Seymour v. Las Vegas Metropolitan Police Department

• Court: District Court, D. Nevada
• Decided: January 14, 2021
• Docket: 2:20-cv-00937
• Status: Unknown

Opinion

1 LYSSA S. ANDERSON Nevada Bar No. 5781 2 RYAN W. DANIELS Nevada Bar No. 13094 3 KRISTOPHER J. KALKOWSKI Nevada Bar No. 14892 4 KAEMPFER CROWELL 1980 Festival Plaza Drive, Suite 650 5 Las Vegas, Nevada 89135 Telephone: (702) 792-7000 6 Fax: (702) 796-7181 landerson@kcnvlaw.com 7 rdaniels@kcnvlaw.com kkalkowski@kcnvlaw.com 8 Attorneys for Defendant 9 Las Vegas Metropolitan Police Department, 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 DOUGLAS SEYMOUR, Case No. 2:20-cv-00937-RFB-VCF 13 Plaintiff, vs. STIPULATED PROTECTIVE ORDER 14 JOHNNY WOODRUFF; and LAS VEGAS 15 METROPOLITAN POLICE DEPARTMENT’ and JOHN DOES 1 to 50, inclusive, 16 Defendants. 17 18 Plaintiff, Douglas Seymour (“Seymour”), Defendant, Johnny Woodruff (“Woodruff”) 19 and Defendant, Las Vegas Metropolitan Police Department (“LVMPD” and collectively “the 20 Parties”) seek to obtain, inspect and copy documents and/or things which contains private and 21 sensitive information, confidential information of LVMPD, its officers and employees, its 22 internal investigative and administrative actions, non-party witnesses and other confidential 23 information. Pursuant to an agreement by the Parties, the Court hereby enters the following 24 Order for Protection (“Protective Order”): 1 TERMS OF PROTECTIVE ORDER 2 I. DEFINITIONS 3 The following definitions apply to this Protective Order: 4 1. Party. Any party to this action, including all of its officers, directors, employees,

5 consultants, Experts, and Outside Counsel. 6 2. Parties. As defined hereinabove. 7 3. Disclosure or Discovery Material. All items or information, regardless of the 8 medium or manner generated, stored, or maintained (including, among other things, testimony, 9 transcripts, or tangible things) that are produced or generated in disclosures or responses to 10 discovery in this matter. 11 4. “Confidential” Information or Items. Information (regardless of how generated, 12 stored or maintained) or tangible things that qualify for protection under the law enforcement 13 investigative and/or official information privileges, or that contain Criminal History Information, 14 personal information regarding individuals including Social Security Numbers, dates of birth and

15 information which a person would have a reasonable expectation of privacy. Confidential 16 information shall also include information concerning, regarding, or as a result of covert or 17 undercover law enforcement investigation(s) technique(s), method(s) or source(s), including the 18 identity of any confidential informant, undercover officer information, or information referring 19 to any undercover or active criminal investigations. Further, Confidential Information shall also 20 include any information protected from disclosure under Donrey v. Bradshaw, 106 Nev. 630 21 (1990) or an official or executive information privilege. Confidential Information shall also 22 include employee information, employee medical information, and employee disciplinary action, 23 including any internal investigation concerning employee actions.

24 5. Receiving Party. A Party that receives Disclosure of Discovery Material or 1 Confidential Information from a Producing Party. 2 6. Producing Party. A Party or third party that produces Disclosure or Discovery 3 Material or Confidential Information in this action. 4 7. Designating Party. A Party or third party that designates information or items that

5 it produces in disclosures or in response to discovery as “Confidential.” 6 8. Protected Material. Any Disclosure or Discovery Material or Confidential 7 Information that is designed as “Confidential.” 8 9. Outside Counsel. Attorneys who are not employees of a Party but who are 9 retained to represent or advise a Party in this action. 10 10. House Counsel. Attorneys who are employees of a Party. 11 11. Counsel (without qualifier). Outside Counsel and House Counsel (as well as their 12 support staffs). 13 12. Expert. A person with specialized knowledge or experience in a matter pertinent 14 to the litigation retained by a Party or its Counsel to serve as an expert witness or as a consultant

15 in this action. This definition includes, but is not limited to, a professional jury or trial consultant 16 retained in connection with this litigation. 17 13. Professional Vendor. Person or entity that provides litigation support services 18 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, organizing, 19 storing, retrieving data in any form or medium, etc.) and its employees and subcontractors. 20 14. The use of the singular form or any word includes the plural, and vice versa. 21 II. SCOPE 22 The protection conferred by this Protective Order covers not only Protected Material, but 23 also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or

