Burke v. Lewis Investment Company of Nevada, LLC

1 | HONE LAW Eric D. Hone, NV Bar No. 8499 2 echone@hone.law Leslie A. S. Godfrey, NV Bar No. 10229 3 || lgodfrey@hone.law 701 N. Green Valley Parkway, Suite 200 4 || Henderson, NV 89074 Phone 702-608-3720 5||Fax 702-608-7814 6 || Attorneys for Defendant/Counterclaimant 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA DONALD J. BURKE, a Nevada resident; Case No. 3:23-CV-00184-MMD-CSD and DONALD W. BURKE, a Nevada 10 || resident, 11 Plaintiffs, Vv. STIPULATED CONFIDENTIALITY 12 AGREEMENT AND LEWIS INVESTMENT COMPANY OF PROTECTIVE ORDER 13 || NEVADA, LLC, a Delaware Limited Liability Company; KILEY RANCH SIX APARTMENTS, LLC, a Delaware Limited Liability Company; LUKE DRAGOVICH, a 15 |] Nevada resident, and DOES 1 through 10; and ROE CORPORATIONS 1 through 10, [16] Defendants. [17] LEWIS INVESTMENT COMPANY OF || NEVADA, LLC, a Delaware Limited Liability Company; KILEY RANCH SIX || APARTMENTS, LLC, a Delaware Limited Liability Company; LUKE DRAGOVICH, a 20 || Nevada resident, 21 Counterclaimants, v. [22] DONALD J. BURKE, a Nevada resident; 23 ||and DONALD W. BURKE, a Nevada resident, [24] Counterdefendants. [25] 26 Lewis Investment Company of Nevada, LLC (“Lewis”), Kiley Ranch Six Apartments, 27||LLC (“Kiley Ranch”) and Luke Dragovich (“Dragovich’”) and, collectively, 28 || (‘Defendants/Counterclaimants” or “Lewis”) by and through their counsel of record, Hone Law, 1 ]and Donald J. Burke and Donald W. Burke, (“Burke Parties” or “Plaintiffs”), by and through 2 ||counsel, the law firm of Clarke Law P.C. collectively referred to herein as the “Parties” and 3 || individually as a “Party”, have agreed to and have submitted to the Court, and for good cause 4 ||shown the Court hereby enters the following Protective Order: 5 The Court, finding good cause for entry of a protective order pursuant to FRCP 26(c) and || FRCP 29(b), and hereby ORDERS that: 7 \1. APPLICABILITY OF THIS PROTECTIVE ORDER 8 Subject to Section 2 below, this Protective Order governs the handling of documents, 9 || electronically stored data, depositions, deposition exhibits, interrogatory responses, responses to 10 |]requests for admissions, responses to requests for production of documents, and all other 11 || discovery obtained pursuant to Federal Rules of Civil Procedure or other legal process by or 12 || from, or produced on behalf of, a Party, non-party, or witness in connection with this action (this 13 |] information hereinafter shall be referred to as “Discovery Material”). As used herein, “Producing |] Party” or “Disclosing Party” shall refer to the Parties and nonparties that give testimony or 15 |] produce documents or other information in connection with this action; “Receiving Party” shall 16 ||refer to the Parties in this action that receive such information, and “Authorized Recipient” shall 17 ||refer to any person or entity authorized by Section 11 of this Protective Order to obtain access to 18 || Confidential Information or Highly Confidential Information as defined in Section 5, or the 19 ||contents of such Discovery Material. 20 II. NO WAIVER 21 This Protective Order is entered solely for the purpose of facilitating the exchange of 22 || documents and information among the Parties to this action without involving the Court 23 || unnecessarily in the process. Nothing in this Protective Order, nor the production of any 24 || information or document under the terms of this Protective Order, nor any proceedings pursuant 25 ||to this Protective Order, shall be deemed to be a waiver of any rights or objections to challenge 26 || the authenticity or admissibility of any document, testimony, or other evidence at trial. 27 || Additionally, this Protective Order will not prejudice the right of any Party or nonparty to oppose // ] || production of any information on the ground of attorney-client privilege, work product doctrine, 2 }or any other privilege or protection provided under the law. 3 | TI. DESIGNATION OF INFORMATION 4 Any Producing Party may designate Discovery Material that is in its possession, custody, 5 ||or control produced to a Receiving Party as “CONFIDENTIAL” or “HIGHLY 6 |} CONFIDENTIAL — ATTORNEYS EYES ONLY” under the terms of this Protective Order if the 7 || Producing Party in good faith reasonably believes that such Discovery Material contains 8 ||nonpublic, confidential information as defined in Section 5 below. oO} IV. EXERCISE OF RESTRAINT AND CARE IN DESIGNATING MATERIAL FOR PROTECTION 10 Each Producing Party that designates information or items for protection under this 1] || Protective Order must take care to limit any such designation to specific material that qualifies 12 || under the appropriate standards. Indiscriminate designations are prohibited. 