KPG Investments, Inc. v. Sonn

• Court: District Court, D. Nevada
• Decided: April 13, 2023
• Docket: 3:22-cv-00236
• Status: Unknown

Opinion

1 GUNDERSON LAW FIRM Mark H. Gunderson, Esq. 2 Nevada State Bar No. 2134 3 mgunderson@gundersonlaw.com Austin K. Sweet, Esq. 4 Nevada State Bar No. 11725 asweet@gundersonlaw.com 5 3895 Warren Way Reno, Nevada 89509 6 Telephone: 775.829.1222 7 Facsimile: 775.829.1226 Attorneys for Minerva Office Management, Inc. and 8 Robert L. Leberman 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 12 KPG INVESTMENTS INC., a Nevada Case No.: corporation; KENDALLE GETTY, an individual, 3:22-cv-00236-ART-CLB 13 Plaintiffs, 14 v. 15 MARLENA SONN, an individual; AND DOES 16 1-20, 17 Defendant. _______________________________________/ 18 19 MARLENA SONN, Consolidated with: 3:22-cv-00323-ART-CLB 20 Plaintiff, v. 21 22 KENDALLE P. GETTY, as Trustee of the ORDER GRANTING Pleiades Trust and as an individual, KPG STIPULATED 23 INVESTMENTS, INC., as Trustee of the PROTECTIVE ORDER Pleiades Trust, ALEXANDRA SARAH 24 GETTY, as Trustee of the Pleiades Trust and as 25 an individual, ASG INVESTMENTS, INC., as Trustee of the Pleiades Trust, MINERVA 26 OFFICE MANAGEMENT, INC., and ROBERT L. LEBERMAN, 27 Defendants. 28 1 KPG Investments Inc., Kendalle Getty, Alexandra Sarah Getty, ASG Investments, Inc., 2 Minerva Office Management, Inc., Robert L. Leberman, and Marlena Sonn (collectively, the 3 “Parties”), by and through their respective counsel of record, stipulate and agree that upon approval 4 by this Court, that this protective order shall govern the handling and disclosure of all documents, 5 testimony, or other information produced or given in this case that is designated as subject to this 6 order and its terms. 7 I. PURPOSES AND LIMITATIONS 8 Disclosure and discovery activity in this action are likely to involve production of 9 confidential, proprietary, or private information for which special protection from public disclosure 10 and from use for any purpose other than prosecuting this litigation may be warranted. Such 11 information includes trade secrets, medical information, health information, employment 12 information, commercial or financial information, including as to trusts, corporations, and 13 individuals, or other information that may cause harm to the producing party or a non-party if publicly 14 disclosed. 15 II. DESIGNATION OF PROTECTED INFORMATION 16 A. Scope: This Order governs the production and handling of any protected information 17 in this action. Any party or non-party who produces protected information in this action may 18 designate it as “CONFIDENTIAL” consistent with the terms of this Order. “Designating Party” 19 means the party or non-party who so designates the protected information; “Receiving Party” means 20 the party or non-party to whom such information was produced or disclosed. Whenever possible, the 21 Designating Party must designate only those portions of a document, deposition, transcript, or other 22 material that contain the protected information and refrain from designating entire documents. 23 Regardless of any designations made hereunder, the Designating Party is not otherwise restricted 24 from use or disclosure of its protected information outside of this action. In addition, any party may 25 move to modify or seek other relief from any of the terms of this Order if it has first tried in writing 26 and in good faith to resolve its needs or disputes with the other party(ies) pursuant to the terms of this 27 Order. 28 /// 1 B. Application to Non-Parties: Before a non-party is given copies of designated 2 information as permitted hereunder, it must first sign the acknowledgment to be bound to these terms 3 that is attached hereto as Exhibit A; if it fails to do so, the parties to this action must resolve any such 4 dispute before making disclosure of designated information as permitted hereunder to the non-party. 5 If a non-party wishes to make designations hereunder, it must first sign the acknowledgment to be 6 bound to these terms that is attached hereto as Exhibit A. 7 C. Timing and Provisional Protection: Designations may be made at any time. To avoid 8 potential waiver of protection hereunder, the Designating Party should designate information at the 9 time of production or disclosure, including on the record during the taking of any testimony. 10 Deposition testimony will be deemed provisionally protected for a period of 30 days after the 11 transcript is released to the parties by the court reporter, although the parties may agree at any time 12 to different timelines of provisional protection of information as Confidential as part of one or more 13 specific depositions. To retain any designations beyond the provisional period, a Designating Party 14 must designate specific pages and lines of deposition testimony before the provisional period has 15 expired. Such designations must be made in writing so that all counsel and court reporters may append 16 the designation to all copies of the transcripts. 17 D. Manner of Designation: Information may be designated hereunder in any reasonable 18 manner or method that notifies the Receiving Party of the designation level and identifies with 19 specificity the information to which the designation applies. If made verbally, the Designating Party 20 must promptly confirm in writing the designation. Whenever possible, the Designating Party should 21 stamp, affix, or embed a legend of “CONFIDENTIAL” on each designated page of the document or 22 electronic image. 