Dickman v. Clark County

Craig R. Anderson, Esq. 2 Nevada Bar No. 6882 10001 Park Run Drive 3 Las Vegas, Nevada 89145 Telephone: (702) 382-0711 4 Facsimile: (702) 382-5816 canderson@maclaw.com 5 Attorneys for Defendants LVMPD and Ofc. Neville 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 RICHARD DICKMAN, individually and with RICHARD JOHNSON, as Special Co9 Administrators of the Estate of JASON Case No.: 2:21-cv-02243-JCM-NJK RICHARD DICKMAN, [10] Plaintiffs, [11] vs. [12] CLARK COUNTY; LAS VEGAS 13 METROPOLITAN POLICE DEPARTMENT; WELLPATH, LLC; OFFICER J. NEVILLE and 14 DOES 1-10, in their individual capacities, 15 Defendants. 16 PROTECTIVE ORDER 17 Plaintiffs seeks to obtain, inspect and copy documents and/or things which the Las Vegas 18 Metropolitan Police Department (“LVMPD”) contends contains private and sensitive 19 information, confidential information of LVMPD, its officers and employees, its internal 20 investigative and administrative actions, and other confidential information. Pursuant to an 21 agreement by the Parties, the Court hereby enters the following Order for Protection (“Protective 22 Order”): 23 TERMS OF PROTECTIVE ORDER 24 I. DEFINITIONS 25 The following definitions apply to the Protective Order: 26 1. Party. Any party to this action, including all of its officers, directors, employees, 27 consultants, Experts, and Outside Counsel. Party, as used in this Protective Order, shall also 28 refer to the Las Vegas Metropolitan Police Department, and its officers, agents and employees. 2 medium or manner generated, stored, or maintained (including, among other things, testimony, 3 transcripts, or tangible things) that are produced or generated in disclosures or responses to 4 discovery in this matter. 5 3. “Confidential” Information or Items. Information (regardless of how generated, 6 stored or maintained) or tangible things that qualify for protection under the law enforcement 7 investigative and/or official information privileges, or that contain Criminal History Information, 8 personal information regarding individuals including Social Security Numbers, dates of birth and 9 information which a person would have a reasonable expectation of privacy. Confidential 10 information shall also include information concerning, regarding, or as a result of covert or 11 undercover law enforcement investigation(s) technique(s), method(s) or source(s), including the 12 identity of any confidential informant, undercover officer information, or information referring 13 to any undercover or active criminal investigations. Further, Confidential information shall also 14 include any information protected from disclosure under Donrey v. Bradshaw, 106 Nev. 630 15 (1990) or an official or executive information privilege. Confidential information shall also 16 include employee information, employee medical information, and employee disciplinary action, 17 including any internal investigation concerning employee actions. 18 4. Receiving Party. A Party that receives Disclosure or Discovery Material or 19 Confidential Information from a Producing Party. 20 5. Producing Party. A Party or third-party that produces Disclosure or Discovery 21 Material or Confidential Information in this action. 22 6. Designating Party. A Party or third-party that designates information or items 23 that it produces in disclosures or in responses to discovery as “Confidential.” 24 7. Protected Material. Any Disclosure or Discovery Material or Confidential 25 Information that is designated as “Confidential.” 26 8. Outside Counsel. Attorneys who are not employees of a Party but who are 27 retained to represent or advise a Party in this action. 28 9. House Counsel. Attorneys who are employees of a Party. 2 support staffs). 3 11. Expert. A person with specialized knowledge or experience in a matter pertinent 4 to the litigation retained by a Party or its Counsel to serve as an expert witness or as a consultant 5 in this action. This definition includes, but is not limited to, a professional jury or trial consultant 6 retained in connection with this litigation. 7 12. Professional Vendor. Person or entity that provides litigation support services 8 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, organizing, 9 storing, retrieving data in any form or medium; etc.) and its employees and subcontractors. 10 13. The use of the singular form of any word includes the plural, and vice versa. 11 II. SCOPE 12 The protection conferred by this Protective Order covers not only Protected Material, but 13 also any information copied or extracted therefrom, as well as all copies excerpts, summaries, or 14 compilations thereof, testimony, conversations, or presentations by parties or counsel to or in 15 court or in other settings that might reveal Protected Material. 16 III. DURATION 17 Even after the termination of this action, the confidentiality obligations imposed by this 18 Protective Order shall remain in effect until a Designating Party agrees otherwise in writing or a 19 court order otherwise directs. 