Bandiero v. Wynn Las Vegas, LLC ( 2024 )

1 Deverie J. Christensen Nevada State Bar No. 6596 2 Cayla J. Witty Nevada State Bar No. 12897 3 JACKSON LEWIS P.C. 300 South Fourth Street, Suite 900 4 Las Vegas, Nevada 89101 Tel: (702) 921-2460 5 Email: deverie.christensen@jacksonlewis.com cayla.witty@jacksonlewis.com 6 Attorneys for Defendant 7 Wynn Las Vegas, LLC 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 JENNIFER BANDIERO, individually, Case No. 2:23-cv-02115-APG-NJK 11 Plaintiff, 12 STIPULATED PROTECTIVE ORDER vs. REGARDING THE DISCLOSURE 13 AND USE OF DISCOVERY WYNN LAS VEGAS, LLC, a Nevada limited- MATERIALS 14 liability company; DOES I through X; and ROE CORPORATIONS I through X, inclusive, 15 Defendants. 16 17 Plaintiff Jennifer Bandiero (“Plaintiff”) and Defendant Wynn Las Vegas, LLC 18 (“Defendant”), by and through their respective counsel of record (collectively the “Parties”), submit 19 this stipulated protective order regarding the disclosure and use of discovery materials. The Parties 20 anticipate that documents, testimony, or information containing or reflecting confidential, 21 proprietary, trade secret, and/or commercially sensitive information are likely to be disclosed 22 or produced during the course of discovery in this case and request that the Court enter this 23 Order setting forth the conditions for treating, obtaining, and using such information. 24 1. PURPOSES AND LIMITATIONS 25 (a) Protected Material (defined below) designated under the terms of this Protective 26 Order shall be used by a Receiving Party (defined below) solely for this case and shall not be used 27 directly or indirectly for any other purpose whatsoever. 1 (b) The Parties acknowledge that this Order does not confer blanket protections on all 2 disclosures during discovery. Designations under this Order shall be made with care and shall not 3 be made absent a good faith belief that the designated material satisfies the criteria set forth below. 4 If it comes to the attention of a Producing Party (defined below) that designated material does not 5 qualify for protection at all, or does not qualify for the level of protection initially asserted, the 6 Producing Party must promptly notify all other Parties that it is withdrawing or changing the 7 designation. 8 (c) The Parties agree that this Order does not address the production of source code 9 (including source and source code listings, object code and object code listings, executable code, 10 and similar sensitive software code, whether in print or electronic form). Before any Party requests 11 such source code, the Party making that request shall provide notice to all other Parties. Upon 12 receipt of such notice, the Parties agree to collectively negotiate in good faith a protective order 13 governing the production of source code. 14 (d) Nothing contained in this Order is intended to or shall serve to limit a Party’s right 15 to conduct a review of documents, electronically stored information or information (including 16 metadata) for relevance, responsiveness and/or segregation of privileged or protected information 17 before production. 18 2. DEFINITIONS 19 (a) “Discovery Material” means all items or information, including from any non-party, 20 regardless of the medium or manner generated, stored, or maintained (including, among other 21 things, testimony, transcripts, or tangible things) that are produced, disclosed, or generated in 22 connection with discovery in this case. 23 (b) “Outside Counsel” means (i) outside counsel who appear on the pleadings as counsel 24 for a Party and (ii) partners, associates, and staff of such counsel to whom it is reasonably necessary 25 to disclose the information for this litigation. 26 (c) “Party” means any party to this case, including all of its officers, directors, 27 employees, consultants, vendors, retained experts, and Outside Counsel and their support staffs. 1 (d) “Producing Party” means any Party or non-party that discloses or produces any 2 Discovery Material in this case. 3 (e) “Protected Material” means any Discovery Material that is designated as 4 “CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” as provided for in this 5 Order. Protected material shall include: (a) information prohibited from disclosure by statute; (b) 6 confidential prior settlement agreements between the parties and the EEOC and/or NERC; (c) 7 personal information of current or former employees of Defendant (such as addresses, telephone 8 numbers, birth dates, marital status, and dependent status); (d) financial information of the 9 Defendant, including, but not limited to payroll records, tax returns, financial statements, banking 10 records, and electronic data containing financial information and/or compensation or pay plans or 11 scales; (e) confidential proprietary and/or competitive business and gaming information; (f) trade 12 secrets; (g) performance projections; (h) business strategies; and (i) confidential proprietary 13 information about affiliates, parents, subsidiaries and third-parties with whom the parties to this 14 action have or have had business relationships. Protected Material shall not include: (i) advertising 15 materials that have been actually published or publicly disseminated; and (ii) materials that show 16 on their face they have been disseminated to the public. 