Kirkness v. Honeywell International, Inc. ( 2023 )

1 WILLIAM J. GEDDES Nevada Bar No. 6984 2 THE GEDDES LAW FIRM, P.C. 1575 Delucchi Lane, Suite 206 3 Reno, Nevada 89502 Phone: (775) 853-9455 4 Fax: (775) 299-5337 Email: Will@TheGeddesLawFirm.com 5 Attorneys for Plaintiff Anthony Kirkness 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 ANTHONY KIRKNESS, CASE NO. 3:22-CV-00511-LRH-CLB 10 Plaintiff, 11 vs. STIPULATED PROTECTIVE ORDER Regarding 12 HONEYWELL INTERNATIONAL, INC. D/B/A/ HONEYWELL INTELLIGRATED, CONFIDENTIALITY OF DOCUMENTS 13 PRODUCED IN LITIGATION Defendant. 14 15 Pursuant to Federal Pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 26(f) and 16 U.S. District Court of Nevada Rule (“Local Rule”) 26-1(e), the parties through their respective counsel, 17 hereby submit the following Stipulated Protective Order. 18 I. RECITALS 19 WHEREAS: the parties to the above-captioned litigation anticipate that discovery will require 20 the parties to disclose records and information that are confidential and sensitive, including because 21 such records are anticipated to include the parties’ private employment records and private medical 22 records; and 23 WHEREAS: the parties seek to protect and prevent the improper dissemination of such 24 confidential and private records and information to third parties, during the course of litigation and after 25 the litigation has ended; 26 II. STIPLUATION 27 THEREFORE: the parties, by and through their respective counsel of record, hereby stipulate 28 and request the Court issue an Order (“Stipulated Protective Order”), protecting the confidential nature 1 of certain records and information as may be produced during the course of the above-captioned matter, 2 as follows: 3 1. If any person or entity, whether or not a party to the instant action, produces or receives 4 answers to interrogatories, or documents or other things, which the producing or receiving person or 5 entity considers to be “Confidential Information,” as defined in § II(3)(A)(I) infra; or 6 2. If there is deposition testimony which any person or entity, whether or not a party to the 7 instant action, believes contains “Confidential Information,” as defined in § II(3)(A)(I) infra; or 8 3. Third parties produce information which the third parties assert is confidential, the 9 following procedure shall govern pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 26(c) 10 et. seq.: 11 A. Any documents (and the contents thereof), things or information falling within 12 the definition of “Confidential Information,” set forth in § II(3)(A)(I) infra, that are produced may be 13 designated and marked, in whole or in part, without regard to whether redactions are made, 14 “Confidential” by the party producing the documents or information, at the time the documents are 15 delivered to or made available for inspection by any party; 16 I. “Confidential Information” includes, but is not limited to: (a) 17 employment records of any employees or former employees of any party; (b) confidential notes, 18 memoranda, and statements regarding non-party employees; (c) confidential information concerning 19 the discipline and/or termination of non-party employees and former employees; (d) the production of 20 information or documents proprietary to any party, including by way of example and not limitation, tax 21 records and financial statements; (e) other private information of any party or non-party to the present 22 litigation, including consumer records, e.g., phone bills; (f) financial records and business records of 23 any person or entity, whether a party or non-party to the present litigation; and (g) medical records, 24 including medical bills and psychological records, and medical information of any person, whether a 25 party or non-party to the present litigation. 26 B. If a party produces to another party items that contain Confidential Information 27 as defined above, that party may designate one or more documents, or a portion of a document, as 28 “Confidential” before producing that document to the other party. Such designation shall be made by 1 marking, stamping or typing the word “Confidential” on each page of the document at the time it is 2 produced to the receiving party’s counsel; 3 C. Any party may designate deposition testimony as “Confidential” by orally 4 making such a designation on the record either at the commencement of the deposition, at the time the 5 testimony is given, and/or before the end of that day's questioning. Following such a designation, the 6 court reporter shall mark “Confidential” on the transcript or the portion thereof containing the 7 “Confidential” testimony; 8 D. In addition, documents or items produced by one party may be designated 9 “Confidential” by the other party, i.e., the receiving party, by: 10 I. marking the document, in whole or in part, “Confidential” in the same 11 manner as stated above; and 12 II. then forwarding a copy of the marked document back to the producing 13 party; 14 E. In this regard, the receiving party seeking the “Confidential” designation may 15 designate, by number, each document it believes should be “Confidential”; 16 F. If the receiving party has no objection to the “Confidential” designation made by 17 the producing party, the receiving party may either expressly notify the producing party or allow the 18 fourteen (14) calendar-day objection period (set forth below) to lapse. Where there has been no written 19 objection made, once a document or item has been produced