Polymer80, Inc. v. Glock, Inc., a foreign corporation ( 2021 )

1 Matthew D. Francis Nevada Bar No.: 6978 2 BROWNSTEIN HYATT FARBER SCHRECK, LLP 5371 Kietzke Lane 3 Reno, NV 89511 Telephone: (775) 324-4100 4 Facsimile: (775) 333-8171 Email: mfrancis@bhfs.com 5 John F. Renzulli 6 New York Bar No.: 1931476 (Admitted pro hac vice) 7 Joshua Paul New York Bar No.: 1991389 8 (Admitted pro hac vice) Gavin M. Strube 9 New York Bar No.: 5507728 (Admitted pro hac vice) 10 RENZULLI LAW FIRM, LLP One North Broadway, Suite 1005 11 White Plains, NY 10601 Telephone: (914) 284-0700 12 Facsimile: (914) 285-1213 Email: jrenzulli@renzullilaw.com 13 jpaul@renzullilaw.com gstrube@renzullilaw.com 14 Attorneys for Defendants GLOCK, INC.; and 15 LIPSEY’S, LLC. 16 17 UNITED STATES DISTRICT COURT 18 DISTRICT OF NEVADA 19 20 POLYMER80, INC., CASE NO.: 3:20-cv-00617-MMD-CLB 21 Plaintiff, STIPULATED PROTECTIVE ORDER 22 v. 23 GLOCK, INC.; and LIPSEY’S, LLC, 24 Defendants. 25 26 Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, and with the consent of 27 plaintiff Polymer80, Inc. and defendants Glock, Inc. and Lipsey’s, LLC, it is hereby ORDERED: 28 1 1. This Order shall govern the handling of all documents, things, answers to 2 interrogatories, responses to requests for admission, deposition testimony and transcripts, 3 exhibits, affidavits, briefs, and all other discovery materials and information (collectively, 4 “Materials”) produced, provided, or disclosed by the parties to this action (“Parties,” each a 5 “Party”) in the course of this litigation. 6 7 2. Any non-party to this action who provides deposition testimony, documents, 8 things, or other discovery materials or information pursuant to a subpoena or by agreement shall 9 be entitled to avail itself of the provisions and protection of this Order. Where the context so 10 requires, references herein to the terms “Party,” “Producing Party,” or “Receiving Party” shall be 11 construed as applying to the non-parties as well. 12 3. Any Party that produces, provides, or discloses Materials in the course of this 13 litigation (“Producing Party”) may designate as “CONFIDENTIAL” those Materials which it, in 14 15 concurrence with its counsel, believes in good faith contain trade secrets, proprietary information, 16 or sensitive commercial, financial, business, or personal information that is not publicly known or 17 that cannot be compiled from public sources without substantial effort or expense, under the 18 standards of Rule 26 of the Federal Rules of Civil Procedure. A Producing Party may designate as 19 “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” those Materials which meet the criteria for 20 the “CONFIDENTIAL” designation and that, in the Producing Party’s good faith estimation, and 21 in concurrence with its counsel, are extraordinarily commercially sensitive (i.e., would be 22 23 injurious to the commercial interests of the designating entity), under the Standards of Rule 26 of 24 the Federal Rules of Civil Procedure. 25 4. The adverse Party to whom a Producing Party produces, provides, or discloses 26 “CONFIDENTIAL” Materials (“Receiving Party”) may disclose such Materials only to the 27 following: 28 1 (a) The Receiving Party, and those of its directors, officers, and employees 2 who are reasonably required to view the “CONFIDENTIAL” Materials in order to assist counsel 3 in the prosecution or defense of this action. 4 (b) The Receiving Party’s outside and in-house counsel, and their respective 5 administrative and clerical staffs whose functions require access to such “CONFIDENTIAL” 6 7 Materials. 8 (c) Independent consulting or testifying experts (“Experts”) who are working 9 with the Receiving Party’s counsel in this action and who are not employees of the parties or their 10 affiliates and whose advice, consultation, and/or testimony are being or will be used by the parties 11 in connection with preparation for trial of this action and/or any motions or appeals connected 12 with this action. Counsel for the Receiving Party must cause any such Experts to sign the 13 Confidentiality Undertaking set forth in Exhibit 1 (“Confidentiality Undertaking”) before 14 15 disclosing “CONFIDENTIAL” Materials to them. Counsel for the Receiving Party shall keep a 16 record of all “CONFIDENTIAL” Materials that it discloses to any Expert. Notwithstanding the 17 foregoing, under no circumstances may a Receiving Party disclose “CONFIDENTIAL” Materials 18 of an opposing Party to any Expert or consultant who is employed by the Receiving Party or its 19 affiliates or by a competitor of the Producing Party. 