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Diamond Resorts International, Inc. v. Reed Hein & Associates, LLC

United States District Court, D. Nevada

October 10, 2019

DIAMOND RESORTS INTERNATIONAL, INC., a Delaware corporation; DIAMOND RESORTS CORPORATION, a Maryland corporation, DIAMOND RESORTS U.S. COLLECTION DEVELOPMENT, LLC, a Delaware limited liability company, and DIAMOND RESORTS MANAGEMENT, INC., an Arizona corporation, Plaintiffs,
v.
REED HEIN & ASSOCIATES, LLC d/b/a TIMESHARE EXIT TEAM, a Washington limited liability company; BRANDON REED, an individual and citizen of the State of Washington; TREVOR HEIN, an individual and citizen of Canada; THOMAS PARENTEAU, an individual and citizen of the State of Washington; HAPPY HOUR MEDIA GROUP, LLC, a Washington limited liability company; MITCHELL R. SUSSMAN, ESQ. d/b/a THE LAW OFFICES OF MITCHELL REED SUSSMAN & ASSOCIATES, an individual and citizen of the State of California; SCHROETER, GOLDMARK & BENDER, P.S., a Washington professional services corporation; and KEN B. PRIVETT, ESQ., a citizen of the State of Oklahoma, Defendants.

          KIMBERLY MAXSON-RUSHTON, ESQ. Nevada Bar No. 5065 GREGORY A. KRAEMER, ESQ. Nevada Bar No. 010911 COOPER LEVENSON, P.A. Attorneys for Plaintiffs

          ALFRED J. BENNINGTON, JR., ESQ. Florida Bar No. 404985 (Admitted Pro Hac Vice) GLENNYS ORTEGA RUBIN, ESQ. Florida Bar No. 556361 (Admitted Pro Hac Vice) MICHAEL L. GORE, ESQ. Florida Bar No. 441252 (Admitted Pro Hac Vice) MICHAEL J. QUINN, ESQ. Florida Bar No. 084587 (Admitted Pro Hac Vice) SHUTTS & BOWEN LLP Attorneys for Plaintiffs

          DANIEL J. BARSKY, ESQ. Florida Bar No. 25713 (Pro Hac Vice filed) SHUTTS & BOWEN LLP Attorneys for Plaintiffs

          NOTICE OF FILING AMENDED AGREED PROTECTIVE ORDER

         Plaintiffs Diamond Resorts International, Inc., Diamond Resorts Corporation, Diamond Resorts U.S. Collection Development, LLC, and Diamond Resorts Management, Inc. (collectively, “Diamond” or “Plaintiffs”), pursuant to this Court's Order of October 1, 2019, hereby provide notice of filing with the Court the Parties' Amended Agreed Protective Order, a copy of which is annexed hereto as Exhibit A.

         26990783EXHIBIT “A”

         AMENDED AGREED PROTECTIVE ORDER

         THIS CAUSE came before the Court on Plaintiffs' and Defendants' Joint Motion for Entry of the Amended Agreed Protective Order. The Court being duly advised herein, and good cause appearing, and to expedite the flow of discovery, facilitate the prompt resolution of disputes over confidentiality of discovery materials, adequately protect information that the parties are entitled to keep confidential, ensure that only materials the parties are entitled to keep confidential are subject to such treatment, and certify that all parties are permitted reasonably necessary uses of such materials in preparation for and in the conduct of trial, pursuant to Fed.R.Civ.P. 26(c), it is hereby

         ORDERED AND ADJUDGED that the Amended Agreed Protective Order is entered as follows:

         IT IS HEREBY AGREED, by and between counsel for the parties, that this Amended Agreed Protective Order shall govern the handling of any confidential information produced or disclosed by any party or non-party (the “Producing Party”) to any other party (the “Receiving Party”) in this action, including, without limitation, pleadings, documents, depositions, deposition transcripts, deposition exhibits, interrogatory responses, responses to requests for admission, and other things, as follows:

