Thompson v. Tesla Motors Inc ( 2023 )

1 KATHLEEN BLISS, ESQ. Nevada Bar No. 7606 2 kb@kathleenblisslaw.com KATHLEEN BLISS LAW, PLLC 3 170 South Green Valley Parkway 4 Suite 300 Henderson, Nevada 89012 5 Telephone: (702) 318-7375 6 MILAN CHATTERJEE, ESQ. Nevada Bar No. 15159 7 Milan@MilansLegal.com 8 MILAN’S LEGAL 3172 N. Rainbow Blvd, #1406 9 Las Vegas, NV 89108 Telephone: (702) 381-2875 10 Attorneys for Lynn Thompson 11 12 UNITED STATES DISTRICT COURT 13 DISTRICT OF NEVADA 14 LYNN THOMPSON, Case No.: 3:21-cv-00238-HDM-CSD 15 Plaintiff, 16 vs. STIPULATED PROTECTIVE ORDER 17 18 TESLA MOTORS, INC; ONQGLOBAL, INC.; DOES 1-15, 19 20 Defendants. Pursuant to Fed.R.Civ.P. 26(c) and The Health Insurance Portability and Accountability Act 21 of 1996 (HIPAA), Public Law 104-191, the parties herein, Plaintiff Lynn Thompson and Defendants 22 Tesla Motors, Inc. (“Tesla”), OnQGlobal, Inc. (“OnQ”), by and through their respective counsel of 23 record, hereby stipulate to a protective order covering the disclosure of confidential, proprietary, or 24 private information and materials requiring special protection from disclosure to and use by the 25 public and unauthorized third parties. Accordingly, the Parties hereby stipulate and agree that the 26 handling of such information and materials in these proceedings shall be governed by the provisions 27 set forth below. 28 1 I. APPLICATION 2 This Protective Order shall govern the designation and handling of “Confidential 3 Information” and “Attorneys’ Eyes-Only Information” (defined below) produced in this case, 4 whether by voluntary production or disclosure or in response to any formal discovery procedure, 5 including designation and handling of nonpublic information of a confidential nature. This 6 Protective Order does not affect any party’s obligations to produce documents as required by the 7 rules of discovery or an order of the Court. The purpose of this Protective Order is to facilitate the 8 handling of nonpublic information of a confidential, private, or proprietary nature. If material is 9 otherwise already part of the public record as of the entry of this Protective Order, the material in 10 question will not be subject to this Protective Order. The mere filing or production of material 11 containing “Confidential” or “Attorneys’ Eyes Only” by the non-designating party does not remove 12 the material from the protection of this Protective Order. 13 II. DEFINITIONS 14 A.“Confidential Information” means information or an item, in any form, whether tangible 15 or intangible, that in good faith: (1) is designated as such by the producing party, and (2) that, as 16 claimed by the producing party, (a) contains non-public personal information of a party or non-party 17 (including, but not limited to, address, telephone number, email address, birth date, social security 18 number, employment records, medical information, financial and banking information, etc.); (b) 19 contains non-public business, commercial, or proprietary information of a party or non-party 20 (including, but not limited to, personnel information, investigatory information, strategies, trade 21 secrets, etc.); (c) non-public communications with law enforcement and government agencies or 22 their agents or designees; (d) is subject to an agreement, obligation, or duty of confidentiality, 23 nondisclosure, or similar protection; (e) is subject to a protective or similar order; or (f) is 24 confidential, private, privileged or otherwise protected under applicable law (e.g., statute, regulation, 25 ordinance, rule, policy, opinion, or case), or governmental policy, opinion, guidance or 26 interpretation. 27 B. “Attorneys’ Eyes-Only Information” is a subset of Confidential Information that in 28 good faith: (1) is designated as such by the producing party, and (2) that, as claimed by the producing 1 party, contains highly sensitive, or proprietary information the disclosure of which would create a 2 substantial risk of serious harm to a party or non-party that could not be avoided by less restrictive 3 means than designation as “Attorneys’ Eyes Only” including, but not limited to, (a) medical records 4 and healthcare information; (b) information which cannot otherwise be redacted; (c) surveillance 5 information, including, but not limited to policies, practices, and procedures, location of cameras, 6 methods of recording, video footage and reports; (d) investigative methods; or (e) trade secrets. All 7 references herein to “Confidential” information includes “Attorneys’ Eyes Only,” except where the 8 permissible disclosure or dissemination of “Attorneys’ Eyes Only” information is more limited than 9 permissible disclosure or dissemination of “Confidential” information. 