Alexander v. Las Vegas Metropolitan Police Department

Opinion

6 UNITED STATES DISTRICT COURT

7 DISTRICT OF NEVADA 8 LATIA ALEXANDER, individually as heir of ISAIAH T. WILLIAMS, and in her capacity as 9 Special Administrator of the Estate of ISAIAH T. Case No.: 2:24-cv-00074-APG-NJK WILLIAMS, 10 Plaintiff, 11 vs. 12 LAS VEGAS METROPOLITAN POLICE 13 DEPARTMENT, a political subdivision of the State of Nevada; KERRY KUBLA, in his 14 individual capacity; BRICE CLEMENTS, in his individual capacity; ALEX GONZALES, in his 15 individual capacity; RUSSELL BACKMAN, in his individual capacity; JAMES 16 ROTHENBURG, in his individual capacity; JAMES BERTUCCINI, in his individual 17 capacity; and DOES I-XX, inclusive,

18 Defendants.

19 KERRY KUBLA,

20 Counterclaimant,

21 vs.

22 LATIA ALEXANDER in her capacity as Special Administrator of the Estate of ISAIAH T. 23 WILLIAMS,

24 Counterdefendant. 25 STIPULATED PROTECTIVE ORDER 26 Plaintiffs seek to obtain, inspect and copy documents and/or things which Defendants Las 27 Vegas Metropolitan Police Department (“LVMPD”), Kerry Kubla, Brice Clements, Alex 28 Page 1 of 12 1 Gonzales, Russell Backman, James Rothenburg and James Bertuccini (“LVMPD Defendants”), 2 contend contain private and sensitive information, confidential information of LVMPD, its officers 3 and employees, its internal investigative and administrative actions, and other confidential 4 information. Pursuant to an agreement by the Parties, the Court hereby enters the following Order 5 for Protection (“Protective Order”): 6 TERMS OF PROTECTIVE ORDER 7 I. DEFINITIONS 8 The following definitions apply to the Protective Order: 9 1. Party. Any party to this action, including all of its officers, directors, employees, 10 consultants, Experts, and Outside Counsel. Party, as used in this Protective Order, shall also refer 11 to LVMPD, and its officers, agents and employees. 12 2. Disclosure or Discovery Material. All items or information, regardless of the 13 medium or manner generated, stored, or maintained (including, among other things, testimony, 14 transcripts, or tangible things) that are produced or generated in disclosures or responses to 15 discovery in this matter. 16 3. “Confidential” Information or Items. Information (regardless of how generated, 17 stored or maintained) or tangible things that qualify for protection under the law enforcement 18 investigative and/or official information privileges, or that contain Criminal History Information, 19 personal information regarding individuals including Social Security Numbers, dates of birth and 20 information which a person would have a reasonable expectation of privacy. Confidential 21 information shall also include the parties’ contact information disciplinary action of non-party 22 employees, and medical information. 23 4. Receiving Party. A Party that receives Disclosure or Discovery Material or 24 Confidential Information from a Producing Party. 25 5. Producing Party. A Party or third-party that produces Disclosure or Discovery 26 Material or Confidential Information in this action. 27 28 Page 2 of 12 1 6. Designating Party. A Party or third-party that designates information or items that 2 it produces in disclosures or in responses to discovery as “Confidential.” 3 7. Protected Material. Any Disclosure or Discovery Material or Confidential 4 Information that is designated as “Confidential.” 5 8. Outside Counsel. Attorneys who are not employees of a Party but who are retained 6 to represent or advise a Party in this action. 7 9. House Counsel. Attorneys who are employees of a Party. 8 10. Counsel (without qualifier). Outside Counsel and House Counsel (as well as their 9 support staffs). 10 11. Expert. A person with specialized knowledge or experience in a matter pertinent 11 to the litigation retained by a Party or its Counsel to serve as an expert witness or as a consultant 12 in this action. This definition includes, but is not limited to, a professional jury or trial consultant 13 retained in connection with this litigation. 14 12. Professional Vendor. Person or entity that provides litigation support services (e.g., 15 photocopying, videotaping, translating, preparing exhibits or demonstrations, organizing, storing, 16 retrieving data in any form or medium; etc.) and its employees and subcontractors. 17 13. The use of the singular form of any word includes the plural, and vice versa. 18 II. SCOPE 19 The protection conferred by this Protective Order covers not only Protected Material, but 20 also any information copied or extracted therefrom, as well as all copies excerpts, summaries, or 21 compilations thereof, testimony, conversations, or presentations by parties or counsel to or in court 22 or in other settings that might reveal Protected Material. 23 III. DURATION 24 Even after the termination of this action, the confidentiality obligations imposed by this 25 Protective Order shall remain in effect until a Designating Party agrees otherwise in writing or a 26 court order otherwise directs. 