20 IV. DESIGNATING PROTECTED MATERIAL 21 1. Manner and Timing of Designations. Except as otherwise provided herein, or as 22 otherwise ordered, material that qualifies for protection under this Order must be clearly 23 designated before it is disclosed or produced. Designations in conformity with this Order 24 require: 25 a. For information in documentary form. That the Producing Party 26 shall affix the legend “Confidential” on each page that contains Protected Material. If only a 27 portion or portions of the material on a page qualifies for protection, the Producing Party also 28 must clearly identify the protected portion(s) (e.g., by making appropriate makings in the 2 materials available for inspection need not designate them for protection until after the inspecting 3 Party has indicated which material it would like copied and produced. During the inspection and 4 before the designation, all of the material made available for inspection shall be deemed 5 “Confidential.” After the inspecting Party has identified the documents it wants copied and 6 produced, the Producing Party must determine which documents, or portions thereof, qualify for 7 protection under this Order, and, before producing the specified documents, the Producing Party 8 must affix the appropriate legend on each page that contains Protected Material. If only a 9 portion or portions of the material on a page qualifies for protection, the Producing Party also 10 must clearly identify the protected portion(s) (e.g., by making appropriated markings in the 11 margins or by redacting protected portions). 12 b. For testimony given in deposition or in other pretrial or trial 13 proceedings. That before the close of the deposition, hearing, or other proceeding, the Party or 14 non-party offering or sponsoring the testimony shall identify on the record all protected 15 testimony and further specify any portions of the testimony that qualify as “Confidential.” When 16 it is impractical to identify separately each portion of testimony that is entitled to protection, the 17 Party or non-party that sponsors, offers, or gives the testimony may invoke on the record (before 18 the deposition or proceeding is concluded) a right to have up to thirty (30) days to identify the 19 specific portions or the testimony as to which protection is sought. Only those portions of the 20 testimony that are appropriately designated for protection under the standards set forth herein 21 within the thirty (30) days shall be covered by the provisions of this Protective Order. Upon 22 request of a Designating Party, transcript pages containing Protected Material must be separately 23 bound by the court reporter, who must affix to the top of each such page the legend 24 “Confidential” as instructed by the Party or non-party offering or sponsoring the witness or 25 presenting the testimony. 26 c. For information produced in some form other than documentary, 27 and for any other tangible items. That the Producing Party affix in a prominent place on the 28 exterior of the container or containers in which the information or item is stored the legend 2 Party, to the extent practicable, shall identify the protected portions. 3 2. Inadvertent Failure to Designate. Inadvertent failure to identify documents or 4 things as “Confidential” pursuant to this Protective Order shall not constitute a waiver of any 5 otherwise valid claim for protection, provided that the provisions of this paragraph are satisfied. 6 If the Designating Party discovers that information should have been but was not designated 7 “Confidential” or if the Designating Party receives notice that would enable the Designating 8 Party to learn that it has disclosed such information, the Designating Party must immediately 9 notify all other parties. In such event, within thirty (30) days of notifying all other Parties, the 10 Designating Party must also provide copies of the “Confidential” information designated in 11 accordance with this Protective Order. After receipt of such re-designated information, the 12 “Confidential” information shall be treated as required by this Protective Order, and the 13 Receiving Party shall promptly, but in no event more than fourteen (14) calendar days from the 14 receipt of the re-designated information, return to the Designating Party all previously produced 15 copies of the same unlegended documents or things. The Designating Party and the Parties may 16 agree to alternative means. The Receiving Party shall receive no liability, under this Protective 17 Order or otherwise, for any disclosure of information contained in unlegended documents or 18 things occurring before the Receiving Party was placed on notice of the Designating Party’s 19 claims of confidentiality. 