Wolf v. State of Nevada Ex Rel Department of Corrections

1 | |MARGARET A. MCLETCHIE, Nevada Bar No. 10931 PIETER M. O’LEARY, Nevada Bar No. 15297 2| |LEO S. WOLPERT, Nevada Bar No. 12658 | |MCLETCHIE LAW 602 South 10" Street 4| |Las Vegas, NV 89101 Telephone: (702) 728-5300 / Fax: (702) 425-8220 >| |Email: [email protected] | | Counsel for Plaintiff 7 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA g | |GREGORY WOLF, an individual, Case No.: 3:22-cv-00308-MMD-CSD 10 Plaintiff, [PROPOSED] STIPULATED PROTECTIVE ORDER 11 vs STATE OF NEVADA, ex. rel. NEVADA ¢ 13|])DEPARTMENT OF CORRECTIONS; DANA MARKS, an individual; RUSSELLE 228 DONNELLY, an_ individual, WILLIAM 15||DONNELLY, an individual; MICHAEL MINEV, an individual, 17 Defendants.

18 Plaintiff Gregory Wolf, and Defendants Dana Marks, Russelle Donnelly, and | Michael Minev (collectively “Parties”), by and through their respective counsel, having agreed to the following and for good cause under Rule 26(c)(1) of the Federal Rules of Civil |Procedure, IT IS HEREBY ORDERED as follows: 22 1. PURPOSES AND LIMITATIONS.

23 Disclosure and discovery activity in this action may involve production of confidential, proprietary, or private information for which special protection from public | |disclosure may be warranted under Rule 26(c)(1) of the Federal Rules of Civil Procedure.

26 | |The Parties acknowledge that this Order does not confer blanket protections on all disclosures 27) lor responses to discovery and that the protection it affords extends to only the limited | information or items that are entitled under law to treatment as confidential.

1 2. SCOPE.

2 All documents produced in the course of discovery, all responses to discovery | |requests, and all deposition testimony and exhibits and any other materials which may be | {subject to discovery (hereinafter collectively “Discovery Material’) shall be subject to this | |stipulated protective order concerning confidential information as set forth below. A copy of | |this Order must be included with any subpoena to any third party. Any party, or any third | |party who produces documents in this litigation, may designate documents as Confidential | |but only after review of the documents by an attorney who has, in good faith, determined that | |the documents contain “Confidential Information,” as defined below, and pursuant to the | |procedure set forth below.

1 3. CONFIDENTIAL INFORMATION.

12 “Confidential Information” shall mean information meriting special protection g 13 | Junder the Federal Rules of Civil Procedure, applicable case law, and any and all health | |information, including but not limited to medical records, treatment, diagnoses, medication, i 15 | |health information, and mental health treatment information. Confidential Information does | |not include information that (a) is in the public domain at the time of disclosure; (b) becomes 17 | |part of the public domain through no fault of the Receiving Party; (c) the Receiving Party | |can show was in its rightful and lawful possession at the time of disclosure; or (d) the | |Receiving Party lawfully receives from a Non-party later without restriction as to disclosure.

20 4. OTHER DEFINITIONS.

21 Party: any party to this action, including all of its officers, directors, agents, and | |attorney(s) of record for a Party in this action (including their associates, paralegals, and | |support/ clerical staff).

24 Non-party: any individual, corporation, association, or natural person or entity | jother than a party.

26 Protected Material: any Discovery Material containing Confidential Information | |that is designated by a Party or Non-party as “CONFIDENTIAL,” unless the Receiving Party | |challenges the confidentiality designation and (a) the Court decides such material is not | Jentitled to protection as confidential; (b) the Designating Party fails to apply the Court for an | |order designating the material confidential within the time period specified below; or (c) the | |Designating Party withdraws its confidentiality designation in writing.

4 Producing Party: a Party or Non-party that produces Discovery Material in this | |action.

6 Receiving Party: a Party that receives Discovery Material from a Producing Party.

7 Designating Party: a Party or Non-party that designates Discovery Material as | |“CONFIDENTIAL”. The Party or Non-party designating information or items as Protected | |Material bears the burden of establishing good cause for the confidentiality of all such items.

10 Challenging Party: a party that elects to initiate a challenge to a Designating Party’s | |confidentiality designation.

