Solomon v. Las Vegas Metropolitan Police Department

Opinion

1 | IMARGARET A. MCLETCHIE, Nevada Bar No. 10931 MCLETCHIE LAW 2| 1701 East Bridger Ave., Suite 520 3 Las Vegas, Nevada 89101 Telephone: (702) 728-5300; Fax: (702) 425-8220 4 | |Email: maggie @nvlitigation.com 5 Attorney for Plaintiff Nebyou Solomon 8 NEBYOU SOLOMON, an individual, Case. No.: 2:19-cv-00652-JAD-DJA 9 Plaintiff, [PROPOSED] STIPULATED 10 VS. PROTECTIVE ORDER 11 DEPARTMENT; JOSEPH LOMBARDO, individually and in his official capacity as 14 Sheriff; JOHN L. PELLETIER, an individual; RICHARD E. MAUPIN, an 15 individual; RYAN J. FRYMAN, an individual; JUAN D. CONTRERAS, an individual; ALLEN J. PAVESE, an 7 individual; BRANDON M. MEADS, an individual; FASHION SHOW MALL, LLC, 18 a Nevada limited-liability company; UNIVERSAL PROTECTION SERVICE, 19 LLC, a Nevada limited-liability company; individuals, 21 Defendants. 22 23 Plaintiff NEB YOU SOLOMON and Defendants LAS VEGAS METROPOLITAN 24 | POLICE DEPARTMENT, JOSEPH LOMBARDO, JOHN L. PELLETIER, RICHARD E. 25 | |MAUPIN, RYAN J. FRYMAN, JUAN D. CONTRERAS, ALLEN J. PAVESE, and 26 | |BRANDON M. MEADS (“LVMPD Defendants”) and Defendant FASHION SHOW 97 | |MALL, LLC, and Defendant UNIVERSAL PROTECTION SERVICE, LLC, by their 2g | |respective counsel, having agreed to the following and for good cause under Rule 26(c)(1)

1 | Jof the Federal Rules of Civil Procedure, IT IS HEREBY ORDERED as follows: 2 1. PURPOSES AND LIMITATIONS. 3 Disclosure and discovery activity in this action may involve production of 4 | |confidential, proprietary, or private information for which special protection from public 5 | |disclosure may be warranted under Rule 26(c)(1) of the Federal Rules of Civil Procedure. 6 | |The parties acknowledge that this Order does not confer blanket protections on all disclosures 7 | jor responses to discovery and that the protection it affords extends to only the limited 8 | |information or items that are entitled under law to treatment as confidential. 9 2. SCOPE. 10 All documents produced in the course of discovery, all responses to discovery 11 | |requests, and all deposition testimony and exhibits and any other materials which may be 12 | |subject to discovery (hereinafter collectively “Discovery Material”) shall be subject to this 13 | |stipulated protective order concerning confidential information as set forth below. A copy of 14 | |this Order must be included with any subpoena to any third party. Any party, or any third 15 | |party who produces documents in this litigation, may designate documents as Confidential 16 | |but only after review of the documents by an attorney who has, in good faith, determined that 17 | |the documents contain “Confidential Information,” as defined below, and pursuant to the 18 | |procedure set forth below. 19 3. CONFIDENTIAL INFORMATION. 20 “Confidential Information” shall mean information meriting special protection 21 | junder the Federal Rules of Civil Procedure and applicable case law. Confidential Information 22 | |\does not include information that (a) is in the public domain at the time of disclosure; (b) 23 | |becomes part of the public domain through no fault of the Receiving Party; (c) the Receiving 24 | |Party can show was in its rightful and lawful possession at the time of disclosure; or (d) the 25 | |Receiving Party lawfully receives from a Non-party later without restriction as to disclosure. 26 | |/// 27 | |/// 28 | |///

1 4. OTHER DEFINITIONS. 2 Party: any party to this action, including all of its officers, directors, agents, and 3 | Jattorney(s) of record for a Party in this action (including their associates, paralegals, and 4 | |support/ clerical staff). 5 Non-party: any individual, corporation, association, or natural person or entity 6 | |other than a party. 7 Protected Material: any Discovery Material containing Confidential Information 8 | |that is designated by a Party or Non-party as “CONFIDENTIAL,” unless the Receiving Party 9 | |challenges the confidentiality designation and (a) the Court decides such material is not 10 | Jentitled to protection as confidential; (b) the Designating Party fails to apply the Court for an 11 | Jorder designating the material confidential within the time period specified below; or (c) the 12 | |Designating Party withdraws its confidentiality designation in writing. 13 Producing Party: a Party or Non-party that produces Discovery Material in this 14 | Jaction. 15 Receiving Party: a Party that receives Discovery Material from a Producing Party. 16 Designating Party: a Party or Non-party that designates Discovery Material as 17 | |“CONFIDENTIAL”. The Party or Non-party designating information or items as Protected 18 | |Material bears the burden of establishing good cause for the confidentiality of all such items. 19 Challenging Party: a party that elects to initiate a challenge to a Designating Party’s 20 | |confidentiality designation. 21 Confidentiality Log: a Confidentiality Log must accompany any production of 22 | |documents designated as “CONFIDENTIAL” that includes the Bates numbers of the 23 | |documents designated (or the portions thereof) as “Confidential” and the basis for doing so. 24 | |Each Producing Party shall keep this log cumulatively and re-produce it every time they 25 | |designate something as “CONFIDENTIAL” so that it is a cumulative record of what the 26 | |party has marked “CONFIDENTIAL.” 27 | |/// 28 | |///