13]/V. CONFIDENTIAL INFORMATION 14 For purposes of this Protective Order, “Confidential Information” means information that 15 || constitutes, reflects, or discloses nonpublic information, trade secrets, or other know-how, 16||research, development, or financial, proprietary, commercially sensitive, confidential business, 17 accounting, marketing, regulatory, strategic information (including business plans, negotiations, 18 || strategies, or decisions, scientific and technical information, and nonpublic designs), information 19 || about existing and potential customers, the disclosure of which the Producing Party believes in 20 || good faith might reasonably result in economic, competitive, or business injury to the Producing 21 || Party (or its parents, subsidiaries, affiliates, personnel, or clients) and which is not publicly 22 || known and cannot be ascertained from an imspection of publicly available sources, documents, 23 || material, or devices. “Confidential Information” shall also include sensitive personal information 24 || that is not otherwise publicly available, such as home addresses; social security numbers; dates 25 || of birth; employment personnel files; home telephone records/numbers; employee disciplinary 26 || records; earnings statements; tax records; and other similar personal financial information. 27TH 8iy// 1 “Highly Confidential Information” is any Confidential Information as defined above, the 2 disclosure of which would create a substantial risk of economic, competitive, or business injury 3 || to the Producing Party. VI. | DESIGNATING CONFIDENTIAL INFORMATION AND HIGHLY CONFIDENTIAL 5 INFORMATION 6 If any Party in this action determines in good faith that any information, documents, 7\\things or responses produced in the course of discovery in this action should be designated as 8 || Confidential Information or Highly Confidential Information (the “Designating Party’’), it shall 9 advise any party receiving such material of this fact, and all copies of such document, things, or 10 ||responses, or portions thereof deemed to be confidential shall be marked “CONFIDENTIAL” or 11|“HIGHLY CONFIDENTIAL — ATTORNEYS EYES ONLY” (whether produced in hard copy 12 |}or electronic form) at the expense of the Designating Party and treated as such by all Parties. A 13 || Designating Party may inform another Party that a document is Confidential or Highly 14 || Confidential by providing the Bates number of the document in writing. If Confidential 15 || Information or Highly Confidential Information is produced via an electronic form on a 16 || computer readable medium (e.g., CD-ROM), other digital storage medium, or via Internet 17 || transmission, the Producing Party or Designating Party shall affix in a prominent place on the 18 || storage medium or container file on which the information 1s stored, and on any container(s) for 19 |]such medium, the legend “Includes CONFIDENTIAL INFORMATION” and/or “HIGHLY 20 || CONFIDENTIAL INFORMATION — ATTORNEYS EYES ONLY”. Nothing in this section 21 |/shall extend confidentiality or the protections associated therewith to any information that does 22 ||not otherwise constitute “Confidential Information” or “Highly Confidential Information” as 23 || defined in Section 5 herein. VII. REDACTION ALLOWED 25 Any Producing Party may redact from the documents or things it produces matter that the 26 || Producing Party claims is subject to the attorney-client privilege, the work product doctrine, a 27 || legal prohibition against disclosure, or any other privilege from disclosure. A Producing Party 28 || may not withhold non-privileged, responsive information solely on the grounds that such ] |] information is contained in a document that includes privileged information. The Producing 2 || Party shall mark each redaction with a legend stating “REDACTED”. All documents redacted 3 || based on attorney-client privilege or work-product immunity shall be listed in an appropriate log 4 |}in conformity with Federal law and Federal Rule of Civil Procedure 26(b)(5). Any other 5 ||redaction made pursuant to this Section 7, whether based on a claim of privilege, protection, or 6 || otherwise, shall likewise be identified on an appropriate log indicating the justification for the 7 ||redaction. Where a document consists of more than one page, the page on which information has 8 || been redacted shall so be marked. The Producing Party shall preserve an un-redacted version of 9 }}such document. 