12 Confidentiality Log: a Confidentiality Log must accompany any production of g 13 | |documents designated as “CONFIDENTIAL” that includes the Bates numbers of the | |documents designated (or the portions thereof) as “Confidential” and the basis for doing so.

15 | |Each Producing Party shall keep this log cumulatively and re-produce it every time they | |designate something as “CONFIDENTIAL” so that it is a cumulative record of what the | |party has marked “CONFIDENTIAL.”

18 5. FORM AND TIMING OF DESIGNATION.

19 Protected Material shall be so designated by the Producing Party by placing or | jaffixing the word “CONFIDENTIAL” on the document in a manner which will not interfere 21] |}with the legibility of the document, and which will permit complete removal of the | |“Confidential” designation. A Confidentiality Log must accompany any production of | |Protected Material that includes the Bates numbers of the documents designated (or portions | |thereof) as “CONFIDENTIAL” and the basis for doing so. Documents shall be designated | |““Confidential” prior to, or contemporaneously with, the production or disclosure of the | |documents. The designation of documents as “CONFIDENTIAL” shall be accompanied with | ja Confidentiality Log in the form included at Exhibit A.

28 A Designating Party must exercise restraint and make good faith efforts to limit | |CONFIDENTIAL designations to specific materials that qualify for protection under the | |appropriate standard. Further, a Designating Party must use good faith efforts to designate |for protection only those parts of material, documents, items, or communications that | |qualify—so that other portions of the materials, documents, items, or communications for | |}which protection is not warranted are not swept unjustifiably within the ambit of this Order.

6 | |If only a portion or portions of materials on a page or within a document merit protection, a | |Producing Party must so indicate by making appropriate markings in the margins but not | jover text. The accompanying log should clearly explain which portion is designated as | |CONFIDENTIAL.

10 A Producing Party that makes original documents or materials available for 11] Jinspection need not designate them for protection until after the inspecting Party has | |indicated which material it would like copied and produced. During the inspection and before g 13 | |the designation, all of the material made available for inspection shall be deemed Bait 14 | |“Confidential.” After the inspecting Party has identified the documents it wants copied and i 15 | |produced, the Producing Party must determine which documents, or portions thereof, qualify |for protection under this Order, and, before producing the specified documents, the 2 |Producing Party must affix the appropriate legend on each page that contains Protected | |Material. If only a portion or portions of the material on a page qualifies for protection, the |Producing Party also must clearly identify the protected portion(s) (e.g., by making | |appropriated markings in the margins or by redacting protected portions).

21 Portions of depositions shall be designated CONFIDENTIAL when the deposition | |is taken or within fourteen (14) business days after receipt of the transcript, if feasible. Such | |designation shall be specific as to the portions to be protected and, if made by a Party, shall accompanied with a certification and log on the form, attached as Exhibit A. A 25||Designating Party must exercise restraint and make good faith efforts to limit | |“CONFIDENTIAL” designations to specific materials that qualify for protection under the | |appropriate standards.

28 Inadvertent or unintentional production of Protected Material without prior | |designation as “Confidential” shall not be deemed a waiver, in whole or in part, of the right | |to designate documents as Protected Material as otherwise allowed by this Order. Further, a | |Party may assert that disclosures or discovery material produced by another Party constitute | |Protected Material by informing the opposing Party by following the procedures set forth | |herein for a Designated Party.

6 6. PROTECTION OF PROTECTED MATERIAL.

7 a. General Protections. Protected Material shall not be used or disclosed by the | |Parties or counsel for the Parties or any other persons identified below (§ 6.b.) for any | |purposes whatsoever other than preparing for and conducting litigation in the above-entitled | Jaction (including any appeal).

11 b. Qualified Receiving Parties and Limited Third-Party Disclosures. Protected | |Material shall be held in confidence by each qualified Receiving Party to whom it is g 13 | |disclosed, shall be used only for purposes of this action, and shall not be disclosed to any | |person who is not a qualified recipient. All Protected Material shall be carefully maintained i 15 | |so as to preclude access by persons who are not qualified Receiving Parties.