17 (f) “Receiving Party” means any Party who receives Discovery Material from a 18 Producing Party. 19 3. COMPUTATION OF TIME 20 The computation of any period of time prescribed or allowed by this Order shall be 21 governed by the provisions for computing time set forth in the Federal Rules of Civil Procedure. 22 4. SCOPE 23 (a) The protections conferred by this Order cover not only Discovery Material governed 24 by this Order as addressed herein, but also any information copied or extracted therefrom, as well 25 as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or 26 presentations by Parties or their counsel in court or in other settings that might reveal Protected 27 Material. 1 (b) Nothing in this Protective Order shall prevent or restrict a Producing Party’s own 2 disclosure or use of its own Protected Material for any purpose, and nothing in this Order shall 3 preclude any Producing Party from showing its Protected Material to an individual who prepared 4 the Protected Material. 5 (c) Nothing in this Order shall be construed to prejudice any Party’s right to use any 6 Protected Material in court or in any court filing with the consent of the Producing Party or by order 7 of the Court. 8 (d) This Order is without prejudice to the right of any Party to seek further or additional 9 protection of any Discovery Material or to modify this Order in any way, including, without 10 limitation, an order that certain matter not be produced at all. 11 5. DURATION 12 Even after the termination of this case, the confidentiality obligations imposed by this Order 13 shall remain in effect until a Producing Party agrees otherwise in writing or a court order otherwise 14 directs. 15 6. ACCESS TO AND USE OF PROTECTED MATERIAL 16 (a) Basic Principles. All Discovery Material shall be used solely for this case or any 17 related appellate proceeding, and not for any other purpose whatsoever, including without limitation 18 any other litigation, patent prosecution or acquisition, patent reexamination or reissue proceedings, 19 or any business or competitive purpose or function. Protected Material shall not be distributed, 20 disclosed or made available to anyone except as expressly provided in this Order. 21 (b) Secure Storage, No Export. Protected Material must be stored and maintained by a 22 Receiving Party at a location in the United States and in a secure manner that ensures that access is 23 limited to the persons authorized under this Order. To ensure compliance with applicable United 24 States Export Administration Regulations, Protected Material may not be physically exported 25 outside the United States or released to any foreign national (even if within the United States). 26 (c) Legal Advice Based on Protected Material. Nothing in this Protective Order shall be 27 construed to prevent counsel from advising their clients with respect to this case based in whole or 1 in part upon Protected Materials, provided counsel does not disclose the Protected Material itself 2 except as provided in this Order. 3 (d) Limitations. Nothing in this Order shall restrict in any way a Producing Party’s use 4 or disclosure of its own Protected Material. Nothing in this Order shall restrict in any way the use 5 or disclosure of Discovery Material by a Receiving Party: (i) that is or has become publicly known 6 through no fault of the Receiving Party; (ii) that is lawfully acquired by or known to the Receiving 7 Party independent of the Producing Party; (iii) previously produced, disclosed and/or provided by 8 the Producing Party to the Receiving Party or a non-party without an obligation of confidentiality 9 and not by inadvertence or mistake; (iv) with the consent of the Producing Party; or (v) pursuant 10 to order of the Court. 11 7. DESIGNATING PROTECTED MATERIAL 12 (a) Available Designations. Any Producing Party may designate Discovery Material 13 with any of the following designations, provided that it meets the requirements for such 14 designations as provided for herein: “CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS’ 15 EYES ONLY.” 16 (b) Written Discovery and Documents and Tangible Things. Written discovery, 17 documents (which include “electronically stored information,” as that phrase is used in Federal 18 Rules of Civil Procedure 34), and tangible things that meet the requirements for confidentiality may 19 be so designated by placing the appropriate designation on every page of the written material prior 20 to production. For digital files being produced, the Producing Party may mark each viewable page 21 or image with the appropriate designation, and mark the medium, container, and/or communication 22 in which the digital files were contained. In the event that original documents are produced for 23 inspection, the original documents shall be presumed “CONFIDENTIAL – ATTORNEYS’ EYES 24 ONLY” during the inspection and re-designated, as appropriate during the copying process. 