10) VILL. Usk OF CONFIDENTIAL INFORMATION AND HIGHLY CONFIDENTIAL INFORMATION ll Except as provided herein, Confidential Information and Highly Confidential Information 12 || designated or marked shall be maintained in confidence, used solely for the purposes of this 13 || action, to the extent not otherwise prohibited by an order of the Court, shall be disclosed to no 14 || one except those persons identified herein in Section 11, and shall be handled in such manner 15 |) until such designation is removed by the Designating Party or by order of the Court. Confidential 16 || Information and Highly Confidential Information produced by another Party shall not be used by 17 Receiving Party for any commercial, competitive, or personal purpose. Nothing in this 18 || Protective Order shall govern or restrict a Producing Party’s use of its own Confidential 19 | Information, Highly Confidential Information or any of its own non-confidential information in 20 ||any way. 91 | TX. DESIGNATION OF PREVIOUSLY DISCLOSED DOCUMENTS 22 Once the Court enters this Protective Order, a Party shall have thirty (30) calendar days to 23 || designate as Confidential or Highly Confidential any documents previously produced in this 24 || action, which it can do by stamping “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL — ATTORNEYS EYES ONLY” on the document or informing the other Parties of the Bates26 || numbers of the documents so designated. 2TH/// 28 // « 1 || X. USE OF CONFIDENTIAL INFORMATION IN DEPOSITIONS 2 Counsel for any Party shall have the right to disclose Confidential Information or Highly 3 || Confidential Information at depositions, provided that such disclosure is consistent with this || Protective Order. Any counsel of record may request that all persons not entitled under Section 5||11 of this Protective Order to have access to Confidential Information or Highly Confidential 6 || Information leave the deposition room during the confidential portion of the deposition. Failure || of such persons to comply with a request to leave the deposition shall constitute substantial 8 || justification for counsel to advise the witness that the witness need not answer the question 9 || where the answer would disclose Confidential Information or Highly Confidential Information 10 |] until such unauthorized person leaves the deposition room. 11 Additionally, at any deposition session, (1) upon inquiry with regard to the content of any 12 || discovery material(s) designated or marked as “CONFIDENTIAL” and “HIGHLY 13 | CONFIDENTIAL — ATTORNEYS EYES ONLY”; (2) whenever counsel for a Party deems that 14 || the answer to a question may result in the disclosure or revelation of Confidential Information or 15 || Highly Confidential Information; and/or (3) whenever counsel for a Party deems that the answer 16 ||to any question has resulted in the disclosure or revelation of Confidential Information or Highly 17 || Confidential Information, counsel to any Party may designate portions of a deposition transcript 18 |] and/or video of any deposition (or any other testimony) as containing Confidential Information 19 |] or Highly Confidential Information in accordance with this Order by a statement on the record 20 || during the deposition or by notifying all other Parties in writing, within fifteen (15) calendar days 21 || of receiving the transcript or video that it contains Confidential Information or Highly 22 || Confidential Information and designating the specific pages, lines, and/or counter numbers as 23 || containing Confidential Information or Highly Confidential Information. If a designation is made 24 || via a statement on the record during a deposition, that portion of the testimony so designated 25 ||shall be set forth in a separate transcript with the appropriate designation appearing on each page 26 || thereof, where available. If a separate, properly designated transcript is not available from the 27 court reporter, counsel must follow up in writing within fifteen (15) calendar days of receiving 28 || the transcript or video, identifying the specific pages, lines, and/or counter numbers containing 6B 1 || the Confidential Information or Highly Confidential Information. If no confidentiality 2 || designations are made within the fifteen (15) calendar day period, the entire transcript shall be 3 || considered non-confidential. During the fifteen (15) day period, the entire transcript and video 4||shall be treated as Confidential Information or Highly Confidential Information. 5 All originals and copies of deposition transcripts that contain Confidential Information or 6 || Highly Confidential Information shall be prominently marked “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL — ATTORNEYS EYES ONLY?” on the cover thereof and, if and 8 || when filed with the Court, the portions of such transcript so designated shall be filed under seal. 9|| Any DVD or other digital storage medium containing Confidential Information or Highly 10 |] Confidential Information deposition testimony shall be labeled in accordance with the provisions 11 lof Section 6. 