Benson v. Las Vegas Metropolitan Police Department ( 2019 )

1 | IMARGARET A. MCLETCHIE, Nevada Bar No. 10931 MCLETCHIE LAW 2| 1701 East Bridger Ave., Suite 520 3 Las Vegas, Nevada 89101 Telephone: (702) 728-5300; Fax: (702) 425-8220 4 | |Email: maggie @nvlitigation.com 5 Attorney for Plaintiff Mary Benson 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 MARY BENSON, an individual, Case. No.: 2:19-cv-01949-RFB-VCF 9 Plaintiff, STIPULATED 10 Vs. PROTECTIVE ORDER LAS VEGAS METROPOLITAN POLICE 12 DEPARTMENT, in its official capacity; and, JOSEPH LOMBARDO, in his official 13|| capacity as Sheriff of the Las Vegas 14 Metropolitan Police Department; 15 Defendants. 16 Plaintiff MARY BENSON and Defendants LAS VEGAS METROPOLITAN 17 | POLICE DEPARTMENT and JOSEPH LOMBARDO (“LVMPD Defendants”), by their 18 | {respective counsel, having agreed to the following and for good cause under Rule 26(c)(1) 19 | of the Federal Rules of Civil Procedure, IT IS HEREBY ORDERED as follows: 20 1. PURPOSES AND LIMITATIONS. 2] Disclosure and discovery activity in this action may involve production of 99 | |confidential, proprietary, or private information for which special protection from public 23 | |disclosure may be warranted under Rule 26(c)(1) of the Federal Rules of Civil Procedure. 74 | |The Parties acknowledge that this Order does not confer blanket protections on all disclosures 25 | |or responses to discovery and that the protection it affords extends to only the limited 26 | |information or items that are entitled under law to treatment as confidential. 97 | \/// 9g | |/// I 2. SCOPE. All documents produced in the course of discovery, all responses to discovery 4 requests, and all deposition testimony and exhibits and any other materials which may be 4 subject to discovery (hereinafter collectively “Discovery Material”) shall be subject to this 5 stipulated protective order concerning confidential information as set forth below. A copy of 6 this Order must be included with any subpoena to any third party. Any party, or any third 7 party who produces documents in this litigation, may designate documents as 3 “CONFIDENTIAL,” but only after review of the documents by an attorney who has, in good 9 faith, determined that the documents contain “Confidential Information,” as defined below, 10 and pursuant to the procedure set forth below. 11 3. CONFIDENTIAL INFORMATION. 2 “Confidential Information” shall mean information meriting special protection 13 under the Federal Rules of Civil Procedure and applicable case law. Confidential Information 14 does not include information that (a) is in the public domain at the time of disclosure; (b) 15 becomes part of the public domain through no fault of the Receiving Party; (c) the Receiving 16 Party can show was in its rightful and lawful possession at the time of disclosure; or (d) the 7 Receiving Party lawfully receives from a Non-party later without restriction as to disclosure. 18 4. OTHER DEFINITIONS. 19 Party: Any party to this action, including all of its officers, directors, agents, and 29 | |attorney(s) of record for a Party in this action (including their associates, paralegals, and 31 | |support/ clerical staff). 2 Non-party: Any individual, corporation, association, or natural person or entity 23 | jother than a party. 4 Protected Material: Any Discovery Material containing Confidential Information 25 | |that is designated by a Party or Non-Party as “CONFIDENTIAL,” unless the Receiving Party 26 | |challenges the confidentiality designation and (a) the Court decides such material is not 97 | jentitled to protection as confidential; (b) the Designating Party fails to apply the Court for an 2g | |order designating the material confidential within the time period specified below; or (c) the 1 | |Designating Party withdraws its confidentiality designation in writing. 2 Producing Party: A Party or Non-Party that produces Discovery Material in this 3 | Jaction. 4 Receiving Party: A Party that receives Discovery Material from a Producing Party. 5 Designating Party: A Party or Non-Party that designates Discovery Material as 6 | |“CONFIDENTIAL”. The Party or Non-party designating information or items as Protected 7 | |Material bears the burden of establishing good cause for the confidentiality of all such items. 8 Challenging Party: A party that elects to initiate a challenge to a Designating Party’s 9 | |confidentiality designation. 10 Confidentiality Log: A Confidentiality Log must accompany any production of 11 | |documents designated as “CONFIDENTIAL” that includes the Bates numbers of the 12 | |documents designated (or the portions thereof) as “Confidential” and the basis for doing so. 13 | |Each Producing Party shall keep this log cumulatively and re-produce it every time they 14 | |designate something as “CONFIDENTIAL” so that it is a cumulative record of what the 15 | |party has marked “CONFIDENTIAL.” 