Johnson v. Zuffa, LLC dba Ultimate Fighting Championship ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 KAJAN JOHNSON and CLARENCE No.: 2:21-cv-01189-RFB-BNW DOLLAWAY, on behalf of themselves and all 4 others similarly situated, [PROPOSED] PROTECTIVE ORDER 5 Plaintiffs, 6 v. 7 Zuffa LLC (d/b/a Ultimate Fighting Championship and UFC) and Endeavor Group 8 Holdings, Inc., 9 Defendants. 10 11 Pursuant to Rule 26(c) of the Federal Civil Procedure, and for good cause, it is hereby 12 stipulated: 13 1. PURPOSES AND LIMITATIONS 14 Disclosure and discovery activity and this litigation are likely to involve production of 15 confidential, proprietary, or private information for which special protection from public 16 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 17 Accordingly, the parties hereby stipulate to and petition the court to enter the following 18 Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket 19 protections on all disclosures or responses to discovery and that the protection it affords from 20 public disclosure and use extends only to the limited information or items that are entitled to 21 confidential treatment under the applicable legal principles. Nothing in this Stipulation and 22 Protective Order shall restrict the Court’s ability to control the manner, use, and disclosure of 23 designated Protected Material at hearings or otherwise. 24 2. DEFINITIONS 25 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 26 information or items under this Order. 27 1 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 2 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 3 of Civil Procedure 26(c). 4 2.3 Counsel (without qualifier): Outside Counsel of Record and In House Legal 5 Department Personnel (as well as their support staff, including, but not limited to, attorneys, 6 paralegals, secretaries, law clerks, and legal interns). 7 2.4 Designating Party: a Party that designates information or items that it produces in 8 disclosures or in responding to discovery as “CONFIDENTIAL” or a Party that designates 9 information or documents of a medical or highly personal nature pertaining to athletes who are 10 not names as Plaintiffs in this action, as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 11 ONLY.” 12 2.5 Designating Non-Party: a Non-Party that designates information or items that it or 13 another Party produces in disclosures or in responses to discovery as “CONFIDENTIAL” or 14 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 15 2.6 Disclosure or Discovery Material: all items or information, regardless of the 16 medium or manner in which it is generated, stored, or maintained (including, among other things, 17 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 18 responses to discovery in this matter. 19 2.7 Expert or Consultant: a person with specialized knowledge or experience in a 20 matter pertinent to this litigation, along with his or her employees and support personnel, who (1) 21 has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this 22 litigation, (2) is not a current employee of a Party or of a Party’s competitor, and (3) at the time 23 of retention, is not anticipated to become an employee of Party or of a Party’s competitor. The 24 Parties are not prohibited from retaining an Expert or Consultant who is a former employee of a 25 Party or of a Party’s competitor, provided that, as least five business days prior to retention, 26 Counsel intending to retain such Expert or Consultant shall provide written notice to Counsel for 27 the Party which had previously employed such person, in order to allow that Party an opportunity 1 Consultant may have obtained during his or her employment. The Party receiving such notice 2 shall have 30 days to seek judicial intervention with respect to legitimate issues concerning the 3 protection of any confidential information which such Expert or Consultant may have obtained 4 during his or her employment. The definition of Expert or Consultant includes a professional 5 jury or trial consultant retained in connection with this litigation. 6 2.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or 7 Items: (1) a Non-Party’s extremely sensitive, highly confidential, non-public information, 8 disclosure of which to a Party or another Non-Party would create a risk of competitive or 9 business injury to the Designating Non-Party; or (2) documents or information of a medical or 10 highly personal nature pertaining to athletes who are not named as Plaintiffs in this action. 11 2.9 In-House Legal Department Personnel: attorneys and other personnel employed 12 by a Party to perform legal functions and who are responsible for overseeing or assisting in this 13 litigation for such Party. In-House Legal Department Personnel does not include Outside 14 Counsel of Record or any other outside counsel. 15 2.10 Non-Party: any natural person, partnership, corporation, association, or other 16 legal entity not named as Party to this litigation. 