12|-XI.. PERSONS AUTHORIZED TO RECEIVE CONFIDENTIAL INFORMATION 13 Confidential Information produced pursuant to this Protective Order may be disclosed or 14 || made available only to the Court, its employees, other court personnel, any discovery referee, 15 |] mediator or other official who may be appointed by the Court, and to the persons below: 16 a. A Party, or officers, directors, employees, members, managers and agents of a 17 Party deemed necessary by counsel to aid in the prosecution, defense, or 18 settlement of this action; 19 b. Counsel for a Party (including in-house attorneys, contract attorneys, outside 20 attorneys associated with a law firm(s) of record and support personnel, such 21 as law clerks, paralegals, secretaries and clerical staff employed by such 22 counsel); 23 c. Persons retained by a Party to provide litigation support services 24 (photocopying, videotaping, translating, preparing exhibits or demonstrations, 25 organizing, storing, retrieving data in any form or medium, etc.); 26 d. Consultants or expert witnesses (together with their support staff) retained for 27 the prosecution or defense of this litigation, provided that such an expert or 28 consultant is not a current employee of a direct competitor of a Party named in 1 this action and provided such Consultant and expert witness agrees to 2 maintain the information as Confidential pursuant to this Order and executes 3 Exhibit A; however, a Party may seek leave of the Court to provide 4 information to a consultant employed by a competitor; 5 e. Court reporter(s) and videographers(s) employed in this action; 6 f. Any authors and/or recipients of the Confidential Information (to the extent 7 the author or recipient is in possession of the information or documents 8 through means other than Discovery Materials produced in this action); 9 g. A witness at any deposition or other proceeding in this action, provided such 10 witness agrees on the record to maintain the information as Confidential 11 pursuant to this Order and shall execute Exhibit A; and 12 h. Any other person as to whom the Parties in writing agree or that the Court in 13 these proceedings so designates. 14 Any person to whom Confidential Information is disclosed pursuant to subparts (a) 15 || through (h) hereinabove shall be advised that the Confidential Information is being disclosed 16 |] pursuant to an order of the Court, that the information may not be disclosed by such person to 17 || any person not permitted to have access to the Confidential Information pursuant to this 18 || Protective Order, and that any violation of this Protective Order may result in the imposition of 19 |]such sanctions as the Court deems proper. Any person to whom Confidential Information is 20 || disclosed pursuant to subpart (a) if they are merely an “agent” but do not fall into any other 21 category in that sub-part, (c), (d), (f), (g) and (h), of this Section shall also be required to execute 22 ||a copy of the form Exhibit A. The persons shall agree in writing to be bound by the terms of this 23 || Protective Order by executing a copy of Exhibit A (which shall be maintained by the counsel of 24 ||record for the Party seeking to reveal the Confidential Information) in advance of being shown 25 ||the Confidential Information. No Party (nor its counsel) shall discourage any persons from 26 || signing a copy of Exhibit A. If a person refuses to execute a copy of Exhibit A, the Party seeking 27 ||to reveal the Confidential Information shall seek an order from the Court directing that the 28 || person be bound by this Protective Order. In the event of the filing of such a motion, 1 || Confidential Information may not be disclosed to such person until the Court resolves the issue. 2|Proof of each written agreement provided for under this Section shall be maintained by each of 3 || the Parties while this action is pending and disclosed to the other Parties upon good cause shown 4 }|and upon order of the Court. | XII. PERSONS AUTHORIZED TO RECEIVE HIGHLY CONFIDENTIAL INFORMATION 6 Highly Confidential Information produced pursuant to this Protective Order may be disclosed or made available only to the Court, its employees, other court personnel, any 8 || discovery referee, mediator or other official who may be appointed by the Court, and the 9 || following persons: 10 a. Counsel for a Party (including contract attorneys, outside attorneys associated 11 with a law firm(s) of record, and support personnel, such as law clerks, 12 paralegals, secretaries and clerical staff employed by such counsel); 13 b. Persons retained by a Party to provide litigation support services 14 (photocopying, videotaping, translating, preparing