20 (d) Third-party deposition or trial witnesses (“Witness”), subject to the 21 following conditions: 22 23 i. At least five (5) business days before disclosing “CONFIDENTIAL” Materials to the Witness, the Receiving Party 24 must notify the Producing Party of the specific Materials (viz., documents, portions of deposition transcripts, etc.) it intends to 25 disclose to the Witness. During this time, the Producing Party may object to the proposed disclosure. If objection is made, counsel for 26 the Receiving Party may not disclose the “CONFIDENTIAL” 27 Materials to the Witness until such time as the Parties agree otherwise. If the Parties cannot agree, the Party seeking to disclose 28 1 the information to a Witness shall not do so without first obtaining Court approval in accordance with this Protective Order. 2 ii. If no objection is made, the parties otherwise agree, or the Court 3 orders disclosure, counsel for the Receiving Party must cause the 4 Witness to sign the Confidentiality Undertaking before disclosing the “CONFIDENTIAL” Materials to the Witness. The Receiving 5 Party must retain copies of all Confidentiality Undertakings so obtained and must produce a copy of the undertaking to counsel for 6 the Producing Party before the Witness testifies or upon request. 7 (e) Outside deposition, photocopying, eDiscovery, trial support, jury 8 consulting, or other similar vendors. 9 (f) The Court and its personnel. 10 (g) Other persons with the consent of all Parties or by Court Order who, prior 11 12 to any disclosure, have been given a copy of this Order and have signed the Confidentiality 13 Undertaking. 14 5. A Receiving Party may disclose Material that a Producing Party has designated 15 “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to those persons and in the manner 16 described in Paragraphs 4(b) through 4(g) above. 17 6. Counsel for each party shall maintain copies of executed Confidentiality 18 Undertakings with respect to all persons described in Paragraphs 4(c), (d) or (g) and 5 to whom 19 20 counsel has disclosed or exhibited any Materials subject to this Order. 21 7. Nothing contained herein shall be construed to prohibit a Receiving Party from 22 disclosing a “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 23 document to any person who is identified on the face the document as an author or recipient of 24 that document. 25 26 8. In the event that a Party shall desire to provide access to Materials designated as 27 “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to any person or 28 1 category of persons not included in Paragraphs 4 or 5 hereof, it shall move this Court for an order 2 that such person or category of persons may be given access to such Materials. Before filing any 3 such motion, the Party seeking disclosure must confer with any opposing Parties in an attempt to 4 resolve the dispute without the Court’s intervention. In the event that the parties reach agreement 5 or a motion seeking disclosure is granted, such person or category of persons may have access to 6 7 the confidential Materials, provided that, prior to any disclosure, the person or persons have been 8 given a copy of this Order and have signed the Confidentiality Undertaking. 9 9. A Receiving Party may use Materials designated as “CONFIDENTIAL” or 10 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” by an adverse Producing Party solely for the 11 purpose of prosecuting or defending against the claims asserted in the current civil action pending 12 before the United States District Court for the District of Nevada and may not use the Materials 13 for any other purpose. All information produced or exchanged during the course of this case 14 15 (other than information that is publicly available) shall be used by the party or parties to whom 16 the information is produced solely for the purpose of this case. 17 10. The Parties shall designate “CONFIDENTIAL” and “CONFIDENTIAL- 18 ATTORNEYS’ EYES ONLY” Materials in the following manner: 19 (a) In the case of documents, affidavits, exhibits, briefs, interrogatory 20 responses, and responses to requests for admission, designations shall be made at the time of 21 service or production by placing an appropriate legend or notation on each page of any such 22 23 document, affidavit, exhibit, brief, interrogatory response, or response to a request for admission. 