17 2.11 Outside Counsel of Record: attorneys, along with their paralegals, and other 18 support personnel, who are not employees of a party to this litigation but are retained to represent 19 or advise a party to this litigation and have appeared in this litigation on behalf of that party or 20 are affiliated with a law firm that has appeared on behalf of that party. 21 2.12 Party: any party to this litigation, including all of its officers, directors, managers, 22 and employees. 23 2.13 Producing Party: a Party that produces Disclosure or Discovery Material in this 24 litigation. 25 2.14 Producing Non-Party: a Non-Party that produces Disclosure or Discovery 26 Material in this action. 27 2.15 Professional Vendors: persons or entities that provide litigation support services 1 demonstrations, and organizing, storing, or retrieving documents or data in any form or medium) 2 and their employees and subcontractors. 3 2.16 Protected Material: any Disclosure or Discovery Material that is designated as 4 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” Such material is referred to as 5 designated for “protection.” 6 2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from a 7 Producing Party or Non-Party. 8 3. SCOPE 9 The protections conferred by this Stipulation and Order cover not only Protected Material 10 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 11 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 12 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 13 However, the protections conferred by this Stipulation and Order do not cover the following 14 information: (a) any information that is in the public domain at the time of disclosure to a 15 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 16 a result of publication not involving a violation of this Order, including becoming part of the 17 public record through trial or otherwise; and (b) any information known to the Receiving Party 18 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 19 obtained the information lawfully and under no obligation of confidentiality to the Designating 20 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 21 If Defendants’ October 26, 2023 Motion to Treat Fact Evidence Produced In Johnson 22 Litigation As If It Was Also Produced In Le Litigation is granted by the Court, ECF 90, or the 23 Court otherwise permits it, then nothing in this Order shall prevent any Party or Non-Party 24 producing Disclosure or Discovery Material or Protected Material in Johnson v. Zuffa, LLC, No. 25 2:21-cv-01189 (D. Nev.) from using those materials in Le v. Zuffa, LLC, No. 2:15-cv-01045- 26 RFB-(BNW) (D. Nev.), and any appeals, rehearings, remands, trials, or reviews of either 27 aforementioned litigation. 1 4. DURATION 2 Even after final disposition of this litigation, the confidentiality obligations imposed by 3 this Order shall remain in effect until a Designating Party or Designating Non-Party agrees 4 otherwise in writing or a court order otherwise directs. Final disposition shall be deemed to be 5 the later of (1) dismissal of all claims and defenses in this litigation, with or without prejudice; 6 and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, 7 remands, trials, or reviews of this litigation, including the time limits for filing any motions or 8 applications for extension of time pursuant to applicable law. 9 5. DESIGNATING PROTECTED MATERIAL 10 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 11 or Non-Party that designates information or items for protection under this Order must take care 12 to limit any such designation to specific material that qualifies under the appropriate standards. 13 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 14 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 15 unnecessarily encumber or retard the case development process or to impose unnecessary 16 expenses and burdens on other parties) expose the Designating Party to sanctions. 17 Notwithstanding the preceding sentence, the Designating Party or Designating Non-Party may 18 designate for protection an entire document or item that contains “CONFIDENTIAL” 19 Information or “HIGHLY-CONFIDENTIAL-ATTORNEYS’ EYES ONLY” Information, as 20 those terms are defined in paragraphs 2.2 and 2.8 above, within that document or item when such 21 document or item is produced to a party pursuant to Federal Rule of Civil Procedure 34 and 45. 22 If it comes to a Designating Party’s or Designating Non-Party’s attention that information 23 or items that it designated for protection do not qualify for the protection initially asserted, that 24 Designating Party or Designating Non-Party must promptly notify all other Parties that it is 25 withdrawing the mistaken designation. 