10 C. “Disclosed” is used in its broadest sense and includes, inter alia, directly, or indirectly 11 shown, divulged, revealed, produced, described, transmitted, or otherwise communicated, in whole, 12 or in part. 13 D. “Discovery Material(s)” means any documents, electronically stored information, 14 responses to written discovery, deposition testimony, transcripts and exhibits, responses to 15 subpoenas, requests for information and/or written information, whether produced voluntarily or 16 involuntarily, or other disclosure or production in response to a discovery request in this litigation 17 by any party. 18 E. “Document” is defined as the term is used in Federal Rule of Civil Procedure 34. 19 III. TYPES OF MATERIALS THAT MAY BE DESIGNATED AS CONFIDENTIAL 20 Any Discovery Material or other documents, information, or materials may be designated by 21 a producing party or non-party as Confidential under this Order. The assertion of this designation of 22 “Confidential” shall constitute a representation to the Court that counsel (or producing person, in the 23 case of a non-party) for the producing party or non-party believes in good faith that the material so 24 designated constitutes Confidential Information as defined in this Order. To the extent practicable, 25 only those parts of Discovery Materials that require protection shall be designated as Confidential 26 or Attorneys’ Eyes Only. Mass, indiscriminate, or blanket designations are prohibited. Unjustified 27 designations may expose the designating party to sanctions, which could include, without limitation, 28 the award of attorneys’ fees and costs, and the striking of confidential designations. If a designating 1 party later learns that information it designated as confidential does not qualify for protection, then 2 the party must promptly notify all Parties that it is withdrawing the mistaken designation. 3 IV. DESIGNATION OF DISCOVERY MATERIALS AS CONFIDENTIAL 4 A. Marking Protected Documents. 5 1. Protected documents shall be designated as containing Confidential Information by 6 affixing to them the legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” in all caps, at 7 least 10-point bold font, in a location that makes the designation readily apparent, preferably in the 8 lower left-hand corner. The fact that a document is stamped “Confidential” or “Attorneys’ Eyes 9 Only” by one party shall not be construed as an admission by any other party that such document is 10 Confidential Information, nor shall it limit or preclude the right of any party to object to the 11 designation and to file any appropriate motion(s) to determine the propriety of such designation. 12 2. A party designating documents as “Attorneys’ Eyes Only” shall prepare and serve on 13 the other parties hereto a log that identifies each designated document by bates stamp or other unique 14 identifier and specifies how the disclosure of the document “would create a substantial risk of serious 15 harm that could not be avoided by less restrictive means” within seven (7) days after such 16 designation. 17 3. If the producing party inadvertently fails to stamp or otherwise appropriately 18 designate or list certain documents, material, or information as “Confidential” or “Attorneys’ Eyes 19 Only” upon their production or disclosure, such inadvertent failure to designate shall not constitute 20 nor be deemed a waiver of a subsequent claim of protected treatment under this Order. 21 B. Designating Testimony. 22 1. Any party may designate testimony as “Confidential Information” by making a 23 statement to that effect on the record at the deposition or other proceeding or within ten (10) days 24 after receipt of the transcript of deposition or other proceeding by counsel. When Confidential 25 Information is designated on the record at a deposition or other proceeding, the party claiming the 26 testimony is Confidential Information shall make arrangements with the court reporter taking and 27 transcribing such proceeding to label each page containing the testimony with the designation 28 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” and all counsel and parties shall treat pages 1 of testimony so designated as a protected document and the testimony itself as Confidential 2 Information. 