24 In the case of inspections of premises or things, designations shall be made at the time of 25 inspection. 26 (b) In the case of depositions, designation of any portions of the transcript 27 (including exhibits) shall be made either orally at the deposition or by giving written notice of 28 1 such designation within fifteen (15) business days after the designating party receives a copy of 2 the transcript. During the period of time between the taking of the deposition and the end of the 3 fifteen (15) business-day period, all transcripts, exhibits and the information contained within the 4 transcript and, where applicable, exhibits shall be treated as “CONFIDENTIAL - ATTORNEYS’ 5 EYES ONLY” in their entireties. The party asserting confidentiality shall mark the specific pages 6 7 and exhibits so designated “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES 8 ONLY” and shall send a list and/or copy of such designated pages to the other parties and the 9 court reporter. In preparing the transcript and exhibits, the court reporter shall conform all copies 10 of the material in their possession to reflect such confidentiality designation; shall separately bind 11 the various portions of the deposition testimony and/or exhibits – so as to separate the non- 12 confidential portion of the transcript and/or exhibits, from the “CONFIDENTIAL” portion of the 13 transcript and/or exhibits, from the “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” portion 14 15 of the transcript and/or exhibits; and shall mark the face of each separately bound transcript 16 containing such confidential testimony and/or exhibits “CONFIDENTIAL PURSUANT TO 17 COURT ORDER” or “CONFIDENTIAL PURSUANT TO COURT ORDER – ATTORNEYS’ 18 EYES ONLY”, as appropriate. 19 (c) If a Party or non-party witness designates testimony and/or exhibits as 20 confidential during a deposition by so stating on the record either at the commencement of the 21 deposition or at any time during the deposition, all persons who are not entitled to be privy to the 22 23 confidential information pursuant to Paragraphs 4 and 5 hereof (“Unauthorized Persons”) shall be 24 excluded from those portions of the deposition proceeding at which such information is disclosed. 25 In the event that testimony or exhibits are designated as confidential during a deposition, the court 26 reporter shall transcribe separately and bind separately those portions of the testimony and/or 27 exhibits designated as confidential and shall mark the face of each separately bound transcript 28 1 containing such confidential testimony and/or exhibits “CONFIDENTIAL PURSUANT TO 2 COURT ORDER” or “CONFIDENTIAL PURSUANT TO COURT ORDER – ATTORNEYS’ 3 EYES ONLY”, as appropriate. Nothing contained herein shall prevent either Party from applying 4 to the Court to exclude Unauthorized Persons from any hearing, trial, or other court proceeding. 5 11. If at any time during the pendency of this civil action, counsel for a Receiving 6 7 Party claims that a Producing Party has unreasonably designated Materials as 8 “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” it shall be the 9 Receiving Party’s responsibility to move the Court for an order compelling production or 10 disclosure of the Materials. Before filing any such motion, the Receiving Party must confer with 11 the Producing Party in an attempt to resolve the dispute without the Court’s intervention. In 12 addition to service on the opposing Party, a copy of any such motion shall be served on any non- 13 party who designated the material at issue, if applicable, and such non-party shall have standing 14 15 to oppose such motion before the Court. On such motion, the entity asserting confidentiality shall 16 have the burden of proving that the material in question is within the scope of protection afforded 17 by Rule 26(c) of the Federal Rules of Civil Procedure and/or that disclosure should be restricted. 