and designated as provided herein to the 20 receiving party, the document or item shall be treated as “Confidential,” respectively, pursuant to this 21 Stipulated Protective Order, until further order of the Court; 22 4. The following protocol shall apply in the event of an objection to a designation of 23 “Confidential”: 24 A. If there is an objection to the “Confidential” designation, the party so objecting 25 must notify the other party in writing of both the objection and the grounds for the objection (the 26 “Designation Objections”), within fourteen (14) calendar days from the date the designation was made 27 or the document(s)/item(s) received, whichever is later, and the procedure in § II(4)(B) infra, shall 28 apply; 1 B. Counsel for the designating party shall have thirty (30) days from receipt of the 2 written Designation Objections to either: (a) agree in writing to de-designate the items pursuant to any 3 and all of the Designation Objections; or (b) file a motion with the Court seeking to uphold any and all 4 designations on items addressed by the Designation Objections (the “Designation Motion”). Pending a 5 resolution of the Designation Motion by the Court, any and all designations of items at issue in such 6 Motion shall remain in place. The designating party shall have the burden on any Designation Motion 7 of establishing the applicability of its designation. If the Designation Objections are neither timely 8 agreed to nor timely addressed in the Designation Motion, then such items shall be de-designated in 9 accordance with the Designation Objection applicable to such items. 10 5. A document or testimony, or portion, summary, or abstract thereof, that is to be treated 11 “Confidential” pursuant to this Stipulated Protective Order shall not be disclosed to any persons other 12 than the parties, counsel of record for the parties, attorneys, in-house counsel, legal assistants and 13 clerical personnel employed by them, and other persons to whom disclosure is necessary for the 14 purposes of this litigation. (This allows disclosure to the officers, directors, employees or former 15 employees of the parties, persons requested by counsel for any party to furnish technical or expert 16 service or to give expert testimony with regard to the subject matter of the document(s), item(s) or 17 expert testimony for the trial of this action). However, each such person to whom a party makes such 18 disclosure (other than the parties, counsel, persons directly employed by counsel, Court Personnel and 19 stenographic reporters) shall read this Stipulated Protective Order and acknowledge in writing that 20 he/she is fully familiar with the terms hereof and agrees to comply with, and be bound by, this 21 Stipulated Protective Order until modified by either further order of the Court or agreement of all the 22 affected parties; 23 6. The inadvertent unintentional disclosure by a party of Confidential information, 24 regardless of whether the information was so designated at the time of disclosure, shall not be deemed a 25 waiver in whole or in part of a party’s claim of confidentiality, either as to the specific information 26 disclosed or as to any other information relating thereto or on the same or related subject matter. The 27 failure to designate any document, material, or information as Confidential in accordance with this 28 Stipulated Protective Order at the time it is produced or disclosed does not preclude a party from later 1 seeking to designate a document, material, or information as Confidential. If a party discovers that it 2 inadvertently produced materials containing Confidential information without marking them as such in 3 accordance with this Stipulated Protective Order, the party may provide written notice to the receiving 4 party that the materials should be treated as Confidential information in accordance with this Stipulated 5 Protective Order. Upon receipt of such notice, the receiving party must treat such materials as 6 Confidential information, and upon receipt of materials properly marked as Confidential, must return or 7 destroy the unmarked materials and must reasonably ensure that others to whom the unmarked 8 materials were disclosed have not retained copies. No party shall be deemed to have violated this 9 Stipulated Protective Order by failing to maintain the confidentiality of material during a time when 10 that material has not been designated Confidential information, even where the failure to so designate 11 was inadvertent and where the material is subsequently designated Confidential information. 12 7. In accordance with Rule 26(b)(5)(B) of the Federal Rules of Civil Procedure, if 13 information produced in discovery is subject to a claim of privilege or of protection as trial-preparation 14 material, the party making the claim may notify any party that received the information of the claim 15 and the basis for it. After being so notified, the notified party must promptly return, sequester, or 16 destroy the specified information and any copies it has; must not use or disclose the information until 17 the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it 18 before being notified; and may promptly present the information to the court under seal for a 19 determination of the claim. The producing party must preserve the information until the claim is 20 resolved. The inadvertent, unintentional disclosure in this litigation by a party of its own designated 21 privileged document or information, regardless of whether the information was so designated at the 22 time of disclosure, shall not be deemed a waiver in whole or in part of a party’s claim of privilege, 23 either as to the specific information disclosed or as to any other information relating thereto or on the 24 same or related subject matter. The receiving party upon receiving a privilege log identifying the 25 document remains free to challenge any claim of privilege or protection, but shall not make any claim 26 that the production of the document was a waiver of any privilege or protection. Moreover, absent a 27 ruling that the document or information at issue is not privileged or protected, a receiving party may not 28 disclose or make any use whatsoever of the information disclosed in or derived from the document or 1 information at issue. 