Fair v. Las Vegas Metropolitan Police Department

1 LYSSA S. ANDERSON Nevada Bar No. 5781 2 RYAN W. DANIELS Nevada Bar No. 13094 3 KRISTOPHER J. KALKOWSKI Nevada Bar No. 14892 4 KAEMPFER CROWELL 1980 Festival Plaza Drive, Suite 650 5 Las Vegas, Nevada 89135 Telephone: (702) 792-7000 6 Fax: (702) 796-7181 landerson@kcnvlaw.com 7 rdaniels@kcnvlaw.com kkalkowski@kcnvlaw.com [8] Attorneys for Defendants 9 Las Vegas Metropolitan Police Department, Lukas Turley, and Alexander Ryndak [10] UNITED STATES DISTRICT COURT [11] DISTRICT OF NEVADA [12] PARNELL JAY FAIR, individually , Case No.: 2:20-cv-01841-JCM-BNW [13] Plaintiff, 14 vs. STIPULATED PROTECTIVE ORDER 15 LAS VEGAS METROPOLITAN POLICE DEPARTMENT, et al. (Proposed) [16] Defendants. [17] 18 Parnell Jay Fair (“Plaintiff”) seeks to obtain, inspect, and copy documents and/or things 19 which the Las Vegas Metropolitan Police Department (“LVMPD”) reasonably believes may 20 contain private and sensitive information, confidential information of LVMPD, its officers and 21 employees, its internal investigative and administrative actions, and other confidential 22 information. Pursuant to an agreement by the Parties, the Court hereby enters the following 23 Order for Protection (“Protective Order”): 24 / / / 1 TERMS OF PROTECTIVE ORDER 2 I. DEFINITIONS 3 The following definitions apply to this Protective Order: 4 1. Party. Any party to this action, including all of its officers, directors, employees, 5 consultants, Experts, and Outside Counsel. Party, as used in this Protective Order, shall also 6 refer to the Las Vegas Metropolitan Police Department, and its officers, agents and employees; 7 Parnell Jay Fair; Shain Howard aka Howard Shane; Jenna Doud; Jesse Wells; Scott Kevin Lee, 8 M.D.; Brock T. Wentz, D.O.; Casey Allen Roeher, M.D.; and University Medical Center and its 9 officers, agents and employees. 10 2. Disclosure or Discovery Material. All items or information, regardless of the 11 medium or manner generated, stored, or maintained (including, among other things, testimony, 12 transcripts, or tangible things) that are produced or generated in disclosures or responses to 13 discovery in this matter. 14 3. “Confidential” Information or Items. Information (regardless of how generated, 15 stored or maintained) or tangible things that qualify for protection under the law enforcement 16 investigative and/or official information privileges, or that contain Criminal History Information, 17 personal information regarding individuals including Social Security Numbers, dates of birth and 18 information which a person would have a reasonable expectation of privacy. Confidential 19 information shall also include information concerning, regarding, or as a result of covert or 20 undercover law enforcement investigation(s) technique(s), method(s) or source(s), including the 21 identity of any confidential informant, undercover officer information, or information referring 22 to any undercover or active criminal investigations. Further, Confidential Information shall also 23 include any information protected from disclosure under Donrey v. Bradshaw, 106 Nev. 630 24 (1990) or an official or executive information privilege. Confidential Information shall also 1 include employee information, employee medical information, and employee disciplinary action, 2 including any internal investigation concerning employee actions. 3 4. Receiving Party. A Party that receives Disclosure of Discovery Material or 4 Confidential Information from a Producing Party. 5 5. Producing Party. A Party or third party that produces Disclosure or Discovery 6 Material or Confidential Information in this action. 7 6. Designating Party. A Party or third party that designates information or items that 8 it produces in disclosures or in response to discovery as “Confidential.” 9 7. Protected Material. Any Disclosure or Discovery Material or Confidential 10 Information that is designed as “Confidential.” 11 8. Outside Counsel. Attorneys who are not employees of a Party but who are 12 retained to represent or advise a Party in this action. 13 9. House Counsel. Attorneys who are employees of a Party. 14 10. Counsel (without qualifier). Outside Counsel and House Counsel (as well as their 15 support staffs). 16 11. Expert. A person with specialized knowledge or experience in a matter pertinent 17 to the litigation retained by a Party or its Counsel to serve as an expert witness or as a consultant 18 in this action. This definition includes, but is not limited to, a professional jury or trial consultant 19 retained in connection with this litigation. 20 12. Professional Vendor. Person or entity that provides litigation support services 21 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, organizing, 22 storing, retrieving data in any form or medium, etc.) and its employees and subcontractors. 23 13. The use of the singular form or any word includes the plural, and vice versa. 