25 (c) Native Files. Where electronic files and documents are produced in native electronic 26 format, such electronic files and documents shall be designated for protection under this Order by 27 appending to the file names or designators information indicating whether the file contains 1 any other reasonable method for so designating Protected Materials produced in electronic format. 2 When electronic files or documents are printed for use at deposition, in a court proceeding, or for 3 provision in printed form to an expert or consultant, the party printing the electronic files or 4 documents shall affix a legend to the printed document corresponding to the designation of the 5 Producing Party and including the production number and designation associated with the native 6 file. No one shall seek to use in this litigation a .tiff, .pdf or other image format version of a 7 document produced in native file format without first (1) providing a copy of the image format 8 version to the Producing Party so that the Producing Party can review the image to ensure that no 9 information has been altered, and (2) obtaining the consent of the Producing Party, which consent 10 shall not be unreasonably withheld. 11 (d) Depositions and Testimony. Parties or testifying persons or entities may designate 12 depositions and other testimony with the appropriate designation by indicating on the record at the 13 time the testimony is given or by sending written notice of how portions of the transcript of the 14 testimony is designated within thirty (30) days of release/ availability of the transcript of the 15 testimony, or for transcripts already released/ available at the time of entry of this Order, within 16 thirty (30) days of entry of this Order. Any Party that wishes to disclose the transcript, or 17 information contained therein prior to the end of the thirty (30) day period, may provide written 18 notice of its intent to treat the transcript as non-confidential, after which time, any Party that wants 19 to maintain any portion of the transcript as confidential must designate the confidential portions 20 within seven (7) days, or else the transcript may be treated as non-confidential. 21 Any Protected Material that is used in the taking of a deposition shall remain subject to the 22 provisions of this Protective Order, along with the transcript pages of the deposition testimony 23 dealing with such Protected Material. In such cases the court reporter shall be informed of this 24 Protective Order and shall be required to operate in a manner consistent with this Protective Order. 25 In the event the deposition is videotaped, the original and all copies of the videotape shall be marked 26 by the video technician to indicate that the contents of the videotape are subject to this Protective 27 Order, substantially along the lines of “This videotape contains confidential testimony used in this 1 to the terms of the operative Protective Order in this matter or pursuant to written stipulation of 2 the parties.” Counsel for any Producing Party shall have the right to exclude from oral 3 depositions, other than the deponent, deponent’s counsel, the reporter and videographer (if any), 4 any person who is not authorized by this Protective Order to receive or access Protected 5 Material based on the designation of such Protected Material. Such right of exclusion shall be 6 applicable only during periods of examination or testimony regarding such Protected Material. 7 8. DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL” 8 (a) A Producing Party may designate Discovery Material as “CONFIDENTIAL” if it 9 contains or reflects confidential, proprietary, and/or commercially sensitive information, as 10 specifically set forth in the definition of “Protected Material” in Section 2(e) herein. 