23 III. CHALLENGES TO DESIGNATED INFORMATION 24 In the event that a Receiving Party disagrees at any time with any designation(s) made by the 25 Designating Party, the Receiving Party must first try to resolve such challenge in good faith on an 26 informal basis with the Designating Party. The Receiving Party must provide written notice of the 27 challenge and the specific grounds therefor to the Designating Party, who must respond in writing to 28 the challenge within 15 days. At all times, the Designating Party carries the burden of establishing 1 the propriety of the designation. If the objection cannot be resolved by agreement of counsel, the 2 Designating Party must move the Court for an appropriate order regarding such designation. Failure 3 to file a written motion seeking confidentiality protection on or before 30 days after the written 4 objection to the confidentiality designation will result in the designated materials losing 5 confidentiality protection. Unless and until the challenge is resolved by the parties or ruled upon by 6 the Court, the designated information will remain protected under this Order. The failure of any 7 Receiving Party to challenge a designation does not constitute a concession that the designation is 8 proper or an admission that the designated information is otherwise competent, relevant, or material. 9 IV. LIMITED ACCESS/USE OF PROTECTED INFORMATION 10 A. Restricted Use: Information that is produced or exchanged in the course of this action 11 and designated under this Order as “Confidential Information”, below, may be used solely for the 12 preparation, trial, and any appeal of this action, as well as related settlement negotiations, and for no 13 other purpose, without the written consent of the Designating Party. No designated information may 14 be disclosed to any person except in accordance with the terms of this Order, as required by law or 15 by order of the Court. All persons in possession of designated information agree to exercise 16 reasonable care with regard to the custody, use, or storage of such information to ensure that its 17 confidentiality is maintained. This obligation includes, but is not limited to, the Receiving Party 18 providing to the Designating Party, if allowed by law, prompt notice of the receipt of any subpoena 19 that seeks production or disclosure of any designated information and consulting with the Designating 20 Party before responding to the subpoena. Any use or disclosure of Confidential information in 21 violation of the terms of this Order may subject the disclosing person or party to sanctions. 22 Notwithstanding the above, a party is free to do whatever it desires with its own Confidential 23 Information. 24 B. Access to “Confidential” Information: The parties and all persons subject to this Order 25 agree that information designated as “CONFIDENTIAL” may only be accessed or reviewed by the 26 following: 27 1. The Court, its personnel, and court reporters; 28 /// 1 2. Counsel of record for any party in this action and their employees, and litigation 2 or discovery vendors, who assist counsel of record in this action and are informed 3 of the duties hereunder; 4 3. The parties, including their employees, who are assisting or have reason to know 5 of this action, so long as each such agent or employee has signed the 6 acknowledgment to be bound to these terms that is attached hereto as Exhibit A; 7 4. Court reporters, videographers, and any other necessary persons for the purposes 8 of depositions, so long as each such person has signed the acknowledgment to be 9 bound to these terms that is attached hereto as Exhibit A; 10 5. Experts or consultants employed by the parties or their counsel for purposes of this 11 action, so long as each such expert or consultant has signed the acknowledgment 12 to be bound to these terms that is attached hereto as Exhibit A; and 13 6. Other witnesses or persons with the Designating Party’s consent or by court order. 14 C. Review of Witness Acknowledgments: At any time and for any purpose, including to 15 monitor compliance with the terms hereof, any Designating Party may demand to review all copies 16 of Exhibit A in any Receiving Party’s possession. The Receiving Party must, within 5 business days 17 of the demand, provide all such copies to the Designating Party making the demand. Notwithstanding 18 the foregoing, if the Receiving Party has retained an expert whose identity has not yet been disclosed 19 to the Designating Party, the Receiving Party may generically identify how many acknowledgments 20 that it has in its possession attributable to non-disclosed experts, whose acknowledgements must later 21 be provided contemporaneously with any reports issued by one or more of said experts. If a Receiving 22 Party is not required to disclose the identity of any consulting experts, it may not be compelled to 23 produce any acknowledgments from those experts to the Designating Party. However, if the 24 Designating Party provides to the Court evidence of breach of this Order via unauthorized leak of 25 designated information, the Court may require an in camera production of all acknowledgments held 26 by a Receiving Party in order to determine breach and consider enforcement of this Order. 