         Confidential Items and Highly Confidential Items

         1. Discovery items produced in this action by a Producing Party may be deemed confidential (hereinafter “Confidential Items”), and access to, disclosure of, and treatment of such Confidential Items shall be restricted as further provided herein. Confidential Items include documents, things, and information that reflect confidential information, including, without limitation: (i) proprietary technical information, (ii) trade secrets, (iii) confidential know-how, (iv) sensitive business or financial information, (v) other confidential research, development, or commercial information identified as such by a Producing Party; or (vi) information that would be subject to Rule 1.6 of the ABA Model Rules of Professional Conduct. Confidential Items and Highly Confidential Items (provided for in paragraph 4 below) are to be utilized solely for the purposes of this litigation and for no other purpose, including, but not limited to, not being used for any of the following purposes:

a. Any business-related, pecuniary or economic purpose, efforts, or acts by the Receiving Party; or
b. Any sales, solicitations, marketing, advertising, customer service, public relations, or other business-related activities by the Receiving Party.

         Disclosure of Confidential Items or Highly Confidential Items, documents or materials reflecting those items, or the content of those items to anyone not authorized to receive them under this Amended Agreed Protective Order, or in a manner inconsistent with this Order, is prohibited.

         2. (a) If a Producing Party elects to confer the protections of this Amended Agreed Protective Order on a Confidential Item that is a document, such party must produce such Confidential Item bearing the designation “CONFIDENTIAL.” In the case of paper documents or documents produced electronically in PDF or TIFF format, the designation shall appear on every page that is deemed confidential. For electronically stored information (“ESI”), if it is not feasible for a party or third party to mark each file or image as specified herein 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 the 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 or copied out, every print out or copy shall be marked with the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” In the case of all other Confidential Items, the designation shall to the extent practicable appear prominently on the Confidential Item.

         (b) The inadvertent failure by a Producing Party or its counsel to designate specific documents, materials, or information as Confidential Items or Highly Confidential Items as provided for under paragraphs 2(a), 4(a), or 4(b) shall not be deemed a waiver, in whole or in part, of the Producing Party's claim of confidentiality as to such documents or materials. The Producing Party may give written notice to the Receiving Party or Receiving Parties that the specific documents, material, or information are Confidential Items or Highly Confidential Items and should be treated as such in accordance with the provisions of this Amended Agreed Protective Order. The Receiving Party or Receiving Parties must treat such documents and materials as Confidential Items or Highly Confidential Items from the date such notice is received. Upon written notice to the Receiving Party of such inadvertent failure to designate, the Receiving Party shall cooperate to restore the confidentiality of the inadvertently disclosed information as quickly as possible. Disclosure by a Receiving Party of such documents or materials prior to the receipt of such written notice to persons not authorized to receive Confidential Items or Highly Confidential Items shall not be deemed a violation of this Amended Agreed Protective Order.

         3. Disclosure of Confidential Items, or information contained therein, shall be made only with reasonable assurances that the recipient of the information or items will not further disseminate the information or items except as permitted by this Amended Agreed Protective Order. In addition, except as otherwise specifically provided herein, access to and disclosure of Confidential Items shall be limited to persons in the following categories, so long as such person(s) have signed the Receipt of Confidential Documents, attached hereto as Exhibit A1, and only after such executed Exhibit A1 has been immediately served on every party to this action:

         (a) Outside counsel of record for the parties in this action (“Outside Counsel”), members of their firms, associate attorneys, paralegal, clerical, and other regular employees of such counsel.

         (b) Up to two (2) in-house counsel (in-house counsel being defined as including U.S. and non-U.S. in-house legal counsel) for the parties in this action to be designated and identified in writing to all other parties prior to the disclosure of Confidential Items thereto and who have read and agreed to be bound to this Amended Agreed Protective Order by executing Exhibit A1.

         (c) Subject to paragraph 5, outside consultants or experts retained by any party in this litigation who are not employees of any party or their affiliates, divisions, subsidiaries. Such outside consultants and experts shall execute Exhibit A1 and shall agree to be bound by this Amended Agreed Protective Order to the same extent as if they were a party to this agreement and shall not use the Producing Party's Confidential Items and Highly Confidential ...


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