11 (b) Unless otherwise ordered by the Court, Discovery Material designated as 12 “CONFIDENTIAL” may be disclosed only to the following: 13 (i) The Receiving Party’s Outside Counsel, such counsel’s immediate paralegals and 14 staff, and any copying or clerical litigation support services working at the direction of such counsel, 15 paralegals, and staff; 16 (ii) Not more than five (5) representatives of the Receiving Party who are officers or 17 employees of the Receiving Party, who may be, but need not be, in-house counsel for the Receiving 18 Party, as well as their immediate paralegals and staff, to whom disclosure is reasonably necessary 19 for this case, provided that each such person has agreed to be bound by the provisions of the 20 Protective Order by signing a copy of Exhibit A; and 21 (iii) Any outside expert or consultant retained by the Receiving Party to assist in this 22 action, provided that disclosure is only to the extent necessary to perform such work; and provided 23 that: (a) such expert or consultant has agreed to be bound by the provisions of the Protective 24 Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current officer, director, 25 or employee of a Party or of a competitor of a Party, nor anticipated at the time of retention to 26 become an officer, director or employee of a Party or of a competitor of a Party; and (c) such expert 27 or consultant accesses the materials in the United States only, and does not transport them to or 1 (iv) Court reporters, stenographers and videographers retained to record testimony taken 2 in this action; 3 (v) The Court, jury, and court personnel; 4 (vi) Graphics, translation, design, and/or trial consulting personnel, having first agreed 5 to be bound by the provisions of the Protective Order by signing a copy of Exhibit A; 6 (vii) Mock jurors who have signed an undertaking or agreement agreeing not to publicly 7 disclose Protected Material and to keep any information concerning Protected Material 8 confidential; 9 (viii) Any mediator who is assigned to hear this matter, and his or her staff, subject to their 10 agreement to maintain confidentiality to the same degree as required by this Protective Order; and 11 (ix) Any other person with the prior written consent of the Producing Party, who has 12 agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A. 13 9. DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL – 14 ATTORNEYS’ EYES ONLY” 15 (a) A Producing Party may designate Discovery Material as “CONFIDENTIAL – 16 ATTORNEYS’ EYES ONLY” if it qualifies as Protected Material and contains or reflects 17 information that is extremely confidential and/or sensitive in nature and the Producing Party 18 reasonably believes that the disclosure of such Discovery Material is likely to cause economic harm 19 or significant competitive disadvantage to the Producing Party. The Parties agree that the following 20 information, if non-public, shall be presumed to merit the “CONFIDENTIAL – ATTORNEYS’ 21 EYES ONLY” designation: trade secrets, pricing information, financial data, sales information, 22 sales or marketing forecasts or plans, business plans, sales or marketing strategy, product 23 development information, engineering documents, testing documents, personal identifying 24 employee information, and other non-public information of similar competitive and business 25 sensitivity. 26 (b) Unless otherwise ordered by the Court, Discovery Material designated as 27 “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” may be disclosed only to: 1 (i) The Receiving Party’s Outside Counsel, provided that such Outside Counsel is not 2 involved in competitive decision-making, as defined by U.S. Steel v. United States, 730 F.2d 1465, 3 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party, and such Outside 4 Counsel’s immediate paralegals and staff, and any copying or clerical litigation support services 5 working at the direction of such counsel, paralegals, and staff; 6 (ii) Any outside expert or consultant retained by the Receiving Party to assist in this 7 action, provided that disclosure is only to the extent necessary to perform such work; and provided 8 that: (a) such expert or consultant has agreed to be bound by the provisions of the Protective Order 9 by signing a copy of Exhibit A; (b) such expert or consultant is not a current officer, director, or 10 employee of a Party or of a competitor of a Party, nor anticipated at the time of retention to become 11 an officer, director, or employee of a Party or of a competitor of a Party; (c) such expert or 12 consultant is not involved in competitive decision-making, as defined by U.S. Steel v. United States, 13 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party; and (d) 14 such expert or consultant accesses the materials in the United States only, and does not transport 15 them to or access them from any foreign jurisdiction; 16 (iii) Court reporters, stenographers and videographers retained to record testimony taken 17 in this action; 18 (iv) The Court, jury, and court personnel; 19 (v) Graphics, translation, design, and/or trial consulting personnel, having first agreed 20 to be bound by the provisions of the Protective Order by signing a copy of Exhibit A; 21 (vi) Any mediator who is assigned to hear this matter, and his or her staff, subject to their 22 agreement to maintain confidentiality to the same degree as required by this Protective Order; and 23 (vii) Any other person with the prior written consent of the Producing Party, who has 24 agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A. 