27 28 Page 3 of 12 1 IV. DESIGNATING PROTECTED MATERIAL 2 1. Manner and Timing of Designations. Except as otherwise provided herein, or as 3 otherwise ordered, material that qualifies for protection under this Order must be clearly 4 designated before it is disclosed or produced. Designations in conformity with this Order require: 5 a. For information in documentary form. That the Producing Party 6 shall affix the legend “Confidential” on each page that contains Protected Material. If only a 7 portion or portions of the material on a page qualifies for protection, the Producing Party also must 8 clearly identify the protected portion(s) (e.g., by making appropriate makings in the margins or 9 redacting protected portions). A Producing Party that makes original documents or materials 10 available for inspection need not designate them for protection until after the inspecting Party has 11 indicated which material it would like copied and produced. During the inspection and before the 12 designation, all of the material made available for inspection shall be deemed “Confidential.” 13 After the inspecting Party has identified the documents it wants copied and produced, the 14 Producing Party must determine which documents, or portions thereof, qualify for protection under 15 this Order, and, before producing the specified documents, the Producing Party must affix the 16 appropriate legend on each page that contains Protected Material. If only a portion or portions of 17 the material on a page qualifies for protection, the Producing Party also must clearly identify the 18 protected portion(s) (e.g., by making appropriated markings in the margins or by redacting 19 protected portions). 20 b. For testimony given in deposition or in other pretrial or trial 21 proceedings. That before the close of the deposition, hearing, or other proceeding, the Party or 22 non-party offering or sponsoring the testimony shall identify on the record all protected testimony 23 and further specify any portions of the testimony that qualify as “Confidential.” When it is 24 impractical to identify separately each portion of testimony that is entitled to protection, the Party 25 or non-party that sponsors, offers, or gives the testimony may invoke on the record (before the 26 deposition or proceeding is concluded) a right to have up to thirty (30) days to identify the specific 27 portions or the testimony as to which protection is sought. Only those portions of the testimony 28 Page 4 of 12 1 that are appropriately designated for protection under the standards set forth herein within the thirty 2 (30) days shall be covered by the provisions of this Protective Order. Upon request of a 3 Designating Party, transcript pages containing Protected Material must be separately bound by the 4 court reporter, who must affix to the top of each such page the legend “Confidential” as instructed 5 by the Party or non-party offering or sponsoring the witness or presenting the testimony. 6 c. For information produced in some form other than documentary, 7 and for any other tangible items. That the Producing Party affix in a prominent place on the 8 exterior of the container or containers in which the information or item is stored the legend 9 “Confidential.” If only portions of the information or item warrant protection, the Producing Party, 10 to the extent practicable, shall identify the protected portions. 11 2. Inadvertent Failure to Designate. Inadvertent failure to identify documents or 12 things as “Confidential” pursuant to this Protective Order shall not constitute a waiver of any 13 otherwise valid claim for protection, provided that the provisions of this paragraph are satisfied. 14 If the Designating Party discovers that information should have been but was not designated 15 “Confidential” or if the Designating Party receives notice that would enable the Designating Party 16 to learn that it has disclosed such information, the Designating Party must immediately notify all 17 other parties. In such event, within thirty (30) days of notifying all other Parties, the Designating 18 Party must also provide copies of the “Confidential” information designated in accordance with 19 this Protective Order. After receipt of such re-designated information, the “Confidential” 20 information shall be treated as required by this Protective Order, and the Receiving Party shall 21 promptly, but in no event more than fourteen (14) calendar days from the receipt of the re- 22 designated information, return to the Designating Party all previously produced copies of the same 23 unlegended documents or things. The Designating Party and the Parties may agree to alternative 24 means. The Receiving Party shall receive no liability, under this Protective Order or otherwise, 25 for any disclosure of information contained in unlegended documents or things occurring before 26 the Receiving Party was placed on notice of the Designating Party’s claims of confidentiality. 27 28 Page 5 of 12 1 V. CHALLENGING CONFIDENTIALITY DESIGNATIONS 2 1. Meet and Confer. A Party that elects to initiate a challenge to a Designating Party’s 3 confidentiality designation must do so in good faith and must begin the process by conferring with 4 counsel for the Designating Party. The challenging Party must give the Designating Party an 5 opportunity of not less than ten (10) calendar days to review the designated material, to reconsider 6 the circumstances, and, if no change in the designations is offered, to explain in writing the basis 7 for the confidentiality designation. 