18 12. Unless otherwise permitted by statute, rule, or prior court order, papers filed with 19 the Court under seal shall be accompanied by a contemporaneous motion for leave to file those 20 documents under seal and shall be filed consistent with the court’s electronic filing procedures in 21 accordance with Local Rule 10-5(b). Notwithstanding any agreement among the Parties, the 22 23 Party seeking to file a paper under seal bears the burden of overcoming the presumption in favor 24 of public access to papers filed in court. Motions to seal shall comply with LR IA 10-5 and the 25 requirements of Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). See 26 also, Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir. 2016). 27 Notwithstanding the foregoing, a party seeking a designation of “CONFIDENTIAL” or 28 1 “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” retains the obligation to defend such 2 designation. 3 13. No copy of any transcript of any deposition taken by any Party which is designated 4 in part or in whole as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES 5 ONLY” shall be prepared or furnished by the court reporter to any person other than to attorneys 6 7 of record for the Parties. Neither the original nor any copy of any transcript of any deposition 8 taken in this action shall be filed in Court until the time period has elapsed for the designation of 9 portions of the transcript as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES 10 ONLY”. If given a confidentiality classification, the confidential portion of the transcript shall be 11 retained by said counsel and, when used in this action, filed under seal in accordance with 12 Paragraph 12 above, unless otherwise agreed upon by the Parties. 13 14. The following shall govern the (a) inadvertent failure by a Party to designate 14 15 Materials as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEY’S EYES ONLY” and (b) 16 inadvertent disclosure or production by a Party of any materials which the Party later claims 17 should not have been produced because of a claimed privilege: 18 (a) Inadvertent failure to designate Materials as “CONFIDENTIAL” or 19 “CONFIDENTIAL – ATTORNEY’S EYES ONLY” prior to disclosure, production, or response 20 shall not prevent a subsequent confidentiality designation. A Producing Party shall assert any 21 such confidentiality designation by letter promptly sent after discovery of such inadvertent 22 23 failure. Any disclosure by the Receiving Party prior to receipt of the letter shall not be a violation 24 of this Order. 25 (b) Inadvertent disclosure or production of any Materials which a Party later 26 claims should not have been produced because of a privilege (“Inadvertently Produced 27 Privileged Materials”) will not be deemed to waive any privilege. A Producing Party shall assert 28 1 any such privilege or work-product claim promptly upon discovery of its inadvertent production 2 and request the return of any Inadvertently Produced Privileged Materials by notifying the 3 recipient of the Materials of its claim in writing or orally at a deposition or other hearing of 4 record. A request for the return of such Materials (“Request to Return”) shall identify the 5 Materials inadvertently produced and the basis for withholding such Materials from production. 6 7 If a Producing Party requests the return of any Inadvertently Produced Privileged Materials in the 8 custody of the Receiving Party, the Receiving Party shall return all such Materials (and all copies 9 thereof), recall any copies of such Materials previously distributed, and expunge all copies of 10 such Materials from its electronic and paper files – unless, within ten (10) days of receiving the 11 Request to Return, the Receiving Party applies to the Court to challenge the Producing Party’s 12 claim of privilege. A Receiving Party may not assert the fact or circumstance of inadvertent 13 production as a ground for an order compelling production. 14 15 15. Pursuant to Federal Rule of Evidence 502, the production of privileged or work- 16 product protected materials, whether inadvertent or otherwise, shall not constitute a waiver of the 17 privilege or protection from discovery in this case or in any other federal or state proceeding. 