2 8. Anyone seeking to file any “Confidential” documents, testimony, or information or any 3 pleadings or memorandum purporting to reproduce or paraphrase all or any portion of such confidential 4 material with this Court must first attempt to make such filings confidentially, by seeking to obtain 5 prior leave of Court for filing the same under seal. Notwithstanding any agreement among the parties, 6 the party seeking to file a paper under seal bears the burden of overcoming the presumption in favor of 7 public access to papers filed in Court. NOTE: If the document is filed electronically, the appropriate 8 protocol for that purpose will be utilized. Any motion regarding filing confidential information and 9 motions to seal shall comply with LR IA 10-5 and the requirements of Kamakana v. City and County of 10 Honolulu, 447 F.3d 1172 (9th Cir. 2006). See also, Center for Auto Safety v. Chrysler Group, LLC, 809 11 F.3d 1092, 1097 (9th Cir. 2016). 12 9. If such application for leave of Court to file any document(s) under seal is denied, then 13 the party who sought leave will be relieved, in that instance only, and only as to such documents for 14 which leave of Court was denied, from complying with this stipulation in relation to that filing; 15 10. Any documents, testimony, and/or information that has been rendered “Confidential” 16 under the parties’ Stipulated Protective Order is to be used only in the above-captioned action, and may 17 not be used in any other action or for any other purpose unless the party seeking to make such use has 18 acquired the documents, testimony, and/or information from a source independent of the above- 19 captioned action; 20 11. Within forty-five (45) calendar days of the entry of the final order concluding this 21 judicial proceeding, all “Confidential” documents or things; any copies, summaries, and abstracts 22 thereof; or notes relating thereto, shall be returned to the producing party or destroyed by the receiving 23 party (including by being shredded), at the option of the receiving party, with proof or attestation of 24 such destruction of records being transmitted by the receiving party to the producing party, except as 25 otherwise ordered by the Court or stipulated in writing by the parties. Counsel of record shall obtain 26 return of such information, things, and/or documents from any person to whom that counsel has made 27 available the documents or information produced by the other party designated as “Confidential.” 28 Notwithstanding any other language contained in this Order, each party’s counsel of record shall be 1 allowed to retain for its files a copy of all pleadings, motions, exhibits, or other papers filed and/or 2 lodged with the Court, and of all documents designated by both parties or any non-party as 3 “Confidential” and/or summaries or abstracts thereof (including but not limited to documents of any 4 type prepared by a party and/or counsel that are subject to the attorney-client privilege and/or the 5 attorney work-product doctrine). All such documents and information retained by counsel of record 6 must be maintained in a confidential manner and used only in accordance with this Order. 7 12. This Stipulated Protective Order may be amended, without prior leave of the Court, by 8 the agreement of counsel for the parties in the form of a stipulation and order that shall be filed in this 9 case. Nothing herein shall be construed so as to prevent any party from seeking relief from this Order 10 at any time; and 11 13. The parties reserve their rights to assert the confidentiality of documents and 12 information produced irrespective of their production pursuant to this Stipulated Protective Order. 13 Dated: March 24, 2023. THE GEDDES LAW FIRM, P.C. 14 15 William J. Geddes, Esq. Nevada Bar No. 6984 16 1575 Delucchi Lane, Suite 206 Reno, Nevada 89502 17 Phone: (775) 853-9455 Fax: (775) 299-5337 18 Email: Will@TheGeddesLawFirm.com 19 Attorneys for Plaintiff Anthony Kirkness 20 Dated: March 24, 2023. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 21 Electronic Signature Authorized 22 /s/ Leah S. Freed 23 Leah S. Freed (Admitted Pro Hac Vice) 2415 E. Camelback Road, Suite 800 24 Phoenix, AZ 85016 Telephone: 602-778-3700 25 leah.freed@ogletree.com 26 Molly M. Rezac, Esq. Nevada Bar No. 7435 27 200 S. Virginia Street, 8th Floor Reno, NV 89501 28 molly.rezac@ogletreedeakins.com Attorneys for Defendant Honeywell International, Inc. 3 4 5 ORDER 6 The Court only retains jurisdiction over this order while the case is pending. The Cour 7 |jurisdiction will cease upon dismissal of the case. 8 |IIT IS SO ORDERED. 9 Dated: March 27, 2023. . 10 11 SE sen 12 13 17 18 19 20 21 22 23 24 25 26 27 28