24 / / / 1 II. SCOPE 2 The protection conferred by this Protective Order covers not only Protected Material, but 3 also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or 4 compilations thereof, testimony, conversations, or presentations by parties or counsel to or in 5 court or in other setting that might reveal Protected Material. 6 III. DURATION 7 Even after the termination of this action, the confidentiality obligations imposed by this 8 Protective Order shall remain in effect until a Designating Party agrees otherwise in writing or a 9 court order otherwise directs. 10 IV. DESIGNATING PROTECTED MATERIAL 11 1. Manner and Timing of Designations. Except as otherwise provided herein, or as 12 otherwise ordered, material that qualifies for protection under this Protective Order must be 13 clearly designated before it is disclosed or produced. Designations in conformity with this 14 Protective Order require: 15 a. For information in documentary form. That the Producing Party shall 16 affix the legend “Confidential” on each page that contains Protected Material. If only a portion 17 or portions of the material on a page qualifies for protection, the Producing Party also must 18 clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins or 19 redacting portions). A Producing Party that makes original documents or materials available for 20 inspection need not designate them for protection until after the inspecting Party has indicated 21 which material it would like copied and produced. During the inspection and before the 22 designation, all of the material made available for inspection shall be deemed “Confidential.” 23 After the inspecting Party has identified the documents it wants copied and produced, the 24 Producing Party must determine which documents, or portions thereof, qualify for protection 1 under this Protective Order, and, before producing the specified documents, the Producing Party 2 must affix the appropriate legend on each page that contains Protected Material. If only a 3 portion or portions of the material on a page qualifies for protection, the Producing Party also 4 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 5 margins or by redacting protected portions). 6 b. For testimony given in deposition or in other pretrial or trial proceedings. 7 That before the close of the deposition, hearing, or other proceeding, the Party or non-party 8 offering or sponsoring the testimony shall identify on the record all protected testimony and 9 further specify any portions of the testimony that qualify as “Confidential.” When it is 10 impractical to identify separately each portion of testimony that is entitled to protection, the 11 Party or non-party that sponsors, offers, or gives the testimony may invoke on the record (before 12 the deposition or proceeding is concluded) a right to have up to thirty (30) days to identify the 13 specific portions of the testimony as to which protection is sought. Only those portions of the 14 testimony that are appropriately designated for protection under the standards set forth herein 15 within the thirty (30) days shall be covered by the provisions of this Protective Order. Upon 16 request of a Designating Party, transcript pages containing Protected Material must be separately 17 bound by the court reporter, who must affix to the top of each such page the legend 18 “Confidential” as instructed by the Party or non-party offering or sponsoring the witness or 19 presenting the testimony. 20 c. For information produced in some form other than documentary, and for 21 any other tangible items. That the Producing Party affix in a prominent place on the exterior of 22 the container or containers in which the information or item is stored the legend “Confidential.” 23 If only portions of the information or item warrant protection, the Producing Party, to the extent 24 practicable, shall identify the protected portions. 1 2. Inadvertent Failure to Designate. Inadvertent failure to identify documents or 2 things as “Confidential” pursuant to this Protective Order shall not constitute a waiver of any 3 otherwise valid claim for protection, provided that the provisions of this paragraph are satisfied. 4 If the Designating Party discovers that information should have been but was not designated 5 “Confidential” or if the Designating Party receives notice that would enable the Designating 6 Party to learn that it has disclosed such information, the Designating Party must immediately 7 notify all other parties. In such event, within thirty (30) days of notifying all other Parties, the 8 Designating Party must also provide copies of the “Confidential” information designated in 9 accordance with this Protective Order. After receipt of such re-designated information, the 10 “Confidential” information shall be treated as required by this Protective Order, and the 11 Receiving Party shall promptly, but in no event more than fourteen (14) calendar days from the 12 receipt of the re-designated information, return to the Designating Party all previously produced 13 copies of the same unlegended documents or things. The Designating Party and the Parties may 14 agree to alternative means. The Receiving Party shall receive no liability, under this Protective 15 Order or otherwise, for any disclosure of information contained in unlegended documents or 16 things occurring before the Receiving Party was placed on notice of the Designating Party’s 17 claims of confidentiality. 