18 This Order shall be interpreted to provide the maximum protection allowed by Federal Rule of 19 Evidence 502. 20 16. In the event that a Party to whom confidential Materials have been disclosed 21 receives a discovery request, subpoena, order, or other form of compulsory process requiring that 22 23 it (the “Subpoenaed Party”) produce information, documents, things, or other materials that 24 another Party or non-party (the “Designating Party”) have designated as “CONFIDENTIAL” or 25 “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the Subpoenaed Party shall notify the court 26 or administrative agency that issued the subpoena that it (the Subpoenaed Party) is precluded 27 from making the requested production on the grounds of this Order and shall promptly notify the 28 1 designating Party of the demand. If the designating Party elects to resist production of the 2 materials, it shall promptly so notify the Subpoenaed Party, and the latter shall cooperate in 3 affording the designating Party the opportunity to oppose or limit production of the materials, 4 provided that the designating Party shall bear all expenses, including attorneys’ fees and costs, 5 incurred by the Subpoenaed Party in connection therewith. 6 7 17. The pretrial order submitted by the parties in this action shall address the treatment 8 at trial of documents, information or testimony designated “CONFIDENTIAL” or 9 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” pursuant to this Protective Order unless the 10 confidentiality of such information has been removed by agreement of counsel or by this Court. 11 18. At any hearing relating to this litigation prior to trial before any judicial officer, 12 subject to the Rules of Evidence and orders of the Court, a Party may use any 13 “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” information or 14 15 documents for any purpose, provided that adequate prior notice of such use is given to counsel for 16 the opposing Party to permit the opposing Party the opportunity to obtain appropriate protection 17 from the Court, including a request to the Court that the courtroom be cleared and that the court 18 employees be advised as to the terms of this Protective Order. If any Party reasonably anticipates 19 that “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” information or 20 documents will be presented in any hearing in this litigation, it may request that the Court close 21 the courtroom during such presentation. If the Court denies any such request, the use of the 22 23 “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” information or 24 documents in Court shall not affect its coverage by this Protective Order or constitute a waiver of 25 confidentiality with respect thereto. 26 19. To the extent a particular lawyer-client communication made on or after 27 September 30, 2020 qualifies for protection under the attorney-client privilege, that 28 1 communication need not be listed on a privilege log or otherwise identified to the other Party 2 under Fed. R. Civ. P. 26(b). 3 20. Unless the Court orders otherwise, the confidentiality obligations imposed by this 4 Order shall remain in full force and effect after final disposition of this action in order to provide 5 the Court with ancillary jurisdiction to enforce its terms and to ensure compliance herewith. 6 7 21. This Protective Order shall not prevent any of the Parties from applying to the 8 Court for relief therefrom, or from applying to the Court for further and additional protective 9 orders, or from agreeing among themselves to modification of this Protective Order, subject to the 10 approval of the Court. 11 22. At the conclusion of this litigation (and, in all events, no later than 30 days after 12 entry of final judgment with all rights of appeal therefrom having been exhausted) a Receiving 13 Party must either: (a) return to the appropriate Producing Party copies of all Materials designated 14 15 as “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”; or (b) certify in 16 writing to the appropriate Producing Party that all such Materials have been destroyed. 17 Notwithstanding the foregoing, outside counsel for a Receiving Party may retain one copy of any 18 such Materials for archival purposes. 