Kim v. Wesolowski ( 2024 )

1 || MICHAEL G. KING Nevada Bar No. 8827 2 | HENNELLY & GROSSFELD LLP 10900 Wilshire Boulevard, Suite 400 3 || Los Angeles, California 90024 Phone(310)305-2100 4 || Facsimile (310) 305-2116 mking@hgla.com CHRISTINE M. BOOZE 6 || Nevada Bar No. 7610 TRACEY B. HOWARD 7 || Nevada Bar No. 4543 WINNER & BOOZE 8 || 1117 South Rancho Drive Las Vegas, Nevada 89102 9 || Phone (702) 243-7000 Facsimile (702) 243-7059 10 || cbooze@winnerfirm.com thoward@winnerfirm .com Attorneys for Emerson Process Management 22 || Power & Water Solutions, Inc. and Brendan Wesolowski B UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 15 DEBORAH KIM, an individual, CASE NO.: 2:24-cv-00785-JAD-MDC 16 4) oe Plauaitth, STIPULATED AND [PROPOSED] Vy. PROTECTIVE ORDER 18 || BRENDAN WESOLOWSKI, an individual; 19 EMERSON AUTOMATION SOLUTIONS, a Assigned to: Judge Jennifer A. Dorsey corporation; and DOES 1-10, inclusive, Magistrate Judge: Judge Maximiliano D. 20 Defendants. Couvillier II 21 ae IT IS HEREBY STIPULATED by and between the Pmiies Plaintiff Deborah Kim and 2 | Defendants Brendan Wesolowski and Emerson Automation Solutions, Inc. by and through their 24 respective counsel of record, that m order to facilitate the exchange of information and 2 |) documents which may be subject to confidentiality limitations on disclosure due to federal laws, 26 | state laws, trade secrets, proprietary, confidential or competitively sensitive business, 27 commercial, financial or personal information, and privacy rights, the Parties stipulate and 28 (00435:196 1 Teas 1.0071 1 || propose as follows: 1 There is good cause for entry ofa protective order because discovery in this 3 || action is likely to involve the disclosure of confidential, proprietary, or private financial 4 || information for which special protection from public disclosure and from use for any purpose 5 || other than prosecuting this litigation may be wan-anted. 6 2. In this Stipulation and Protective Order, the words set forth below shall have the 7 || following meanings: 8 a. "Proceeding" means the above-entitled proceeding, Kim v. Wesolowski et 9 al., Case No. 2:24-cv-00785-JAD-MDC, United States District Court for the District of Nevada. 10 b. "Court" means the Hon. Jennifer A. Dorsey, or any other District or ll Magistrate judge to which this Proceeding may be assigned, including Comi staff paiicipating 2 in such proceedings. B c. "Confidential" means any information which is in the possession ofa 4 Designating Party who believes in good faith that such information 1s entitled to confidential 15 treatment under applicable law, trade secrets, proprietary, confidential or competitively sensitive 16 business, commercial, financial or personal information, and privacy rights. 17 d. "Confidential Materials" means any Documents, Testimony or 18 Information as defined below designated as "Confidential" pursuant to the provisions of this 19 Stipulation and Protective Order. 20 es "Designating Pairy" means the Party that designates Materials as 21 "Confidential." i "Disclose" or "Disclosed" or "Disclosure" means to reveal, divulge, give, B or make available Materials, or any part thereof, or any information contained therein. 24 g. "Documents" means (i) any "Writing," "Original," and "Duplicate" as those terms are defined by Federal Rules of Evidence Sections 1001, 1002, 1003, and 1004, 26 which have been produced in discovery in this Proceeding by any person, and (11) any copies, reproductions, or summaries ofall or any paii ofthe foregoing. 28 100435396 1 1 h "Information" means the content of Documents or Testimony. 2 i. "Testimony" means all depositions, declarations or other testimony taken 3 or used in this Proceeding. 4 8. The entry ofthis Stipulation and Protective Order does not alter, waive, modify, 5 || or abridge any right, privilege, or protection otherwise available to any Party with respect to the 6 || discovery of matters, including but not limited to any Paiiy's right to assert the attorney-client 7 || privilege, the attorney work product doctrine, or other privileges, or any Party's right to contest 8 || any such assertion. 