18 V. CHALLENGING CONFIDENTIALITY DESIGNATIONS 19 1. Meet and Confer. A Party that elects to initiate a challenge to a Designating 20 Party’s confidentiality designation must do so in good faith and must begin the process by 21 conferring with counsel for the Designating Party. The Challenging Party must give the 22 Designating Party an opportunity of not less than ten (10) calendar days to review the designated 23 material, to reconsider the circumstances, and, if no changes in the designations is offered, to 24 explain in writing the basis for the confidentiality designation. 1 2. Judicial Intervention. A Party that elects to press a challenge to a confidentiality 2 designation after considering the justification offered by the Designating Party may file and 3 serve a motion that identifies the challenged material and sets forth in detail the basis for the 4 challenge. Until the Court rules on the challenge, all parties shall continue to afford the material 5 in question the level of protection to which it is entitled under the Producing Party’s designation. 6 VI. ACCESS TO AND USE OF PROTECTED MATERIAL 7 1. Basic Principles. A Receiving Party may use Protected Material that is disclosed 8 or produced by another Party or by a third party in connection with this case solely for the 9 limited purposes of prosecuting, defending, attempting to settle, or settling this action. Such 10 Protected Material may be disclosed only to the categories of persons and under the conditions 11 described in this Protective Order. Protected Material must be stored and maintained by a 12 Receiving Party at a location and in a secure manner that ensures that access is limited to the 13 persons authorized under this Protective Order. 14 2. Disclosure of “Confidential” Information or Items. Unless otherwise ordered by 15 the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any 16 information or item designated Confidential only to: 17 a. The Parties to this action and the Receiving Party’s Outside Counsel of 18 record in this action, as well as employees of said Counsel to whom it is reasonably necessary to 19 disclose the information for this litigation. Counsel of Record shall be responsible for advising 20 all of their staff of the existence of, and their confidentiality obligations under, the Protective 21 Order, and shall be responsible for any non-compliance with the Protective Order by members of 22 their staff that have not signed an agreement to be bound by the Protective Order; 23 / / / 24 / / / 1 b. The officers, directors, and employees of the Receiving Party to whom 2 disclosure is reasonably necessary for this litigation and who have signed or have agreed under 3 oath and on the record to be bound by the Protective Order; 4 c. Experts of the Receiving Party to whom disclosure is reasonably necessary 5 for this litigation and who have signed or have agreed under oath and on the record to be bound 6 by the Protective Order; 7 d. The Court and its personnel; 8 e. Court reporters, their staff, and Professional Vendors to whom disclosure 9 is reasonably necessary for this litigation; 10 f. During their depositions or at trial, witnesses in the action to whom 11 disclosure is reasonably necessary. Witnesses will not be permitted to retain copies of Protected 12 Material unless they have signed or agreed under oath and on the record to be bound by the 13 Protective Order. Upon request of a Designating Party, pages of transcribed deposition 14 testimony or exhibits to depositions that reveal Protected Material must be separately bound by 15 the court reporter and may not be disclosed to anyone except as permitted under this Protective 16 Order; and 17 g. The author of the document or the original source of the information and 18 recipients or addressees in the normal course of business. 19 3. Trial and Dispositive Motion Disclosure. For the purpose of trial and/or 20 dispositive motions, the parties acknowledge that a “strong presumption in favor of access” 21 exists. A Party seeking to seal a judicial record at trial and/or the dispositive motion stage bear [24] 1 the burden of establishing “compelling reasons” by “articulating compelling reasons supported 2 by specific factual findings,” that outweigh the public policies favoring disclosure.1 3 4. Disclosure of Possession of Confidential Information. All persons described in 4 paragraph VI above shall not under any circumstances sell, offer for sale, advertise, or publicize 5 either the Confidential Information or the fact that such persons have obtained Confidential 6 Information. 7 VII. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION [8] If a Receiving Party is served with a subpoena or an order issued in other litigation that [9] would compel disclosure of any information or items designated in this action as “Confidential” [10] the Receiving Party must so notify the Designating Party, in writing (by fax or email if possible) [11] immediately and in no event more than seven (7) calendar days after receiving the subpoena or [12] order. Such notification must include a copy of the subpoena or court order. The Receiving [13] Party also must within ten (10) calendar days inform in writing the party who caused the [14] subpoena or order to issue in the other litigation that some or all the material covered by the [15] subpoena or order is the subject of this Protective Order and deliver to such party of copy of this [16] Protective Order. The Designating Party shall bear the burdens and the expenses of seeking [17] protection in that court of its Confidential material – and nothing in these provisions should be [18] construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful [19] directive from another court. Once notice is given, and five (5) business days have elapsed, the [20] Receiving Party shall have no further liability for disclosure pursuant to a subpoena or its [21] equivalent. [22] / / / [23] 24 1 See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Circ. 2006). 1 VIII. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 3 Material to any person or in any circumstance not authorized under this Protective Order, the 4 Receiving Party must immediately and within not more than seven (7) calendar days: (a) notify 5 in writing (using best efforts to use email or fax) the Designating Party of the unauthorized 6 disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the 7 person or persons to whom unauthorized disclosures were made of all the terms of the Protective 8 Order, and (d) request such person or persons to execute an Agreement to be Bound by 9 Protective Order. The Receiving Party shall promptly notify the Designating Party of the results 10 of its efforts with regards to (b), (c), and (d) herein. After a good faith meet and confer effort to 11 resolve any remaining disputes concerning compliance with this paragraph, any Party, Receiving 12 Party or Designating Party may seek relief from this Court for non-compliance with this 13 provision. Said relief may include, but is not limited to, preclusion of the Receiving Party’s use 14 in this litigation of the Protected Material that was disclosed contrary to this Protective Order, or 15 any other sanction deemed appropriate by the Court. 16 IX. PUBLICLY AVAILABLE OR PREVIOUSLY POSSESSED INFORMATION 17 The restrictions in the preceding paragraphs regarding disclosure of Protected Material do 18 not and shall not apply to information or material that: was, is, or becomes public knowledge in 19 a manner other than by violation of the Protective Order, is acquired by the non-designating 20 party from a third party having the Right to disclose such information or material or was lawfully 21 possessed by the non-designating party before the date of this Protective Order. The Designating 22 Party shall act in good faith to notify the Receiving Party of any change in circumstances that 23 renders Confidential Information or Items no longer Confidential within a reasonable time period 24 after the change becomes known to the Designating Party. 1 X. FILING PROTECTED MATERIAL 2 With respect to non-dispositive motions and pleadings, Protected Material or Information 3 derived therefrom is included with, or the contents of such a document are disclosed in, any 4 documents filed with the Clerk of this Court or any other court, the filing Party shall file said 5 document under seal. Unless otherwise agreed by the Parties to permit service by some other 6 means such as by email or facsimile, copies of any pleading, brief or other document containing 7 Protected Material that is served on opposing counsel shall be delivered in a sealed envelope 8 stamped: 9 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER 10 and shall be treated in accordance with the provisions of this Protective Order. Subject to the 11 Court’s convenience and needs, all material filed in this fashion will be kept under seal by the 12 Clerk until further order from the Court. 