25 10. CHALLENGING DESIGNATIONS OF PROTECTED MATERIAL 26 (a) A Party shall not be obligated to challenge the propriety of any designation of 27 Discovery Material under this Order at the time the designation is made, and a failure to do so shall 1 (b) Any challenge to a designation of Discovery Material under this Order shall be 2 written, shall be served on outside counsel for the Producing Party, shall particularly identify the 3 documents or information that the Receiving Party contends should be differently designated, and 4 shall state the grounds for the objection. Thereafter, further protection of such material shall be 5 resolved in accordance with the following procedures: 6 (i) Within seven (7) days of the Receiving Party lodging an objection, the Producing 7 Party shall have the burden of initiating a conference either in person, via videoconference or by 8 telephone with the Objecting Party lodging the objection (as well as any other interested party) in 9 a good faith effort to resolve the dispute. The Producing Party shall have the burden of justifying 10 the disputed designation. Any failure by the Producing Party to initiate the conference referenced 11 herein (short of a lack of response and cooperation from the Objecting Party to conduct the 12 conference) shall result in a waiver of the designation of Protected Material which was being 13 objected upon; 14 (ii) If the parties cannot resolve an objection to designated Protected Material, the 15 Producing Party may file and serve a motion for protective order within 14 days of the parties 16 agreeing that the meet and confer process will not resolve their dispute. Failure by the Producing 17 Party to make such a motion within that time period will be considered a waiver of the 18 confidentiality designation being challenged. The Parties’ entry into this Order shall not preclude 19 or prejudice either Party from arguing for or against any designation, establish any presumption 20 that a particular designation is valid, or alter the burden of proof that would otherwise apply in a 21 dispute over discovery or disclosure of information; 22 (iii) Notwithstanding any challenge to a designation, the Discovery Material in question 23 shall continue to be treated as designated under this Order until one of the following occurs: (a) the 24 Party who designated the Discovery Material in question withdraws such designation in writing; 25 or (b) the Court rules that the Discovery Material in question is not entitled to the designation. 26 11. DATA SECURITY 27 (a) Receiving Party shall implement an information security management system 1 physical, and technical safeguards, and network security and encryption technologies governed by 2 written policies and procedures, which shall comply with at least one of the following standards: 3 (a) the International Organization for Standardization’s 27001 standard; (b) the National Institute 4 of Standards and Technology’s (NIST) 800-53 standard; (c) the Center for Internet Security’s 5 Critical Security Controls, Version 8; or (d) the most recently published version of another widely 6 recognized industry or government cybersecurity framework. The Parties shall implement multi- 7 factor authentication1 for any access to Protected Materials and implement encryption of all 8 Protected Materials in transit outside of network(s) covered by the Party’s ISMS (and at rest, where 9 reasonably practical). 10 (b) If Receiving Party becomes aware of any unauthorized access, use, or disclosure of 11 Protected Materials or devices containing Protected Materials (“Data Breach”), Receiving Party 12 shall promptly, and in no case later than 48 hours after learning of the Data Breach, notify Producing 13 Party in writing and fully cooperate with Producing Party as may be reasonably necessary to (a) 14 determine the source, extent, or methodology of such Data Breach, (b) to recover or to protect 15 Protected Materials, and/or (c) to satisfy Producing Party’s legal, contractual, or other obligations. 16 For the avoidance of doubt, notification obligations under this Section arise when the Receiving 17 Party both (a) learns of a Data Breach, and (b) learns that any of the Producing Party’s Protected 18 Materials are potentially subject to the Data Breach. The notification obligations set forth in this 19 Section do not run from the time the Data Breach itself. 20 (c) Receiving Party shall promptly comply with Producing Party’s reasonable request(s) 21 that Receiving Party investigate, remediate, and mitigate the effects of a Data Breach and any 22 potential recurrence and take all reasonable steps to terminate and prevent unauthorized access. 