16 Subject to these requirements, in addition to Parties and the Court, the following 17 | |categories of persons may be allowed to review Protected Material pursuant to this Order | |after executing an acknowledgment (in the form set forth at Exhibit B hereto), that he or she | |has read and understands the terms of this Order and is bound by it: 20 (1) Any officers, directors, or designated employees of a Party deemed 21 necessary by counsel of record in this action to aid in the prosecution, 22 defense, or settlement of this action; 23 (2) Professional outside vendors for attorneys of record (such as copying 24 services and translators and interpreters), 25 (3) Court reporters, deposition notaries and staff; 26 (4) The author of any document designated as CONFIDENTIAL or the original 27 source of Confidential Information contained therein; 28 (5) Persons other than legal counsel who have been retained or specially 1 employed by a party as an expert witness for purposes of this lawsuit or to 2 perform investigative work or fact research; 3 (6) Deponents during the course of their depositions; 4 (7) Counsel for issuers of insurance policies under which any issuer may be 5 liable to satisfy part or all of a judgment that may be entered in these 6 proceedings or indemnify or re1mburse payments or costs associated with 7 these proceedings; 8 (8) Any private mediator or arbitrator appointed by the Court or selected by 9 mutual agreement of the Parties and the mediator or arbitrator’s secretarial 10 and clerical personnel; 11 (9) Any other person as to whom the Producing Party has consented to 12 disclosure in advance and in writing, on notice to each Party hereto. g 13 c. Control of Documents. Counsel for Parties shall take reasonable efforts to 14 | prevent unauthorized disclosure of Protected Material pursuant to the terms of this Order. No i 15 | |copies of Protected Material shall be made except by or on behalf of attorneys of record, in- a 16 | |house counsel, or the Parties in this action.

2 17 d. Copies. Any person making copies of Protected Material shall maintain all | |copies within their possession or the possession of those entitled to access such information | Junder the Protective Order. All copies shall be immediately affixed with the designation | |““CONFIDENTIAL” if the word does not already appear on the copy. All such copies shall | |be afforded the full protection of this Order.

22 7. UNAUTHORIZED DISCLOSURE.

23 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed | | Protected Material to any person or in any circumstance not authorized under this Stipulated | |Protective Order, the Receiving Party must immediately (a) notify in writing the Designating | |Party of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the | | Protected Material, (c) inform the person or persons to whom unauthorized disclosures were | |made of all the terms of this Order, and (d) request such person or persons to execute the | |“Acknowledgment and Agreement to Be Bound by Stipulated Protective Order” (Exhibit | |B).

3 8. FILING PROTECTED MATERIAL 4 The Parties shall follow Rule 10-5 of the Local Rules of Practice for the U.S. | |District Court of Nevada and must file documents under seal under the Court’s electronic | {filing procedures, 7 Further, the Parties recognize the presumption of public access inherent in judicial | |records and that a Protective Order does not establish that documents meet the standard for | |sealing set forth in Rule 10-5 of the Local Rules of Practice for the U.S. District Court of | |Nevada and the Ninth Circuit’s decisions in Kamakana v. City and County of Honolulu, 447 | |F.3d 1172 (th Cir. 2006) and Ctr. for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, | |1097 (9th Cir.), cert. denied sub nom. FCA U.S. LLC v. Ctr. for Auto Safety, 137 S. Ct. 38 g 13 | |(2016). When a motion to seal is related to the merits of the case, a “party seeking to seal a 14 | |judicial record then bears the burden of overcoming this strong presumption by meeting the | |‘compelling reasons’ standard.” Kamakana, 447 F.3d at 1178. But when motion to seal is | Junrelated to the merits of the case, a party may overcome this presumption by meeting a less 17 | Jexacting “good cause standard.” Chrysler Group, 809 F.3d at 1097. To establish good cause, | |a party must show specific prejudice or harm—such as protecting a party from annoyance, | |}embarrassment, oppression, or undue burden or expense—will result if the motion to seal is | |denied. 7d. (quoting Fed. R. Civ. P. 26(c)). Further, the Court should make an independent | |determination regarding whether documents merits sealed status, and thus expressly reserves | |the right to do. Kamakana 447 F.3d at 1186-87.