3 2. If Confidential Information is discussed, disclosed, revealed, or used at a deposition, 4 then only the deponent/witness, counsel for the parties and the deponent, the court reporters, the 5 Parties, any translators, the videographers, and any other Permissible Recipient shall be present for 6 that portion of the deposition. Parties shall endeavor to give reasonable advance notice if they expect 7 a deposition will cover Confidential Information so that the other Parties can ensure only authorized 8 individuals are present when such material is disclosed or used. 9 3. The terms of this Stipulated Protective Order apply to a non-party witness and their 10 counsel who are not otherwise a Permissible Recipient (an “Outside Witness”). Prior to the 11 testimony of any Outside Witness, the party noticing the deposition or otherwise causing the 12 testimony to be taken shall serve a copy of this Order on the Outside Witness or their counsel, if any, 13 by email or other appropriate means. A copy of this Order shall also be entered into the 14 deposition/testimonial record as an exhibit by the noticing party at the commencement of the 15 testimony. Failure of the Outside Witness or their counsel to seek relief from the Court prior to the 16 commencement of the Outside Witness’s testimony, or proceeding with the testimony, shall operate 17 as the Outside Witness’s and their counsel’s agreement to be bound by and comply with the terms 18 of this Order. 19 C. Subsequent Designation. 20 If a party discovers that material or documents containing Confidential Information have 21 been provided to the opposing party without being properly designated under this Protective Order, 22 that party shall promptly notify the receiving party in writing of the same. The notification shall 23 include an identification of the documents or information (by bates stamp number or some other 24 specific form of identification), and the receiving party shall affix a stamp identifying each document 25 or item of information so identified as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” 26 within ten (10) days unless the parties agree that some other procedure for remedying the 27 inadvertence is more appropriate under the circumstances. A Party’s inadvertent failure to designate 28 1 Discovery Materials as confidential shall not, on its own, waive the Party’s right to designate the 2 Discovery Materials as confidential in the future. 3 V. PERMISSIBLE USE OF “CONFIDENTIAL” INFORMATION, DOCUMENTS, OR MATERIALS 4 A. Limited Use. 5 1. All parties and persons who review, possess, obtain, or otherwise have access to 6 Discovery Materials or other documents, information, or materials containing “Confidential 7 Information” or “Attorneys’ Eyes Only” information shall not disclose, reveal or discuss such 8 information to or with any person who is not authorized to receive it, except as set forth herein. All 9 Confidential Information disclosed, produced or exchanged in this case shall be used by the 10 party(ies) or person(s) to whom the information is disclosed solely for the purpose of prosecuting or 11 defending the claims and defenses in this case, through and including appeal(s), if any, and not for 12 any other purpose, including, but not limited to, personal, administrative, business, governmental, 13 commercial, judicial, legal proceedings, or private dispute resolution. 14 2. If a party or any of its representatives, including counsel, discloses any Confidential 15 Information to persons who are not authorized to use or possess such material, the party shall (a) 16 provide immediate written notice of the disclosure to the party whose Confidential Information was 17 disclosed; (b) use its best efforts to retrieve the Confidential Information and all copies from the 18 unauthorized recipient; (c) inform the unauthorized recipient of the unauthorized disclosure and 19 provide them with a copy of this Protective Order; and (d) use reasonable efforts to have the 20 unauthorized recipient execute Exhibit A. If a party has actual knowledge that Confidential 21 Information is being used or possessed by a person not authorized to use or possess that material, 22 regardless of how the material was disclosed or obtained by such person, the party shall provide 23 immediate written notice of the unauthorized use or possession to the party whose material is being 24 used or possessed. No party shall have an affirmative obligation to inform itself regarding such 25 possible use or possession. 26 3. If any person receiving information covered by this Protective Order is: (a) 27 subpoenaed in another action or proceeding; (b) served with a request or demand in another action 28 1 to which he, she, or it is a party; or (c) served with any other legal process by one not a party to this 2 action, seeking information designated as “Confidential” or “Attorneys’ Eyes Only” pursuant to this 3 Order, the subpoenaed party shall promptly give written notice, by hand or facsimile transmission, 4 within forty-eight (48) hours of receipt of such subpoena, request, demand, or legal process to the 5 party that produced or designated the material as “Confidential” or “Attorneys’ Eyes Only.” The 6 subpoenaed party or anyone else subject to this Order shall be under no obligation to take any other 7 action or measures to preserve the confidentiality of any such information in connection with such 8 subpoena, request, demand, or legal process. Nothing herein shall be construed as requiring the 9 subpoenaed party or anyone else covered by this Order to challenge or appeal any order requiring 10 production of Confidential Information, to subject itself to any penalties for non-compliance with 11 any legal process or order. 