27 D. Non-Waiver Effect of Designations: Neither the taking of, nor the failure to take, any 28 action to enforce the provisions of this Order, nor the failure to object to any designation, will 1 constitute a waiver of any party’s claim or defense in this action or any other action or proceeding, 2 including but not limited to a claim or defense that any designated information is or is not confidential, 3 is or is not entitled to particular protection, or embodies or does not embody information protectable 4 by law. 5 E. In-Court Use of Designated Information: Unless otherwise permitted by statute, rule 6 or prior court order, papers filed with the court under seal shall be accompanied by a contemporaneous 7 motion for leave to file those documents under seal, and shall be filed consistent with the court’s 8 electronic filing procedures in accordance with Local Rule IA 10-5. Notwithstanding any agreement 9 among the parties, the party seeking to file a paper under seal bears the burden of overcoming the 10 presumption in favor of public access to papers filed in court. Kamakana v. City and County of 11 Honolulu, 447 F.2d 1172 (9th Cir. 2006); Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 12 1092, 1097 (9th Cir. 2016). 13 F. Preservation of Objections to Discovery and Admissibility: Nothing in this Order 14 shall be construed as a waiver by a party of any objections that may be raised as to the relevance 15 and/or discoverability of any documents or information in this action. Additionally, nothing in this 16 Order shall be construed as a waiver by a party of any objections that may be raised as to the 17 admissibility at trial of any evidentiary materials. 18 V. CLAW-BACK REQUESTS 19 A. Failure to Make Designation: If, at any time, a party or non-party discovers that it 20 produced or disclosed protected information without designation, it may promptly notify the 21 Receiving Party and identify with particularity the information to be designated and the level of 22 designation (the “Claw-Back Notification”). The Receiving Party may then request substitute 23 production of the newly designated information. Within 30 days of receiving the Claw-Back 24 Notification, the Receiving Party must (1) certify to the Designating Party it has appropriately marked 25 or, if substitute production has been requested, destroyed all unmarked copies that it received, made, 26 and/or distributed; and (2) if it was practicably unable to mark or destroy any information because 27 disclosures occurred while the Receiving Party was under no duty of confidentiality under the terms 28 of this Order regarding that information, the Receiving Party must reasonably provide as much 1 information as practicable to aid the Designating Party in protecting the information, consistently 2 with the Receiving Party’s attorney-client, work-product, and/or trial-preparation privileges. 3 B. Inadvertent Production of Privileged Information: If, at any time, a party discovers 4 that it produced information that it reasonably believes is subject to protection under the 5 attorney/client, work-product, or trial-preparation privileges, then it must promptly notify each 6 Receiving Party of the claim for protection, the basis for it, amend its privilege log accordingly, and 7 comply with Fed. R. Civ. P. 26(b)(5). Whenever possible, the producing party must produce 8 substitute information that redacts the information subject to the claimed protection. The Receiving 9 Party must thereupon comply with Fed. R. Civ. P. 26(b)(5) as to the information subject to the claimed 10 protection. 11 C. Non-Waiver: Any disclosure of any material subject to a claim of confidentiality or 12 privilege does not operate as a waiver of such claim if: (1) the disclosure is inadvertent; (2) the holder 13 of the privilege took reasonable steps to prevent disclosures; and (3) the holder promptly took 14 reasonable steps to rectify the error, including following the procedures outlined in this section. 15 VI. DURATION/CONTINUED RESTRICTIONS 16 A. Handling of Designated Information Upon Conclusion of Action: Upon conclusion 17 of this action, including all appeals, the Designating Party(ies) is/are responsible for ensuring that any 18 party or person to whom the party shared or disclosed designated information in this action returns 19 or destroys all of its copies, regardless of the medium in which it was stored. Within 60 days after 20 the later of dismissal of this action or expiration of all deadlines for appeal, the Receiving Party(ies) 21 must certify to each Designating Party that all designated information hereunder has been destroyed 22 by all parties and witnesses for whom that party is responsible. No witness or party may retain 23 designated information that it received from any other party or non-party under this Order; only 24 counsel of record are the authorized agents who may retain one copy for their respective legal files, 25 consistent with any applicable ethical obligations, and who must also describe to the Designating 26 Party the extra steps taken to seal its legal file containing paper and/or electronic copies of the 27 designated information so that it is not accessed, used, or disclosed inconsistently with the obligations 28 under this Order. This provision does not apply to the Court or Court staff. 1 B. Continued Restrictions Under this Order: The restrictions on disclosure and use of 2 confidential information survive the conclusion of this action. 3 C. Jurisdiction: The Court will only retain jurisdiction over this order while the case is 4 pending and its jurisdiction will cease upon dismissal of the case. 5 IT IS SO STIPULATED.