23 Receiving Party shall promptly provide any information that is reasonably requested by Producing 24 25 1 Multi-factor authentication is “[a]uthentication using two or more factors to achieve authentication. Factors are (i) 26 something you know (e.g., password/personal identification number); (ii) something you have (e.g., cryptographic identification device, token); and (iii) something you are (e.g., biometric).” National Institute of Standards and 27 Technology (NIST), Special Publication SP 1800-12, Appendix B at 63, available at https://nvlpubs.nist.gov/nistpubs/SpecialPublications/ NIST.SP.1800-12.pdf; see also NIST, Special Publication 800- 1 Party and that relates to any such Data Breach, including but not limited to, the Protected Material 2 that was potentially impacted, underlying vulnerabilities or flaws that led to the Data Breach, start 3 or end date of the Data Breach, date of discovery, and specific actions taken to contain, mitigate, 4 or remediate the Data Breach. For the avoidance of doubt, nothing in this Section 9 is intended to 5 create a waiver of any applicable privileges, including privileges applicable to a Party’s 6 investigation and remediation of a Data Breach. 7 (d) If Receiving Party is aware of a Data Breach, the Parties shall meet and confer in 8 good faith regarding any adjustments that should be made to the discovery process and discovery 9 schedule in this action, potentially including but not limited to (1) additional security measures to 10 protect Discovery Material; (2) a stay or extension of discovery pending investigation of a Data 11 Breach and/or implementation of additional security measures; and (3) a sworn assurance that 12 Discovery Materials will be handled in the future only by entities not impacted by the Data 13 Breach. Further, the Receiving Party shall submit to reasonable discovery concerning the Data 14 Breach. 15 (e) In the event of a Data Breach affecting Protected Material of Designating Party, at 16 Designating Party’s request, Receiving Party within 10 business days shall provide a copy of its 17 most recent ISMS policies and procedures that relate to the safeguarding of Protected Materials and 18 that preceded the Data Breach. 19 (f) Receiving Party shall comply with this Section 11 and any applicable security, 20 privacy, data protection, or breach notification laws, rules, regulations, or directives (“Applicable 21 Data Law”). If Receiving Party is uncertain whether a particular practice would conform with the 22 requirements of this Section 11, it may meet and confer with the other Parties; if any Party believes 23 that the proposed practice would violate this Protective Order, it may, within 10 business days, 24 bring the dispute to the Court. The Party challenging the proposed practice would bear the burden 25 of demonstrating a violation. 26 12. SUBPOENAS OR COURT ORDERS 27 If at any time Protected Material is subpoenaed by any court, arbitral, administrative, or 1 prompt written notice thereof to every Party who has produced such Discovery Material and to its 2 counsel and shall provide each such Party with an opportunity to move for a protective order 3 regarding the production of Protected Materials implicated by the subpoena. 4 13. FILING PROTECTED MATERIAL 5 (a) Absent written permission from the Producing Party or a court Order secured after 6 appropriate notice to all interested persons, a Receiving Party may not file or disclose in the public 7 record any Protected Material. 8 (b) If a party wishes to use Protected Material in any document filed with the Court, the 9 following procedures apply. To the extent possible, counsel shall submit, along with any document See order issued nder seal, a joint motion reciting the reasons for sealing the document consistent with the concurrently herewith 11 p ures set forth in LR IA 10 5 of the Local Rules for United States District Court, District of 12 Nevada and Kamakana v. City & County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). Otherwise, 13 consistent with the procedure set forth in LR IA 10 5 and Kamakana, 447 F.3d 1172, the filing 14 party must file a motion seeking leave of the Court to file Under Seal any Protected Material. Any 15 Party who filed a joint motion or motion requesting permission to file under seal any Protected 16 Material is authorized to file under seal with the Court any brief, document or materials that are 17 designated as Protected Material under this Order. 18 14. INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL 19 (a) The inadvertent production by a Party of Discovery Material subject to the attorney- 20 client privilege, work-product protection, or any other applicable privilege or protection, despite 21 the Producing Party’s reasonable efforts to prescreen such Discovery Material prior to production, 22 will not waive the applicable privilege and/or protection if a request for return of such inadvertently 23 produced Discovery Material is made promptly after the Producing Party learns of its inadvertent 24 production. This Order shall be interpreted to provide the maximum protection allowed by Federal 25 Rule of Evidence 502(d). 