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Union Pacific Railroad Co. v. Winecup Gamble, Inc.

United States District Court, D. Nevada

April 17, 2018

UNION PACIFIC RAILROAD COMPANY, a Delaware corporation, Plaintiff,
v.
WINECUP GAMBLE, INC., a Nevada corporation; and PAUL FIREMAN, an individual, Defendants.

          PARSONS BEHLE & LATIMER Michael R. Kealy, Nevada Bar No. 971 Ashley C. Nikkei, Nevada Bar No. 12838 Attorneys for Plaintiff Union Pacific Railroad Company

          SNELL & WILMER, L.L.P. Michael R. Menssen (Signed by filing attorney with permission of counsel) William E- Peterson, Nevada Bar No. 1525**** Stodtmeister, Nevada Bar No. 14281 - and -David J. Jordan, Utah Bar No. 1751 (Admitted Pro Hac Vice) Michael R. Menssen, Utah Bar No. 15424 (Admitted Pro Hac Vice) Stoel Rives, LLP Attorneys for Defendant Winecup Gamble, Inc., and for Defendant Paul Fireman

          REVISED STIPULATION AND [PROPOSED] PROTECTIVE ORDER

         WHEREAS, the parties to the above-captioned action (the "Action"), [i.e., plaintiff UNION PACIFIC RAILROAD COMPANY ("Plaintiff'), and defendants and WINECUP GAMBLE, INC. and PAUL FIREMAN ("Defendants") [individually, a "Party, " and collectively, the "Parties"], acknowledge that during the course of the litigation of the Action certain matters may be requested to be produced that may constitute or contain trade secret, confidential research, development, financial, or otherwise proprietary commercial, information (collectively, "Protected Information") within the meaning of Rule 26(c) of the Federal Rules of Civil Procedure ("Rule[s]"); and

         WHEREAS, the Parties intend to protect such Protected Information from inappropriate disclosure and use, WHEREAS, the Parties previously filed a Stipulation and [Proposed] Protective Order [ECF No. 53] on March 30, 2018;

         WHEREAS, the Court rejected the Stipulation and [Proposed] Protective Order in a Minute Order on March 31, 2018 [ECF No. 54], permitting the Parties leave to submit a revised stipulated protective order that comports with LR IA 10-5 and the holdings of Kamakcma v. City & County of Honolulu, 447 F.3d 1172 (9th Cir. 2006) and Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092 (9th Cir. 2016);

         WHEREAS, the Parties have revised the Stipulation and [Proposed] Protective Order in order to comply with LR IA 10-5 and the holdings oiKamakana and Center for Auto Safety;

         NOW, THEREFORE, IN LIGHT OF THE FOREGOING, the Parties, by and through their respective attorneys of record in the Action, hereby stipulate and agree that this Revised Protective Order (the "Order") may be entered by the above-entitled Court and that upon its entry by the Court the Order shall govern all Protected Information produced or exchanged in the Action, subject to the terms and conditions set forth herein.

         I. APPLICABLE RULES REMAIN UNCHANGED

         Nothing herein shall alter or change in any way the discovery provisions of the Federal Rules of Civil Procedure ("Federal Rules"), the Local Rules of the United States District Court for the District of Nevada ("Local Rules"), or the Court's Scheduling Order. Identification of any individual pursuant to this Protective Order does not necessarily make that individual available ' for deposition or any other form of discovery outside of the restrictions and procedures of the Federal Rules or the Local Rules. Nothing in this Order shall be construed to require a Party to produce or disclose information not otherwise required to be produced under the Federal Rules, Local Rules, or orders of this Court.

         II. CONFIDENTIAL INFORMATION

         For purposes of the Order, the following definitions shall apply:

         A. "Document(s)" has the meaning set forth in Federal Rule 34(a), and includes all tangible written, recorded (electronically or otherwise), or graphic material, whether produced or created by a Party or another person, and whether produced pursuant to the Federal or Local Rules, by agreement of the Parties, or otherwise, and includes, without limitation, documents, interrogatory responses, responses to requests for admissions, deposition transcripts and exhibits, pleadings, motions, affidavits, affirmations, declarations, and briefs, or any portion of any of the above.

         B. "Confidential Information" means any information that a Party or the producing person or entity believes in good faith constitutes any trade secret or other confidential research, development, financial, or proprietary commercial information within the meaning of Federal Rule 26(c)(7). Confidential Information does not include information that is: (i) generally known prior to any disclosure hereunder; (ii) generally known without breach of this Order; (iii) approved for release by written authorization of the Party who owns the information; (iv) disclosed to the receiving Party by a third party lawfully possessing such document or information and under no obligation of confidentiality; (v) developed independently by the receiving Party or any employees or designated agents thereof who have not had access to the producing Party's "CONFIDENTIAL" or "CONFIDENTIAL - ATTORNEYS' EYES ONLY" documents or information and without any use whatsoever of information received by the receiving Party under this Order; (vi) publicly-available advertising materials; or (vii) materials that on their face show that they have been published to the general public. Parties shall designate or mark Confidential Information with a conspicuous "CONFIDENTIAL" label or legend.

         C. "Confidential Document" means any Document containing Confidential Information and the Parties shall designate or mark Confidential Documents with a conspicuous "CONFIDENTIAL" label or legend.

         D. Confidential Information or Documents may be additionally designated "CONFIDENTIAL - ATTORNEYS' EYES ONLY." The "CONFIDENTIAL - ATTORNEYS' EYES ONLY" designation is reserved for Confidential Information or Documents that constitute proprietary financial or technical data or commercially sensitive competitive information, including, but not limited to, Confidential Information obtained from a nonparty pursuant to a current Nondisclosure Agreement, Confidential Information relating to future products not yet commercially released, strategic plans, marketing information, financial information, consumer account, or transaction information, and any other information the disclosure of which is likely to cause harm to the competitive position of the producing Party. Parties shall designate or mark "CONFIDENTIAL - ATTORNEYS' EYES ONLY" documents or information with a conspicuous "CONFIDENTIAL - ATTORNEYS' EYES ONLY" label or legend.

         E. The term "copy" as used herein means any photographic, mechanical or computerized copy or reproduction of any document or thing, or any verbatim transcript, in whole or in part, of such document or thing.

         III. DISCLOSURE OF CONFIDENTIAL INFORMATION

         1. Confidential Documents and Information shall not be used or shown, disseminated, or in any way communicated to anyone for any purpose whatsoever, except as provided for below.

         2. Confidential Documents and Information that are designated "CONFIDENTIAL" may be disclosed only to the following persons ("Qualified Persons"):

a. Members or management for each Party, provided that each such representative is involved in the prosecution or defense of this Action and has the need to know such information in ...

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