Burris v. Albertson's LLC ( 2024 )

1 LEW BRANDON, JR., ESQ. Nevada Bar No. 5880 RYAN VENCI, ESQ. 3 Nevada Bar No. 7547 KRISTEN MOLLOY, ESQ. 4 Nevada Bar No. 14927 BRANDON | SMERBER LAW FIRM 5 139 E. Warm Springs Road = 6 Las Vegas, Nevada 89119 (702) 380-0007 2k 7 (702) 380-2964 — facsimile ae 8 L brandon@bsnv.law 8 |/rvenci@bsnv.law _ || &mollov@bsnv.law 2s ALBERTSON'S LLC £52 10 UNITED STATES DISTRICT COURT 22. U DISTRICT OF NEVADA ~ 2 WALLACE BURRIS, individually, CASE NO.: 2:24-cv-1651-CDS-MDC 13 Plaintiff, 14 STIPULATED PROTECTIVE ORDER vs. 15 = = 16 ALBERTSON’S LLC; DEVIN EVERETT; DY DOE MANAGER; DOES 1-20, inclusive; 7 17 and ROE BUSINESS ENTITIES 1-20, inclusive, with the following procedures: 6 a) “Confidential” Documents or Information. = z Any Party may designate any documents, records, reports, video tapes, tangible items, | 2 a 2 8 information as “Confidential.” Upon a designation of “Confidential,” the Parties shall treat ar z = 9 designated document, record, report, video tape, tangible item, or information as Confidential ar : z 10° |] shall only use such document, record, report, video tape, tangible item, or information solely f z |) the prosecution or defense of this matter. ~ 12 b) Time of Designation 13 Unless otherwise agreed between counsel for the Parties, the designation of Confidenti '4 || Documents or Information shall be made at the time of the production of documents, record 15 reports, video tapes, tangible items, or information and shall be labeled on every page designate 2 16 |! such that labeling does not affect the readability of the document. 7 7 c) Manner of Designation 18 The designation of Confidential Documents or Information shall be made in the followir 19 |) manner: 7. 20 1. For documents, by placing the notation “Confidential” on each page of such □□□□□□□□ 21 2. For tangible items, including any video tapes, documents, or information produced « ae 22 || magnetic disks or other computer related media, by placing the notation “Confidential” on tl 23 || object and, if applicable, on the container thereof or if such are not practicable, as otherwi 24 || agreed by the Parties. In the event a Party generates any “hard copy” or printout from ar 25 |! “Confidential Material,” that Party must immediately stamp each page “Confidential,” and tl 26 || hard copy or printout shall be treated as Confidential Information pursuant to this Stipulate 27 || Protective Order. 28 |... d) Retroactive Designation 1. Inadvertent production of any Confidential Documents or Information without 3 designation of confidentiality will not be deemed to waive a later claim as to confidentiality 4 privilege, or prevent the Party claiming confidentiality from re-designating such documents | > information as “Confidential” promptly after discovery of the inadvertent production. 6 2. Within a reasonable time after production, a Party may retroactively designate ( = z withdraw a designation) of Confidential Documents or Information, regarding any material th 2 a 2 8 it has produced, provided however, that such retroactive designation (or withdrawal) shall be z = 9 accordance with the terms of this Order. Such retroactive designation (or withdrawal) shall | : z 10 accomplished by notifying counsel for the non-designating Parties in writing of such retroactin z u designation (or withdrawal). Upon receipt of any such written re-designation, counsel (1) she 2 || not make any further disclosure or communication of such retroactively designated materi 13 except as provided for in this Order; (11) shall take reasonable steps to notify all persons □□□□ 14 ll to have possession of any retroactively designated material of the effect of such re-designatic 15 || under this Order; and (111) shall take reasonable steps to procure all copies of such retroactive 2 16 designated material from any persons known to have possession of any such retroactive 7 17 designated material who are not entitled to receipt under this Order. 18 e) Resolution of Disputes Regarding Designation 19 If a Party, at any time, wishes to have the “Confidential” designation of any particul 7. 