24 compilations thereof, testimony, conversations, or presentations by parties or counsel to or in 1 court or in other setting that might reveal Protected Material. 2 III. DURATION 3 Even after the termination of this action, the confidentiality obligations imposed by this 4 Protective Order shall remain in effect until a Designating Party agrees otherwise in writing or a

5 court order otherwise directs. 6 IV. DESIGNATING PROTECTED MATERIAL 7 1. Manner and Timing of Designations. Except as otherwise provided herein, or as 8 otherwise ordered, material that qualifies for protection under this Protective Order must be 9 clearly designated before it is disclosed or produced. Designations in conformity with this 10 Protective Order require: 11 a. For information in documentary form. That the Producing Party shall 12 affix the legend “Confidential” on each page that contains Protected Material. If only a portion 13 or portions of the material on a page qualifies for protection, the Producing Party also must 14 clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins or

15 redacting portions). A Producing Party that makes original documents or materials available for 16 inspection need not designate them for protection until after the inspecting Party has indicated 17 which material it would like copied and produced. During the inspection and before the 18 designation, all of the material made available for inspection shall be deemed “Confidential.” 19 After the inspecting Party has identified the documents it wants copied and produced, the 20 Producing Party must determine which documents, or portions thereof, qualify for protection 21 under this Protective Order, and, before producing the specified documents, the Producing Party 22 must affix the appropriate legend on each page that contains Protected Material. If only a 23 portion or portions of the material on a page qualifies for protection, the Producing Party also

24 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 1 margins or by redacting protected portions). 2 b. For testimony given in deposition or in other pretrial or trial proceedings. 3 That before the close of the deposition, hearing, or other proceeding, the Party or non-party 4 offering or sponsoring the testimony shall identify on the record all protected testimony and

5 further specify any portions of the testimony that qualify as “Confidential.” When it is 6 impractical to identify separately each portion of testimony that is entitled to protection, the 7 Party or non-party that sponsors, offers, or gives the testimony may invoke on the record (before 8 the deposition or proceeding is concluded) a right to have up to thirty (30) days to identify the 9 specific portions of the testimony as to which protection is sought. Only those portions of the 10 testimony that are appropriately designated for protection under the standards set forth herein 11 within the thirty (30) days shall be covered by the provisions of this Protective Order. Upon 12 request of a Designating Party, transcript pages containing Protected Material must be separately 13 bound by the court reporter, who must affix to the top of each such page the legend 14 “Confidential” as instructed by the Party or non-party offering or sponsoring the witness or

15 presenting the testimony. 16 c. For information produced in some form other than documentary, and for 17 any other tangible items. That the Producing Party affix in a prominent place on the exterior of 18 the container or containers in which the information or item is stored the legend “Confidential.” 19 If only portions of the information or item warrant protection, the Producing Party, to the extent 20 practicable, shall identify the protected portions. 21 2. Inadvertent Failure to Designate. Inadvertent failure to identify documents or 22 things as “Confidential” pursuant to this Protective Order shall not constitute a waiver of any 23 otherwise valid claim for protection, provided that the provisions of this paragraph are satisfied.

24 If the Designating Party discovers that information should have been but was not designated 1 “Confidential” or if the Designating Party receives notice that would enable the Designating 2 Party to learn that it has disclosed such information, the Designating Party must immediately 3 notify all other parties. In such event, within thirty (30) days of notifying all other Parties, the 4 Designating Party must also provide copies of the “Confidential” information designated in

5 accordance with this Protective Order. After receipt of such re-designated information, the 6 “Confidential” information shall be treated as required by this Protective Order, and the 7 Receiving Party shall promptly, but in no event more than fourteen (14) calendar days from the 8 receipt of the re-designated information, return to the Designating Party all previously produced 9 copies of the same unlegended documents or things. The Designating Party and the Parties may 10 agree to alternative means. The Receiving Party shall receive no liability, under this Protective 11 Order or otherwise, for any disclosure of information contained in unlegended documents or 12 things occurring before the Receiving Party was placed on notice of the Designating Party’s 13 claims of confidentiality. 14 V. CHALLENGING CONFIDENTIALITY DESIGNATIONS