13 XI. FINAL DISPOSITION 14 Unless otherwise ordered or agreed in writing by the Producing Party, within sixty (60) 15 calendar days of a written request, after the final termination of this action, each Receiving Party 16 must return all Protected Material to the Producing Party. As used in this subdivision, “all 17 Protected Material” includes all copies, abstracts, compilations, summaries or any other form of 18 reproducing or capturing any of the Protected Material. With permission in writing from the 19 Designating Party, the Receiving Party may destroy some or all of the Protected Material instead 20 of returning it. Whether the Protected Material is returned or destroyed, the Receiving Party 21 must submit a written certification to the Producing Party (and, if not the same person or entity, 22 to the Designating Party) by the thirty (30) calendar day deadline that identifies (by category, 23 where appropriate) all the Protected Material that was returned or destroyed and that affirms that 24 the Receiving Party has not retained any copies, abstracts, compilations, summaries or other 1 forms of reproducing or capturing any of the Protected Material. Notwithstanding this provision, 2 Counsel are entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal 3 memoranda, correspondence or attorney work product, even if such materials contain Protected 4 Material. Any such archival copies that contain or constitute Protected Material remain subject 5 to this Protective Order as set forth herein. In the event of an appeal, “Final Disposition” shall 6 not occur until the conclusion of all appeals. 7 XII. ADDITIONAL PROVISIONS 8 1. Modification. The Parties may modify this Protective Order by written 9 agreement, subject to approval by the Court. The Court may modify this Protective Order. 10 2. Right to Assert Other Objections. This Protective Order does not affect or waive 11 any right that any Party otherwise would have to object to disclosing or producing any 12 information or item on any ground not addressed in this Protective Order. Similarly, this 13 Protective Order does not affect or waive any Party’s right to object on any ground to use in 14 evidence any of the material covered by this Protective Order. 15 3. Privileges Not Waived. This Protective Order does not affect or waive any 16 applicable privilege or work product protection, or affect the ability of a Producing Party to seek 17 relief for an inadvertent disclosure of material protected by privilege or work product protection. 18 4. Third Party Protections. Any witness or other person, firm, or entity from which 19 discovery is sought may be informed of and may obtain the protection of this Protective Order by 20 written notice to the Parties’ respective counsel or by oral notice at the time of any deposition or 21 similar proceeding. 22 5. Obligations to Third Parties. Nothing herein shall operate to relieve any Party or 23 non-party from any pre-existing confidentiality obligations currently owed by any Party or non- 24 party to any other Party or non-party. 1 6. Retention of Completed Agreement to be Bound by Protective Order Forms. 2 Completed Agreement to be Bound by Protective Order Forms (“form”) shall be maintained by 3 the Party that obtained the completed form pursuant to this Protective Order. The Party retaining 4 the completed form shall produce the form to resolve any good faith challenge by a Party or 5 Designating Party or dispute concerning whether a person who is obligated under this Protective 6 Order to complete the form did so properly and complied with the representations in the form 7 and this Protective Order. If the parties are unable to resolve any such disputes or challenges 8 through a good faith meet and confer process, the challenging Party or Designating Party may 9 seek appropriate relief from this Court. 10 DATED this 21st day of June, 2021. 11 KAEMPFER CROWELL LAGOMARSINO LAW 12 By: /s/ LYSSA ANDERSON By: /S/ ANDRE LAGOMARSINO LYSSA S. ANDERSON ANDRE LAGOMARSINO 13 Nevada Bar No. 5781 Nevada Bar No. 6711 RYAN W. DANIELS 3005 W. Horizon Ridge Pkwy, Ste. 240 Nevada Bar No. 13094 Las Vegas, NV 89052 14 1980 Festival Plaza Drive Suite 650 Attorneys for Plaintiff 15 Las Vegas, Nevada 89135 16 Attorneys for Defendants Las Vegas Metropolitan Police 17 Department, Lukas Turley, and Alexander Ryndak [18] LAURIA TOKUNAGA GATES & MCBRIDE HALL LINN [19] By: /S/ ANTHONY LAURIA By: /S/ SEAN KELLY ANTHONY D. LAURIA ROBERT C. McBRIDE 20 Nevada Bar No. 4114 Nevada Bar No. 7082 601 S 7th St. SEAN M. KELLY 21 Las Vegas, NV 89101 Nevada Bar No. 10102 22 Attorneys for Defendant 8 L3 a2 s 9 V W eg. a S s,u Nns Vet R 89d 1., 1 S 3t e. 260 Shain Howard aka Howard 23 Shane Attorneys for Defendants Jenna Doud and Jesse Wells [24] 1 JOHN H. COTTON & ASSOCIATES SALTZMAN MUGAN DUSHOFF 2 || By: _/S/ BRAD SHIPLEY By: /S/ WILLIAM A, GONZALEZ JOHN H. COTTON MATTHEW DUSHOFF 3 Nevada Bar No. 5268 Nevada Bar No. 4975 BRAD J. SHIPLEY WILLIAM A. GONZALEZ Nevada Bar No. 12639 Nevada Bar No. 6319 4 7900 W. Sahara Ave., Ste. 200 evada oat NO. Las Vegas, NV 89117 1835 Village Center Circle 5 , Las Vegas, Nevada 89134 Attorneys for Defendant 6 Scott neys fe Le □□ D. Attorneys for Defendants University Medical Center and Chastity Travis LEWIS BRISBOIS BISGAARD & 8 || SMITH 9 By: /s/ KATHERINE GORDON KATHERINE GORDON 10 Nevada Bar No. 5813 KEITH A. WEAVER Nevada Bar No. 10271 11 MELANIE L. THOMAS Nevada Bar No. 12576 12 6385 S. Rainbow Blvd., Ste. 600 Las Vegas, NV 89118 13 Attorneys for Defendant Brock T. Wentz, D.O. and Casey 14 Allen Roehr, M.D [15] Order 16 IT IS SO ORDERED 17 DATED: 12:14 pm, June 25, 2021 [18] Les Are Fen, 19 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE [24] CROWELL Festival Plaza Drive Suite 650