Brass v. The State of Nevada ex rel The NDOC ( 2024 )

Attorney General 2 MAYRA GARAY (Bar No. 15550) Deputy Attorney General 3 State of Nevada Office of the Attorney General 4 555 East Washington Ave., Suite 3900 Las Vegas, Nevada 89101 5 (702) 486-3788 (phone) (702) 486-3773 (fax) 6 Email: mgaray@ag.nv.gov 7 Attorneys for Defendants Wilson Bernales, Gregory Bryan, 8 Jaymie Cabrera, Charles Daniels, Benedicto Gutierrez, Rio Manalang, 9 Michael Minev, Nicholas Parsons, Nonilon Peret, and David Rivas 10 11 UNITED STATES DISTRICT COURT 12 DISTRICT OF NEVADA 13 GEORGE BRASS, Case No. 2:21-cv-00074-RFB-MDC 14 Plaintiff, 15 v. STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE 16 STATE OF NEVADA EX REL THE NDOC, ORDER et al., 17 18 Defendants. 19 Plaintiff George Brass and Defendants Wilson Bernales, Gregory Bryan, Jaymie 20 Cabrera, Charles Daniels, Benedicto Gutierrez, Rio Manalang, Michael Minev, Nicholas 21 Parsons, Nonilon Peret, and David Rivas (collectively “the Parties”) anticipate that 22 documents, testimony, or information containing sensitive information are likely to be 23 disclosed or produced during the course of discovery in this Litigation. The Parties to this 24 Stipulated Confidentiality Agreement and Protective Order have agreed to the terms of 25 this Order; accordingly, it is ORDERED: 26 1. Scope. All materials produced or adduced in this litigation, whether by the 27 Parties or from third-parties, shall be subject to this Order concerning Confidential 28 Information as defined below. This Order is subject to the Local Rules of this District and 2 periods. 3 2. Confidential Information. As used in this Order, “Confidential 4 Information” means information designated as “CONFIDENTIAL-SUBJECT TO 5 PROTECTIVE ORDER” or “ATTORNEYS’ EYES ONLY” by the producing party, after 6 the entry of this protective order. 7 A Producing Party may designate Discovery Material as “CONFIDENTIAL - 8 SUBJECT TO PROTECTIVE ORDER” if it contains or reflects confidential, non-public, 9 proprietary, commercially sensitive, private information of an individual or entity, that 10 contains information which could endanger the safety and security of an individual or 11 entity, or that contains information received in confidence from third parties, or which a 12 Producing Party believes in good faith to be entitled to protection under Fed. R. Civ. P. 13 26(c), or other applicable rules or laws. A Producing Party may designate Discovery 14 Material as “ATTORNEYS’ EYES ONLY” if it contains or reflects information that the 15 Producing Party claims in good faith constitutes confidential financial information of an 16 individual or an entity, trade secrets, confidential financial or business plans and 17 strategies, information which could endanger the safety and security of an individual or 18 entity, or other highly sensitive personal or proprietary business information that may 19 cause physical, competitive, commercial, or financial injury if disclosed beyond the 20 disclosure allowed in paragraph 4(c) below. 21 3. Designation. 22 (a) A party may designate a document as Confidential Information for 23 protection under this Order by placing or affixing the words “CONFIDENTIAL - 24 SUBJECT TO PROTECTIVE ORDER” or “ATTORNEYS’ EYES ONLY” on the 25 document and on all copies in a manner that will not interfere with the legibility of the 26 document. As used in this Order, “copies” includes electronic images, duplicates, extracts, 27 summaries, or descriptions that contain the Confidential Information. These markings 28 shall be applied before or at the time the documents are produced or disclosed. 2 “ATTORNEYS’ EYES ONLY” to a document does not mean that the document has any 3 status or protection by statute or otherwise, except to the extent and for the purposes of 4 this Order. Any copies that are made of any documents marked “CONFIDENTIAL - 5 SUBJECT TO PROTECTIVE ORDER” or “ATTORNEYS’ EYES ONLY” shall also be 6 so marked. 7 (b) The designation of a document as Confidential Information is a 8 certification by an attorney or a party appearing pro se that the document contains 9 Confidential Information. 10 4. Protection of Confidential Material. 11 (a) General Protections. Confidential Information shall not be used or 12 disclosed by the parties, counsel for the parties, or any other persons identified in 13 subparagraph 4(b) & 4(c) for any purpose whatsoever other than in this litigation, including 14 any appeal thereof. 