26 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 27 (see, e.g., paragraph 5.2(a) below), or as otherwise stipulated or ordered, material that qualifies 1 produced. Notwithstanding the preceding sentence, should a Producing Party or Producing Non- 2 Party discover that it produced material that was not designated as Protected Material or that it 3 produced material that was designated as Protected Material but had designated that Protected 4 Material in the incorrect category of Protected Material, the Producing Party or Producing Non- 5 Party may notify all Parties, in writing, of the error and identify (by bates number or other 6 individually identifiable information) the affected documents and their new designation or re- 7 designation. Thereafter, the material so designated or re-designated will be treated as Protected 8 Material. Promptly after providing such notice, the Producing Party or Producing Non-Party 9 shall provide re-designated copies of the material to each Receiving Party reflecting the change 10 in designation. The Receiving Party will replace the incorrectly designated material with the 11 newly designated materials and will destroy the incorrectly designated materials. 12 Designation in conformity with this Order requires: 13 (a) for information in documentary form (e.g., paper or electronic document, but 14 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 15 Party or Producing Non-Party affix the legend “CONFIDENTIAL” or “HIGHLY 16 CONFIDENTIAL” on the first page of each document and on each page that contains protected 17 material. 18 A Party or Non-Party who makes original documents or materials available for inspection 19 need not designate them for protection until after the inspecting Party has indicated which 20 material it would like copied and produced. During the inspection and before the designation, all 21 of the material made available for inspection shall be deemed “CONFIDENTIAL” and all of the 22 material from the Non-Party shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ 23 EYES ONLY.” After the inspecting Party has identified the documents it wants copied and 24 produced, the Producing Party or Producing Non-Party must determine which documents, or 25 portions thereof, qualify for protection under this Order. Then, before producing the specified 26 documents, the Producing Party or Producing Non-Party must affix the appropriate legend 27 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”) to the first page of each document and 1 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 2 Designating Party or Designating Non-Party identify on the record, before the close of the 3 deposition, hearing, or other proceeding, all protected testimony. When it is impractical to 4 identify separately each portion of testimony that is entitled to protection and/or it appears that 5 substantial portions of the testimony may qualify for protection, the Designating Party or 6 Designating Non-Party may invoke on the record (before the deposition, hearing, or other 7 proceeding is concluded) a right to have up to 21 days after receipt of the draft transcript to 8 identify the specific portions of the testimony as to which protection is sought. Only those 9 portions of the testimony that are appropriately designated for protection within the 21 days shall 10 be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating 11 Party or Designating Non-Party may specify, at the deposition or up to 21 days afterwards if that 12 period is properly invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or 13 “HIGHLY CONFIDENTIAL,” provided such designation does not violate paragraph 5.1 above. 14 Parties shall give the Designating Party or Designating Non-Party notice if they 15 reasonably expect a deposition to include Protected Material, but have no obligation to identify 16 the specific document(s) to be used in advance of a deposition. For documents or items 17 designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 18 ONLY,” the Party intending to make use of such Protected Material at a deposition shall ensure 19 that only authorized individuals, as defined in paragraphs 7.2 and 7.3, are present at the 20 deposition. The use of a document as an exhibit at a deposition shall not in any way affect its 21 designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 22 ONLY.” 23 Transcripts containing Protected Material shall have an obvious legend on the title page 24 that the transcript contains Protected Material, and the title page shall be followed by a list of all 25 pages (including line numbers as appropriate) that have been designated as Protected Material by 26 the Designating Party or Designating Non-Party. The Designating Party or Designating Non- 27 Party shall inform the court reporter of these requirements. Any transcript that is prepared before 1 designated “CONFIDENTIAL” in its entirety unless otherwise agreed, or if the transcript refers 2 to information or documents designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ 3 EYES ONLY,” the transcript shall be treated during the 21-day period as if it had been 4 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless 5 otherwise agreed. After the expiration of that period, the transcript shall be treated only as 6 actually designated. 