12 B. Disclosure of Protected Material. 13 1. Confidential Information. Notwithstanding Section V.A. above, access to documents 14 stamped “Confidential” shall be limited to the following persons (“Permissible Recipients”): 15 a. Counsel: Counsel for the respective parties to this Protective Order, including in- 16 house counsel and counsel’s Support Staff (i.e., paralegals, administrative assistants, 17 and those involved in administration functions), but only to the extent that disclosure 18 to such person(s) is necessary in order for them to assist attorneys in connection with 19 this matter; 20 b. Professional Vendors: Persons or entities, and their employees, that provide litigation 21 support services (e.g., copy services, translation services, document preparation, trial 22 graphics, and tutorials, and organizing, storing or retrieving data), but only to the 23 extent that disclosure to such vendors is necessary in order for them to assist Counsel 24 for a party in connection with this matter, and provided that such vendors have been 25 given a copy of this Protective Order and have manifested their assent to be bound 26 thereby by signing a copy of the agreement attached hereto as Exhibit A before being 27 shown or given any Confidential Information; 28 c. Court Reporters: Court reporters taking testimony and their support personnel, 1 provided that such persons have been given a copy of this Protective Order and have 2 manifested their assent to be bound thereby by signing a copy of the agreement 3 attached hereto as Exhibit A before being shown or given any Confidential 4 Information. 5 d. The Parties: Except as provided below in Section V.C., the parties to this Protective 6 Order, including the officers, directors, and agents to the extent counsel for such party 7 deems it necessary for the prosecution or defense of this case. 8 e. Testifying Witnesses: witnesses, other than parties to this case, providing testimony 9 in this litigation, provided that that such persons have been given a copy of this 10 Protective Order and have manifested their assent to be bound thereby by signing a 11 copy of the agreement attached hereto as Exhibit A before being shown or given any 12 Confidential Information, and provided further that disclosure is limited to 13 Confidential Information about which the witness is or is likely to be examined at a 14 deposition or other proceeding; 15 f. Consultants and Experts: Independent consultants or experts retained by counsel or 16 a party for assistance with respect to this case, together with each such person’s 17 clerical and Support Staff, provided that such persons have been given a copy of this 18 Protective Order and have manifested their assent to be bound thereby by signing a 19 copy of the agreement attached hereto as Exhibit A before being shown or given any 20 Confidential Information, and provided further that if the party retains a consultant 21 or expert who is currently or was at any time in the last five (5) years employed by 22 or otherwise affiliated with Tesla or OnQ or one of their respective competitors, the 23 party shall promptly notify the opposing party before disclosing any Confidential 24 Information to that individual and shall give the opposing party an opportunity to 25 move for a protective order preventing or limiting such disclosure; 26 g. Authors or Addressees: The persons who are identified as authors or addressees on 27 the face of a document containing Confidential Information, or have been shown by 28 either testimony or documentary evidence to have been recipients or readers of the 1 Confidential Information prior to the commencement of the underlying lawsuit, 2 provided that such persons have been given a copy of this Protective Order and have 3 manifested their assent to be bound thereby by signing a copy of the agreement 4 attached hereto as Exhibit A before being shown or given any Confidential 5 Information; 6 h. Videographer: The videographer who videotapes Confidential Information at a 7 deposition or hearing in this litigation, provided that such persons have been given a 8 copy of this Protective Order and have manifested their assent to be bound thereby 9 by signing a copy of the agreement attached hereto as Exhibit A before being shown 10 or given any Confidential Information. 