23 In recognition of this legal standard, and the fact that the party filing Protected | |Material may not be the party that designated it confidential (and thus, may not believe good | |cause exists for sealing), the Parties suggest that the procedure set forth below is followed if | |the sole ground for a motion to seal is that the opposing party (or non-party) has designated | |a document as subject to protection pursuant to this Stipulated Protective Order: the Party | |filing such Protected Materials may assert in the accompanying motion any reasons why the | |Protected Materials should not, in fact, be kept under seal and the Designating Party, who | |must be properly noticed, may likewise file a response asserting its position that the Protected | |Material merits protection under Rule 26(c) of the Federal Rules of Civil Procedure and | jattaching a declaration supporting the assertion that the designated material meets the | |applicable standard.

6 9. CHALLENGES TO PROTECTED MATERIAL.

7 Any designation of Protected Material is subject to challenge. The following | |procedures shall apply to any such challenge: 9 a. Burden. The burden of proving the necessity of a “CONFIDENTIAL” | |designation remains with the party asserting confidentiality.

11 b. Notice; Opportunity to Challenge. A party who contends that Protected | |Material is not entitled to confidential treatment shall give written notice to the party who g 13 | |affixed the “CONFIDENTIAL” designation of the specific basis for the challenge. The party | |who so designated the documents shall have ten (10) days from service of the written notice i 15 | |to determine if the dispute can be resolved without judicial intervention and, if not, to move | |for an Order confirming the “CONFIDENTIAL” designation, and the status as Protected | |Material.

18 c. Treatment as Protected Material until Order or Withdrawal.

19 | |Notwithstanding any challenge to the designation of documents as such, all material | |previously designated “CONFIDENTIAL” shall continue to be treated as Protected Material | |subject to the full protections of this Order until one of the following occurs: (1) the Party | |who claims that the documents are Protected Material withdraws such designation in writing; | |(2) the Party who claims that the documents are confidential fails to move timely for an Order | |designating the documents as confidential as set forth in paragraph 9.b. above; or (3) the | |Court rules that the documents are not Protected Material and/or should no longer be | |designated as “CONFIDENTIAL.”

27 d. No Waiver. Challenges to the confidentiality of documents may be made at any | |time and are not waived by the failure to raise the challenge at the time of initial disclosure | Jor designation.

2 10. DURATION; CONCLUSION OF LITIGATION.

3 All provisions of this Order restricting the use of Protected Material shall continue 4| |to be binding after the conclusion of the litigation unless otherwise agreed or ordered.

5 | |However, the dismissal of this action will terminate the jurisdiction of this Court, including | jover this Order.

7 Within thirty (30) days of the final termination of in the above-entitled action, | |which would be either a final judgment on all claims or stipulation and order for dismissal 9||with prejudice, all documents and information designated as CONFIDENTIAL by a | |Designating Party and which has not been challenged, including any copies, or documents | |containing information taken therefrom, shall be returned to the Designating Party. In the | |alternative, within thirty (30) days of the final termination of this case, which would be either g 13 | Ja final judgment on all claims or stipulation and order for dismissal with prejudice, all such Bait 14 | |documents, including copies, may be shredded or disposed of in a manner to ensure the i 15 | {destruction thereof and a declaration certifying such destruction or disposal provided to the : 16 | |Designating Party. To the extent a party has designated portions of a deposition transcript as | |CONFIDENTIAL, the non-designating party is under no obligation or duty to shred or | |dispose of the deposition transcript, however, the CONFIDENTIAL designation will remain.

19 11. PROTECTED MATERIAL SUBPOENAED OR ORDERED 20 PRODUCED IN OTHER LITIGATION.

21 If a Party is served with a subpoena or an order issued in other litigation that would | |compel disclosure of Protected Material designated by another Party or Non-party, the Party | |must so notify the Designating Party, in writing (by e-mail or fax, if possible) within three | |(3) court days after receiving the subpoena or order. Such notification must include a copy | |of the subpoena or court order.

26 12, ORDER SUBJECT TO MODIFICATION.

27 This Order shall be subject to modification on motion of any Party or any other | |person who may show an adequate interest in the above-entitled action to intervene for | |purposes of addressing the scope and terms of this Order. The Order shall not, however, be | |modified until the Parties shall have been given notice and an opportunity to be heard on the | |proposed modification.

4 13. NO JUDICIAL DETERMINATION.