15 1. Meet and Confer. A Party that elects to initiate a challenge to a Designating 16 Party’s confidentiality designation must do so in good faith and must begin the process by 17 conferring with counsel for the Designating Party. The challenging Party must give the 18 Designating Party an opportunity of not less than ten (10) calendar days to review the designated 19 material, to reconsider the circumstances, and, if no changes in the designations is offered, to 20 explain in writing the basis for the confidentiality designation. 21 2. Judicial Intervention. A Party that elects to press a challenge to a confidentiality 22 designation after considering the justification offered by the Designating Party may file and 23 serve a motion that identifies the challenged material and sets forth in detail the basis for the

24 challenge. Until the Court rules on the challenge, all parties shall continue to afford the material 1 in question the level of protection to which it is entitled under the Producing Party’s designation. 2 VI. ACCESS TO AND USE OF PROTECTED MATERIAL 3 1. Basic Principles. A Receiving Party may use Protected Material that is disclosed 4 or produced by another Party or by a third party in connection with this case solely for the

5 limited purposes of prosecuting, defending, attempting to settle, or settling this action. Such 6 Protected Material may be disclosed only to the categories of persons and under the conditions 7 described in this Protective Order. Protected Material must be stored and maintained by a 8 Receiving Party at a location and in a secure manner that ensures that access is limited to the 9 persons authorized under this Protective Order. 10 2. Disclosure of “Confidential” Information or Items. Unless otherwise ordered by 11 the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any 12 information or item designated Confidential only to: 13 a. The Parties to this action and the Receiving Party’s Outside Counsel of 14 record in this action, as well as employees of said Counsel to whom it is reasonably necessary to

15 disclose the information for this litigation. Counsel of Record shall be responsible for advising 16 all of their staff of the existence of, and their confidentiality obligations under, the Protective 17 Order, and shall be responsible for any non-compliance with the Protective Order by members of 18 their staff that have not signed an agreement to be bound by the Protective Order; 19 b. The officers, directors, and employees of the Receiving Party to whom 20 disclosure is reasonably necessary for this litigation and who have signed or have agreed under 21 oath and on the record to be bound by the “Agreement to be Bound by Protective Order” 22 (Exhibit A); 23 c. Experts of the Receiving Party to whom disclosure is reasonably necessary

24 for this litigation and who have signed or have agreed under oath and on the record to be bound 1 by the “Agreement to be Bound by Protective Order” (Exhibit A); 2 d. The Court and its personnel; 3 e. Court reporters, their staff, and Professional Vendors to whom disclosure 4 is reasonably necessary for this litigation;

5 f. During their depositions or at trial, witnesses in the action to whom 6 disclosure is reasonably necessary. Witnesses will not be permitted to retain copies of Protected 7 Material unless they have signed or agreed under oath and on the record to be bound by the 8 “Agreement to be Bound by Protective Order” (Exhibit A). Upon request of a Designating 9 Party, pages of transcribed deposition testimony or exhibits to depositions that reveal Protected 10 Material must be separately bound by the court reporter and may not be disclosed to anyone 11 except as permitted under this Protective Order; and 12 g. The author of the document or the original source of the information and 13 recipients or addressees in the normal course of business. 14 3. Trial and Dispositive Motion Disclosure. For the purpose of trial and/or

15 dispositive motions, the parties acknowledge that a “strong presumption in favor of access” 16 exists. A Party seeking to seal a judicial record at trial and/or the dispositive motion stage bears 17 the burden of establishing “compelling reasons” by “articulating compelling reasons supported 18 by specific factual findings,” that outweigh the public policies favoring disclosure.1 19 4. Disclosure of Possession of Confidential Information. All persons described in 20 paragraph VI above shall not under any circumstances sell, offer for sale, advertise, or publicize 21 either the Confidential Information or the fact that such persons have obtained Confidential 22 Information. 23 / / /

24 1 See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Circ. 2006). 1 VII. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 2 3 If a Receiving Party is served with a subpoena or an order issued in other litigation that 4 would compel disclosure of any information or items designated in this action as “Confidential” 5 the Receiving Party must so notify the Designating Party, in writing (by fax or email if possible) 6 immediately and in no event more than seven (7) calendar days after receiving the subpoena or 7 order. Such notification must include a copy of the subpoena or court order. The Receiving 8 Party also must within ten (10) calendar days inform in writing the party who caused the 9 subpoena or order to issue in the other litigation that some or all the material covered by the 10 subpoena or order is the subject of this Protective Order and deliver to such party of copy of this 11 Protective Order. The Designating Party shall bear the burdens and the expenses of seeking 12 protection in that court of its Confidential material – and nothing in these provisions should be 13 construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful 14 directive from another court. Once notice is given, and five (5) business days have elapsed, the