20 || Confidential Documents or Information removed or changed, that Party shall first request 21 |) writing that the Party having made the designation at issue change its designation. Thereafte ae 22 || the Parties shall make good faith efforts to resolve the dispute. If the designating Party refuses 23 || agree to remove or change the designation, then the Party that is refusing that the designation | 24 || so removed must make a motion before this Court for a protective order. The Party moving f 25 || the protective order shall have the burden of proving that such particular Confidential Docume 26 || or Information is/are properly designated as “Confidential” pursuant to infra Part III. At all tim 27 || during the process of challenging a designation, the Parties shall treat the Confidential Documen 28 or Information as originally designated until a change is agreed to or the motion is decided by tl Court and written notice of such decision is served on the Parties. 3 Any motion filed with respect to this Stipulated Protective Order or documents labels 4 “Confidential” must comply with the local rules of the United States District Court for the Distri ° of Nevada. ° f) Designation of Third Party Documents, = z Documents and/or information produced by a third party in response to a subpoena □ 2 a 2 8 during deposition in the course of this litigation may involve receipt of information, document z = 9 things or testimony which include, contain or comprise protected information that may or □□ : z 10 || not be appropriate for “Confidential” designation under this Order. Unless otherwise agreed z u writing between counsel for the parties, documents and information so produced by a third par 12 || shall be treated as follows: First of all, all such documents and information shall automatical |I be deemed to be and shall be treated as “Confidential” for twenty (20) business days followir 14 | their actual receipt by both counsel for Plaintiff and counsel for Defendant in this action, in ord 15 ||to enable each such counsel to determine whether in their view any protected information 2 16 || embodied therein. Ifno designation of the information as “Confidential” by the Designating Par 7 17 | is received by a non-Designating Party within twenty (20) business days after production, th O 18 || the information will not be protected by this Protective Order except pursuant to subseque 19 |) designation by a party hereto or pursuant to a subsequent agreement of the parties or Court orde 7. 20 || if however a written designation of “Confidential” is made by a Designating Party and is receive 21 |! by the non-Designating Party within twenty (20) business days after production of documents | ae 22 || information by the non-party, then the information will be subject to this Protective Order a1 23 || will be deemed to be “Confidential” (as requested by the Designating Party); provided, howeve 24 || that the designation may be challenged as any such designation. 25 Lastly, to the extent third party documents or information contains information that 26 || confidential and/or proprietary to the third party, the third party can avail itself of the protectio 27 || set forth in this Order and designate documents and/or information it produces accordingly t 28 || executing this Order and agreeing to be bound by its terms. 3. Persons to Whom Confidential Documents or Information may be Disclosed a) Disclosure of Documents or Information Designated as “Confidential” 3 Documents or Information designated as “Confidential” may be disclosed and copies ms 4 be provided only to: > 1. Counsel of record and their personnel; 6 2. Expert witnesses or consultants retained by the Parties or their respective counsel = z connection with this action who have complied with infra Section III.C.; 2 a 2 8 3. Outside court reporting services and court reporters as may be reasonably necessary z = 9 connection with the preparation or conduct of this action; : z 10 4. This Court and its personnel, or any other tribunal of competent jurisdiction havi z N11 |) involvement in this matter and its personnel; ~ 12 5. Any mediator or arbitrator selected by the Parties to mediate or arbitrate this action; ar 13 6. Representatives of the Parties. 4 b) Additional Authorized Disclosure of Documents or Information Designate 15 as “Confidential” 2 16 Notwithstanding anything to the contrary in supra Section III.A., particular Confidenti 7 17 || Documents or Information that have been designated as “Confidential” may be disclosed ar 18 copies may be provided: 19 1. To persons who are explicitly named on the document as the authors or addressees or 7. 