REAL ESTATE OF NEVADA, LLC,
v.
AVISON YOUNG (CANADA) INC.; AVISON YOUNG USA INC.; AVISON YOUNG -NEVADA, LLC, MARK ROSE, THE NEVADA COMMERCIAL GROUP, JOHN PINJUV, and JOSEPH KUPIEC; DOES 1 through 5; and ROE BUSINESS ENTITIES 6 through 10

          Anthony J. DiRaimondoAttorneys for Plaintiffs BGC Partners, Inc., G&E Acquisition Company, LLC and Newmark Grubb Knight Frank

          Anthony J. DiRaimondo David Carroll Rice, Reuther Sullivan & Carroll LLP Attorneys for Defendants The Nevada Commercial Group LLC and John Pinjuv

          Robert S. Larsen, Esq. Rachel Wise, Esq. Gordon & Rees LLP Kristin Sheffield-Whitehead (admitted pro hac vice) Kirkland & Ellis LLP Andrew B. Clubok (admitted pro hac vice) Kirkland & Ellis LLP Attorneys for Defendants Avison Young (Canada) Inc.; Avison Young (USA) Inc.; Avison Young-Nevada, LLC; Mark Rose and Joseph Kupiec

          [PROPOSED] STIPULATED PROTECTIVE ORDER

         IT IS HEREBY STIPULATED by and between Plaintiffs BGC Partners, Inc., G&E Acquisition Company, LLC and Newmark Grubb Knight Frank, (collectively, “Plaintiffs”) and Defendants Avison Young (Canada), Inc., Avison Young (USA), Inc., Avison Young-Chicago, LLC, and Mark Rose (collectively, “Defendants”) (hereinafter, together, the “Parties”) through their respective counsel, as follows:

         WHEREAS, the Parties expect discovery in this case to require the production of information and documents containing trade secrets and other confidential research, development, and commercially sensitive information of the parties and non-parties; and

         WHEREAS each party wishes to ensure that such information shall not be used for any purpose other than this proceeding, and shall not be made public.

         THEREFORE, it is hereby stipulated, and the parties hereby request, that the Court enter a protective order as follows:

         1. This Protective Order shall govern the handling of all pleadings, documents, deposition transcripts, exhibits, interrogatory responses, admissions, and affidavits or other information produced, given, or exchanged by and among the parties and any other parties or non-parties to this litigation. This Protective Order is binding upon the Parties, their agents and employees, all counsel for the Parties and their agents and employees, and all persons to whom disclosure of Confidential or Highly Confidential Material under the terms of this Protective Order is made. The term “document” or “documents” is used with the broadest meaning possible, and includes, but is not limited to, any writing, recording, electronically stored information, or photographs.

         2. Except by the prior written consent of the producing party, or by order of this Court, all materials or information produced by any party in this action shall be used solely in the preparation for and conduct of this litigation (including briefs, memoranda, correspondence, and other documents relating thereto) and the cases listed in Exhibit B attached hereto, and shall not be used or distributed for any other purpose. Except by the prior written consent of a third party that has produced materials or information in this case, or by order of this Court, all materials or information produced by said third party in this action shall be used solely for the purposes of this litigation and the cases listed in Exhibit B attached hereto, and shall not be used or distributed for any other purpose.

         3. “Confidential Material” includes trade secrets, proprietary business information, commercially sensitive information, personal financial information, tax returns, or other personal information that the Producing party is under a duty to preserve as confidential, or other information the disclosure of which would, in the good faith judgment of the party designating the material as Confidential, be detrimental to the conduct of that party's business or the business of any of that party's customers or clients.

         4. “Highly Confidential Material” includes (i) personally sensitive information that could be embarrassing or otherwise prejudicial to the person whose information was revealed, (ii) information that relates to the business strategy of the Producing Party or could prejudice the Producing Party in its ongoing business relationships or reasonably prospective business relationships, or (iii) information that could provide a competitive advantage to the receiving party in light of the parties' status as competitors in the real estate brokerage market.

         5. “Confidential Material” or “Highly Confidential Material” shall not include the Complaint in this matter or any Answer to such Complaint other than exhibits denominated as confidential. Information or material which is in the public domain shall not constitute Confidential or Highly Confidential Material.

         6. Documents shall be designated as Confidential Material by affixing to them the legend “Confidential.” Documents shall be designated as Highly Confidential Material by affixing to them the legend “Highly Confidential.” Confidential or Highly Confidential electronic or digital materials shall be so designated either by electronic tag or by letter accompanying the production. The failure to designate any materials with such legend shall not constitute a waiver of the right to later request that such documents be stamped as Confidential or Highly Confidential Material and thereafter assert that such documents contain protected confidential information.

         7. For electronically stored information (“ESI”), if it is not feasible for a party or third party to mark each file or image as specified in Paragraph 6 at the time of production, then that party or third party shall designate the Confidential or Highly Confidential Material in a cover letter accompanying the production of such ESI. Where feasible, the designating party or third party shall mark the disk, tape, or other electronic media on which said ESI is produced with legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” Whenever such ESI is printed out or copied, every print out or copy shall be marked with the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”

         8. Unless otherwise provided herein, Confidential Material may be disclosed only to the following persons, except upon order of the Court or prior written consent of the party producing the Confidential Material: (a) the parties' employees, officers, and directors that are actually engaged in assisting in the preparation of this action for trial or other proceeding, and who have been advised of their obligation hereunder; (b) the parties' legal counsel and their staff in this litigation, (c) the parties' legal counsel in the cases listed in Exhibit B, provided they review this order and shall execute a Declaration in the form attached hereto as Exhibit A prior to disclosure of those documents to such person; (d) the parties' vendors, independent consultants, accountants and/or experts retained to assist in the litigation; (e) commercial copy services, e-discovery vendors, graphics or trial preparation consultants hired by and assisting outside counsel for a party; (f) the Court, court personnel, the jury, and court reporters and videographers, (g) deponents and trial witnesses; and (h) mediators.

         9. Unless otherwise provided herein, Highly Confidential Material may be disclosed only to the following persons, except upon order of the Court or prior written consent of the party producing the Highly Confidential Material: (a) the parties' in-house legal department, including regular and temporary employees of such counsel; (b) the parties' legal counsel and their staff in this litigation; (c) the parties' legal counsel in the cases listed in Exhibit B, provided they review this order and shall execute a Declaration in the form attached hereto as Exhibit A prior to disclosure of those documents to such person; (d) the parties' vendors, independent consultants, accountants and/or experts retained to assist in the litigation; (e) commercial copy services, e-discovery vendors, graphics or ...


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