16 5. FORM AND TIMING OF DESIGNATION. 17 Protected Material shall be so designated by the Producing Party by placing or 18 affixing the word “CONFIDENTIAL” on the document in a manner which will not interfere lwith the legibility of the document and which will permit complete removal of the 20 | |“Confidential” designation. A Confidentiality Log must accompany any production of 21 | |Protected Material that includes the Bates numbers of the documents designated (or portions 22 | Ithereof) as “CONFIDENTIAL” and the basis for doing so. Documents designated as 23 | |CONFIDENTIAL by the Producing Party shall be designated “CONFIDENTIAL” prior to, 24 | lor contemporaneously with, the production or disclosure of the documents. 25 A Party other than the Producing Party can designate material produced by a 26 Producing Party but not designated as “CONFIDENTIAL” as “CONFIDENTIAL” via letter 27 | |to the Producing Party and any Receiving Parties. Such designation shall have the same force 28 1 | Jas an initial designation by the Producing Party. 2 Any designation of documents as “CONFIDENTIAL” shall be accompanied with 3 | |a Confidentiality Log in the form included at Exhibit A. 4 A Designating Party must exercise restraint and make good faith efforts to limit 5 | |CONFIDENTIAL designations to specific materials that qualify for protection under the 6 | |appropriate standard. Further, a Designating Party must use good faith efforts to designate 7 | |for protection only those parts of material, documents, items, or communications that 8 | |qualify—so that other portions of the materials, documents, items, or communications for 9 | |which protection is not warranted are not swept unjustifiably within the ambit of this Order. 10 | |If only a portion or portions of materials on a page or within a document merit protection, a 11 | |Producing Party must so indicate by making appropriate markings in the margins but not 12 | Jover text. The accompanying log should clearly explain which portion is designated as 13 | |CONFIDENTIAL. 14 A Producing Party that makes original documents or materials available for 15 | |inspection need not designate them for protection until after the inspecting Party has 16 | |indicated which material it would like copied and produced. During the inspection and before 17 | |the designation, all of the material made available for inspection shall be deemed 18 | |“Confidential.” After the inspecting Party has identified the documents it wants copied and 19 | |produced, the Producing Party must determine which documents, or portions thereof, qualify 20 | |for protection under this Order, and, before producing the specified documents, the 21 | |Producing Party must affix the appropriate legend on each page that contains Protected 22 | |Material. If only a portion or portions of the material on a page qualifies for protection, the 23 | |Producing Party also must clearly identify the protected portion(s) (e.g., by making 24 | |appropriated markings in the margins or by redacting protected portions). 25 Portions of depositions shall be designated CONFIDENTIAL when the deposition 26 | |is taken or within fourteen (14) business days after receipt of the transcript, if feasible. Such 27 | |designation shall be specific as to the portions to be protected and, if made by a Party, shall 28||be accompanied with a certification and log on the form, attached as Exhibit A. A |Designating Party must exercise restraint and make good faith efforts to limit 2 | |“CONFIDENTIAL” designations to specific materials that qualify for protection under the 3 | |appropriate standards. 4 Inadvertent or unintentional production of Protected Material without prior 5 | |designation as “CONFIDENTIAL.” shall not be deemed a waiver, in whole or in part, of the 6 | |right to designate documents as Protected Material as otherwise allowed by this Order. 7 | |Further, a Party may assert that disclosures or discovery material produced by another Party 8 | |constitute Protected Material by informing the opposing Party by following the procedures 9 | |set forth herein for a Designated Party. 10 6. | PROTECTION OF PROTECTED MATERIAL. 11 a. General Protections. Protected Material shall not be used or disclosed by the 12 | |Parties or counsel for the Parties or any other persons identified below ({ 6.b.) for any 13 purposes whatsoever other than preparing for and conducting litigation in the above-entitled 14 | faction (including any appeal). 