Lopez v. The State of Nevada ex rel. Nevada Department of Corrections ( 2021 )

Attorney General 2 Akke Levin (Bar No. 9102) Senior Deputy Attorney General 3 Katlyn M. Brady (Bar No. 14173) Senior Deputy Attorney General 4 State of Nevada Office of the Attorney General 5 555 E. Washington Ave., Ste. 3900 Las Vegas, Nevada 89101 6 (702) 486-3420 (phone) (702) 486-3773 (fax) 7 alevin@ag.nv.gov katlynbrady@ag.nv.gov 8 Attorneys for Defendants 9 Gary Piccinini, Bryan Shields, Dwight Neven, Nevada Department of Corrections, 10 Jane Balao, Christopher Shields, and Rosemarie McCrary 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 BONNIE LOPEZ, individually as sister Case No. 2:21-cv-01161-JAD-BNW 14 and Special Administrator for the Estate of MELODY MORGAN, deceased; COLLEEN 15 LACKEY, individually as mother of MELODY MORGAN, deceased, STIPULATED PROTECTIVE ORDER 16 Plaintiffs, 17 vs. 18 THE STATE OF NEVADA ex rel. 19 NEVADA DEPARTMENT OF CORRECTIONS, WARDEN DWIGHT 20 NEVEN, individually; GARY PICCININI, ASSISTANT WARDEN, individually; 21 BRYAN SHIELDS, individually; OFFICER KARISSA CURRIER; OFFICER JAZMINA 22 FLANAGAN; NURSE JANE BALAO; NURSE BRIGIDO BAYAWA; NURSE 23 LEILANI FLORES; NURSE ROSEMARY MCCRARY; NURSE MA LITA 24 SASTRILLO; NURSE CHRIS SHIELDS; DOES I through X; and ROE ENTITIES I 25 through X, inclusive, 26 Defendants. 27 . . . 28 . . . 2 sister and for the estate of Melody Morgan, and Colleen Lackey, individually as mother of 3 Melody Morgan (collectively “Plaintiffs”) and defendants Karissa Currier, Brigido Bayawa, 4 Leilani Flores, and Ma Lita Sastrillo, Jazmina Flanigan, Jane Balao, Rosemarie McCrary, 5 Gary Piccinini, Bryan Shields, Dwight Neven, Christopher Shields, and Nevada 6 Department of Corrections (collectively “Defendants”), by and through their respective 7 undersigned counsel of record, that the following terms of this Stipulated Protective Order 8 will govern to protect the confidentiality of confidential information obtained by the parties 9 in connection with this case: 10 1. Confidential Information. Any party or non-party may designate as 11 “CONFIDENTIAL” (by stamping the relevant page or otherwise set forth herein) any 12 document or response to discovery which that party or non-party in good faith believes to 13 contain information of the type contemplated by Fed. R. Civ. P. Rule 26(c), NRS 179A.090, 14 NAC 284.718, or any other statute, law, or regulation, including, but not limited to, trade 15 secrets, property data, marketing information, financial information, personnel 16 information, investigative files, inmate files, and commercially sensitive information 17 (“Confidential Information”). Where a document or response consists of more than one 18 page, the first page and each page on which confidential information appears shall be so 19 designated. 20 2. Designating Material as Confidential. A party or non-party may 21 designate information and materials disclosed during a deposition or in response to written 22 discovery as “CONFIDENTIAL” by so indicating in said response. A party or non-party 23 may also designate in writing, within thirty (30) days after receipt of such discovery 24 responses or the deposition transcript for which the confidentiality designation is proposed, 25 that specific pages of the transcript or specific responses be treated as confidential 26 information. Any other party may object to such proposal, in writing or on the record. Upon 27 such objection, the parties shall follow the procedure described in paragraph 8 below. After 28 any designation made according to the procedure set forth in this paragraph, the 2 the matter is resolved according to the procedures described in paragraph 10 below, and 3 counsel for all parties shall be responsible for making all previously unmarked copies of 4 the designated material in their possession or control with the specific confidentiality 5 designation. 6 3. Use of Confidential Information. All Confidential Information produced 7 or exchanged during this case (other than information that is publicly available) shall be 8 used by the party or parties to whom the information is produced solely for the purpose of 9 this case. 10 4. Disclosure of Confidential Information. Except with the prior written 11 consent of other parties, or upon the prior order of this Court obtained upon notice to 12 opposing counsel, Confidential Information shall not be disclosed to any person other than: 13 a. Counsel for the respective parties to this litigation and co-counsel 14 retained for this litigation, including partners and associates who assist 15 them in this matter, Bureau Chiefs, Chief Deputy Attorneys General, 16 Senior Deputy Attorneys General, Deputy Attorneys General, 17 paralegals, clerical and secretarial staff employed by such counsel; 18 b. Individual parties, any officer or employee of a party, to the extent 19 deemed necessary by counsel for the prosecution or defense of this 20 litigation; 21 c. Non-party consultants or expert witnesses retained for the prosecution 22 or defense of this litigation, provided that each such person shall 23 execute a copy of the Certification annexed to this Order as Exhibit “A” 24 (which shall be retained by counsel to the party so disclosing the 25 Confidential Information and made available for inspection by opposing 26 counsel during the pendency or after the termination of the action only 27 upon good cause shown and upon order of the Court) before being shown 28 or given any Confidential Information; 2 e. The Court, court personnel, court reporters, and videographers; 3 f. Witnesses (other than persons described in paragraph4(c)). A Witness 4 shall sign the Certification before being shown a confidential document. 