15 (b) Limited Third-Party Disclosures of Information Marked 16 “CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER”. The parties and counsel 17 for the parties shall not disclose or permit the disclosure of any Confidential Information 18 marked “CONFIDENTIAL—SUBJECT TO PROTECTIVE ORDER” to any third 19 person or entity except as set forth below in subparagraphs (1)-(9). Subject to these 20 requirements, the following categories of persons may be allowed to review Information 21 marked “CONFIDENTIAL –SUBJECT TO PROTECTIVE ORDER”: 22 (1) Counsel. Counsel for the parties and employees of counsel who have responsibility for the action; 23 24 (2) Parties. Individual parties and employees of a party but only to the extent receiving counsel determines in good faith that the 25 employee’s assistance is reasonably necessary to the conduct of the litigation in which the information is disclosed, except that 26 the Plaintiff may not keep or possess any copies of any documents marked “CONFIDENTIAL—SUBJECT TO 27 PROTECTIVE ORDER” while he is incarcerated in the custody of the Nevada Department of Corrections; 28 (4) Court Reporters and Recorders. Court reporters and 2 recorders engaged for depositions; 3 (5) Contractors. Those persons specifically engaged for the limited purpose of making copies of documents or organizing or 4 processing documents, including outside vendors hired to process electronically stored documents; 5 6 (6) Consultants and Experts. Consultants, investigators, or experts employed by the parties or counsel for the parties to 7 assist in the preparation and trial of this action but only after such persons have completed the certification contained in 8 Attachment A, Acknowledgment of Understanding and Agreement to Be Bound; 9 (7) Witnesses at depositions. During their depositions, witnesses 10 in this action to whom disclosure is reasonably necessary. Witnesses shall not retain a copy of documents containing 11 Confidential Information, except witnesses may receive a copy of all exhibits marked at their depositions in connection with 12 review of the transcripts. Pages of transcribed deposition testimony or exhibits to depositions that are designated as 13 Confidential Information pursuant to the process set out in this Order must be separately bound by the court reporter and may 14 not be disclosed to anyone except as permitted under this Order. 15 (8) Author or recipient. The author or recipient of the document (not including a person who received the document in the course 16 of litigation); and 17 (9) Others by Consent. Other persons only by written consent of the producing party, person, or entity or upon order of the Court 18 and on such conditions as may be agreed or ordered. 19 (c) Limited Third-Party Disclosures of Highly Confidential 20 Information marked “ATTORNEYS’ EYES ONLY”. Highly Confidential information is 21 information which would pose a substantial risk to the safety and security of an individual 22 or entity if disclosed to any individual, including the parties’ themselves, and other than 23 this Court, its personnel, and the parties’ counsel. Counsel for the parties shall not disclose 24 or permit the disclosure of any Highly Confidential Information marked “ATTORNEYS’ 25 EYES ONLY” to any person except as set forth below in subparagraphs (1)-(5). Subject to 26 these requirements, the following categories of persons may be allowed to review 27 Information marked as “ATTORNEYS’ EYES ONLY”: 28 (1) Chaovuen rseeslp.o Cnosuibnislietly ffoorr tthhee paacrttioiens; and employees of counsel who 2 (2) The Court and its personnel (under seal); 3 (3) Court Reporters and Recorders. Court reporters and 4 recorders engaged for depositions; 5 (4) Consultants and Experts. Upon stipulation by the parties to this Agreement, non-party experts or consultants who have 6 executed an acknowledgment and agreement to abide by this Order, including their secretarial and clerical personnel retained 7 to assist counsel of record in this case; 8 (5) Others by Consent. Other persons only by written consent of the producing party or upon order of the Court and on such 9 conditions as may be agreed or ordered. 10 11 (d) Access by Other Persons. The information produced in response to 12 this Protective Order shall not be used for any litigation other than the matter in which it 13 is produced. Its confidentiality shall be maintained in a manner such that Plaintiff and/or 14 any other attorney cannot use it in any of Plaintiff’s current or future litigation, it can only 15 be used in connection with Nevada Federal District Court Case No. 2:21-cv-00074-RFB- 16 MDC. It shall not be shared with any other counsel than the parties to the Stipulation and 17 Protective Order. 18 (e) Control of Documents. Counsel for the parties shall make reasonable 19 efforts to prevent unauthorized or inadvertent disclosure of Confidential Information. 20 Counsel shall maintain the originals of the forms signed by persons acknowledging their 21 obligations under this Order for a period of three years after the termination of the case. 22 5. Inadvertent Failure to Designate. An inadvertent failure to designate a 23 document as Confidential Information does not, standing alone, waive the right to so 24 designate the document. If a party designates a document as Confidential Information after 25 it was initially produced, the receiving party, on notification of the designation, must make 26 a reasonable effort to assure that the document is treated in accordance with the provisions 27 of this Order. No party shall be found to have violated this Order for failing to maintain 28 the confidentiality of material during a time when that material has not been designated 2 where the material is subsequently designated Confidential Information. 