9 4. The Designating Party shall have the nght to designate as "Confidential" any 10 || Documents, Testimony or Information that the Designating Party in good faith believes to ll || contain non-public information that is entitled to confidential treatment under applicable law. 2 3. The entry ofthis Stipulation and Protective Order does not alter, waive, modify, B || or abridge any right, privilege or protection otherwise available to any Party with respect to the 14 || discovery of matters, including but not limited to any Party's right to assert the attorney-client 15 || privilege, the attorney work product doctrine, or other privileges, or any Party's right to contest 16 || any such assertion. 7 6. Any Documents, Testimony or Information to be designated as "Confidential" 18 |} must be clearly so designated before the Document, Testimony or Information is Disclosed or 19 || produced. The parties may agree that the case name and number are to be part ofthe 20 || "Confidential" designation. The "Confidential" designation should not obscure or interfere with 21 || the legibility ofthe designated Information. a. For Documents (apart from transcripts of depositions or other pretrial or 2B || trial proceedings), the Designating Paity must affix the legend "Confidential" on each page of 24 || any Document containing such designated Confidential Material. 25 b. For Testimony given in depositions the Designating Party may either: 26 28 1004353% | Dage 2-atr 12 1, identify on the record, before the close ofthe deposition, all 2 || "Confidential" Testimony, by specifying all portions ofthe Testimony that qualify as 3 || “Confidential;" or 4 il. designate the entirety ofthe Testimony at the deposition as 5 || "Confidential" (before the deposition is concluded) with the right to identify more specific 6 || portions ofthe Testimony as to which protection is sought within 30 days following receipt of 7 || the deposition transcript. In circumstances where portions ofthe deposition Testimony are 8 || designated for protection, the transcript pages containing "Confidential" Information may be 9 || separately bound by the court reporter, who must affix to the top of each page the legend 10 || "Confidential," as instructed by the Designating Party. ll C. For Information produced in some form other than Documents, and for 2 any other tangible items, including, without limitation, compact discs or DVDs, the Designating B Party must affix i a prominent place on the exterior of the container or containers in which the 4 Information or item is stored the legend "Confidential." only portions ofthe Information or 15 item warrant protection, the Designating Paity, to the extent practicable, shall identify the 16 "Confidential" portions. 7 Us: The inadvertent production by any ofthe undersigned Parties or non-Parties to the 18 || Proceedings of any Document, Testimony or Information during discovery mm this Proceeding 19 || without a "Confidential" designation, shall be without prejudice to any claim that such item is 20 || "Confidential" and such Party shall not be held to have waived any rights by such inadvertent 21 || production. In the event that any Document, Testimony or Information that is subject to a 22 || "Confidential" designation is inadvertently produced without such redaction, withholding, or 23 || designation, the Party that inadvertently produced the document shall give written notice of such 24 || inadvertent production within twenty (20) days of discovery ofthe inadvertent production, 25 || together with a further copy ofthe subject Document, Testimony or Information with redactions, 26 || designated as "Confidential" (the "Inadvertent Production Notice"). Upon receipt of such 27 || Inadvertent Production Notice, the Party that recerved the inadvertently produced Document, 28 eye NM... A.