Tausinga v. Hankins & Sohn Plastic Surgery Associates ( 2024 )

1 MARK J. BOURASSA, ESQ. (NBN 7999) JENNIFER A. FORNETTI, ESQ. (NBN 7644) 2 VALERIE S. GRAY, ESQ. (NBN 14716) THE BOURASSA LAW GROUP 3 2350 W. Charleston Blvd., Suite 100 4 Las Vegas, Nevada 89102 Telephone: (702) 851-2180 5 Facsimile: (702) 851-2189 Email: mbourassa@blgwins.com 6 jfornetti@blgwins.com 7 vgray@blgwins.com 8 NICHOLAS A. COLELLA (pro hac vice) LYNCH CARPENTER LLP 9 1133 Penn Avenue, 5th Floor 10 Pittsburgh, Pennsylvania 15222 Telephone: (412) 322-9243 11 Email: nickc@lcllp.com 12 [additional counsel in signature block] 13 Attorneys for Plaintiffs 14 15 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 16 IN RE HANKINS PLASTIC SURGERY Case No.: 2:23-cv-00824-RFB-DJA 17 ASSOCIATES, P. C. dba HANKINS & SOHN 18 PLASTIC SURGERY ASSOCIATES STIPULATED DISCOVERY PLAN AND 19 This Document Relates to: All Actions SCHEDULING ORDER 20 (SPECIAL SCHEDULING REVIEW 21 REQUESTED) 22 23 AMENDED STIPULATED DISCOVERY PLAN AND SCHEDULING ORDER FOR PHASE I (PRE-CERTIFICATION) DISCOVERY 24 (SPECIAL SCHEDULING REVIEW REQUESTED) 25 Under Fed. R. Civ. P. 26(f) and Local Rule 26-1, the parties, through their respective counsel, 26 conducted a telephone conference on December 21, 2023, April 23, 2024, and April 30, 2024, to generally 27 discuss the claims, and to schedule a discovery planning conference. 28 / / / 1 Plaintiffs’ counsel and Defendant’s counsel conducted a discovery conference on December 21, 2 2023, April 23, 2024, and April 30, 2024, and hereby submit to the Court the following proposed 3 Discovery Plan and Scheduling Order: 4 II. Statement of the Case 5 Defendant Hankins Plastic Surgery Associates P.C. dba Hankins & Sohn Plastic Surgery 6 Associates is a is a healthcare provider with locations in Henderson and Las Vegas, Nevada. Hankins 7 provides plastic surgery care to patients across the greater Las Vegas Valley. In February 23, 2023, hackers 8 successfully infiltrated Defendant’s computer networks and obtained information of over a hundred of 9 individuals (hereinafter the “Cyberattack”). The compromised data included personally identifying 10 information (“PII”), protected health information (“PHI”), and/or pre- and/or post-surgery nude 11 photographs. Plaintiffs allege that as a result of the data breach, class members’ information has been 12 distributed to friends, colleagues, and neighbors, as well as to the general public on the internet. 13 Plaintiffs filed their Amended Class Action Complaint on September 15, 2023. ECF No. 19. In 14 this Amended Complaint, Plaintiffs allege that they are individuals whose information was exposed in the 15 data breach. Plaintiffs allege that Defendant failed to implement reasonable data security measures to 16 protect their information and retained Plaintiffs’ information for longer than necessary. In this 17 consolidated action, Plaintiffs seek to represent the following Class of persons defined as follows: 18 All individuals in the United States whose PII and/or PHI was compromised in the Hankins Data Breach which occurred on or about 19 February 23, 2023 (the “Class”). ECF No. 19 at ¶ 114. 20 Caroline Aurora also filed a Class Action Complaint, which was later consolidated in this matter. 21 See ECF No. 35-1. In that Class Action Complaint, Aurora seeks to represent the following Class of 22 persons defined as follows: 23 All persons residing in the United States whose PHI was compromised in the Data 24 Breach announced by the Hankins & Sohn Defendants that suffered actual harm due to the Data Breach. 25 ECF No. 35-1 at ¶ 82. 