exhibits or demonstrations, 15 organizing, storing, retrieving data in any form or medium, etc.), provided 16 such persons agree to maintain the information as Highly Confidential 17 pursuant to this Order and executes Exhibit A; 18 c. Consultants or expert witnesses (together with their support staff) retained for 19 the prosecution or defense of this litigation, provided that such an expert or 20 consultant is not a current employee of a direct competitor of a Party named in 21 this action and provided such consultant and expert witness agrees to maintain 22 the information as Highly Confidential pursuant to this Order and executes 23 Exhibit A; however, a Party may seek leave of the Court to provide 24 information to a consultant employed by a competitor; 25 d. Court reporter(s) and videographers(s) employed in this action, provided such 26 persons agree to maintain the information as Highly Confidential pursuant to 27 this Order and executes Exhibit A; and 28 q/// 1 e. Any other person as to whom the parties in writing agree or that the Court in 2 these proceedings so designates, provided such persons agree to maintain the 3 information as Highly Confidential pursuant to this Order and executes 4 Exhibit A. 5 Any person to whom Highly Confidential Information is disclosed pursuant to subparts 6 || (a) through (e) hereinabove shall be advised that the Highly Confidential Information is being disclosed pursuant to an order of the Court, that the information may not be disclosed by such 8 || person to any person not permitted to have access to the Highly Confidential Information 9 || pursuant to this Protective Order, and that any violation of this Protective Order may result in the 10 |]imposition of such sanctions as the Court deems proper. If a person refuses to execute a copy of 11 |] Exhibit A, the Party seeking to reveal the Highly Confidential Information shall seek an order 12 || from the Court directing that the person be bound by this Protective Order. In the event of the 13 || filing of such a motion, Highly Confidential Information may not be disclosed to such person 14 |] until the Court resolves the issue. Proof of each written agreement provided for under this 15 |] Section shall be maintained by each of the Parties while this action is pending and disclosed to 16 || the other Parties upon good cause shown and upon order of the Court. [17] XIII. FILING OF CONFIDENTIAL INFORMATION AND HIGHLY CONFIDENTIAL INFORMATION 18 WITH THE COURT 19 All information subject to confidential treatment in accordance with the terms of this 20 || Protective Order that is filed with the Court, and any pleadings, motions or other papers filed 21 || with the Court disclosing any Confidential Information or Highly Confidential Information, shall 22 || be filed under seal to the extent permitted by law (including without limitation any applicable 23 || rules of court) and kept under seal until further order of the Court. 24 The Parties recognize that the Ninth Circuit Court of Appeals has held that there is a 25 || presumption of public access to judicial files and records, and that parties seeking to maintain the 26 || confidentiality of documents attached to non-dispositive motions must show good cause exists to 27 || overcome the presumption of public access. Kamakana v. City and Cnty. of Honolulu, 447 F.3d 28 || 1172, 11798 (9th Cir. 2006). [10] 1 The Parties further acknowledge that they have agreed to the terms of this Protective 2 | Order to facilitate the exchange of discovery materials in this case, but that there has been no 3 || showing, and the Court has not found, that any specific documents are secret or confidential. The Parties have not provided specific facts supported by declarations or concrete examples to 5 || establish that a protective order is required to protect any specific trade secret or other 6 || confidential information pursuant to Rule 26(c) or that disclosure would cause an identifiable 7\\and significant harm. 8 The Parties further acknowledge that the Party seeking to maintain the secrecy of 9 || documents attached to dispositive motions must show compelling reasons sufficient to overcome 10 ||the presumption of public access. /d. at 1180. All motions to seal must address the applicable 11 |] standard and explain why that standard has been met. The fact that a court has entered a blanket 12 || stipulated protective order and that a party has designated a document as confidential pursuant to 13 || that protective order does not, standing alone, establish sufficient grounds to seal a filed 14||document. See Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1133 (9" Cir. 2003); see 15 }also Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992). 