20 V. CHALLENGING CONFIDENTIALITY DESIGNATIONS 21 1. Meet and Confer. A Party that elects to initiate a challenge to a Designating 22 Party’s confidentiality designation must do so in good faith and must begin the process by 23 conferring with counsel for the Designating Party. The challenging Party must give the 24 Designating Party an opportunity of not less than ten (10) calendar days to review the designated 25 material, to reconsider the circumstances, and, if no change in the designations is offered, to 26 explain in writing the basis for the confidentiality designation. 27 / / / 28 / / / 2 objected to by the challenging Party, within fourteen (14) days of the Designating Party’s refusal 3 (or the expiration of the ten-day period referenced in paragraph 1 above, whichever is sooner) the 4 Designating Party may file and serve a motion that identifies the challenged material and sets 5 forth in detail the basis the material is and shall remain designated as confidential. Until the 6 Court rules on the challenge, all parties shall continue to afford the material in question the level 7 of protection to which it is entitled under the Producing Party’s designation. If the Designating 8 Party fails to file a motion within the prescribed period, the materials are deemed to be no longer 9 confidential. 10 VI. ACCESS TO AND USE OF PROTECTED MATERIAL 11 1. Basic Principles. A Receiving Party may use Protected Material that is disclosed 12 or produced by another Party or by a third-party in connection with this case solely for the 13 limited purposes of prosecuting, defending, attempting to settle, or settling this action. Such 14 Protected Material may be disclosed only to the categories of persons and under the conditions 15 described in the Protective Order. Protected Material must be stored and maintained by a 16 Receiving Party at a location and in a secure manner that ensures that access is limited to the 17 persons authorized under this Protective Order. 18 2. Disclosure of “Confidential” Information or Items. Unless otherwise ordered by 19 the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any 20 information or item designated Confidential only to: 21 a. The Parties to this action and the Receiving Party’s Outside 22 Counsel of record in this action, as well as employees of said Counsel to whom it is reasonably 23 necessary to disclose the information for this litigation. Counsel of Record shall be responsible 24 for advising all of their staff of the existence of, and their confidentiality obligations under, the 25 Protective Order, and shall be responsible for any non-compliance with the Protective Order by 26 members of their staff that have not signed an agreement to be bound by the Protective Order; [28] 2 whom disclosure is reasonably necessary for this litigation and who have signed or have agreed 3 under oath and on the record to be bound by the “Agreement to Be Bound by Protective Order” 4 (Exhibit A); 5 c. Experts of the Receiving Party to whom disclosure is reasonably 6 necessary for this litigation and who have signed or have agreed under oath and on the record to 7 be bound by the “Agreement to Be Bound by Protective Order” (Exhibit A); 8 d. The Court and its personnel; 9 e. Court reporters, their staffs, and Professional Vendors to whom 10 disclosure is reasonably necessary for this litigation; 11 f. During their depositions or at trial, witnesses in the action to whom 12 disclosure is reasonably necessary. Witnesses will not be permitted to retain copies of Protected 13 Material unless they have signed or agreed under oath and on the record to be bound by the 14 “Agreement to Be Bound by Protective Order” (Exhibit A). Upon request of a Designating 15 Party, pages of transcribed deposition testimony or exhibits to depositions that reveal Protected 16 Material must be separately bound by the court reporter and may not be disclosed to anyone 17 except as permitted under this Protective Order; and 18 g. The author of the document or the original source of the 19 information and recipients or addressees in the normal course of business. [20] Notwithstanding the preceding of this paragraph VI(2), a Party that has produced its, his [21] or her own Protected Material may disclose such Protected Material to any persons, with or [22] without any conditions placed upon such disclosure, as the Party deems appropriate. [23] 3. See or der is sued concurr ently her ewith. [28] 2 4. Disclosure of Possession of Confidential Information. All persons described in 3 paragraph VI above shall not under any circumstances sell, offer for sale, advertise, or publicize 4 either the Confidential Information or the fact that such persons have obtained Confidential 5 Information. 6 VII. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION [7] If a Receiving Party is served with a subpoena or an order issued in other litigation that [8] would compel disclosure of any information or items designated in this action as “Confidential” [9] the Receiving Party must so notify the Designating Party, in writing (by fax or email if possible) [10] immediately and in no event more than seven (7) calendar days after receiving the subpoena or [11] order. Such notification must include a copy of the subpoena or court order. The Receiving [12] Party also must within ten (10) calendar days inform in writing the party who caused the [13] subpoena or order to issue in the other litigation that some or all the material covered by the [14] subpoena or order is the subject of this Protective Order and deliver to such party a copy of this [15] Protective Order. The Designating Party shall bear the burdens and the expenses of seeking [16] protection in that court of its Confidential material – and nothing in these provisions should be [17] construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful [18] directive from another court. Once notice is given, and five business days have elapsed, the [19] receiving party shall have no further liability for disclosure pursuant to a subpoena or its [20] equivalent. [21] VIII. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL [22] If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected [23] Material to any person or in any circumstance not authorized under this Protective Order, the [24] Receiving Party must immediately and within not more than seven (7) calendar days: (a) notify [25] in writing (using best efforts to use email or fax) the Designating Party of the unauthorized [26] disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the [27] 28 1 See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006). 2 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement 3 to Be Bound” (Exhibit A). The Receiving Party shall promptly notify the Designating Party of 4 the results of its efforts with regards to (b), (c), and (d) herein. After a good faith meet and 5 confer effort to resolve and remaining disputes concerning compliance with this paragraph, and 6 Party, Receiving Party or Designating Party may seek relief from this Court for non-compliance 7 with this provision. Said relief may include, but is not limited to, preclusion of the Receiving 8 Party’s use in this litigation of the Protected Material that was disclosed contrary to this 9 Protective Order, or any other sanction deemed appropriate by the Court. 10 IX. PUBLICLY AVAILABLE OR PREVIOUSLY POSSESSED INFORMATION 11 The restrictions in the preceding paragraphs regarding disclosure or Protected Material do 12 not and shall not apply to information or material that: was, is, or becomes public knowledge in a 13 manner other than by violation of the Protective Order, is acquired by the non-designating party 14 from a third-party having the right to disclose such information or material; or was lawfully 15 possessed by the non-designating party before the date of this Protective Order. The Designating 16 Party shall act in good faith to notify the Receiving Party of any change in circumstances that 17 renders Confidential Information or Items no longer Confidential within a reasonable time period 18 after the change becomes known to the Designating Party. 19 X. FILING PROTECTED MATERIAL 20 See order iss ued con cu rrently herewith. 21 y [23] 24 y [2] 3 XI. FINAL DISPOSITION 4 Unless otherwise ordered or agreed in writing by the Producing Party, within sixty (60) 5 calendar days of a written request, after the final termination of this action, each Receiving Party 6 must return all Protected Material to the Producing Party. As used in this subdivision, “all 7 Protected Material” includes all copies, abstracts, compilations, summaries or any other form of 8 reproducing or capturing any of the Protected Material. With permission in writing from the 9 Designating Party, the Receiving Party may destroy some or all of the Protected Material instead 10 of returning it. Whether the Protected Material is returned or destroyed, the Receiving Party 11 must submit a written certification to the Producing Party (and, if not the same person or entity, 12 to the Designating Party) by the thirty (30) calendar day deadline that identifies (by category, 13 where appropriate) all the Protected Material that was returned or destroyed and that affirms that 14 the Receiving Party has not retained any copies, abstracts, compilations, summaries or other 15 forms of reproducing or capturing any of the Protected Material. Notwithstanding this provision, 16 Counsel are entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal 17 memoranda, correspondence or attorney work product, even if such materials contain Protected 18 Material. Any such archival copies that contain or constitute Protected Material remain subject 19 to this Protective Order as set forth herein. In the event of an appeal, “Final Disposition” shall 20 not occur until the conclusion of all appeals. 21 XII. ADDITIONAL PROVISIONS 22 1. Modification. The Parties may modify this Protective Order by written 23 agreement, subject to approval by the Court. The Court may modify this Protective Order. 24 2. Right to Assert Other Objections. This Protective Order does not affect or waive 25 any right that any Party otherwise would have to object to disclosing or producing any 26 information or item on any ground not addressed in this Protective Order. Similarly, this 27 Protective Order does not affect or waive any Party’s right to object on any ground to use in 28 evidence any of the material covered by this Protective Order. 