£19 1 || Testimony or Information shall promptly destroy the inadvertently produced Document, 2 || Testimony or Information and all copies thereof, or, at the expense ofthe producing Party, return 3 || such together with all copies of such Document, Testimony or Information to counsel for the 4 || producing Party and shall retain only the redacted document, privilege log, or the "Confidential" 5 || designated Materials. Should the receiving Paily choose to destroy such inadvertently produced 6 || Document, Testimony or Information, the receiving Party shall notify the producing Party in 7 || writing of such destruction within ten (10) days ofreceipt of written notice of the inadvertent 8 || production. This provision 1s not intended to apply to any inadvertent production of any 9 || Information protected by attorney-client or work product privileges. In the event that this 10 || provision conflicts with any applicable law regarding waiver of confidentiality or privilege ll || through the inadvertent production of Documents, Testimony or Information, such law shall 2 }| govern. B 8 In the event that counsel for a Party recerving Documents, Testimony or 14 || Information mn discovery designated as "Confidential" objects to such designation with respect to 15 || any or all of such items, said counsel shall advise counsel for the Designating Party, in writing, 16 || ofsuch objections, the specific Documents, Testimony or Information to which each objection 17 || pertains, and the specific reasons and support for such objections (the "Designation Objections"). 18 || Counsel for the Designating Party shall have thirty (30) days from receipt of the written 19 || Designation Objections to either (a) agree in writing to de-designate Documents, Testimony or 20 || Information pursuant to any or all ofthe Designation Objections, (b) request a meet and confer 21 || with the Receiving Party to discuss the Designation Objections, and/or (c) file a motion with the 22 || Court seeking to uphold any or all designations on Documents, Testimony or Information 2% || addressed by the Designation Objections (the "Designation Motion"). Pending a resolution of 24 || the Designation Motion by the Court, any and all existing designations on the Documents, 25 || Testimony or Information at issue i such Motion shall remain in place. The Designating Party 26 || shall have the burden on any Designation Motion of establishing the applicability of its 27 || "Confidential" designation. In the event that the Designation Objections are neither timely 28 Pees Renan & =Tt.19 1 || agreed to, requested to be discussed during a meet and confer, nor timely addressed i the 2 || Designation Motion, then such Documents, Testimony or Information shall be de-designated in 3 || accordance with the Designation Objection applicable to such material. 4 2: Access to and/or Disclosure of Confidential Materials designated as 5 || "Confidential" shall be permitted only to the following persons: 6 a. (1) Attorneys ofrecord in the Proceedings and their affiliated attorneys, 7 || paralegals, clerical and secretarial staffemployed by such attorneys who are actively involved in 8 || the Proceedings and are not employees ofany Party as well as any agents or vendors contracted 9 || by counsel for the purposes of providing electronic discovery or photocopying services; (2) In- 10 || house counsel to the undersigned Parties and the paralegal, clerical and secretarial staff ll || employed by such counsel. Provided, however, that each non-lawyer given access to 12 |} Confidential Materials shall be advised that such Materials are being Disclosed pursuant to, and B || are subject to, the terms ofthis Stipulation and Protective Order and that they may not be 14 || Disclosed other than pursuant to its terms; 15 b those officers, directors, partners, members, employees and agents ofall 16 || non-designating Parties that counsel for such Patties deems necessary to aid counsel in the 17 || prosecution and defense ofthis Proceeding; provided, however, that prior to the Disclosure of 18 || Confidential Materials to any such officer, director, partner, member, employee or agent, counsel 19 || for the Party making the Disclosure shall deliver a copy ofthis Stipulation and Protective Order 20 || to such person and shall explain that such person is bound to follow the terms of such Order; 21 @ court repotters in this Proceeding (whether at depositions, hearings, or any 22 || other proceeding); 2B d. any deposition, trial or hearing witness in the Proceeding who previously 24 |) has had access to the Confidential Materials, or who is cunently or was previously an officer, 25 || director, partner, member, employee or agent ofan entity that has had access to the Confidential 26 || Materials; a7 28 