7 (c) for information produced in some form other than documentary and for any other 8 tangible items (such as Electronically Stored Information (“ESI”) for which it is impractical to 9 label as per Section 5.2(a)), that the Producing Party or Producing Non-Party designate in a 10 cover letter accompanying the production, and where feasible, affix in a prominent place on the 11 exterior of the contained or containers in or on which the information or item is stored the legend 12 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 13 5.3 Inadvertent Failures to Designated. If timely corrected, an inadvertent failure to 14 designate qualified information or items does not, standing alone, waive the Designating Party’s 15 or Designating Non-Party’s right to secure protection under this Order for such material. Should 16 a Producing Party or Producing Non-Party discover that it produced Confidential Information or 17 Items or Highly Confidential Information or Items that were not designated as Protected 18 Material, the Producing Party or Producing Non-party may notify all Parties, in writing, of the 19 error and identify (by bates number or other individually identifiable information) the affected 20 documents and their new designation. Thereafter, the material so designated shall be treated as 21 Protected Material. Promptly after providing such notice, the Producing Party or Producing 22 Non-Party shall provide re-labeled copies of the material to each Receiving Party reflecting the 23 change in designation. The Receiving Party shall replace the incorrectly designated material 24 with the newly designated materials and shall destroy the incorrectly designated materials. If 25 material is re-designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 26 ATTORNEYS’ EYES ONLY” after the material was initially produced, the Receiving Party, 27 upon notification of the designation, must make reasonable efforts to assure that the material is 1 5.4 Confidential Designation of Information or Items Produced by Other Parties or 2 Non-Parties. Subject to the standards of paragraphs 2.2, 2.8, and 5.1, a Party may designate as 3 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” any 4 Disclosure or Discovery Material produced by any other Party or Non-Party, provided that said 5 Disclosure or Discovery Material contained the Designating Party’s own Confidential 6 Information. Subject to the standards of paragraphs 2.2, 2.8, 5.1, a Non-Party may designate as 7 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” any 8 Disclosure or Discovery Material, provided that said Disclosure or Discovery Material contains 9 the Designating Non-Party’s own Confidential Information or Highly Confidential – Attorneys’ 10 Eyes Only Information. Any such designation of a document for protection shall be made within 11 90 days of the date of its production to the Designating Party or Designating Non-Party, unless 12 good cause is shown for a later designation of the document for protection. 13 Designating a document for protection pursuant to this paragraph shall be accomplished 14 by providing written notice to all Parties identifying (by bates number or other individually 15 identifiable information) the Disclosure of Discovery Material to be designated as 16 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 17 Promptly after providing such notice, the Designating Party or Designating Non-Party shall 18 provide re-labeled copies of the material to each Receiving Party reflecting the change in 19 designation. The Receiving Party will replace the incorrectly designated material with the newly 20 designated materials and will destroy the incorrectly designated materials. Any Party may object 21 to the designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 22 EYES ONLY” of Disclosure or Discovery Materials pursuant to the procedures set forth in 23 paragraph 6 regarding challenging designations. The Designating Party or Designating Non- 24 Party shall bear the burden of establishing the basis for the “CONFIDENTIAL” or “HIGHLY 25 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” designation. 26 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 27 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 1 time. Unless a prompt challenge to a Designating Party’s or Designating Non-Party’s 2 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 3 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 4 burdens, or a significant disruption or delay of this litigation, a Party does not waive its right to 5 challenge a confidentiality designation by electing not to mount a challenge promptly after the 6 original designation is disclosed. 7 6.2 Meet and Confer. A Party that elects to initiate a challenge to a Designating 8 Party’s confidentiality designation must do so in good faith. The Challenging Party shall initiate 9 the dispute resolution process by providing written notice to other Parties, and the relevant 10 Producing Non-Party (if applicable), of each designation it is challenging (by bates number or 11 other individually identifiable information) and describing the basis for each challenge. To avoid 12 ambiguity as to whether a challenge has been made, the written notice must recite that the 13 challenge to confidentiality is being made in accordance with this specific paragraph of the 14 Protective Order. The parties shall attempt to resolve each challenge in good faith and must 15 begin the process by conferring directly (in voice to voice dialogue; other forms of 16 communication are not sufficient) within 7 days of the date of service of notice. In conferring, 17 the Challenging Party must explain the basis for its belief that the confidentiality designation was 18 not proper and must give the Designating Party an opportunity to review the designated material, 19 to reconsider the circumstances, and, if no change in designation is offered, to explain the basis 20 for the chosen designation. A Challenging Party may proceed to the next stage of the challenge 21 process only if it has engaged in this meet and confer process first or establishes that the 22 Designating Party or Non-Party is unwilling to participate in the meet and confer process in a 23 timely manner. 