11 i. Any other persons agreed to in writing by the designating party; and 12 j. Other persons as may be ordered by the Court. 13 2. Attorneys’ Eyes Only. Except as provided in this Section V.B.2, “Attorneys’ Eyes 14 Only” information may not be disclosed or provided to any party or person, without prior written 15 consent by the designating party or order of the Court. The disclosure of “Attorneys’ Eyes Only” 16 Information is limited in the same ways as set forth above for Confidential Information except 17 authorized parties and persons are only permitted to review “Attorneys’ Eyes Only” information 18 produced by another party or person, if (a) they agree, in advance, not to use, store, retain, or make 19 copies or summaries (including, but not limited to, photographs or videos) of “Attorneys’ Eyes 20 Only” information during or after their review, (b) they are made aware of the provisions of this 21 Protective Order and have manifested their assent to be bound thereby by signing a copy of the 22 agreement attached hereto as Exhibit A before any “Attorneys’ Eyes Only” information is disclosed 23 to them; (c) the party disclosing, or intending to do so, “Attorneys’ Eyes Only” information to the 24 authorized party or person must take all reasonable measures to prevent misuse and copying of 25 information which may include, by way of example, but is not limited to, monitoring the party or 26 person during their review of the information, preventing the possession and use of electronic 27 devices and writing materials during the review, etc.; and (d) the party disclosing, or intending to do 28 so, “Attorneys’ Eyes Only” information to the authorized party or person shall advise the authorized 1 party or person that the “Attorney’s Eyes Only” information is being disclosed pursuant to an Order 2 of the Court, that the information may not be disclosed by such authorized person to any person not 3 permitted to have access to the “Attorney’s Eyes Only” information pursuant to this Protective 4 Order, and that any violation of this Protective Order may result in the imposition of such sanctions 5 as the Court deems proper. The requirements of this Section V.B.2 do not apply to those persons set 6 forth in Section V.B.1(a), (b), (c), (e), and (i). 7 3. For each Permissible Recipient who executes Exhibit A, the Party who provided the 8 Confidential Information or Attorneys’ Eyes Only information to the Permissible Recipient shall 9 retain a copy of Exhibit A executed by the Permissible Recipient and produce to every other party 10 the signed copy of Exhibit A to all other parties not later than seven (7) days after execution by the 11 Permissible Recipient. 12 D. Filing Confidential Information with the Court. Confidential Information. Confidential 13 Information must be filed under seal or redacted from any briefs, pleadings, or other filings made in 14 court. This Order does not automatically authorize any Party to redact Confidential Information or 15 file it under seal; rather, the filing Party must comply with all applicable rules concerning the sealing 16 and redacting of records, which, if applicable, includes filing a motion to seal and obtaining an order 17 sealing the court filing. 18 E. Disputes as to Confidentiality Designation. 19 1. Meet and Confer Requirement: The parties agree to designate information as 20 “Confidential” and/or “Attorneys’ Eyes Only” on a good faith basis and not for purposes of 21 obstructing the receiving party’s access to information concerning the lawsuit. If any party believes 22 that a document, tangible item, or other information that has been designated as “Confidential” or 23 “Attorneys’ Eyes Only” is not entitled to be treated as such, the party will notify the designating 24 party of its objection to the “Confidential” or “Attorneys’ Eyes Only” designation. The parties shall 25 meet and confer to reach an agreement regarding the confidential status of the document, tangible 26 item or information within seven (7) days after the objecting party has advised the designating party 27 of its objection. 28 2. Motion for Protective Order: If the dispute is not resolved, then the objecting party 1 may file a motion challenging whether any particular material designated as containing Confidential 2 Information should be afforded confidential treatment. The party designating particular information 3 as confidential under the protective order shall have the burden of proving that the information or 4 document is entitled to such protection. 