3 (a) Unauthorized Disclosure. If a Receiving Party learns that, by 4 inadvertence or otherwise, it has disclosed Confidential Information to any person or in 5 any circumstance not authorized under this Stipulated Protective Order, the Receiving 6 Party must immediately (a) notify in writing the Designating Party of the unauthorized 7 disclosures, (b) use its best efforts to retrieve all copies of the Confidential Information, 8 (c) inform the person or persons to whom unauthorized disclosures were made of all the 9 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment 10 and Agreement to Be Bound by Stipulated Protective Order” (Exhibit A). 11 (b) Filing of Confidential Information. This Order does not, by itself, 12 authorize the filing of any document under seal. Any party wishing to file a document 13 designated as Confidential Information in connection with a motion, brief or other 14 submission to the Court must comply with LR IA 10-5. 15 (c) No Greater Protection of Specific Documents. Except on privilege 16 grounds not addressed by this Order, no party may withhold information from disclosure 17 on the ground that it requires protection greater than that afforded by this Order unless 18 the party moves for an order providing such special protection. 19 (d) Challenges by a Party to Designation as Confidential 20 Information. The designation of any material or document as Confidential Information is 21 subject to challenge by any party. The following procedure shall apply to any such 22 challenge. 23 i. Meet and Confer. A party challenging the designation of 24 Confidential Information must do so in good faith and must begin the process by conferring 25 directly with counsel for the designating party. In conferring, the challenging party must 26 explain the basis for its belief that the confidentiality designation was not proper and must 27 give the designating party an opportunity to review the designated material, to reconsider 28 the designation, and, if no change in designation is offered, to explain the basis for the 2 days. 3 ii. Judicial Intervention. If a dispute regarding the propriety of 4 a confidentiality designation were to arise, the party asserting the confidentiality 5 designation may file and serve a motion to enforce the confidentiality designation, 6 identifying the challenged material and setting forth in detail the basis for the 7 confidentiality and need for protection. Each such motion must be accompanied by a 8 competent declaration that affirms that the movant has complied with the meet and confer 9 requirements of this procedure. The burden of persuasion in any such challenge proceeding 10 shall be on the designating party. Until the Court rules on the challenge, all parties shall 11 continue to treat the materials as Confidential Information under the terms of this Order. 12 (e) Action by the Court. Applications to the Court for an order relating 13 to materials or documents designated Confidential Information shall be by motion. Nothing 14 in this Order or any action or agreement of a party under this Order limits the Court’s 15 power to make orders concerning the disclosure of documents produced in this litigation. 16 (f) Use of Confidential Documents or Information at Trial. Nothing 17 in this Order shall be construed to affect the use of any document, material, or information 18 at any trial or hearing. A party that intends to present or that anticipates that another 19 party may present Confidential Information at a hearing or trial shall bring that issue to 20 the Court’s and parties’ attention by motion or in a pretrial memorandum without 21 disclosing the Confidential Information. The Court may thereafter make such orders as are 22 necessary to govern the use of such documents or information at trial. 23 6. Produced in Other Litigation. 24 (a) If a receiving party is served with a subpoena or an order issued in other 25 litigation that would compel disclosure of any material or document designated in this 26 action as Confidential Information, the receiving party must so notify the designating 27 party, in writing, immediately and in no event more than three court days after receiving 28 the subpoena or order. Such notification must include a copy of the subpoena or court order. 2 who caused the subpoena or order to issue in the other litigation that some or all of the 3 material covered by the subpoena or order is the subject of this Order. In addition, the 4 receiving party must deliver a copy of this Order promptly to the party in the other action 5 that caused the subpoena to issue. 