8 2. Judicial Intervention. A Party that elects to press a challenge to a confidentiality 9 designation after considering the justification offered by the Designating Party may file and serve 10 a motion that identifies the challenged material and sets forth in detail the basis for the challenge. 11 Until the Court rules on the challenge, all parties shall continue to afford the material in question 12 the level of protection to which it is entitled under the Producing Party’s designation. The burden 13 to establish the propriety of a confidentiality designation shall be on the Designating Party. 14 VI. ACCESS TO AND USE OF PROTECTED MATERIAL 15 1. Basic Principles. A Receiving Party may use Protected Material that is disclosed 16 or produced by another Party or by a third-party in connection with this case solely for the limited 17 purposes of prosecuting, defending, attempting to settle, or settling this action. Such Protected 18 Material may be disclosed only to the categories of persons and under the conditions described in 19 the Protective Order. Protected Material must be stored and maintained by a Receiving Party at a 20 location and in a secure manner that ensures that access is limited to the persons authorized under 21 this Protective Order. 22 2. Disclosure of “Confidential” Information or Items. Unless otherwise ordered by 23 the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any 24 information or item designated Confidential only to: 25 26 27 28 Page 6 of 12 1 a. The Parties to this action and the Receiving Party’s Outside Counsel 2 of record in this action, as well as employees of said Counsel to whom it is reasonably necessary 3 to disclose the information for this litigation. Counsel of Record shall be responsible for advising 4 all of their staff of the existence of, and their confidentiality obligations under, the Protective 5 Order, and shall be responsible for any non-compliance with the Protective Order by members of 6 their staff that have not signed an agreement to be bound by the Protective Order; 7 b. The officers, directors, and employees of the Receiving Party to 8 whom disclosure is reasonably necessary for this litigation and who have signed or have agreed 9 under oath and on the record to be bound by the “Agreement to Be Bound by Protective Order” 10 (Exhibit A); 11 c. Experts of the Receiving Party to whom disclosure is reasonably 12 necessary for this litigation and who have signed or have agreed under oath and on the record to 13 be bound by the “Agreement to Be Bound by Protective Order” (Exhibit A); 14 d. The Court and its personnel, including (without limitation) jurors; 15 e. Court reporters, their staffs, and Professional Vendors to whom 16 disclosure is reasonably necessary for this litigation; 17 f. During their depositions or at trial, witnesses in the action to whom 18 disclosure is reasonably necessary. Witnesses will not be permitted to retain copies of Protected 19 Material unless they have signed or agreed under oath and on the record to be bound by the 20 “Agreement to Be Bound by Protective Order” (Exhibit A). Upon request of a Designating Party, 21 pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material 22 must be separately bound by the court reporter and may not be disclosed to anyone except as 23 permitted under this Protective Order; and 24 g. The author of the document or the original source of the information 25 and recipients or addressees in the normal course of business. 26 Notwithstanding the preceding of this paragraph VI(2), a Party that has produced its, his 27 or her own Protected Material may disclose such Protected Material to any persons, with or without 28 Page 7 of 12 1 any conditions placed upon such disclosure, as the Party deems appropriate. 2 3. Trial and Dispositive Motion Disclosure: For the purpose of trial and/or dispositive 3 motions, the parties acknowledge that a “strong presumption in favor of access” exists. A party 4 seeking to seal a judicial record at trial and/or the dispositive motions stage bears the burden of 5 establishing “compelling reasons” by “articulating compelling reasons supported by specific 6 factual findings,” that outweigh the public policies favoring disclosure.1 7 4. Disclosure of Possession of Confidential Information. All persons described in 8 paragraph VI above shall not under any circumstances sell, offer for sale, advertise, or publicize 9 either the Confidential Information or the fact that such persons have obtained Confidential 10 Information. 11 VII. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 12 13 If a Receiving Party is served with a subpoena or an order issued in other litigation that 14 would compel disclosure of any information or items designated in this action as “Confidential” 15 the Receiving Party must so notify the Designating Party, in writing (by fax or email if possible) 16 immediately and in no event more than seven (7) calendar days after receiving the subpoena or 17 order. Such notification must include a copy of the subpoena or court order. The Receiving Party 18 also must within ten (10) calendar days inform in writing the party who caused the subpoena or 19 order to issue in the other litigation that some or all the material covered by the subpoena or order 20 is the subject of this Protective Order and deliver to such party a copy of this Protective Order. 