26 / / / 27 28 / / / 1 II.Procedural Background 2 Plaintiffs bring this lawsuit on behalf of themselves and all those similarly situated against 3 Defendant. The Court consolidated one other later-filed class action1 into this lead case, and appointed the 4 undersigned as Plaintiffs’ Interim Co-Lead Counsel and Liaison Counsel. ECF Nos. 16, 19, 31. 5 Plaintiffs filed a consolidated complaint on April 14, 2023, which added an additional Plaintiff, 6 and asserts claims for negligence, breach of implied contract, unjust enrichment, violation of the Nevada 7 consumer fraud act, declaratory judgment, and negligent misrepresentation. ECF No. 19. Defendant 8 moved to dismiss the complaint in its entirety. ECF No. 27. This motion has been fully briefed. 9 On December 22, 2023, Defendant filed a Notice of Related Cases to notify the Court that another 10 Class Action Complaint was removed to the United States District Court for the District of Nevada 11 regarding the Cyberattack pursuant to the Court’s Order regarding the Consolidation. ECF Nos. 16, 34. 12 Defendant also filed a Notice of Related Cases in the case it recently removed where Plaintiff Caroline 13 Aurora makes nearly identical allegations against Defendant (hereinafter the “Aurora matter”). [See 14 generally ECF No. 35-1]. The Aurora action has been removed then transferred to this Court because it 15 arises out of the same or similar operative facts as the Consolidated Action. Therefore, Plaintiffs have 16 recently filed their Unopposed Motion for Clarification ECF No. 45 seeking clarification as to whether 17 Aurora is consolidated with the Consolidated Action pursuant to this Court’s August 14, 2023 Order [ECF 18 No. 16]. Defendant filed its Motion to Dismiss the Complaint from the Aurora matter on April 30, 2024. 19 Plaintiff in Aurora has neither communicated nor coordinated with Plaintiffs in this matter regarding any 20 topic. 21 A. Initial Disclosures 22 Plaintiffs made their initial disclosures on January 16, 2024. Defendant made its initial disclosures 23 on April 30, 2024. 24 B. Areas of Discovery 25 1. Plaintiffs and Defendant have conferred and believe that the areas of discovery for 26 Phase I (Pre-Certification) Discovery should include the following topics: 27 28 1 Alysia Wrenn v. Hankins Plastic Surgery Associates, P.C. dba Hankins & Sohn Plastic Surgery Associates, et. al., Case No. 2:23-cv-00710-CDS-EJY 1 (i) Whether, and if so, to what extent, Plaintiffs’ and the putative Class 2 members’ personal information was accessed by cyber criminals during 3 the attack on Defendant’s computer systems; 4 (ii) How Plaintiffs and putative class members were affected by the data 5 breach; 6 (iii) Information Defendant provided to Plaintiffs and putative class members 7 about the data breach; and 8 (iv) The nature and extent of each Plaintiff’s and putative class member’s 9 relationship with Defendant. 10 (v) Defendant’s discovery of and response to the data breach for the purpose 11 and with the limitation of determining commonality, predominance and 12 typicality as it relates to Plaintiffs and putative class members; 13 (vi) The extent of the data breach for the purpose and with the limitation of 14 determining commonality, predominance and typicality as it relates to 15 Plaintiffs and putative class members and how they were affected by the 16 data breach; and 17 (vii) Defendant’s post-breach investigation and remediation for the purpose 18 and with the limitation of determining commonality, predominance and 19 typicality as it relates to Plaintiffs and putative class members. 20 Class discovery is intended to illuminate class certification issues, which include issues such as 21 commonality, predominance, and typicality." In re MGM Resorts Int'l Data Breach Litig., No. 2:20-cv- 22 000376-GMN-NJK, 2024 U.S. Dist. LEXIS 61199, at *14 (D. Nev. Apr. 2, 2024). Class certification 23 requires a rigorous analysis. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, 131 S. Ct. 2541, 2551 24 (2011). The analysis will often include “some overlap with the merits of the plaintiff's underlying claim. 25 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 338, 131 S. Ct. 2541, 2544 (2011). “[W]hile discovery of 26 certification issues during Phase I may overlap with issues related to the merits in Phase II, the parties 27 agreed to limit their discovery in each Phase to the particular aims and subject matter of each respective 28 1 Phase.” See Tyus v. Wendy's of Las Vegas, Inc., No. 214CV00729GMNVCF, 2017 WL 3026403, at *5 2 (D. Nev. July 17, 2017). 3 C. Discovery Plan 4 Accordingly, pursuant to Local Rule 26-1(b), and following the Court’s order that the parties focus 5 their efforts on class discovery, the parties propose the following Discovery Plan for this matter as it 6 currently stands (for deadlines that fall on a Saturday, Sunday, or legal holiday have been scheduled for 7 the next judicial day): 8 Event Date 9 Interim Fact Discovery Cut-Off Date November 13, 2024 (197 days after the parties’ discovery-planning conference) 10 Close of Class Certification Expert January 14, 2025 (229 days after the parties’ Discovery discovery-planning conference) 11 12 Phase I (Pre-Certification) Discovery Cut- February 13, 2025 (289 days after the parties’ Off Date discovery-planning conference) 13 Amending Pleadings and Adding Parties November 15, 2024 (90 days to Phase I (Pre- 14 Certification) Discovery Cut-off Date) 15 Initial Class Certification Expert December 16, 2024 (60 days to Phase I (Pre- Designations Certification) Discovery Cut-off Date, next judicial 16 day) 17 Rebuttal Class Certification Expert January 14, 2025 (30 days to Phase I (Pre- 18 Designations Certification) Discovery Cut-off Date, next judicial day) 19 20 Motion for Class Certification March 17, 2025 Motions to Exclude Certification Experts April 14, 2025 21 Deadline to Participate in Mediation April 16, 2025 22 Joint Proposed Discovery Plan Regarding Within 30 days of the Decision on Motion for Class Post-Certification Phase Certification 23 D. Court Conferences 24 If the Court has questions regarding the dates proposed by the parties, the parties request a 25 conference with the court before entry of the Scheduling Order. If the Court does not have questions, the 26 parties do not request a conference with the Court. 27 / / / 28 1 E. Extensions or Modifications of the Discovery Plan and Scheduling Order 2 All motions or stipulations to extend a deadline set forth in this discovery plan shall be received 3 by the Court no later than twenty-one (21) days before the expiration of the subject deadline, must satisfy 4 the requirements of LR 26-3, and be supported by good cause for the extension. 5 F. Alternative Dispute Resolution 6 The parties certify that they have met and conferred about the possibility of using alternative 7 dispute-resolution processes including mediation, arbitration, and if applicable, early neutral evaluation. 8 G. Alternative Forms of Case Disposition 9 The parties certify that they have considered consent to trial by a magistrate judge under 28 U.S.C. 10 § 636(c) and Fed. R. Civ. P. 73 and the use of the Short Trial Program (General Order 2013-01). The 11 parties do not believe that either is appropriate in this matter. 12 H. Fed. R. Civ. P. 26(a)(3) Disclosures 13 Unless the discovery plan otherwise provides and the court so orders, the disclosures required by 14 Fed. R. Civ. P. 26(a)(3) and any objections to them must be included in the joint pretrial order. 