24 6.3 Judicial Intervention. If the Designating Party or Designating Non-Party and the 25 Challenging Party are not able to resolve a dispute about confidentiality designation within the 26 time provided in paragraph 6.2, above, the parties shall, within 7 days of the expiration of the 27 time period provided in paragraph 6.2, prepare and present to the Court a joint letter, briefly 1 Court. The Designating Party or Designating Non-Party and the Challenging Party may extend 2 this time period if mutually agreed. The parties to the dispute shall thereafter present to the 3 Court, during the telephone conference or in-person meeting, their respective positions about the 4 propriety of the challenged confidentiality designations. The procedure for resolving the dispute, 5 including the need for any briefing, shall be determined by the Court during the telephone 6 conference or in-person meeting. The Court may set a different process to the extent the dispute 7 concerns Protected Materials filed under seal and/or the use of Protected Material at a hearing. 8 The burden of persuasion in any such challenge proceeding shall be on the Designating 9 Party or Designating Non-Party. Until the ruling on the dispute becomes final, all parties shall 10 continue to afford the material in question the level of protection to which is entitled under the 11 Designating Party’s or Designating Non-Party’s designation. In the event that the final ruling is 12 that the challenged material is not “CONFIDENTIAL or “HIGHLY CONFIDENTIAL – 13 ATTORNEYS’ EYES ONLY” the Designating Party or Designating Non-Party shall reproduce 14 copies of all challenged materials with their designations removed within thirty (30) days of such 15 ruling at the expense of the Designating Party or Designating Non-Party. 16 7. ACCESS TO AND USE OF PROTECTED MATERIAL 17 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 18 or produced by another Party or by a Non-Party in connection with this case only for 19 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 20 disclosed only to the categories of persons and under the conditions described in this Order. 21 When this litigation has been terminated, a Receiving Party must comply with the provisions of 22 paragraph 15 below (FINAL DISPOSITION). 23 Protected Material must be stored and maintained by a Receiving Party at a location and 24 in a secure manner that ensures that access is limited to the persons authorized under this Order. 25 For purposes of this Order, a secure website, or other internet-based document depository with 26 adequate security, shall be deemed a secure location. 27 1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 2 ordered by the Court or permitted in writing by the Designating Party or Non-Party, Counsel for 3 a Receiving Party may disclose any information or item designated “CONFIDENTIAL” only to: 4 (a) the Receiving Party’s Outside Counsel of Record in this litigation, as well as 5 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 6 information for this litigation; 7 (b) the Receiving Party, a Receiving Party’s officers, directors, managers, and 8 employees (including In-House Legal Department Personnel) to whom disclosure is reasonably 9 necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be 10 Bound” (Exhibit A); 11 (c) Experts or Consultants (as defined in this Order) of the Receiving Party to whom 12 disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment 13 and Agreement to Be Bound” (Exhibit A); 14 (d) the Court and its personnel; 15 (e) Professional Vendors to whom disclosure is reasonably necessary for this 16 litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 17 (f) during their depositions, witnesses in this litigation to whom disclosure is 18 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 19 (Exhibit A), unless otherwise agreed by the Designating Party or Non-Party or ordered by the 20 Court. Consistent with paragraph 5.2(b), pages of transcribed deposition testimony or exhibits to 21 depositions that reveal Confidential Information must be marked “CONFIDENTIAL,” and may 22 not be disclosed to anyone except as permitted under this Stipulated Protective Order; and 23 (g) any other person to whom the Designating Party or Non-Party agrees in writing or 24 on the record, and any other person to whom the Court compels access to the Confidential 25 Information. 