21 The Designating Party shall bear the burdens and the expenses of seeking protection in that court 22 of its Confidential material – and nothing in these provisions should be construed as authorizing 23 or encouraging a Receiving Party in this action to disobey a lawful directive from another court. 24 Once notice is given, and five business days have elapsed, the receiving party shall have no further 25 liability for disclosure pursuant to a subpoena or its equivalent. 26 27 1 See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006). 28 Page 8 of 12 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 in 5 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 the “Acknowledgment and Agreement to 9 Be Bound” (Exhibit A). The Receiving Party shall promptly notify the Designating Party of the 10 results of its efforts with regards to (b), (c), and (d) herein. After a good faith meet and confer 11 effort to resolve and remaining disputes concerning compliance with this paragraph, and Party, 12 Receiving 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 or Protected Material do 18 not and shall not apply to information or material that: was, is, or becomes public knowledge in a 19 manner other than by violation of the Protective Order, is acquired by the non-designating party 20 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. 25 X. FILING PROTECTED MATERIAL 26 See order is sued c on currently here with. 27 28 Page 9 of 12 1 2 3 4 5 6 7 8 9 10 XI. FINAL DISPOSITION 11 Unless otherwise ordered or agreed in writing by the Producing Party, within sixty (60) 12 calendar days of a written request, after the final termination of this action, each Receiving Party 13 must return all Protected Material to the Producing Party. As used in this subdivision, “all 14 Protected Material” includes all copies, abstracts, compilations, summaries or any other form of 15 reproducing or capturing any of the Protected Material. With permission in writing from the 16 Designating Party, the Receiving Party may destroy some or all of the Protected Material instead 17 of returning it. If the Designating Party does not give permission in writing to destroy the Protected 18 Material in lieu of returning it, the Designating Party shall pay for the time and cost of staff to 19 locate the material and return it. Notwithstanding this provision, Counsel are entitled to retain an 20 archival copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence or 21 attorney work product, even if such materials contain Protected Material. Additionally, no Party 22 shall be required to conduct e-mail searches to locate the existence of Protected Material that may 23 have been transmitted electronically in compliance with this Order. Any such archival copies that 24 contain or constitute Protected Material remain subject to this Protective Order as set forth herein. 25 In the event of an appeal, “Final Disposition” shall not occur until the conclusion of all appeals. 26 XII. ADDITIONAL PROVISIONS 27 1. Modification. The Parties may modify this Protective Order by written agreement, 28 Page 10 of 12 1 subject to approval by the Court. The Court may modify this Protective Order. 2 2. Right to Assert Other Objections. This Protective Order does not affect or waive 3 any right that any Party otherwise would have to object to disclosing or producing any information 4 or item on any ground not addressed in this Protective Order. Similarly, this Protective Order does 5 not affect or waive any Party’s right to object on any ground to use in evidence any of the material 6 covered by this Protective Order. 7 3. Privileges Not Waived. This Protective Order does not affect or waive any 8 applicable privilege or work product protection, or affect the ability of a Producing Party to seek 9 relief for an inadvertent disclosure of material protected by privilege or work product protection. 10 4. Third Party Protections. Any witness or other person, firm, or entity from which 11 discovery is sought may be informed of and may obtain the protection of this Protective Order by 12 written notice to the Parties’ respective counsel or by oral notice at the time of any deposition or 13 similar proceeding. 14 5. Obligations to Third Parties. Nothing herein shall operate to relieve any Party or 15 non-party from any pre-existing confidentiality obligations currently owed by any Party or non- 16 party to any other Party or non-party. 17 6. Retention of Completed “Acknowledgment and Agreement to Be Bound” Forms 18 (Exhibit A). Completed “Acknowledgement and Agreement to Be Bound” Forms (Exhibit A) 19 (“form”) shall be maintained by the Party that obtained the completed form pursuant to this 20 Protective Order. The Party retaining the completed form shall produce the form to resolve any 21 good faith challenge by a Party or Designating Party or dispute concerning whether a person who 22 is obligated under this Protective Order to complete the form did so properly and complied with 23 the representations in the form and this Protective Order. If the parties are unable to resolve any 24 such disputes or challenges through a good faith meet and confer process, the challenging Party or 25 Designating Party may seek appropriate relief from this Court. 26 27 28 Page 11 of 12 ALEXANDER, ET AL. v. LVMPD, ET AL.