2 applicable privilege or work product protection, or affect the ability of a Producing Party to seek 3 relief for an inadvertent disclosure of material protected by privilege or work product protection. 4 4. Third Party Protections. Any witness or other person, firm, or entity from which 5 discovery is sought may be informed of and may obtain the protection of this Protective Order by 6 written notice to the Parties’ respective counsel or by oral notice at the time of any deposition or 7 similar proceeding. 8 5. Obligations to Third Parties. Nothing herein shall operate to relieve any Party or 9 non-party from any pre-existing confidentiality obligations currently owed by any Party or non10 party to any other Party or non-party. 11 6. Retention of Completed “Acknowledgment and Agreement to Be Bound” Forms 12 (Exhibit A). Completed “Acknowledgement and Agreement to Be Bound” Forms (Exhibit A) 13 (“form”) shall be maintained by the Party that obtained the completed form pursuant to this 14 Protective Order. The Party retaining the completed form shall produce the form to resolve any 15 good faith challenge by a Party or Designating Party or dispute concerning whether a person who 16 is obligated under this Protective Order to complete the form did so properly and complied with 17 the representations in the form and this Protective Order. If the parties are unable to resolve any 18 such disputes or challenges through a good faith meet and confer process, the challenging Party 19 or Designating Party may seek appropriate relief from this Court. 20 IT IS SO STIPULATED this 12th day of October, 2022. [21] 22 MARQUIS AURBACH PETER GOLDSTEIN LAW CORP. 23 By: s/Craig R. Anderson By: s/Peter Goldstein Craig R. Anderson, Esq. Peter Goldstein, Esq. 24 Nevada Bar No. 6882 Nevada Bar No. 6992 10001 Park Run Drive 10161 Park Run Drive, Suite 150 25 Las Vegas, Nevada 89145 Las Vegas, Nevada 89145 Attorneys for LVMPD Defendants Attorney for Plaintiffs [28] 1 Estate of Dickman v. LVMPD, et al. Case No. 2:21-cv-02243-JCM-NJK [2] 3 PANISH SHEA BOYLE RAVIPUDILLP DISTRICT ATTORNEY CIVIL DIVISION [4] By: ___s/Adam Ellis By: __ s/Joel K. Browning 5 Ian Samson, Esq. Joel K. Browning, Esq. Nevada Bar No. 15089 Deputy District Attorney 6 Adam Ellis, Esq. Nevada Bar No. 14489 Nevada Bar No. 14514 500 S. Grand Central Pkwy., #5075 7 8816 Spanish Ridge Ave. Las Vegas, Nevada 89155 Las Vegas, Nevada 89148 Attorney for Defendant Clark County 8 Attorney for Plaintiffs [9] LEWIS BRISBOIS BISGAARD & 10 SMITH LLP 11 By: s/Brent Vogel S. Brent Vogel, Esq. 12 Nevada Bar No. 6858 Melanie L. Thomas, Esq. = 13 Nevada Bar No. 12576 6385 South Rainbow Blvd., Ste. 600 = 14 Las Vegas, Nevada 89118 = 15 Attorney for Defendant Wellpath, LLC [16] 228 ORDER Ss 17 — = 18 19 IT IS SO ORDERED THIS 13th day of October, 2022. [20] 21 Ze . 3 22 United States Magistrate Judge [28] Page 12 of 13 M&A:14687-394 4848498. 1 10/12/2022 8:31 AM 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________, have read in its entirety and understand the Protective Order that was 4 issued by the United States District Court, for the District of Nevada on ______________, 2022, 5 in the case of Richard Dickman, et al. v. LVMPD, et al., Case No. 2:21-cv-00243-JCM-NJK. I 6 agree to comply with and to be bound by all terms of this Protective Order and I understand and 7 acknowledge that failure to so comply could expose me to sanctions and punishment in the 8 nature of contempt. I solemnly promise that I will not disclose in any manner any information or 9 item that is subject to this Protective Order that any person entity except in strict compliance 10 with the provisions of this Order. Further, I solemnly promise that I will not offer to sell, 11 advertise or publicize that I have obtained any Protected Material subject to this Protective 12 Order. 13 At the conclusion of this matter, I will return all Protected Material which came into my 14 possession to counsel for the party from whom I received the Protected Material, or I will 15 destroy those materials. I understand that any Confidential Information contained within any 16 summaries of Protected Material shall remain protected pursuant to the terms of this Order. 17 I further agree to submit to the jurisdiction of the United States District Court, for the 18 District of Nevada for the purpose of enforcing the terms of this Protective Order, even if such 19 enforcement proceedings occur after termination of this action. 20 I certify under the penalty of perjury that the foregoing is true and correct. 21 Date: ____________________ 22 City and State where signed: __________________________________________ 23 Printed name: _______________________________ 24 Address: ___________________________________________________________ 25 Signature: __________________________________