26 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 27 Information or Items. Unless otherwise ordered by the Court or permitted in writing by the 1 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to the people 2 and entities permitted to receive “CONFIDENTIAL” Information as designated in paragraph 7.2 3 and in accordance with the requirements set forth in the paragraph except that “HIGHLY- 4 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information or items shall not be disclosed 5 to the Receiving Party or a Receiving Party’s officers, directors, managers, and employees, 6 including In-House Legal Department Personnel. 7 8 7.4 Retention of Exhibit A: Outside Counsel for the Party that obtains the signed 9 “Acknowledgment and Agreement to Be Bound” (Exhibit A), as required above, shall retain 10 them for one year following the final termination of this litigation, including any appeals, and 11 shall make them available to other Parties upon good cause shown. 12 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 13 IN OTHER LITIGATION 14 If a Receiving Party is served with a discovery request, subpoena, or a court order issued 15 in other litigation that compels disclosure of any information or items designated in this litigation 16 as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that 17 Receiving Party must: 18 (a) promptly notify in writing the Designating Party or Designating Non-Party. Such 19 notification shall include a copy of the discovery request, subpoena, or court order; 20 (b) promptly notify in writing the party who caused the discovery request, subpoena, 21 or order to issue in the other litigation that some or all of the material covered by the discovery 22 request, subpoena, or order is subject to this Protective Order. Such notification shall include a 23 copy of this Stipulated Protective Order; and 24 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 25 Designating Party or Designating Non-Party whose Protected Material may be affected. 26 The purpose of imposing these duties is to alert the interested parties to the existence of 27 this Protective Order and to afford the Designating Party or Designating Non-Party in this case 1 an opportunity to try to protect its confidentiality interests in the court from which the discovery 2 request, subpoena, or order issued. 3 If the Designating Party or Designating Non-Party timely seeks a protective order, the 4 Party served with the discovery request, subpoena, or court order shall not produce any 5 information designated in this litigation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 6 – ATTORNEYS’ EYES ONLY” before a determination by the court from which the discovery 7 request, subpoena, or order issued, unless the Party has obtained the Designating Party’s or 8 Designating Non-Party’s permission or unless the Party has been ordered to do so by a Court. 9 The Designating Party or Designating Non-Party shall bear the burden and expense of seeking 10 protection in that court of its confidential material - and nothing in these provisions should be 11 construed as authorizing or encouraging a Receiving Party in this litigation to disobey a lawful 12 directive from another court. 13 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 14 PRODUCED IN THIS LITIGATION 15 (a) The terms of this Order are applicable to information produced by a Non-Party in 16 this litigation and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 17 ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with 18 this litigation is protected by the remedies and relief provided by this Order. Nothing in these 19 provisions should be construed as prohibiting a Non-Party from seeking additional protections. 20 (b) In the event that a Party is required, by a valid discovery request, to produce a 21 Non-Party’s Protected Material information in its possession, and the Party is subject to an 22 agreement with the Non-Party not to produce the Non-Party’s Protected Material, then the Party 23 shall: 24 (1) notify in writing, as soon as reasonably practicable, the Requesting Party 25 and the Non-Party that some or all of the information requested is subject to a confidentiality 26 agreement with a Non-Party; and 27 1 (2) as soon as reasonably practicable, provide the Non-Party with a copy of 2 the Stipulated Protective Order in this litigation, the relevant discovery request(s), and a 3 reasonably specific description of the information requested. 4 (c) If the Non-Party fails to object or seek a protective order from this court within 21 5 days of receiving the notice and accompanying information, the Party may produce the Non- 6 Party’s Protected Material responsive to the discovery request. If the Non-Party timely seeks a 7 protective order, the Receiving Party shall not produce any information in its possession or 8 control that is subject to the confidentiality agreement with the Non-Party before a determination 9 by the court. Absent a court order to the contrary, the Non-Party shall bear the burden and 10 expense of seeking protection in this court of its Protected Material. 