15 Receiving Party shall have no further liability for disclosure pursuant to a subpoena or its 16 equivalent. 17 VIII. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 18 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 19 Material to any person or in any circumstance not authorized under this Protective Order, the 20 Receiving Party must immediately and within not more than seven (7) calendar days: (a) notify 21 in writing (using best efforts to use email or fax) the Designating Party of the unauthorized 22 disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the 23 person or persons to whom unauthorized disclosures were made of all the terms of the Protective

24 Order, and (d) request such person or persons to execute the “Agreement to be Bound by 1 Protective Order (Exhibit A). The Receiving Party shall promptly notify the Designating Party 2 of the results of its efforts with regards to (b), (c), and (d) herein. After a good faith meet and 3 confer effort to resolve any remaining disputes concerning compliance with this paragraph, any 4 Party, Receiving Party or Designating Party may seek relief from this Court for non-compliance

5 with this provision. Said relief may include, but is not limited to, preclusion of the Receiving 6 Party’s use in this litigation of the Protected Material that was disclosed contrary to this 7 Protective Order, or any other sanction deemed appropriate by the Court. 8 IX. PUBLICLY AVAILABLE OR PREVIOUSLY POSSESSED INFORMATION 9 The restrictions in the preceding paragraphs regarding disclosure of Protected Material do 10 not and shall not apply to information or material that: was, is, or becomes public knowledge in 11 a manner other than by violation of the Protective Order, is acquired by the non-designating 12 party from a third party having the Right to disclose such information or material or was lawfully 13 possessed by the non-designating party before the date of this Protective Order. The Designating 14 Party shall act in good faith to notify the Receiving Party of any change in circumstances that

15 renders Confidential Information or Items no longer Confidential within a reasonable time period 16 after the change becomes known to the Designating Party. 17 X. FILING PROTECTED MATERIAL 18 With respect to non-dispositive motions and pleadings, Protected Material or Information 19 derived therefrom is included with, or the contents of such a document are disclosed in, any 20 documents filed with the Clerk of this Court or any other court, the filing Party shall file said in compliance with LR IA 10-5. 21 document under seal. Unless otherwise agreed by the Parties to permit service by some other 22 means such as by email or facsimile, copies of any pleading, brief or other document containing 23 Protected Material that is served on opposing counsel shall be delivered in a sealed envelope 24 stamped: 1 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER 2 and shall be treated in accordance with the provisions of this Protective Order. Subject to the 3 Court’s convenience and needs, all material filed in this fashion will be kept under seal by the 4 Clerk until further order from the Court.

5 XI. FINAL DISPOSITION 6 Unless otherwise ordered or agreed in writing by the Producing Party, within sixty (60) 7 calendar days of a written request, after the final termination of this action, each Receiving Party 8 shall destroy all Protected Material. As used in this subdivision, “all Protected Material” 9 includes all copies, abstracts, compilations, summaries or any other form of reproducing or 10 capturing any of the Protected Material. The Receiving Party must submit a written certification 11 to the Producing Party (and, if not the same person or entity, to the Designating Party) by the 12 thirty (30) calendar day deadline that identifies (by category, where appropriate) all the Protected 13 Material that was destroyed and that affirms that the Receiving Party has not retained any copies, 14 abstracts, compilations, summaries or other forms of reproducing or capturing any of the

15 Protected Material. 16 Notwithstanding this provision, Counsel may retain an archival copy of all pleadings, 17 motion papers, transcripts, legal memoranda, correspondence or attorney work product, even if 18 such materials contain Protected Material, for the sole purpose of complying with State Bar file 19 retention requirements. In the event Counsel elects to maintain any Protected Material as part of 20 its file retention, Counsel will notify the Producing Party within sixty (60) days of its intent to do 21 so and agrees that all Protected Material will be maintained in a secure storage facility until such 22 time as it is destroyed as provided herein. Any such archival copies that contain or constitute 23 Protected Material remain subject to this Protective Order as set forth herein. In the event of an

24 appeal, “Final Disposition” shall not occur until the conclusion of all appeals. 1 XII. ADDITIONAL PROVISIONS 2 1. Modification. The Parties may modify this Protective Order by written 3 agreement, subject to approval by the Court. The Court may modify this Protective Order. 4 2. Right to Assert Other Objections. This Protective Order does not affect or waive