16 Accordingly, a Party seeking to file a confidential document under seal must file a 17 |}motion to seal and must comply with LR JA 10-5 and the Ninth Circuit's directives 18 |]in Kamakana, 447 F.3d 1172 . The Parties shall file documents under seal using the Court’s 19 electronic filing procedures. See Local Rule JA 10-5. Papers filed with the Court under seal shall 20 || be accompanied with a concurrently-filed motion for leave to file those documents under seal. 21 Local Rule IA 10-5(a). Any motion to seal shall address the applicable legal standard and 22 || explain why that standard has been met. 23 If the sole ground for a motion to seal is that the opposing party (or non-party) has 24 || designated a document as confidential the designator shall file (within seven (7) days of the 25 || filing of the motion to seal) either (1) a declaration establishing sufficient justification for sealing 26 || each document at issue or (2) a notice of withdrawal of the designation(s) and consent to 27 || unsealing. If neither filing is made, the Court may order the document(s) unsealed without 28 || further notice. [11] 1 If any Confidential Information or Highly Confidential Information is used in any Court 2 proceeding in this action, it shall not lose its confidential status through such use, and the Party 3 || using such information shall take all reasonable steps consistent with Court Rules Governing 4 □□ Sealing and Redacting Court Records to maintain its confidentiality during such use. |, XIV. NOTICE TO NONPARTIES 6 Any Party issuing a subpoena to a nonparty shall enclose a copy of this Protective Order 7\|and advise the nonparty that it may designate any Discovery Material it produces pursuant to the 8 || terms of this Protective Order, should the producing nonparty wish to do so. This Protective 9 || Order shall be binding in favor of designating nonparties to the maximum extent permitted by 10 || law. Any nonparty invoking the Protective Order shall comply with, and be subject to, all 11 |] applicable sections of the Protective Order. 12|]/XV. KNOWLEDGE OF UNAUTHORIZED USE OR POSSESSION 13 If a Party receiving Confidential Information or Highly Confidential Information learns || of any possession, knowledge, use or disclosure of any Confidential Information or Highly 15 || Confidential Information in violation of the terms of this Protective Order, the Receiving Party 16 || shall immediately notify in writing the party that produced the Confidential Information or 17 || Highly Confidential Information at issue. The Receiving Party shall promptly furnish the 18 |] Producing Party the full details of such possession, knowledge, use or disclosure. With respect to 19 |] such unauthorized possession, knowledge, use or disclosure the Receiving Party shall assist the 20 || Producing Party in remedying the disclosure (e.g., by retrieving the Confidential Information or 21 || Highly Confidential Information from an unauthorized recipient) and/or preventing its 22 |; recurrence. 23|XVI. COPIES, SUMMARIES OR ABSTRACTS 24 Any copies, summaries, abstracts or exact duplications of Confidential Information or 25 || Highly Confidential Information shall be marked “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEYS EYES ONLY” and shall be considered Confidential 27 || Information or Highly Confidential Information subject to the terms and conditions of this 28 || Protective Order. Attorney-client communications and attorney work-product regarding [19] 1 || Confidential Information and Highly Confidential Information shall not be subject to this section 2||(.e., it need not be marked “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL — 3|| ATTORNEYS EYES ONLY”), regardless of whether they summarize, abstract, paraphrase or 4 || otherwise reflect Confidential Information. 5 | XVII. INFORMATION NOT CONFIDENTIAL 6 The restrictions set forth in this Protective Order shall not be construed to apply to any 7 \|information or materials that: 8 a. Were lawfully in the Receiving Party’s possession prior to such information 9 being designated as Confidential Information in this action, and that the 10 Receiving Party is not otherwise obligated to treat as confidential; 11 b. Were obtained without any benefit or use of Confidential Information or 12 Highly Confidential Information from a third party having the right to disclose 13 such information to the Receiving Party without restriction or obligation of 14 confidentiality; 15 c. Were independently developed after the time of disclosure by persons who did 16 not have access to the Producing Party’s Confidential Information or Highly 17 Confidential Information; 18 d. Have been or become part of the public domain by publication or otherwise 19 and not due to any unauthorized act or omission on the part of a Receiving 20 Party; or 21 e. Under law, have been declared to be in the public domain. 