26 (b) Upon a request from any Producing Party who has inadvertently produced Discovery 27 Material that it believes is privileged and/or protected, each Receiving Party shall immediately return 1 pages containing privileged markings by the Receiving Party which shall instead be destroyed and 2 certified as such by the Receiving Party to the Producing Party. 3 (c) Nothing herein shall prevent the Receiving Party from preparing a record for its own 4 use containing the date, author, addresses, and topic of the inadvertently produced Discovery Material 5 and such other information as is reasonably necessary to identify the Discovery Material and describe 6 its nature to the Court in any motion to compel production of the Discovery Material. 7 15. INADVERTENT FAILURE TO DESIGNATE PROPERLY 8 (a) The inadvertent failure by a Producing Party to designate Discovery Material as 9 Protected Material with one of the designations provided for under this Order shall not waive any 10 such designation provided that the Producing Party notifies all Receiving Parties that such 11 Discovery Material is protected under one of the categories of this Order within fourteen (14) days 12 of the Producing Party learning of the inadvertent failure to designate. The Producing Party shall 13 reproduce the Protected Material with the correct confidentiality designation within seven (7) days 14 upon its notification to the Receiving Parties. Upon receiving the Protected Material with the 15 correct confidentiality designation, the Receiving Parties shall return or securely destroy, at the 16 Producing Party’s option, all Discovery Material that was not designated properly. 17 (b) A Receiving Party shall not be in breach of this Order for any use of such Discovery 18 Material before the Receiving Party receives such notice that such Discovery Material is protected 19 under one of the categories of this Order, unless an objectively reasonable person would have 20 realized that the Discovery Material should have been appropriately designated with a 21 confidentiality designation under this Order. Once a Receiving Party has received notification of 22 the correct confidentiality designation for the Protected Material with the correct confidentiality 23 designation, the Receiving Party shall treat such Discovery Material at the appropriately designated 24 level pursuant to the terms of this Order. 25 16. INADVERTENT DISCLOSURE NOT AUTHORIZED BY ORDER 26 (a) In the event of a disclosure of any Discovery Material pursuant to this Order to any 27 person or persons not authorized to receive such disclosure under this Protective Order, the Party 1 immediately notify counsel for the Producing Party whose Discovery Material has been disclosed 2 and provide to such counsel all known relevant information concerning the nature and 3 circumstances of the disclosure. The responsible disclosing Party shall also promptly take all 4 reasonable measures to retrieve the improperly disclosed Discovery Material and to ensure that no 5 further or greater unauthorized disclosure and/or use thereof is made. 6 (b) Unauthorized or inadvertent disclosure does not change the status of Discovery 7 Material or waive the right to hold the disclosed document or information as Protected. 8 17. FINAL DISPOSITION 9 (a) Not later than ninety (90) days after the Final Disposition of this case, and upon 10 request of counsel, each Party shall make reasonable efforts to return all Discovery Material of a 11 Producing Party to the respective Outside Counsel of the Producing Party or make reasonable 12 efforts to destroy such Material, at the option of the Producing Party. For purposes of this Order, 13 “Final Disposition” occurs after an order, mandate, or dismissal finally terminating the above- 14 captioned action with prejudice, including all appeals. 15 (b) All Parties that have received any such Discovery Material shall certify in writing 16 upon request that all such materials have been returned to the respective Outside Counsel of the 17 Producing Party or destroyed. 18 (c) Notwithstanding any of the foregoing, or anything in this protective order to the contrary, 19 this provision will not apply to court filings or pleadings, briefs, or correspondence maintained by 20 counsel in the ordinary course of business. Further, nothing in this protective order shall have any 21 impact on counsel’s requirement and/or obligation to preserve client files to the extent required by 22 the Nevada Rules of Professional Conduct or otherwise under Nevada law. Nor shall anyone 23 subject to this protective order have any obligation to attempt to destroy backup files, cached 24 versions and/or data on back-up versions of computer hard drives. 