5 Confidential Information may be disclosed to a witness who will not 6 sign the Certification only in a deposition at which the party who 7 designated the Confidential Information is represented or has been 8 given notice that Confidential Information shall be designated 9 “Confidential” pursuant to paragraph 2 above. Witnesses shown 10 Confidential Information shall not be allowed to retain copies. 11 g. Members of the jury in this case; 12 h. Professional vendors that provide litigation support services, 13 employees of independent copy services, printers or illustrators, for the 14 sole purpose of making copies of documents and exhibits to be used in 15 this litigation; 16 i. Such other persons as Plaintiffs and Defendants may agree upon in 17 writing; and 18 j. Such other persons as the Court may order upon application of the 19 Plaintiffs or the Defendants. 20 5. Notice of Stipulated Protective Order. Any persons receiving or being 21 shown Confidential Information shall be advised that the Confidential Information is being 22 disclosed pursuant to an Order of the Court and that they shall not reveal to, or discuss 23 such information with, any person who is not entitled to receive such information, except 24 as set forth herein. 25 6. Filing of Confidential Information. Unless otherwise permitted by 26 statute, rule, or prior Court order, papers filed with the Court under seal shall be 27 accompanied by a contemporaneous motion for leave to file those documents under seal, 28 and shall be filed consistent with Local Rule IA 10-5 and the Court’s electronic filing 2 paper under seal bears the burden of overcoming the presumption in favor of public access 3 to papers filed in court. See Kamakana v. City and Cty. of Honolulu, 447 F.2d 1172 (9th 4 Cir. 2006); Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2010); see also 5 Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir. 2016). 6 Further, pursuant to Local Rule IA 10-5(d), documents filed under seal in this case 7 must be served in accordance with Local Rule IC 4-1(c). 8 7. Confidential Information Produced by Non-Parties. A party may 9 designate as “Confidential” documents or discovery materials produced by a non-party by 10 providing written notice to all parties of the relevant document numbers or other 11 identification within thirty (30) days after receiving such documents or discovery materials. 12 Any party or non-party may voluntarily disclose to others without restriction any 13 information designated by that party or non-party as confidential, although a document 14 may lose its confidential status if it is made public. 15 8. Challenges to Confidential Designation. If a party contends that any 16 material is not entitled to confidential treatment, such party may at any time give written 17 notice to the party or non-party who designated the material. The party or non-party who 18 designated the material shall have thirty days from the receipt of such written notice to 19 apply to the Court for an order designating the material as confidential. The party or non- 20 party seeking the order has the burden of establishing that the document is entitled to 21 protection. 22 9. Information Not Confidential. Notwithstanding any challenge to the 23 designation of material as Confidential Information, all documents shall be treated as such 24 and shall be subject to the provisions hereof unless and until one of the following occurs: 25 a. The party or non-party who claims that the material is Confidential 26 Information withdraws such designation in writing; or 27 b. The party or non-party who claims that the material is Confidential 28 Information fails to apply to the Court for an order designating the 2 written challenge to such designation; or 3 c. The Court rules the material is not confidential. 4 10. Order Survives Termination. All provisions of this Order restricting the 5 communication or use of Confidential Information shall continue to be binding after the 6 conclusion of the action, unless otherwise agreed or ordered. Upon conclusion of the 7 litigation, a party in possession of Confidential Information, other than that which is 8 contained in pleadings, correspondence, and deposition transcripts, shall either: (a) return 9 such documents no later than thirty days after conclusion of this action to counsel for the 10 party or non-party who provided such information; or (b) destroy such documents within 11 the time period upon consent of the party who provided the information and certify in 12 writing within thirty days that the documents have been destroyed. The Court shall retain 13 jurisdiction to resolve any dispute concerning the use of Confidential Information disclosed 14 after the termination of this action. 