aE N...7 .f19 ] @ any deposition or non-trial hearing witness in the Proceeding who 2 || previously did not have access to the Confidential Materials; provided, however, that each such 3 || witness given access to Confidential Materials shall be advised that such Materials are being 4 || Disclosed pursuant to, and are subject to, the terms ofthis Stipulation and Protective Order and 5 || that they may not be Disclosed other than pursuant to its terms; 6 i outside experts or expert consultants consulted by the undersigned Parties 7 || or their counsel mn connection with the Proceeding, whether or not retained to testify at any oral 8 || hearing; provided, however, that prior to the Disclosure of Confidential Materials to any such 9 || expert or expert consultant, counsel for the Party making the Disclosure shall deliver a copy of 10 || this Stipulation and Protective Order to such person and shall explain its terms to such person. ll || It shall be the obligation of counsel, upon learning of any breach or threatened breach of this 22 || Stipulation and Protective Order by any such expert or expert consultant, to promptly notify 3B || counsel for the Designating Party of such breach or threatened breach; 4 g mediators or arbitrators agreed upon by the parties; 5 ih, the Court; and 16 i, any other person that the Designating Paity agrees to in writing. 7 10. Confidential Materials shall be used by the persons receiving them only for the 18 || purposes of preparing for, conducting, paiticipating in the conduct of, and/or prosecuting and/or 19 || defending the Proceeding, and not for any business or other purpose whatsoever. 20 11. Any Party to the Proceeding (or other person subject to the terms ofthis 21 || Stipulation and Protective Order) may ask the Comt, after appropriate notice to the other Parties 22 || to the Proceeding, to modify or grant relief from any provision ofthis Stipulation and Protective 2B || Order. 24 12. Entering into, agreeing to, and/or complying with the terms ofthis Stipulation and 25 || Protective Order shall not: 26 a. operate as an admission by any person that any paiticular Document, 27 || Testimony or Information marked "Confidential" contains or reflects trade secrets, proprietary, 28 200 18.196 : 1 || confidential or competitively sensitive business, commercial, financial or personal information; 2 || or 3 b prejudice in any way the nght of any Paiiy (or any other person subject to 4 || the terms ofthis Stipulation and Protective Order): 5 i. to seek a determination by the Court of whether any particular 6 || Confidential Material should be subject to protection as "Confidential" under the terms of this 7 || Stipulation and Protective Order; or 8 i. to seek relief from the Court on appropriate notice to all other 9 || Parties to the Proceeding from any provision(s) ofthis Stipulation and Protective Order, either 10 || generally or as to any particular Document, Material or Information. ll 3, Any Party to the Proceeding who has not executed this Stipulation and Protective 22 || Order as of the time it is presented to the Comi for signature may thereafter become a Party to B || this Stipulation and Protective Order by its counsel's signing and dating a copy thereof and filing 14 || the same with the Comi, and serving copies of such signed and dated copy upon the other Parties 15 || to this Stipulation and Protective Order. 16 14. Any Information that may be produced by a non-Paiiy witness in discovery in the 17 || Proceeding pursuant to subpoena or otherwise may be designated by such non-Party as 18 || "Confidential" under the terms ofthis Stipulation and Protective Order, and any such designation 19 || by anon-Party shall have the same force and effect, and create the same duties and obligations, 20 || as if made by one ofthe undersigned Parties hereto. Any such designation shall also function as 21 || aconsent by such producing Party to the authority ofthe Court in the Proceeding to resolve and 22 || conclusively determine any motion or other application made by any person or Party with respect 2 |) to such designation, or any other matter otherwise arising under this Stipulation and Protective 24 || Order. 