22 | XVIII. CHALLENGES TO DESIGNATIONS 23 In the event a Party challenges another Party’s confidential designation, counsel shall 24 || make a good faith effort to resolve the dispute, and in the absence of a resolution, the challenging 25 || Party may thereafter seek resolution by the Court. The burden of establishing proper designation 26 ||as confidential shall be on the Party claiming that it is confidential. Nothing in this Protective 27 || Order constitutes an admission by any Party that Confidential Information disclosed in this case 28 |]is relevant or admissible. Each Party specifically reserves the right to object to the use or [12] 1 |] admissibility of all Confidential Information disclosed, in accordance with applicable law and 2 || Court rules. 3 || XIX. INADVERTENT FAILURE TO DESIGNATE 4 The inadvertent failure to designate information produced in discovery as Confidential 5 | Information or Highly Confidential Information shall not be deemed, by itself, to be a waiver of 6||the right to so designate such discovery materials as Confidential Information or Highly || Confidential Information. Within a reasonable time of learning of any such inadvertent failure, 8 || the Producing Party shall notify all Receiving Parties of such inadvertent failure and take such 9 || other steps as necessary to correct such failure after becoming aware of it. Disclosure of such 10 || discovery materials to any other person prior to later designation of the Discovery Materials in 11 |]accordance with this section shall not violate the terms of this Protective Order. However, 12 |]immediately upon being notified of an inadvertent failure to designate, all Parties shall treat such 13 |] information as though properly designated and shall take any actions necessary to prevent any 14 || future unauthorized disclosure, use, or possession. 15]/XX. DURATION OF THE ORDER 16 Within sixty (60) calendar days after the final disposition of this action, by settlement or 17 || otherwise, all Confidential Information or Highly Confidential Information produced by an 18 |] opposing Party or nonparty (including, without limitation, any copies, extracts or summaries 19 || thereof) as part of discovery in this action shall be destroyed by the Parties to whom the 20 || Confidential Information or Highly Confidential Information was produced, and each counsel 21 |/shall, by declaration delivered to all counsel for the Producing Party, affirm that all such 22 || Confidential Information or Highly Confidential Information (including, without limitation, any 23 || copies, extracts or summaries thereof) has been destroyed; provided, however, that each counsel 24 || shall be entitled to retain pleadings, motions and memoranda in support thereof, declarations or 25 || affidavits, deposition transcripts and videotapes, or documents reflecting attorney work product 26 || or consultant or expert work product, even if such material contains or refers to Confidential 27 || Information or Highly Confidential Information, but only to the extent necessary to preserve a 28 || litigation file with respect to this action. Nothing in this Protective Order shall require that 1A 1 ||counsel for the Parties, as defined under Section 11(b), search through their email archives to 2 || find every instance where an email to or from counsel may attach Confidential Information or 3 || Highly Confidential Information, or backup systems to find every instance where a document or 4|| file may contain Confidential Information or Highly Confidential Information. However, unless 5 is an archival copy as permitted above, Confidential Information or Highly Confidential 6 || Information stored on a shared drive, attorneys’ desktops, or printed in hard copy, must be □□ destroyed pursuant to this Section. 8 | XXI. ATTORNEY’S FEES 9 Nothing in this Protective Order is intended to either expand or limit a prevailing Party’s 10 |jright under the Federal Rules of Civil Procedure or other applicable state or federal law to pursue 11 ||costs and attorneys’ fees incurred related to confidentiality designations or the abuse of the 12 || process described herein. [13] XXII. = INJUNCTIVE RELIEF AND SANCTIONS AVAILABLE FOR UNAUTHORIZED DISCLOSURE 14 OR USE OF CONFIDENTIAL INFORMATION OR HIGHLY CONFIDENTIAL INFORMATION 15 The Parties and/or nonparties shall not utilize any Confidential Information or Highly 16 || Confidential Information for their own personal and/or business advantage or gain, aside from 17 || purposes solely related to the instant litigation. The Parties and nonparties acknowledge and 18 |] agree that unauthorized use and/or disclosure of