5 This Order is entered based on the representations and agreements of the Parties | |and for the purpose of facilitating discovery. Nothing herein shall be construed or presented | Jas a judicial determination that any specific document or item of information designated as | |CONFIDENTIAL by counsel is subject to protection under Rule 26(c) of the Federal Rules | jof Civil Procedure or otherwise until such time as a document-specific ruling shall have been | |made.

11 14. MISCELLANEOUS.

12 a. Public Health and Safety. Nothing in this Order is intended to prevent any Party g 13 | |from raising with the Court any concern that the disclosure of certain Protected Material may | |have a possible adverse effect upon the general public health or safety, or the administration i 15 | Jor operation of government or public office. a 16 b. Right to Further Relief. Nothing is this Order abridges the right of any person 17 | |to seek its modification by the Court in the future.

18 c. Right to Assert Other Objections. By stipulating to the entry of this Order, no | |Party waives any right it otherwise would have to object to disclosing or producing any | |information or item on any ground not addressed in this Order. Similarly, no Party waives | Jany right to object on any ground to use in evidence of any of the material covered by this | |Protective Order.

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1 15. PERSONS BOUND UPON ENTRY OF ORDER.

2 This Order shall take effect when entered and shall be immediately binding upon | |the Parties (as defined herein). It shall also be binding upon subsequent parties that are added | |to this matter, each of which shall execute Exhibit B (Agreement to be bound). > IT IS SO STIPULATED.

4 DATED this 27" day of July, 2023 DATED this 27" day of July, 2023 MCLETCHIE LAW AARON D. FORD Attorney General By:_/s/ Pieter M. O’Leary By: /s/ Lorin M. Taylor MARGARET A. MCLETCHIE, LORIN M. TAYLOR, Nevada Bar No. 10931 Nevada Bar No. 14958 PIETER M. O’LEARY, [email protected] 12 Nevada Bar No. 15297 STATE OF NEVADA LEO S. WOLPERT, OFFICE OF ATTORNEY 13 Nevada Bar No. 12658 GENERAL 14 MCLETCHIE LAW 555 E. Washington Ave., Ste. 3900 2 602 South Tenth Street Las Vegas, Nevada 89101 é dee 15 Las Vegas, Nevada 89101 Telephone: (702) 486-2389 3282 Telephone: (702) 728-5300 Fax: (702) 486-3773 16 Fax: (702) 425-8220 Attorneys for Defendants = 417 Email: [email protected] Counsel for Plaintiff 22 ORDER 23 IT IS SO ORDERED.

CS 26 UNITED STATES MAGJ®@TRATE JUDGE DATED: July 28, 2023

1 EXHIBIT A [Name]’s LOG OF CONFIDENTIAL DESIGNATIONS | a as Sees bcm Date of pr Other Specific Description of Authority/Basis for 4 Production Identifier | Documents or Information Designation spt —_— yo sft OT ef {ft

1 EXHIBIT B 2 ACKNOWLEDGMENT OF UNDERSTANDING AND AGREEMENT TO BE BOUND 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ‘ GREGORY WOLF, an individual, Case No.: 3:22-cv-00308-MMD-CSD 7 Plaintiffs, [PROPOSED] STIPULATED PROTECTIVE ORDER 8 VS. ?||STATE OF NEVADA, ex. rel. NEVADA | DEPARTMENT OF CORRECTIONS; DANA MARKS, an individual; RUSSELLE |DONNELLY, an individual, WILLIAM DONNELLY, an individual; MICHAEL MINE\V, an individual, e 13 Defendants. © 17 18 The undersigned hereby acknowledges that he or she has read the Confidentiality | |Order dated , 2023, in the above-captioned action, understands the terms | |thereof, and agrees to be bound by such terms. The undersigned submits to the jurisdiction | |of the United States District Court for the District of Nevada relating to the Confidentiality | |Order during the pendency of the abhove-entitled action and understands that the terms of | |said Order obligate him/her to use discovery materials designated CONFIDENTIAL solely | |for the purposes of the above-captioned action, and not to disclose any such Protected | |Material to any person, firm, entity, or concern.

26 The undersigned acknowledges that violation of the Stipulated Confidentiality | |Order may result in penalties for contempt of court.

28 | |///

I Name: 2 Job Title: Employer: 3 Business Address: Signature —i—S