5 15; If any person subject to this Stipulation and Protective Order who has custody of 26 || any Confidential Materials receives a subpoena or other process ("Subpoena") from any 27 || government or other person or entity demanding production of Confidential Materials, the 28 pase) Bame © □□ □□□ 1 || recipient ofthe Subpoena shall promptly give notice ofthe same by electronic mail transmission, 2 || followed by either express mail or overnight delivery to counsel of record for the Designating 3 || Party, and shall furnish such counsel with a copy ofthe Subpoena. Upon receipt ofthis notice, 4 || the Designating Party may, in its sole discretion and at its own cost, move to quash or limit the 5 || Subpoena, otherwise oppose production ofthe Confidential Materials, and/or seek to obtain 6 || confidential treatment of such Confidential Materials from the subpoenaing person or entity to 7 || the fullest extent available under law. The recipient ofthe Subpoena may not produce any 8 || Documents, Testimony or Information pursuant to the Subpoena prior to the date specified for 9 || production on the Subpoena. 10 16. Nothing m this Stipulation and Protective Order shall be construed to preclude ll || either Party from asserting i good faith that certain Confidential Materials require additional 12 || protection. The Parties shall meet and confer to agree upon the terms ofsuch additional 13 || protection. 4 17. If, after execution of this Stipulation and Protective Order, any Confidential 15 || Materials submitted by a Designating Party under the terms ofthis Stipulation and Protective 16 || Order is Disclosed by a non-Designating Party to any person other than m the manner authorized 7 || by this Stipulation and Protective Order, the non-Designating Party responsible for the 18 || Disclosure shall bring all pertinent facts relating to the Disclosure of such Confidential Materials 19 || to the immediate attention ofthe Designating Party. 20 18. This Stipulation and Protective Order is entered into without prejudice to the right 21 || ofany Party to knowingly waive the applicability ofthis Stipulation and Protective Order to any 22 || Confidential Materials designated by that Party. Ifthe Designating Party uses Confidential 2 || Materials in a non-Confidential manner, then the Designating Patty shall advise that the 24 || designation no longer applies. 5 19. Where any Confidential Materials, or Information derived therefrom, is included 26 || m any motion or other proceeding governed by the Federal Rules of Civil Procedure, rule 5.2(d)- 27 || (g), the Parties and any involved non-paliy shall follow those rules. Confidential Materials may 28 eat a = 1 || only be filed under seal pursuant to a court order authorizing the sealing ofthe specific 2 || Confidential Materials at issue. Ifa Pmiy's request to file Confidential Materials under seal is 3 || denied by the court, then the Receiving Pmiy may file the information in the public record unless 4 || otherwise instructed by the court. With respect to discovery motions or other proceedings not 5 || governed by Federal Rules of Civil Procedure, rule 5.2(d)-(g), the following shall apply: If 6 || Confidential Materials or Information derived therefrom are submitted to or otherwise disclosed 7 || to the Comi in connection with any Comi filings, submissions, or proceedings, the same shall be 8 || separately filed under seal in accordance with the Local Rules for the District of Nevada and the 9 || Individual Rules ofthe District Judge and Magistrate Judge presiding over this Proceeding. 10 20. Nothing mn this Stipulation and Protective Order shall affect the admissibility into ll || evidence of Confidential Materials, or abridge the rights of any person to seek judicial review or || to pursue other appropriate judicial action with respect to any ruling made by the Court B || concerning the issue ofthe status of Protected Material. 4 This Stipulation and Protective Order shall continue to be binding after the 15 || conclusion ofthis Proceeding and all subsequent proceedings arising from this Proceeding, 16 || except that a Party may seek the written permission ofthe Designating Party or may move The 17 || Court for relief from the provisions ofthis Stipulation and Protective Order. To the extent 18 || permitted by law, the Court shall retain jurisdiction to enforce, modify, or reconsider this 19 || Stipulation and Protective Order, even after the Proceeding 1s terminated. 