Confidential Information or Highly Confidential 19 || Information beyond this litigation shall subject the offending Party or nonparty to sanctions 20 || contemplated in FRCP 37(b)(2)(A)-(D), up to and including entry of judgment against the 21 || offending Party in circumstances involving willful disobedience with this order. Further, the 22 || Parties and/or nonparties receiving or being given access to Confidential Information or Highly 23 || Confidential Information acknowledge that monetary remedies would be inadequate to protect 24 || each Party in the case of unauthorized disclosure or use of Confidential Information or Highly 25 || Confidential Information that the Receiving Party only received through discovery in this action 26 || and that injunctive relief would be necessary and appropriate to protect each Party’s rights in the 27 || event there is any such unauthorized disclosure or use of Confidential Information or Highly 28 || Confidential Information. The availability of injunctive relief to protect against the unauthorized [14] 1 || disclosure or use of Confidential Information or Highly Confidential Information shall not be 2 exclusive. XX0II. OTHER ACTIONS AND PROCEEDINGS 4 If a Receiving Party (a) is subpoenaed in another action, investigation, or proceeding, (b) 5 |]is served with a demand in another action, investigation, or proceeding, or (c) is served with any 6 legal process by one not a party to this Protective Order, seeking materials which were produced 7 || or designated as Confidential Information or Highly Confidential Information pursuant to this 8 || Protective Order, the Receiving Party shall give prompt, actual, written notice by electronic 9 || transmission to counsel of record for such Producing Party within five (5) business days of 10 receipt of such subpoena, demand or legal process, or such shorter notice as may be required to 11 || provide other parties with the opportunity to object to the immediate production of the requested 12 || discovery materials to the extent permitted by law. The burden of opposing enforcement of the 13 || subpoena, demand or legal process shall fall upon the Party or nonparty who produced or 14 || designated the Discovery Material as Confidential Information or Highly Confidential 15 || Information. Unless the Party or nonparty who produced or designated the Confidential 16 || Information or Highly Confidential Information obtains an order or files a motion seeking an 17 || order directing that the subpoena not be complied with, and serves the order or copy of the filed 18 || motion upon the Receiving Party prior to production pursuant to the subpoena, the Receiving 19 || Party shall be permitted to produce documents responsive to the subpoena on the subpoena 20 || response date. Compliance by the Receiving Party with any order directing production pursuant 21 ||to a subpoena of any Confidential Information or Highly Confidential Information shall not 22 || constitute a violation of this Protective Order. Nothing in this Protective Order shall be construed 23 ||as authorizing a Party to disobey a lawful subpoena issued in another action. 94 || XXIV. EXECUTION IN COUNTERPARTS 25 This Protective Order may be signed in counterparts, and a fax or electronic signature 26 || shall have the same force and effect as an original ink signature. □□ □□□ 28 // 1|| XXV. ORDER SURVIVES TERMINATION 2 This Protective Order shall survive the termination of this action, and the Court shall 3 || retain jurisdiction to resolve any dispute concerning the use of information disclosed hereunder. 4|| MODIFICATION OF THIS PROTECTIVE ORDER 5 This Protective Order may be modified by the Court at any time for good cause shown, or 6 || pursuant to a stipulated Order by the Parties. 7 The entry of this Protective Order shall be without prejudice to the rights of any Party to 8 || apply for modification of this Protective Order or for additional or different protections. 9 IT IS SO STIPULATED. 10 || HONE LAW CLARKE LAW, P.C. 11}|_4s/ Leslie A. S. Godfrey /s/ Jeremy B. Clarke Eric D. Hone, NV Bar No. 8499 Jeremy B. Clarke, NV Bar No. 13849 12 |}ehone@hone.law JBC@ClarkeLawNV.com Leslie A. S. Godfrey, NV Bar No. 10229 230 E. Liberty Street 13 || lgodfrey@hone.law Reno, NV 89501 701 N. Green Valley Parkway, Suite 200 14 |]Henderson, NV 89074 Attorneys for Plaintiffs/Counterdefendants 15 || Attorneys for Defendants/Counterclaimants [16] 17 ORDER [18] Paragraph XXV is modified to reflect that although the parties may agree to be bound by the confidentiality terms of this Order 19 beyond the conclusion of this lawsuit, the dismissal of this action will terminate the jurisdiction of this court. IT IS SO ORDERED. CS [21] UNITED STATES M TRATE JUDGE [22] DATED: February 26, 2024