5 any right that any Party otherwise would have to object to disclosing or producing any 6 information or item on any ground not addressed in this Protective Order. Similarly, this 7 Protective Order does not affect or waive any Party’s right to object on any ground to use in 8 evidence any of the material covered by this Protective Order. 9 3. Privileges Not Waived. This Protective Order does not affect or waive any 10 applicable privilege or work product protection, or affect the ability of a Producing Party to seek 11 relief for an inadvertent disclosure of material protected by privilege or work product protection. 12 4. Third Party Protections. Any witness or other person, firm, or entity from which 13 discovery is sought may be informed of and may obtain the protection of this Protective Order by 14 written notice to the Parties’ respective counsel or by oral notice at the time of any deposition or

15 similar proceeding. 16 5. Obligations to Third Parties. Nothing herein shall operate to relieve any Party or 17 non-party from any pre-existing confidentiality obligations currently owed by any Party or non- 18 party to any other Party or non-party. 19 6. Retention of Completed “Agreement to be Bound by Protective Order” Forms 20 (Exhibit A). Completed “Agreement to be Bound by Protective Order” Forms (Exhibit A) 21 (“form”) shall be maintained by the Party that obtained the completed form pursuant to this 22 Protective Order. The Party retaining the completed form shall produce the form to resolve any 23 good faith challenge by a Party or Designating Party or dispute concerning whether a person who

24 is obligated under this Protective Order to complete the form did so properly and complied with 1 representations in the form and this Protective Order. If the parties are unable to resolve any 2 ||such disputes or challenges through a good faith meet and confer process, the challenging Party 3 || or Designating Party may seek appropriate relief from this Court. 4 IT IS SO STIPULATED this 11th day of January 2021. 5 || KAEMPFER CROWELL PETER GOLDSTEIN LAW CORP By: —_/s/ Ryan W. Daniels By: _/s/ Peter Goldstein 7 LYSSA S. ANDERSON Peter Goldstein Nevada Bar No. 5781 Nevada Bar No. 6992 RYAN W. DANIELS 8 Nevada Bar No. 13094 AN eolbe 1980 Festival Plaza Drive as VeEAs, a 9 Suite 650 Attorneys for Plaintiff Las Vegas, Nevada 89135 10 Attorneys for Defendant Las Vegas Metropolitan Police 11 Department 12. || MCNUTT LAW FIRM, P.C.

13 By: _/s/ Daniel R. McNutt DANIEL R. MCNUTT 14 Nevada Bar No. 7815 MATTHEW C. WOLF 15 Nevada Bar No. 10801 625 South Eighth Street 16 Las Vegas, Nevada 89101 Attorneys for Defendant IT 1S SO ORDERED. 7 Officer John Woodruff .

Cam Ferenbach 19 United States Magistrate Judge 20 1-14-2021 1 Dated: 22 23 24 CROWELL Festival Plaza Drive Suite 650

1 EXHIBIT A 2 AGREEMENT TO BE BOUND BY PROTECTIVE ORDER 3 I, __________________________, have read in its entirety and understand the Protective Order 4 that was issued by the United States District Court for the District of Nevada on ___________________, 2021, in the case of Seymour v. LVMPD, et al., Case No. 2:20-cv-00937-RFB-VCF. I agree to comply 5 with and to be bound by all terms of this Protective Order and I understand and acknowledge that failure 6 to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise 7 that I will not disclose in any manner any information or item that is subject to this Protective Order to 8 any person or entity except in strict compliance with the provisions of this Protective Order. Further, I 9 solemnly promise that I will not offer to sell, advertise or publicize that I have obtained any Protected 10 Material subject to this Protective Order. 11 At the conclusion of this matter, I will return all Protected Material which came into my 12 possession to counsel for the party from whom I received the Protected Material, or I will destroy those 13 materials. I understand that any Confidential Information contained within any summaries of Protected 14 Material shall remain protected pursuant to the terms of this Protective Order. 15 I further agree to submit to the jurisdiction of the United States District Court for the District of Nevada for the purpose of enforcing the terms of this Protective Order, even if such enforcement 16 proceedings occur after termination of this action. 17 I certify under the penalty of perjury that the foregoing is true and correct. 18 Date: 19 City and State where signed: 20 Printed name: 21 Address: 22 Signature: 23 24