11 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 12 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 13 Material to any person or in any circumstance not authorized under this Stipulated Protective 14 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 15 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 16 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 17 made of all the terms of this Order, and (d) request such person or persons to execute the 18 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 19 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 20 PROTECTED MATERIAL 21 (a) This Order is entered pursuant to Rule 502(d) of the Federal Rules of Evidence. 22 Subject to the provisions of this Order, if a party (the “Disclosing Party”) discloses information 23 in connection with the pending litigation that the Disclosing Party thereafter claims to be 24 privileged or protected by the attorney-client privilege or attorney work product protection 25 (“Privileged Material”), the disclosure of that Privileged Material will not constitute or be 26 deemed a waiver or forfeiture – in this or any other litigation – of any claim of privilege or work 27 product protection that the Disclosing Party would otherwise be entitled to assert with respect to 1 (b) This Order shall be interpreted to provide the maximum protection allowed under 2 applicable law. The provisions of Federal Rule of Evidence 502(b) are inapplicable to the 3 disclosure of Privileged Material under this Order. 4 (c) When a Producing Party gives notice to Receiving Parties that it inadvertently 5 produced documents, testimony, information, and/or things that are protected from disclosure 6 under the attorney-client privilege, work product doctrine, and/or any other applicable privilege 7 or immunity from disclosure, or the Receiving Party discovers such inadvertent production, the 8 inadvertent production shall not be deemed a waiver of the applicable privilege or protection in 9 this or any other litigation. The Receiving Party shall immediately take reasonable efforts 10 pursuant to Rule 26 of the Federal Rules of Civil Procedure to promptly return, sequester, or 11 destroy such materials, any reasonably accessible copies it has, and any work product reflecting 12 the contents of such materials and cease the use of those materials for any purpose. The 13 Receiving Party shall not use such items for any purpose until further order of the Court. The 14 Receiving Party must inform the Producing party within three (3) business days of receipt of 15 notice or discovery of the inadvertent production of any intent to challenge the designation. If the 16 Receiving Party elects not to challenge the assertion of privilege or protection, the Receiving 17 Party shall immediately either return or commence to destroy the inadvertently produced 18 material, any reasonably accessible copies thereof, and any work product reflecting the contents 19 of such material. If a Receiving Party wishes to challenge the designation, the Receiving Party 20 and Producing Party shall begin the process by conferring directly (in voice to voice dialogue; 21 other forms of communication are not sufficient) within five business days following the 22 Receiving Party’s notice of intent to challenge. The Receiving Party must file its challenge to the 23 privilege designation with the Court within seven days of the end of the Parties’ meet and confer, 24 unless the Parties agree to a longer schedule. The return or destruction of any discovery item to 25 the inadvertently Producing Party shall not in any way preclude the Receiving Party from 26 moving the Court for a ruling that the document or thing was never privileged. 27 1 (d) Privileged communications involving the Parties that post-date the filing of the 2 Complaint in this litigation (Johnson, et. al v. Zuffa LLC, et. al) need not be placed on a privilege 3 log. 4 (e) This provision is not intended to modify whatever procedure may be established 5 in an E-Discovery order that provides for production without prior privilege review. 6 12. ATTORNEY RENDERING ADVICE 7 Nothing in this Protective Order will bar or otherwise restrict an attorney from rendering 8 advice to his or her client in this litigation with respect to this matter or from relying upon or 9 generally referring to “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 10 EYES ONLY” Disclosure or Discovery Material in rendering such advice; provided however, 11 that in rendering such advice or in otherwise communicating with his or her client in this 12 litigation, the attorney shall not reveal or disclose the specific content thereof if such disclosure 13 is not otherwise permitted under this Stipulated Protective Order. 14 13. DISPOSITIVE MOTION HEARINGS AND TRIAL 15 The terms of this Protective Order shall govern in all circumstances except for 16 presentations of evidence and argument at hearings on motions for class certification, dispositive 17 motions, and at trial. The parties shall meet and confer in advance of such proceedings and seek 18 the guidance of the Court as to appropriate procedures to govern such proceedings. 