15 b. Qualified Receiving Parties and Limited Third-Party Disclosures. Protected 16 | |Material shall be held in confidence by each qualified Receiving Party to whom it is 17 | | disclosed, shall be used only for purposes of this action, and shall not be disclosed to any 18 person who is not a qualified recipient. All Protected Material shall be carefully maintained 19 | |s0 as to preclude access by persons who are not qualified Receiving Parties. 20 Subject to these requirements, in addition to Parties and the Court, the following 21 categories of persons may be allowed to review Protected Material pursuant to this Order 22 | Jafter executing an acknowledgment (in the form set forth at Exhibit B hereto), that he or she 23 | lhas read and understands the terms of this Order and is bound by it: 24 (1) Any officers, directors, or designated employees of a Party deemed 25 necessary by counsel of record in this action to aid in the prosecution, 26 defense, or settlement of this action; 271 V/// 28 1 (2) Professional outside vendors for attorneys of record (such as copying 2 services and translators and interpreters), 3 (3) Court reporters, deposition notaries and staff; 4 (4) The author of any document designated as CONFIDENTIAL or the original 5 source of Confidential Information contained therein; 6 (5) Persons other than legal counsel who have been retained or specially 7 employed by a Party as an expert witness for purposes of this lawsuit or to 8 perform investigative work or fact research; 9 (6) Deponents during the course of their depositions; 10 (7) Counsel for issuers of insurance policies under which any issuer may be 11 liable to satisfy part or all of a judgment that may be entered in these 12 proceedings or indemnify or reimburse payments or costs associated with 13 these proceedings; 14 (8) Any private mediator or arbitrator appointed by the Court or selected by 15 mutual agreement of the parties and the mediator or arbitrator’s secretarial 16 and clerical personnel; 17 (9) Any other person as to whom the Producing Party has consented to 18 disclosure in advance and in writing, on notice to each Party hereto. 19 c. Control of Documents. Counsel for Parties shall take reasonable efforts to 20 | | prevent unauthorized disclosure of Protected Material pursuant to the terms of this Order. No 21 | |copies of Protected Material shall be made except by or on behalf of attorneys of record, in- 22 | |house counsel, or the parties in this action. 23 d. Copies. Any person making copies of Protected Material shall maintain all 24 | |copies within their possession or the possession of those entitled to access such information 25 | |under the Protective Order. All copies shall be immediately affixed with the designation 26 | |““CONFIDENTIAL?” if the word does not already appear on the copy. All such copies shall 27 | |be afforded the full protection of this Order. 28 | |/// I 7. UNAUTHORIZED DISCLOSURE. If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 4 Protected Material to any person or in any circumstance not authorized under this Stipulated 4 Protective Order, the Receiving Party must immediately (a) notify in writing the Designating 5 Party of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the 6 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 7 made of all the terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound by Stipulated Protective Order” (Exhibit 9 B). 10 8. FILING PROTECTED MATERIAL 11 The Parties shall follow Rule 10-5 of the Local Rules of Practice for the U.S. 2 District Court of Nevada and must file documents under seal under the Court’s electronic 13 filing procedures, 14 Further, the Parties recognize the presumption of public access inherent in judicial 15 records and that a Protective Order does not establish that documents meet the standard for 16 sealing set forth in Rule 10-5 of the Local Rules of Practice for the U.S. District Court of 7 Nevada and the Ninth Circuit’s decisions in Kamakana v. City and County of Honolulu, 447 18 F.3d 1172 (9th Cir. 2006) and Ctr. for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 19 1097 (9th Cir.), cert. denied sub nom. FCA U.S. LLC vy. Ctr. for Auto Safety, 137 S. Ct. 38 0 (2016). When a motion to seal is related to the merits of the case, a “party seeking to seal a 1 judicial record then bears the burden of overcoming this strong presumption by meeting the 09 ‘compelling reasons’ standard.” Kamakana, 447 F.3d at 1178. But when motion to seal is 3 unrelated to the merits of the case, a party may overcome this presumption by meeting a less exacting “good cause standard.” Chrysler Group, 809 F.3d at 1097. To establish good cause, 95 | |@ Party must show specific prejudice or harm—such as protecting a party from annoyance, 26 embarrassment, oppression, or undue burden or expense—will result if the motion to seal is denied. /d. (quoting Fed. R. Civ. P. 26(c)). Further, the Court should make an independent 28 determination regarding whether documents merits sealed status, and thus expressly reserves 1 | |the right to do. Kamakana 447 F.3d at 1186-87. 