20 || persons who may be shown to be an author or recipient of any particular document; 21 2. To any other persons with the prior written consent of the designating Party; 22 3. To any other persons with the prior authorization of this Court or any other tribunal | 23 || competent jurisdiction having involvement in this matter; and 24 4. Ifa document designated as “Confidential” refers to the conduct or affairs of a potenti 25 |! witness, the Party’s counsel of record may and shall discuss such conduct or affairs with suc 26 |! person without revealing the existence of the document, or its authors or source. 27 WI. 28 |... c) Disclosure to Experts or Consultants Prior to disclosing or providing copies of any Confidential Documents or Information 3 any expert or consultant pursuant to supra Sections III.A. or III-B., the Parties shall first obta 4 the agreement of the expert, consultant or anyone else to whom such disclosure will be □□□□□ > be bound by the terms of this Stipulated Protective Order. Specifically, the expert or consulta 6 shall acknowledge that, during the course of his or her retention, the expert or consultant mz = z 7 have access to, and become acquainted with Confidential Documents or Information, which a 2 a 2 8 regularly used in the operation of the businesses of the designating Party and in which tl z = 9 designating Party has an expectation of confidentiality. The expert or consultant shall agree n : z 10 |] to disclose such Confidential Documents or Information, directly or indirectly, to any person : z u entity not subject to this Stipulated Protective Order or use them in any way outside the specif scope of his/her retention as an expert witness in this action, or at any time thereafter. 13 d) Return of Confidential Documents or Information by Experts an \4 Consultants 15 Confidential Documents or Information disclosed to any expert or consultant may | 2 16 |! retained by such expert or consultant provided that such expert or consultant subsequent 7 17 destroys any and all copies of such Confidential Documents or Information upon the terminatic 18 |! of their engagement. 19 4. Use of Confidential Documents or Information 7. 20 a) Use of Confidential Documents or Information Generally 21 Confidential Documents or Information shall only be used by the Parties, their respectin ae 22 |! agents, and any other persons to whom such Confidential Documents or Information may | 23 || disclosed pursuant to this Stipulated Protective Order: (1) in this action; (2) as otherwi 24 || compelled by lawful process (provided the designating Party is given a reasonable notice | 25 || object); or (3) as otherwise required by law. Notwithstanding the foregoing, nothing in th 26 || Stipulated Protective Order shall prevent or limit the designating Party from disclosit 27 || Confidential Documents or Information they so designate. 28 b) Use of Confidential Documents or Information in the Conduct of this Actic 1. Confidential Documents or Information may be used by counsel for the non-designatit 3 Parties in good faith in connection with investigating this action, provided that the □□□□□□□□□ 4 Documents or Information are protected pursuant to the terms and conditions of this Stipulat ° Protective Order. 6 2. The terms ofthis Stipulated Protective Order do not apply to evidence presented at or f = z court proceedings and/or trial in this matter unless so designated by the Court. Any □□□□□□□□□ 2 a 2 8 measures relating to Confidential Documents or Information should be taken up with the judici z = 9 officer conducting the particular proceeding at the appropriate time. : z 10 3. Ifa Party seeks to file pleadings or other documents with this Court that contains anoth z u Party’s Confidential Documents or Information, it may do so only if: (a) the pleading and oth 12 || documents that contains another Party’s Confidential Documents or Information are filed und 13, |! seal in the manner prescribed by the Court; and/or (b) the filing Party informs the designatir 4 Party of such filing prior to the filing of such documents with the Court. 15 5. Return of Confidential Documents, Testimony, or Information 2 16 Upon written request after the final conclusion of this action, the Parties shall: 7 17 A. Return to the designating Party any and all Confidential Documents | 18 || Information so designated by that Party and all copies thereof in its possession, custody a1 19 |) control or otherwise destroy such documents; 7. 