19 14. MISCELLANEOUS 20 14.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 21 seek its modification by the court in the future. 22 14.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 23 Order no Party waives any right it otherwise would have to object to disclosing or producing any 24 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, 25 no Party waives any right to object on any ground to use in evidence of any of the material 26 covered by this Protective Order. 27 14.3 Filing Protected Material. In the event that any Receiving Party’s briefs, 1 served or filed shall include another Producing Party’s or Producing Non-Party’s designated 2 “CONFIDENTIAL” or “HIGHLY-CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 3 Information, the papers shall be appropriately designated pursuant to paragraph 5.2. Documents, 4 papers and transcripts filed with the court which contain any other Producing Party or Producing 5 Non-Party’s designated “CONFIDENTIAL” or “HIGHLY-CONFIDENTIAL – ATTORNEYS’ 6 EYES ONLY” Information shall be provisionally lodged under seal with the Court, and redacted 7 papers shall be publicly filed. Within 5 days of the materials being lodged with the Court, the 8 Party claiming protection shall file a motion to seal setting forth the bases for sealing and proper 9 authority under Kamakana v. City & County of Honolulu, 447 F.3d 1172 (9th Cir. 2006), or 10 some other applicable authority. 11 14.4 Challenging Motions to Seal: A Party other than the Designating Party or 12 Designating Non-Party has no obligation to challenge or otherwise contest the filing under seal 13 of Protected Material designated by a Party or Non-Party as “CONFIDENTIAL” or “HIGHLY 14 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”; and therefore, such Party does not waive 15 the right to challenge such confidentiality designations for a different use at a later time by not 16 contesting the motion to file such Protected Material under seal. 17 15. FINAL DISPOSITION 18 Unless otherwise ordered by the Court or agreed in writing by the Designating Party or 19 Non-Party, within 60 days after the final disposition of this litigation, as defined in paragraph 4, 20 each Receiving Party must return all Protected Material, reasonably accessible copies thereof, 21 and any work product reflecting the contents of such Protected Material, to the Producing Party 22 or destroy such material. As used in this subdivision, “all Protected Material” includes all copies 23 (electronic or otherwise), abstracts, compilations, databases, summaries, and any other format 24 reproducing or capturing any of the Protected Material. Whether the Protected Material is 25 returned or destroyed, the Receiving Party must submit a written certification to the Producing 26 Party (and, if not the same person or entity, to the Designating Party or Non-Party) by the 60 day 27 deadline that (1) identifies (by category, where appropriate) all the Protected Material that was || (electronic or otherwise), abstracts, compilations, databases, summaries, and any other format || reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel 3 || are entitled to retain archival copies of all pleadings, motion papers, trial, deposition, and hearing 4|| transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, legal || memoranda, correspondence, or attorney work product, and consultant and expert work product, □□ even if such materials contain Protected Material. Any such archival copies that contain or 7|| constitute Protected Material remain subject to this Protective Order as set forth in Paragraph 4 (DURATION). ITISSO ORDERED DATED: 4:35 pm, January 10, 2024 12 Lrg la weber | BRENDA WEKSLER 14|| UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 2 3 I, [print or type full name], 4 of [print or type full address], 5 declare under penalty of perjury that I have read in its entirety and understand the Stipulated 6 Protective Order that was issued by the United States District Court for the District of Nevada in 7 the case of Johnson et al. v. Zuffa, LLC, et al., No. 2:21-cv-1189-RFB-BNW. 8 I agree to comply with and to be bound by all the terms of this Stipulated Protective 9 Order and I understand and acknowledge that failure to so comply could expose me to sanctions 10 and punishment in the nature of contempt. I solemnly promise that I will not disclose in any 11 manner any information or item that is subject to this Stipulated Protective Order to any person 12 or entity except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 District of Nevada for the purpose of enforcing the terms of this Stipulated Protective Order, 15 even if such enforcement proceedings occur after termination of this litigation. 16 I hereby appoint [print or type full name] 17 of [print or type full address and telephone number] as my 18 Nevada agent for service of process in connection with this litigation or any proceedings related 19 to enforcement of this Stipulated Protective Order. 20 Date: 21 City and State where sworn and signed: 22 23 Printed name: 24 25 Signature: 26 27