19 GUNDERSON LAW FIRM BROWNSTEIN HYATT FARBER 20 Attorneys for Plaintiffs, Polymer80, Inc. SCHRECK, LLP 21 Attorneys for Defendants, Glock, Inc. and By: /s/ John R. Funk Lipsey’s, LLC 22 John R. Funk Nevada Bar No.: 12372 By: /s/ Matthew D. Francis 23 jfunk@gundersonlaw.com Matthew D. Francis 24 Luke A. Walker Nevada Bar No.: 6978 Nevada Bar No.: 14429 mfrancis@bhfs.com 25 lwalker@gundersonlaw.com Reno, NV 89511 GUNDERSON LAW FIRM Telephone: (775) 324-4100 26 3895 Warren Way Facsimile: (775) 333-8171 Reno, NV 89509 27 Telephone: (775) 829-1222 28 Facsimile: (775) 829-1226 1 -and- John F. Renzulli New York Bar No.: 1931476 Edmund J. Ferdinand, III (Admitted pro hac vice) 3 New York Bar No.: 2605988 jrenzulli@renzullilaw.com (Admitted pro hac vice) Joshua Paul 4 jferdinand @fiplawgroup.com New York Bar No.: 1991389 Alexander Malbin (Admitted pro hac vice) 5 New York Bar No.: 5028725 jpaul @renzullilaw.com 6 (Admitted pro hac vice) Gavin M. Strube amalbin @fiplawgroup.com New York Bar No.: 5507728 7 Diane T. Gorczyca (Admitted pro hac vice) New York Bar No. 5748397) gstrube @renzullilaw.com 8 (Admitted pro hac vice) RENZULLI LAW FIRM, LLP dgorczyca@fiplawgroup.com One North Broadway, Suite 1005 9 John F. Olsen White Plains, NY 10601 10 New York Bar No.: 2764082 Telephone: (914) 284-0700 (Admitted pro hac vice) Facsimile: (914) 285-1213 11 jolsen @fiplawgroup.com FERDINAND IP LAW GROUP 12 450 Seventh Avenue, Suite 1300 New York, NY 10123 13 Telephone: (212) 220-0523 14 Facsimile: (203) 549-2339 IS The court's jurisdiction over the protective order 16 shall terminate upon dismissal of this case. 17 IT IS RDERED. * 18 19 UNITED STATES MAGISTRATE JUDGE 20 21 DATED: | February 1, 2021 22 23 24 25 26 27 28 12 1 EXHIBIT 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 POLYMER80, INC., CASE NO.: 3:20-cv-00617-MMD-CLB 7 Plaintiff, 8 v. 9 GLOCK, INC.; and LIPSEY’S, LLC, 10 Defendants. 11 12 CONFIDENTIALITY UNDERTAKING 13 I have been informed by counsel for ________that I am about to receive copies of certain documents, records, or other information that have been designated as “CONFIDENTIAL” or 14 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” by parties and/or non-parties under the terms 15 of a Protective Order issued by the Court. A copy of the Protective Order is attached as Exhibit A. 16 I acknowledge that I have read and understand the terms of the Protective Order. I agree 17 that: (a) I will not disclose any “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” Materials to any person other than as permitted by the Protective Order; and (b) I will not 18 make any copies of any “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES 19 ONLY” Materials furnished to me except in accordance with the Protective Order. At the conclusion of my involvement in this case I will return all such Materials to the attorney from 20 whom I received the Materials. 21 I agree that I will not use any “CONFIDENTIAL” or CONFIDENTIAL-ATTORNEYS’ EYES ONLY” Materials, or the substance of information derived therefrom, for any purpose 22 other than that of participating in this litigation, captioned above, and will not use in any business affairs of my employer or of my own, or impart to any other person, any such Materials or 23 information derived therefrom. 24 /// 25 /// 26 /// 27 /// 28 1 I hereby submit myself to the jurisdiction of the United States District Court for the District of Nevada for the purpose of any issue or dispute that might arise under this 2 Confidentiality Undertaking. I understand that my willful violation of the Protective Order could subject me to punishment for contempt of Court. 3 4 Signature: ______________________________________ 5 Printed Name: ___________________________________ 6 Address: ________________________________________ 7 Date: __________________________________________ 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 CERTIFICATE OF SERVICE 2 Pursuant to FRCP 5(b) and Section IV of the District of Nevada Electronic Filing 3 Procedures, I hereby certify that I am an employee of BROWNSTEIN HYATT FARBER 4 SCHRECK, LLP, and on this 29th day of January, 2021, I served the document entitled, 5 [PROPOSED] STIPULATED PROTECTIVE ORDER, on counsel of record through the 6 CM/ECF system. 7 /s/ Jeff Tillison 8 Employee of Brownstein Hyatt Farber Schreck, LLP 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28