15 11. Evidence at Trial. The terms of this Order do not preclude, limit, restrict, or 16 otherwise apply to the use of documents at trial. 17 12. No Waiver Regarding Confidential Information/Inadvertent Failure 18 to Designate. Nothing herein shall be deemed to waive any applicable privilege under 19 federal or state law, or work product protection, or to affect the ability of a party to seek 20 relief for an inadvertent disclosure of material protected by privilege or work product 21 protection. 22 Inadvertent production of documents protected by the work product doctrine, 23 attorney-client privilege, or other legal privilege shall not constitute a waiver of the 24 immunity or privilege, provided that the producing party shall, upon discovery of such 25 inadvertent production, promptly notify the receiving party, in writing, of such inadvertent 26 production. In the event of such an inadvertent production, if the receiving party disputes 27 the privileged nature or required return of the material, the parties shall confer in good 28 faith to resolve the dispute. If the dispute cannot be resolved, the party seeking return of 2 the Court. 3 The inadvertent failure of a Producing Party to designate discovery materials as 4 Confidential Information shall not be deemed, by itself, to be a waiver of the party’s or non- 5 party’s rights to designate such discovery materials confidential. Immediately upon 6 learning of such inadvertent failure, the Producing Party shall notify all receiving parties 7 of the Party’s inadvertent failure to mark documents as Confidential Information and take 8 such other steps as necessary to correct the inadvertence after becoming aware of it. 9 However, disclosure by a Receiving Party of such discovery materials to any other person 10 prior to the designation of discovery materials in accordance with this paragraph shall not 11 violate the terms of this Stipulation and Order. 12 13. Application to Non-Parties. Any witness or other person, firm, or entity 13 from which discovery is sought may be informed and obtain protection of this Order by 14 written notice to the parties’ respective counsel or by oral notice at the time of a deposition 15 or similar proceeding. 16 14. Limits to Disclosure of Confidential Information. Counsel of record 17 shall make reasonable efforts to limit disclosure of Confidential Information to the 18 minimum number of persons necessary to conduct this action. 19 20 21 22 23 24 25 26 . . . 27 . . . 28 . . . 1 15. Securing Confidential Information. Persons receiving Confidential 2 || Information shall maintain all confidential material in a secure location. 3 DATED this 23rd day of August, 2021. 4 || AARON D. FORD MCNUTT LAW FIRM, P.C. Attorney General 5 By:_/s/_ Daniel R. McNutt By:_/s/ Akke Levin Daniel R. McNutt (Bar No. 7815) 6 Akke Levin (Bar No. 9102) Matthew C. Wolf (Bar No. 10801) Senior Deputy Attorney General Attorneys for Defendant 7 Attorneys for Defendants Jazmina Flamigan Gary Piccinint, Bryan Shields, Dwight 8 Neven, Nevada Department of WEINBERG, WHEELER, HUDGINS, Corrections, Jane Balao, Christopher GUNN & DIAL, LLC 9 Shields, and Rosemarie McCrary By:_/s/ Phillip Smith, Jr. 10 || AARON D. FORD Phillip Smith, Jr. (Bar No. 10233) Attorney General Marissa T. Fehrman (Bar No. 15544) 11 Attorneys for Defendants By:_/s/ Cameron P. Vandenberg Brigido Bayawa, Leilani Flores and 12 Cameron P. Vandenberg (Bar No. 4356) Ma Lita Sastrillo Chief Deputy Attorney General 13 Attorneys for Defendant Karissa Currier 14 CLARK HILL PLLC By:_/s/ Jeremy J. Thompson 16 Paola M. Armeni (Bar No. 8537) Jeremy J. Thompson (Bar No. 12503) 17 Attorneys for Plaintiffs 18 19 20 21 IT IS SO ORDERED 22 □ 93 DATED: August 24, 2021 24 ZR wweron 26 BRENDA WEKSLER 27 UNITED STATES MAGISTRATE JUDGE 28 2 CERTIFICATION OF AGREEMENT TO BE BOUND BY PROTECTIVE ORDER 3 I __________________________________, hereby declare, under penalty of perjury, 4 that I have received a copy of, read, understand, and agree to be bound by the Stipulated 5 Protective Order entered by the Court in Bonnie Lopez et al. v. State of Nevada ex rel. 6 Department of Corrections et al., Case No. 2:21-cv-01161-JAD-BNW. 7 I hereby acknowledge that I have received Confidential Information as defined in 8 the Stipulated Protective Order and, on pain of contempt of court, I hereby declare that I 9 will only use the Confidential Information in connection with assisting counsel of record 10 for a party to this litigation. I will not disclose or disseminate any part of the Confidential 11 Information to a third party without consent of the attorneys of record in this case. I will 12 use my best efforts to maintain the confidential nature of the documents and information 13 and will return or destroy the Confidential Information in accordance with the terms of the 14 Stipulated Protective Order. 15 I declare under penalty of perjury that the foregoing is true and correct. 16 DATED this ____ day of ____________, _______. 17 __________________________________ 18 Signature 19 __________________________________ 20 Printed Name 21 22 23 24 25 26 27 28