2 In recognition of this legal standard, and the fact that the Party filing Protected 3 | |Material may not be the Party that designated it confidential (and thus, may not believe good 4 | |cause exists for sealing), the Parties suggest that the procedure set forth below is followed if 5 | |the sole ground for a motion to seal is that the opposing Party (or Non-Party) has designated 6 | |a document as subject to protection pursuant to this Stipulated Protective Order: the Party 7 | |filing such Protected Materials may assert in the accompanying motion any reasons why the 8 | |Protected Materials should not, in fact, be kept under seal and the Designating Party, who 9 | |must be properly noticed, may likewise file a response asserting its position that the Protected 10 | |Material merits protection under Rule 26(c) of the Federal Rules of Civil Procedure and 11 | Jattaching a declaration supporting the assertion that the designated material meets the 12 | |applicable standard. 13 9. | CHALLENGES TO PROTECTED MATERIAL. 14 Any designation of Protected Material is subject to challenge. The following 15 procedures shall apply to any such challenge: 16 a. Burden. The burden of proving the necessity of a “CONFIDENTIAL” 17 designation remains with the party asserting confidentiality. 18 b. Notice; Opportunity to Challenge. A party who contends that Protected 19 | |Material is not entitled to confidential treatment shall give written notice to the party who 20 | |affixed the “CONFIDENTIAL” designation of the specific basis for the challenge. The party |who so designated the documents shall have ten (10) days from service of the written notice 22 | \to determine if the dispute can be resolved without judicial intervention and, if not, to move 23 | for an Order confirming the “CONFIDENTIAL” designation, and the status as Protected 24 | | Material. 25 c. Treatment as Protected Material until Order or Withdrawal. 26 Notwithstanding any challenge to the designation of documents as such, all material 27 | previously designated “CONFIDENTIAL” shall continue to be treated as Protected Material 28 1 | |subject to the full protections of this Order until one of the following occurs: (1) the Party 2 | |who claims that the documents are Protected Material withdraws such designation in writing; 3 | |(2) the Party who claims that the documents are confidential fails to move timely for an Order 4 | |designating the documents as confidential as set forth in paragraph 9.b. above; or (3) the 5 | |Court rules that the documents are not Protected Material and/or should no longer be 6 | |designated as “CONFIDENTIAL.” 7 d. No Waiver. Challenges to the confidentiality of documents may be made at any 8 | |time and are not waived by the failure to raise the challenge at the time of initial disclosure 9 | jor designation. 10 10. DURATION; CONCLUSION OF LITIGATION. 11 All provisions of this Order restricting the use of Protected Material shall continue 12 | Ito be binding after the conclusion of the litigation unless otherwise agreed or ordered. 13 | |However, the dismissal of this action will terminate the jurisdiction of this Court, including 14 | over this Order. 15 Within thirty (30) days of the final termination of in the above-entitled action, 16 | |which would be either a final judgment on all claims or stipulation and order for dismissal 17 | | with prejudice, all documents and information designated as CONFIDENTIAL by a 18 Designating Party and which has not been challenged, including any copies, or documents 19 | |containing information taken therefrom, shall be returned to the Designating Party. In the 20 | | alternative, within thirty (30) days of the final termination of this case, which would be either final judgment on all claims or stipulation and order for dismissal with prejudice, all such 22 | |documents, including copies, may be shredded or disposed of in a manner to ensure the 23 | | destruction thereof and a declaration certifying such destruction or disposal provided to the 24 Designating Party. To the extent a Party has designated portions of a deposition transcript as 25 | |CONFIDENTIAL, the non-designating Party is under no obligation or duty to shred or 26 dispose of the deposition transcript, however, the CONFIDENTIAL designation will remain. 271 V/// 28 I 11. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION. 2 If a Party is served with a subpoena or an order issued in other litigation that would 3 compel disclosure of Protected Material designated by another Party or Non-party, the Party must so notify the Designating Party, in writing (by e-mail or fax, if possible) within three 5 (3) court days after receiving the subpoena or order. Such notification must include a copy © | lof the subpoena or court order. ’ 12, ORDER SUBJECT TO MODIFICATION. 8 This Order shall be subject to modification on motion of any Party or any other ? person who may show an adequate interest in the above-entitled action to intervene for 10 purposes of addressing the scope and terms of this Order. The Order shall not, however, be modified until the Parties shall have been given notice and an opportunity to be heard on the 12 proposed modification. 13. NOJUDICIAL DETERMINATION. This Order is entered based on the representations and agreements of the Parties and for the purpose of facilitating discovery. Nothing herein shall be construed or presented as a judicial determination that any specific document or item of information designated as CONFIDENTIAL by counsel is subject to protection under Rule 26(c) of the Federal Rules 8 of Civil Procedure or otherwise until such time as a document-specific ruling shall have been made. 20 1 14. MISCELLANEOUS. a. Public Health and Safety. Nothing in this Order is intended to prevent any Party 73 from raising with the Court any concern that the disclosure of certain Protected Material may have a possible adverse effect upon the general public health or safety, or the administration or operation of government or public office. b. Right to Further Relief. Nothing is this Order abridges the right of any person 97 to seek its modification by the Court in the future. /// 10 1 c. Right to Assert Other Objections. By stipulating to the entry of this Order, no 2 | |Party waives any right it otherwise would have to object to disclosing or producing any 3 | |information or item on any ground not addressed in this Order. Similarly, no Party waives 4 | |any right to object on any ground to use in evidence of any of the material covered by this 5 | |Protective Order. 6 15. PERSONS BOUND UPON ENTRY OF ORDER. 7 This Order shall take effect when entered and shall be immediately binding upon 8 | |the Parties (as defined herein). It shall also be binding upon subsequent parties that are added 9 | |to this matter, each of which shall execute Exhibit B (Agreement to be Bound). 10 IT IS SO STIPULATED. 11 12 | DATED this the 20" day of December, 2019. DATED this the 20" day of December, 2019. 13 | |MARQUIS AURBACH COFFING MCLETCHIE LAW /s/ Nick D. Crosby /s/ Margaret A. McLetchie 15 | |Nick D. Crosby, NBN 8996 Margaret A. McLetchie, NBN 10931 10001 Park Run Drive Alina M. Shell, NBN 11711 16 | |Las Vegas, NV 89145 701 East Bridger Ave., Suite 520 7 Email: ncrosby @maclaw.com Las Vegas, NV 89101 Attorney for LVMPD Defendants Email: maggie @ nvlitigation.com 18 Attorneys for Mary Benson 19 ORDER 20 IT IS SO ORDERED. 26th D b DATED this dayof “2019. 22 23 25 U.S*MAGISTRATE JUDGE 26 27 28 11 I EXHIBIT A [Name]’s LOG OF CONFIDENTIAL DESIGNATIONS 2 3 Bates No. Date of or Other = Specific Description of Authority/Basis for 4 Production [Identifier | Documents or Information Designation fF Pf HAE sft fp Pf nif Pf wifi 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 I EXHIBIT B 2 ACKNOWLEDGMENT OF UNDERSTANDING AND AGREEMENT TO BE BOUND 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5 6 MARY BENSON, an individual, Case. No.: 2:19-cv-01949-RFB-VCF 7 Plaintiff, ACKNOWLEDGMENT OF Vs. UNDERSTANDING AND 8 AGREEMENT TO BE BOUND LAS VEGAS METROPOLITAN POLICE 9 DEPARTMENT, in its official capacity; and, 10 JOSEPH LOMBARDO, in his official capacity as Sheriff of the Las Vegas 11 Metropolitan Police Department; 12 Defendants. 13 14 The undersigned hereby acknowledges that he or she has read the Confidentiality 15 Order dated , 20___, in the above-captioned action, understands the 16 | |terms thereof, and agrees to be bound by such terms. The undersigned submits to the 17 | [Jurisdiction of the United States District Court for the District of Nevada relating to the 18 Confidentiality Order during the pendency of the ghove-entitled action and understands that 19 the terms of said Order obligate him/her to use discovery materials designated 20 CONFIDENTIAL solely for the purposes of the above-captioned action, and not to disclose 21 | [any such Protected Material to any person, firm, entity, or concern. ag | 93 | \/// ag | 95 | \/// 96 | |/// aq ag | \/// 13 1 The undersigned acknowledges that violation of the Stipulated Confidentiality 2 | |Order may result in penalties for contempt of court. 3 Name: 4 Job Title: Employer: 5 Business Address: 6 , 9 Date Signature 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14