6 DATED: April 12, 2023 DATED: April 11, 2023 7 GUNDERSON LAW FIRM MCDONALD CARANO LLP

8 By: /s/ Mark Gunderson . By: /s/ Leigh Goddard . 9 Mark H. Gunderson, Esq. Austin K. Sweet, Esq. Leigh T. Goddard, Esq. 10 Attorneys for Minerva Office Management, Daniel I. Aquino, Esq. Inc. and Robert L. Leberman Tara U. Teegarden, Esq. 11 Attorneys for KPG Investments, Inc. and Kendalle Getty 12

13 DATED: April 12, 2023 DATED: April 12, 2023 PAUL HASTINGS LLP LEMONS, GRUNDY & EISENBERG 14

15 By: /s/ Ryan Derry . By: /s/ Alice Campos Mercado . 16 Ryan D. Derry, Esq. Alice Campos Mercado, Esq. Attorney for Alexandra Sarah Getty Attorney for Alexandra Sarah Getty 17 and ASG Investments, Inc. and ASG Investments, Inc.

18 DATED: April 12, 2023 19 ROGER WENTHE, PLLC

20 By: /s/ Roger Wenthe . 21 Roger Wenthe, Esq. 22 POLLOCK COHEN LLP 23

24 By: /s/ Adam Pollock . 25 Adam Pollock, Esq. (pro hac vice) Christopher Leung, Esq. (pro hac vice) 26 Attorneys for Marlena Sonn 27

28 1 ORDER 2 IT IS HEREBY ORDERED that the Stipulated Protective Order is effective as of the da 3}| of this Order. > UNITED STATES MAGISTRATE JUDGE 7 DATED: April 13, 2023 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW FIRM

1 EXHIBIT A 2 KPG INVESTMENTS INC., v MARLENA SONN 3 Case No.: 3:22-cv-00236-ART-CLB 4 AGREEMENT TO BE BOUND BY PROTECTIVE ORDER 5 I, the undersigned, declare under penalty of perjury that I have read and understand the 6 Stipulated Protective Order in its entirety. I agree to comply with and to be bound by all the terms of 7 this Stipulated Protective Order and I understand and acknowledge that failure to so comply could 8 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not 9 disclose in any manner any information or item that is subject to this Stipulated Protective Order to 10 any person or entity except in strict compliance with the provisions of this Order. 11 I further agree to submit to the jurisdiction of the United States District Court for the District 12 of Nevada for the purpose of enforcing the terms of this Stipulated Protective Order, even if such 13 enforcement proceedings occur after termination of this action. 14 15 Date: __________________ 16 17 City and State where sworn and signed: _______________________________ 18 19 Printed name: ________________________________________ 20 21 Signature:_____________________________________