20 B. Ensure that all Confidential Documents or Information in the possession, custoc 21 |) or control of any permitted parties or third parties are returned to the designating Party or a ae 22 |! otherwise destroyed; and 23 C. Destroy all notes, memoranda or other documents that contain excerpts from a1 24 || of the Confidential Documents or Information. Notwithstanding the foregoing, attorney wor 25 |! product, attorney-client communications, and information derived from Confidential Documen 26 || or Information may be retained by the non-designating Party and its counsel. 27 WI. 28 |... 6. No Probative Value This Stipulated Protective Order shall not aggregate or diminish any contractual, statuto: 3 or other legal obligation or right of any party or person with respect to any Confidenti 4 Documents or Information. The fact that information is designated “Confidential” under tl > Stipulated Protective Order shall not be deemed to be determinative of what a trier of fact m: 6 determine to be confidential or proprietary. This Stipulated Protective Order shall be witho = z prejudice to the right of any party to bring information before this Court, regardless of (a) wheth 2 a 2 8 any particular material is or is not Confidential, or (b) whether any particular information « z = 9 material is or is not entitled to a greater or lesser degree of protection under the terms of th : z 10 Stipulated Protective Order, provided that in doing so, the party complies with the procedures s z □□ |) forth herein. The fact that any information is disclosed, used, or produced in any proceeding 12 Il this action shall not be offered in any other action or proceeding before this or any other Cow 13 agency or tribunal as evidence of or concerning whether or not such information is □□□□□□□□□ 14 ll confidential or proprietary. IS 7. No Implied Waiver of Admission 2 16 No party shall be obligated to challenge the proprietary nature of any designation | —_ 7 17 |) “Confidential” information, and the failure to do so shall not constitute a waiver or otherwi 18 preclude a subsequent challenge to the designation. 19 8. Modification of this Stipulated Protective Order 7. 20 The Parties hereto may modify the terms of this Stipulated Protective Order by furth 21 || stipulation. However, no modification by the parties shall have the force or effect of a court ord ae 22 |! unless the Court approves the modification. Alternatively, any party hereto may seek an order. 23 || this Court to modify the terms of this Stipulated Protective Order. Any motion seeking su: 24 || modification must be served upon all counsel of record and filed in accordance with this Court 25 || filing procedures. 26 |... 27 WI. 28 |... 9. Execution and Counterparts This Stipulated Protective Order may be executed in one or more counterparts, each | 3 which shall be deemed to be an original, but all of which together shall constitute one and tl same instrument. > Facsimile or electronic signatures shall be binding upon the Parties hereto and may | 6 submitted and considered as originals. = DATED this 13 day of September, 2024. DATED this 13" day of September, 2024 22% 8 ge = BRANDON | SMERBER LAW FIRM REX LAW Fes 9 Zz 10 /s/ Ryan Venci, Esq. /s/ Cory Rex, Esq. z 5 11 LEW BRANDON, JR., ESQ. CORY REX, ESQ. Nevada Bar No. 5880 Nevada Bar No. 10577 12 RYAN M. VENCI, ESQ. 170 S. Green Valley Pkwy., Ste. 300 3 Nevada Bar No. 7547 Henderson, Nevada 89012 rai KRISTEN MOLLOY, ESQ. Attorneys for Plaintiff, 14 || Nevada Bar No. 14927 WALTER BURRIS 139 E. Warm Springs Road 15 || Las Vegas, Nevada 89119 => Ss 6 Attorneys for Defendant, ST & ALBERTSON'S LLC —F 17 ORDER '8 || ITIS SO ORDERED the protective §=———— 19 order is Denied with leave to refile. “A party’s mere ‘confidential’ 7. 20 designation does not allow for such documents to be filed and maintained under seal. The a 9 a S 21 parties must file motions to seal in sf Ae wan accordance with Fed. R. Civ. P. 5.2 fn □□ ff pO 22 and LR IA 10-5, and must comply wt fA with the requirements of —_ 4 ff 23 . UNiLPED STATES WAGISTRATE UDGE Kamakana v. City & Cnty. of MLAXIMILIANO 2 COUVILLEER III 24 Honolulu, 447 F.3d 1172 (9th Cir. L é 2006) and its progeny when seeking 25 to seal or redact any document." 26 4 DATED 09-19-24 28