15 I. Electronic Evidence 16 The parties certify that they have discussed and intend to present evidence in electronic format to 17 jurors for the purposes of jury deliberations and will ensure that said evidence is in an electronic format 18 compatible with the Court’s electronic jury evidence display system. At present, the parties have not 19 agreed upon any stipulations regarding use of electronic evidence, but will agree to a stipulated ESI 20 protocol and address this issue again in the joint pretrial order. 21 J.Consent to Service by Electronic Means through Electronic Mail 22 The undersigned, on behalf of Plaintiffs and Defendant, hereby consent to service of documents 23 by electronic means via electronic mail and/or by U.S. Mail. Documents served by electronic means must 24 be transmitted to the following persons at the e-mail address below: 25 1. Plaintiffs’ Attorneys: 26 a. Jennifer A. Fornetti, Valerie S. Christian and Mark J. Bourassa of The Bourassa Law 27 Group E-Service Address: jfornetti@blgwins.com, vchristian@blgwins.com, 28 mbourassa@blgwins.com, kvandermiller@blgwins.com 1 b. Nicholas Colella of Lynch Carpenter: nickc@lcllp.com; Patrick@lcllp.com 2 c. Raina Borrelli of Strauss Borrelli, PLLC: raina@straussborrelli.com 3 d. Ramzy Ladah or Ladah Law Firm: Ramzy@ladahlaw.com; Daniel@ladahlaw.com; 4 jenny@ladahlaw.com 5 2. Defendant’s Attorneys: 6 a. Gary Schnitzer, L. Renee Green, and Leslie L. Phiefer of Schnitzer Johnson & Watson, 7 CHTD; gschnitzer@sjwlawfirm.com; rgreen@sjwlawfirm.com; clowe@sjwlawfirm. 8 K. Protective Order 9 All parties agree that the dispute involves certain documentation, while not necessarily 10 confidential between all of the parties to this litigation, are confidential and/or of a sensitive nature as to 11 nonparties. This includes personally identifying information, protected health information and nude 12 photographs. The parties therefore agree that there is good cause for a protective order to be entered in 13 this matter and the parties will separately present a proposed order to the court for its consideration. 14 15 DATED this 3rd day of May, 2024 DATED this 3rd day of May, 2024 16 THE BOURASSA LAW GROUP KRAVITZ SCHNITZER JOHNSON & WATSON, CTD. 17 18 By: Jennifer A. Fornetti By: L. Renee Green MARK J. BOURASSA, ESQ. (NBN 7999) GARY E. SCHNITZER, ESQ.(NBN 395) 19 JENNIFER A. FORNETTI, ESQ. (NBN 7644) L.RENEE GREEN, ESQ. (NBN 12755) VALERIE S. GRAY, ESQ. (NBN 14716) 8985 S. Eastern Ave., Ste. 200 20 2350 W Charleston Blvd, Suite 100 Las Vegas NV 89123 21 Las Vegas, Nevada 89102 Attorneys for Defendant Attorneys for Plaintiff Tausinga 22 LADAH LAW FIRM 23 LYNCH CARPENTER LLP 24 By: Nicholas A. Colella_ By: Ramzy P. Ladah NICHOLAS A. COLELLA (pro hac vice) RAMZY P. LADAH 25 1133 Penn Avenue, 5th Floor 517 S. Third Street 26 Pittsburgh, PA 15222 Las Vegas, NV 89101 Attorneys for Plaintiff Tausinga Attorneys for Plaintiff Wrenn 27 28 1 TURKE & STRAUSS LLP 2 By: Raina Borrelli 3 RAINA BORRELLI (pro hac vice) 613 Williamson Street, Suite 201 4 Madison, Wisconsin 53703 5 Attorneys for Plaintiff Romashova © IS SO ORDERED: 7 9 DANIEL J. ALBREGTS | Lo UNITED STATES MAGISTRATE JUDGE 11 DATED: May 6, 2024 CASE NO.: 2:23-cv-00824-RFB-DJA 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9) 1 CERTIFICATE OF SERVICE 2 3 Pursuant to FRCP 5(b), I certify that I am an employee of The Bourassa Law Group, and that on 4 this date I caused to be served a true copy of STIPULATED DISCOVERY PLAN AND 5 SCHEDULING ORDER on all parties to this action by the method(s) indicated below: 6 X by using the Court’s CM/ECF Electronic Notification System addressed to: 7 Gary E. Schnitzer, Esq. L.Renee Green, Esq. 8 KRAVITZ SCHNITZER JOHNSON & WATSON, CTD. Email: gschnitzer@ksjattorneys.com 9 rgreen@ksjattorneys.com 10 11 DATED: This 3rd day of May, 2024. 12 13 /s/ Kylie B. VanderMiller Employee of The Bourassa Law Group 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28