2 Case No. 2:24-cv-00074-APG-NJK 3 4 IT IS SO STIPULATED this 11th day of March, 2024. 5 MARQUIS AURBACH BREEDEN & ASSOCIATES, PLLC 6 By: /s/ Craig R. Anderson By: /s/ Adam Breeden 7 Craig R. Anderson, Esq. Adam Breeden, Esq. Nevada Bar No. 6882 Nevada Bar No. 8768 8 10001 Park Run Drive 7432 W. Sahara Ave, Ste 101 Las Vegas, Nevada 89145 Las Vegas, Nevada 89117 9 Attorney for Defendants LVMPD, Attorney for Plaintiff Kerry Kubla, Brice Clements, Alex 10 Gonzales, Russell Backman, James Rothenburg and James Bertuccini 12 ORDER 13 14 IT IS SO ORDERED THIS 12 day of March, 2024. 15 Loi A 16 é . A sey 7 United St atesM agistrate Judge 18 19 20 21 22 23 24 25 26 27 no Page 12 of 12

1 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 2 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 ______________, 2023, 5 in the case of LATIA ALEXANDER, individually as heir of ISAIAH T. WILLIAMS, and in her 6 capacity as Special Administrator of the Estate of ISAIAH T. WILLIAMS v. LVMPD, et al., Case 7 No. 2:24-cv-00074-APG-NJK. I agree to comply with and to be bound by all terms of this 8 Protective Order and I understand and acknowledge that failure to so comply could expose me to 9 sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in 10 any manner any information or item that is subject to this Protective Order that any person entity 11 except in strict compliance with the provisions of this Order. Further, I solemnly promise that I 12 will not offer to sell, advertise or publicize that I have obtained any Protected Material subject to 13 this Protective Order. 14 At the conclusion of this matter, I will return all Protected Material which came into my 15 possession to counsel for the party from whom I received the Protected Material, or I will destroy 16 those materials. I understand that any Confidential Information contained within any summaries 17 of Protected Material shall remain protected pursuant to the terms of this Order. 18 I further agree to submit to the jurisdiction of the United States District Court, for the 19 District of Nevada for the purpose of enforcing the terms of this Protective Order, even if such 20 enforcement proceedings occur after termination of this action. 21 I certify under the penalty of perjury that the foregoing is true and correct. 22 Date: ____________________ 23 City and State where signed: __________________________________________ 24 Printed name: _______________________________ 25 Address: ___________________________________________________________ 26 Signature: __________________________________ 27 28