5 3. Status Pending Resolution of Dispute: Notwithstanding any challenge to the 6 designation of material as containing Confidential Information, the material shall be treated as 7 Confidential and shall be subject to the provisions hereof unless and until one of the following 8 occurs: (i) all parties that claim that the material contains Confidential Information withdraw such 9 designation in writing; or (ii) the Court rules that the material does not contain Confidential 10 Information. 11 4. Rights of Parties: This Protective Order is without prejudice to the right of any party 12 to apply to the Court for any further order relating to any Confidential Information or for an order 13 permitting disclosure of any Confidential Information beyond the terms of this Protective Order. 14 VI. MISCELLANEOUS 15 A. The Parties must maintain and store Confidential Information in a secure manner and must 16 take all reasonable measures to ensure Confidential Information is not disclosed or disseminated to 17 anyone who is not a Permissible Recipient. 18 B. Not later than thirty (30) days after the conclusion of this case including through any 19 appeal(s), each non-designating or non-disclosing party in the possession of Confidential 20 Information (including Attorneys’ Eyes Only information and Confidential Materials) shall (1) 21 return all such Confidential Information to the designating or producing party or person and retain 22 no copies or duplicates, or (2) delete, destroy and purge such Confidential Information, and certify 23 in writing to the designating or producing party or person that the Confidential Information has been 24 deleted, destroyed and purged. For the purposes of this Protective Order, “conclusion of this case” 25 means the date that the parties executed a settlement agreement or other such document terminating 26 this case with prejudice, whichever is later. 27 C. All provisions of this Protective Order restricting the communication or use of Confidential 28 Information and Attorneys’ Eyes-Only information shall survive and continue to be binding after 1 the conclusion of this case, and the Court shall retain continuing jurisdiction to enforce, interpret, or 2 modify this Order. The Parties and Permissible Recipients consent to the authority and jurisdiction 3 of the Court, in Clark County, Nevada, presiding over the lawsuit to enforce this Order and 4 adjudicate or remedy any violations. 5 D. Nothing herein shall be deemed to waive any applicable privilege or work product protection, 6 or to affect the ability of a party to seek relief for an inadvertent disclosure of material protected by 7 privilege or work product protection. Any witness or other person, firm or entity from which 8 discovery is sought may be informed of and may obtain the protection of this Order by written advice 9 to the parties’ respective counsel or by oral advice at the time of any deposition or similar 10 proceeding. 11 / / / 12 / / / 13 / / / 14 / / / 15 / / / 16 / / / 17 / / / 18 / / / 19 / / / 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / ] E. Nothing in this Order shall prevent any party or other person from seeking modification of 2 || this Order or from objecting to discovery that it believes to be otherwise improper. 3 DATED this 4" day of December 2023. 4 | KATHLEEN BLISS LAW, PLLC JACKSON LEWIS P.C. > /s/ Kathleen Bliss /s/Joshua_ A. Sliker 6 || KATHLEEN BLISS, ESQ. JOSHUA A. SLIKER, ESQ. Nevada Bar No. 7606 Nevada Bar No. 12493 7 | 1708S. Green Valley Parkway 300 S. Fourth Street, Suite 900 Suite 300 Las Vegas, Nevada 89101 8 Henderson, Nevada 89012 9 Attorneys for Defendant Tesla Motors, Inc. MILAN CHATTERJEE, ESQ. 10 || Nevada Bar No. 15159 MILAN’S LEGAL 11 |} 3172 .N. Rainbow Blvd, #1406 Las Vegas, Nevada 89108 13 Attorneys for Plaintiff Lynn Thompson 14 || FENNEMORE CRAIG, P.C. 15 | /s/Wade Beavers SHANNON S. PIERCE, ESQ. 16 | Nevada Bar No. 12471 17 WADE BEAVERS, ESQ. Nevada Bar No. 13451 18 9275 W. Russel Road, Suite 240 Las Vegas, Nevada 89148 19 30 Attorneys for Defendant OnQGlobal, Inc. ORDER 21 22 || Paragraph D is modified to reflect that any motion regarding filing confidential information and motions to seal shall comply with LR IA 10-5 and the requirements of Kamakana v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). See also, Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1097 (9th Cir. 2016). 23 Paragraph C, Section VI, is modified to reflect that although the parties may agree to be bound by the confidentiality terms of this Order beyond the conclusion of this lawsuit, the dismissal of this action will terminate 24 || the jurisdiction of this court. 25 IT IS SO ORDERED: CS 27 UNITED STATES ISTRATE JUDGE 28 Dated: December 5, 2023