23 24 25 26 27 28 1 CERTIFICATE OF SERVICE 2 Pursuant to FRCP 5(b), I certify that I am an employee of the law office of GUNDERSON 3 LAW FIRM, and on the 13th day of April, 2023 I electronically filed the AMENDED [PROPOSED] 4 STIPULATED PROTECTIVE ORDER, and a copy will be electronically mailed by the United 5 States District Court-District of Nevada through CM/ECF to the following:

6 Leigh T. Goddard, Esq. 7 MCDONALD CARANO LLP 100 W. Liberty St., Tenth Floor 8 P.O. Box 2670 Reno, NV 89501 9 lgoddard@mcdonaldcarano.com wcornelius@mcdonaldcarano.com 10 Attorneys for KPG Investments, Inc. 11 and Kendalle Getty

12 Daniel I. Aquino, Esq. Tara U. Teegarden, Esq. 13 MCDONALD CARANO LLP 14 2300 W. Sahara Avenue. Suite 1200 Las Vegas, NV 89102 15 daquino@mcdonaldcarano.com ksurowiec@mcdonaldcarano.com 16 mcarter@mcdonaldcarano.com 17 tteegarden@mcdonaldcarano.com cgerard@mcdonaldcarano.com 18 Attorneys for KPG Investments, Inc. and Kendalle Getty 19 Alice Campos Mercado, Esq. 20 LEMONS, GRUNDY & EISENBERG 21 6005 Plumas Street, Suite 300 Reno, Nevada 89509 22 acm@lge.net margien@lge.net 23 Attorney for Alexandra Sarah Getty 24 and ASG Investments, Inc.

25 Roger W. Wenthe, Esq. ROGER WENTHE, PLLC 26 2831 St. Rose Pkwy., Suite 200 27 Henderson, NV 89052 roger.wenthe@gmail.com 28 Attorney for Marlena Sonn 1 Adam Pollock 2 Pollock Cohen LLP 111 Broadway, Suite 1804 3 New York, NY 10006 Attorney for Marlena Sonn 4 Ryan D. Derry, Esq. 5 PAUL HASTINGS LLP 6 101 California Street, 48th Floor San Francisco, CA 94111 7 ryanderry@paulhastings.com, alicebrown@paulhastings.com 8 isabellahubert@paulhastings.com 9 Attorney for Alexandra Sarah Getty and ASG Investments, Inc. 10 11 Pursuant to FRCP 5(b), I further certify that I am an employee of the law office of 12 GUNDERSON LAW FIRM, and on the 13th day of April, 2023, I deposited for mailing in Reno, 13 Nevada a true and correct copy of the foregoing AMENDED [PROPOSED] STIPULATED 14 PROTECTIVE ORDER, to the following:

15 Christopher Leung 16 Pollock Cohen LLP 111 Broadway 17 Suite 1804 New York, NY 10006 18 Attorney for Marlena Sonn

19 Lisa E. Cleary, Esq. 20 PATTERSON, BELKNAP, WEBB & TYLER LLP 1133 Avenue of Americas 21 New York, NY 10036 Attorneys for KPG Investments, Inc. 22 and Kendalle Getty 23 Matthew S. Aibel, Esq. 24 PAUL HASTINGS LLP 200 Park Avenue 25 New York, NY 10166 26 Attorney for Alexandra Sarah Getty and ASG Investments, Inc. 27

28 1 Max E. Rodriguez, Esq. 2 POLLOCK COHEN LLP 60 Broad Street, 24th Floor 3 New York, NY 10004 Max@PollockCohen.com 4 Attorney for Marlena Sonn

6 /s/ Kelly Gunderson 7 Kelly Gunderson 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28