25 18. DISCOVERY FROM EXPERTS OR CONSULTANTS 26 (a) Absent good cause, drafts of reports of testifying experts, and reports and other 27 written materials, including drafts, of consulting experts, shall not be discoverable pursuant to 1 (b) Reports and materials exempt from discovery under the foregoing Paragraph shall 2 be treated as attorney work product for the purposes of this case and Protective Order. 3 19. MISCELLANEOUS 4 (a) Right to Further Relief. Nothing in this Order abridges the right of any person to 5 seek its modification by the Court in the future. By stipulating to this Order, the Parties do not 6 waive the right to argue that certain material may require additional or different confidentiality 7 protections than those set forth herein. 8 (b) Termination of Matter and Retention of Jurisdiction. The Parties agree that the terms 9 of this Protective Order shall survive and remain in effect after the Final Determination of the 10 above-captioned matter. The Court shall retain jurisdiction after Final Determination of this matter 11 to hear and resolve any disputes arising out of this Protective Order. 12 (c) Successors. This Order shall be binding upon the Parties hereto, their attorneys, and 13 their successors, executors, personal representatives, administrators, heirs, legal representatives, 14 assigns, subsidiaries, divisions, employees, agents, retained consultants and experts, and any 15 persons or organizations over which they have direct control. 16 (d) Right to Assert Other Objections. By stipulating to the entry of this Protective Order, 17 no Party waives any right it otherwise would have to object to disclosing or producing any 18 information or item. Similarly, no Party waives any right to object on any ground to use in evidence 19 of any of the material covered by this Protective Order. This Order shall not constitute a waiver of 20 the right of any Party to claim in this action or otherwise that any Discovery Material, or any portion 21 thereof, is privileged or otherwise non-discoverable, or is not admissible in evidence in this action 22 or any other proceeding. 23 (e) Burdens of Proof. Notwithstanding anything to the contrary above, nothing in this 24 Protective Order shall be construed to change the burdens of proof or legal standards applicable in 25 disputes regarding whether particular Discovery Material is confidential, which level of 26 confidentiality is appropriate, whether disclosure should be restricted, and if so, what restrictions 27 should apply. 1 (f) Modification by Court. This Order is subject to further court order based upon 2 public policy or other considerations, and the Court may modify this Order sua sponte in the 3 interests of justice. The U.S. District Court of Nevada is responsible for the interpretation and 4 enforcement of this Order. All disputes concerning Protected Material, however designated, 5 produced under the protection of this Order shall be resolved by the U.S. District Court of Nevada. 6 / / / 7 / / / 8 / / / 9 / / / 10 / / / 11 / / / 12 / / / 13 / / / 14 / / / 15 16 17 18 19 20 21 22 23 24 25 26 27 1 (g) Discovery Rules Remain Unchanged. Nothing herein shall alter or change in am 2 || way the discovery provisions of the U.S. District Court of Nevada or the Court’s own orders 3 || Identification of any individual pursuant to this Protective Order does not make that individua 4 || available for deposition or any other form of discovery outside of the restrictions and procedure 5 || of the U.S. District Court of Nevada or the Court’s own orders. 6 MAIER GUTIERREZ & ASSOCIATES JACKSON LEWIS P.C. 7 || 4s/ Danielle J. Barraza /s/ Cayla J. Witty JASON R. MAIER, ESQ. DEVERIE J. CHRISTENSEN, ESQ. 8 Nevada Bar No. 8557 Nevada Bar No. 6596 9 DANIELLE J. BARRAZA, ESQ. CAYLA J. WITTY, ESQ. Nevada Bar No. 13822 Nevada Bar No. 12897 10 || 8816 Spanish Ridge Avenue 300 S. Fourth Street, Suite 900 Las Vegas, Nevada 89148 Las Vegas, Nevada 89101 11 Attorneys for Plaintiff Attorneys for Defendant 12 || Jennifer Bandiero Wynn Las Vegas, LLC 13 14 ORDER 15 . Pursuant to Federal Rule of Civil Procedure 26(c), the Court finds good cause for th 16 following Stipulated Protective Order Regarding the Disclosure and Use of Discovery Material 17 (“Order” or “Protective Order’). 18 IT IS SO ORDERED: 19 1 United State District ourt-hadge United States Magistrate Judge 22 23 24 25 26 27 28 18 1 EXHIBIT A - Stipulated Protective Order 2 3 I, , acknowledge and declare that I have received a 4 copy of the Protective Order (“Order”) in Jessica Bandiero v. Wynn Las Vegas, LLC, U.S. 5 District Court of Nevada, Case No. 2:23-cv-02115-PG-NJK. Having read and understood the 6 terms of the Order, I agree to be bound by the terms of the Order and consent to the jurisdiction 7 of said Court for the purpose of any proceeding to enforce the terms of the Order. 8 9 Name of individual: 10 Present occupation/job description: 11 12 13 14 15 Name of Company or Firm: 16 Address: 17 18 Dated: 19 20 Signature: _______________________________ 21 Printed Name: ___________________________ 22 23 24 25 26 27