6 (c) The purpose of imposing these duties is to alert the interested persons 7 to the existence of this Order and to afford the designating party in this case an opportunity 8 to try to protect its Confidential Information in the court from which the subpoena or order 9 issued. The designating party shall bear the burden and the expense of seeking protection 10 in that court of its Confidential Information, and nothing in these provisions should be 11 construed as authorizing or encouraging a receiving party in this action to disobey a lawful 12 directive from another court. The obligations set forth in this paragraph remain in effect 13 while the party has in its possession, custody or control, Confidential Information produced 14 by the other party to this case or a third-party. 15 7. Challenges by Members of the Public to Sealing Orders. A party or 16 interested member of the public has a right to challenge the sealing of particular documents 17 that have been filed under seal, and the party asserting confidentiality will have the burden 18 of demonstrating the propriety of filing under seal. 19 8. Obligations on Conclusion of Litigation. 20 (a) Order Continues in Force. Unless otherwise agreed or ordered, this 21 Order shall remain in force after dismissal or entry of final judgment not subject to further 22 appeal. 23 (b) Obligations at Conclusion of Litigation. Within 63 days after 24 dismissal or entry of final judgment not subject to further appeal, all Confidential 25 Information and documents marked “CONFIDENTIAL - SUBJECT TO PROTECTIVE 26 ORDER” or “ATTORNEYS’ EYES ONLY” under this Order, including copies as defined 27 in ¶ 3(a), shall be returned to the producing party unless: (1) the document has been offered 28 into evidence or filed without restriction as to disclosure; (2) the parties agree to destruction 2 summations, or other mental impressions of the receiving party, that party elects to destroy 3 the documents and certifies to the producing party that it has done so. 4 (c) Retention of Work Product and One Set of Filed Documents. 5 Notwithstanding the above requirements to return or destroy documents, counsel may 6 retain (1) attorney work product, including an index that refers or relates to designated 7 Confidential Information so long as that work product does not duplicate verbatim 8 substantial portions of Confidential Information, and (2) one complete set of all documents 9 filed with the Court including those filed under seal. Any retained Confidential Information 10 shall continue to be protected under this Order. An attorney may use his or her work 11 product in subsequent litigation, provided that its use does not disclose or use Confidential 12 Information. 13 (d) Deletion of Documents Filed Under Seal from Electronic Case 14 Filing (ECF) System. Filings under seal shall be deleted from the ECF system only upon 15 order of the Court. 16 9. Order Subject to Modification. This Order shall be subject to modification 17 by the Court on its own initiative or on motion of a party or any other person with standing 18 concerning the subject matter. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 2 binding upon all counsel of record and their law firms, the parties, and persons made 3 subject to this Order by its terms. 4 DATED this 11th day of July, 2024 DATED this 11th day of July, 2024 5 and respectfully submitted by: and approved as to form and content by: 6 AARON D. FORD Attorney General 7 /s/ Mayra Garay /s/ Josh Dowling 8 MAYRA GARAY (Bar No. 15550) JOSH DOWLING (Bar No. 12885) Deputy Attorney General Claggett & Sykes Law Firm 9 555 E. Washington Avenue, Suite 3900 4101 Meadows Ln., Suite 100, Las Vegas, NV 89101 Las Vegas, NV 89107 10 Attorneys for Defendants Attorney for Plaintiff 11 IT IS SO ORDERED. In addition to the requirements of LR IA 10-5, the 12 parties must also comply with the requirements of Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172 (9th Cir. 2006) and its progeny when seeking to 13 seal or redact any document. 14 15 ____________________________________ 16 U.S. MAGISTRATE JUDGE 17 DATED: _7_-_1_6_-_2_4_____________________ 18 19 20 21 22 23 24 25 26 27 28 2 I certify that I am an employee of the State of Nevada, Office of the Attorney General, 3 and that on July 15, 2024, I electronically filed the foregoing STIPULATED 4 CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER via this Court’s 5 electronic filing system. Parties who are registered with this Court’s electronic filing 6 system will be served electronically. 7 William Sykes, Esq. Joshua A. Dowling, Esq. 8 Claggett & Sykes Law Firm 4101 Meadows Ln., Suite 100, 9 Las Vegas, NV 89107 Counsel for Plaintiff 10 11 /s/ Andrea Beckett 12 ANDREA BECKETT, an employee of the Office of the Nevada Attorney General 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28