20 > Upon written request made within thirty (30) days after the settlement or other 21 || termination ofthe Proceeding, the undersigned Parties shall have thirty (30) days to either (a) 22 || promptly return to counsel for each Designating Paliy all Confidential Materials and all copies 2 || thereof, (b) agree with counsel for the Designating Party upon appropriate methods and 24 | certification of destruction or other disposition of such Confidential Materials, or (c) as to any 25 || Documents, Testimony or other Information not addressed by sub-paragraphs (a) and (b), file a 26 |} motion seeking a Court order regarding proper preservation of such Materials. To the extent 27 || permitted by law the Court shall retain continuing jurisdiction to review and rule upon the 28 :00.iI8.,96 J 1 || motion referred to m sub-paragraph (c) herein. Irrespective ofthe above, counsel for each Party 2 || may maintain mn its files, m continuing compliance with the terms of this Stipulation and 3 || Protective Order, all work product, including communications, and one copy of each pleading 4 || filed with the Court and one copy ofeach deposition together with the exhibits marked at the 5 || deposition. 6 23. After this Stipulation and Protective Order has been signed by counsel for all 7 || Parties, it shall be presented to the Comi for entry. Counsel agrees to be bound by the terms set 8 || forth herein with regard to any Confidential Materials that have been produced before the Court 9 || signs this Stipulation and Protective Order. 10 24. The terms ofthis Stipulated Confidentiality Agreement and Protective Order will ll || apply to all proceedings herein except for the use of information during the trial ofthis matter. 22 || The parties agree that a separate confidentiality agreement will govern the trial in this matter. BB || The parties agree to negotiate such agreement prior to commencement of trial to govern the use 14 || of Confidential information and documents during trial. 15 LAGSTEIN LAW FIRM, P.C. 16 Dated: August 14, 2024 _/s/ Eran Lagsten Eran Lagstein 18 Nevada Bar No. 7413 5940 S. Rainbow Boulevard 19 Las Vegas, Nevada 89118 Attorneyfor PlaintiffDeborah Kim 20 HENNELL Y & GROSSFELD LLP 23 Dated: August 14, 2024 24 _ Michael G. King Nevada Bar No. 8827 10900 Wilshire Blvd., Suite 400 Los Angeles, California 90024 26 Attorneyfor Defendants Brendan Wesolowski and Emerson Process Management Power & Water Solutions, Inc. 28 1004.153% i 1 WINNER & BOOZE ? =< +t “Gries — Dated: August 14, 2024 ristine.Boaz A Nevada Bar No. 7610 Tracey B. Howard 5 Nevada Bar No. 4543 1117 South Rancho Drive 6 Las Vegas, Nevada 89102 Attorney for Defendants Brendan Wesolowski and 7 Emerson Process Management Power & Water Solutions, Inc. 8 9 10 3 4 5 ORDER 16 GOOD CAUSE APPEARING, the Judge Maximiliano D. Couvillier I hereby 17 | approves this Stipulation and Protective Order. B A party’s mere “confidential” designation does not allow for such documents to be filed and 19 maintained under seal. In addition to Fed. R. Civ. P. 5.2, the parties must comply with LR IA 10-5 and the requirements of Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172 (9th Cir. 2006) and 20 || its progeny when seeking to seal or redact any document. 21 IT IS SO ORDERED. ff. “ff ) 22 || Dated: 8/15/2024 ie + fp / “ | Hon. MaximiliAno D Couvillier II UNITED STATESMAGISTRATE JUDGE 25 26 aT 28 1004.15.196 : Danan 1D 1 CERTIFICATE OF SERVICE 2 I certify that on this 14" day of August 2024, the foregoing STIPULATED 3 || PROTECTIVE ORDER REGARDING CONFIDENTIAL INFORMATION was served on the parties via electronic service through the United States District Court for the District of Nevada's ECF system, and mailing by depositing with the U.S. mail m Las Vegas, Nevada, 5 enclosed in a sealed envelope with first class postage prepaid, addressed as follows: g Eran Lagstein LAGSTEIN LAW FIRM, P.C. g || 5940 South Rainbow Boulevard Las Vegas, Nevada 89118 10 || Attorney.for plaintiffDeborah Kim 12 B Isl Chenika Mccastle An employee of WINNER & BOOZE 14 15 16 i 18 19 20 21 ae 3 24 25 26 28 1004-15396 1 Dace 2 nf rR