1 5. FORM AND TIMING OF DESIGNATION. 2 Protected Material shall be so designated by the Producing Party by placing or 3 | jaffixing the word “CONFIDENTIAL” on the document in a manner which will not interfere 4||with the legibility of the document and which will permit complete removal of the 5 | |“Confidential” designation. A Confidentiality Log must accompany any production of 6 | |Protected Material that includes the Bates numbers of the documents designated (or portions 7 | |thereof) as “CONFIDENTIAL” and the basis for doing so. Documents shall be designated 8 | |“Confidential” prior to, or contemporaneously with, the production or disclosure of the 9 | |\documents. The designation of documents as “CONFIDENTIAL” shall be accompanied with 10 | |a Confidentiality Log in the form included at Exhibit A. 11 A Designating Party must exercise restraint and make good faith efforts to limit 12 | |CONFIDENTIAL designations to specific materials that qualify for protection under the 13 | |Jappropriate standard. Further, a Designating Party must use good faith efforts to designate 14 | |for protection only those parts of material, documents, items, or communications that 15 | |qualify—so that other portions of the materials, documents, items, or communications for 16 | |which protection is not warranted are not swept unjustifiably within the ambit of this Order. 17 | {If only a portion or portions of materials on a page or within a document merit protection, a 18 | |Producing Party must so indicate by making appropriate markings in the margins but not 19 | Jover text. The accompanying log should clearly explain which portion is designated as 20 | |CONFIDENTIAL. 21 A Producing Party that makes original documents or materials available for 22 | |inspection need not designate them for protection until after the inspecting Party has 23 | |indicated which material it would like copied and produced. During the inspection and before 24 | |the designation, all of the material made available for inspection shall be deemed 25 | |“Confidential.” After the inspecting Party has identified the documents it wants copied and 26 | |produced, the Producing Party must determine which documents, or portions thereof, qualify 27 | |for protection under this Order, and, before producing the specified documents, the 28 | |Producing Party must affix the appropriate legend on each page that contains Protected

1 | |Material. If only a portion or portions of the material on a page qualifies for protection, the 2||Producing Party also must clearly identify the protected portion(s) (e.g., by making 3 | |appropriated markings in the margins or by redacting protected portions). 4 Portions of depositions shall be designated CONFIDENTIAL when the deposition 5 | is taken or within fourteen (14) business days after receipt of the transcript, if feasible. Such 6 | |designation shall be specific as to the portions to be protected and, if made by a Party, shall 7||be accompanied with a certification and log on the form, attached as Exhibit A. A |Designating Party must exercise restraint and make good faith efforts to limit 9 | |“CONFIDENTIAL.” designations to specific materials that qualify for protection under the 10 | |appropriate standards. 11 Inadvertent or unintentional production of Protected Material without prior 12 | |designation as “Confidential” shall not be deemed a waiver, in whole or in part, of the right 13 | |to designate documents as Protected Material as otherwise allowed by this Order. Further, a 14 | |Party may assert that disclosures or discovery material produced by another Party constitute 15 | |Protected Material by informing the opposing Party by following the procedures set forth 16 | |herein for a Designated Party. 17 6. PROTECTION OF PROTECTED MATERIAL. 18 a. General Protections. Protected Material shall not be used or disclosed by the 19 | |parties or counsel for the parties or any other persons identified below (4 6.b.) for any 20 | | purposes whatsoever other than preparing for and conducting litigation in the above-entitled 21 | |action (including any appeal). 22 b. Qualified Receiving Parties and Limited Third-Party Disclosures. Protected 23 | |Material shall be held in confidence by each qualified Receiving Party to whom it is 24 | |disclosed, shall be used only for purposes of this action, and shall not be disclosed to any 25 | |person who is not a qualified recipient. All Protected Material shall be carefully maintained 26 | |so as to preclude access by persons who are not qualified Receiving Parties. 27 | |/// 28 | |///

1 Subject to these requirements, in addition to Parties and the Court, the following 2 | |categories of persons may be allowed to review Protected Material pursuant to this Order 3 | |after executing an acknowledgment (in the form set forth at Exhibit B hereto), that he or she 4 | |has read and understands the terms of this Order and is bound by it: 5 (1) Any officers, directors, or designated employees of a Party deemed 6 necessary by counsel of record in this action to aid in the prosecution, 7 defense, or settlement of this action; 8 (2) Professional outside vendors for attorneys of record (such as copying 9 services and translators and interpreters), 10 (3) Court reporters, deposition notaries and staff; 11 (4) The author of any document designated as CONFIDENTIAL or the original 12 source of Confidential Information contained therein; 13 (5) Persons other than legal counsel who have been retained or specially 14 employed by a party as an expert witness for purposes of this lawsuit or to 15 perform investigative work or fact research; 16 (6) Deponents during the course of their depositions; 17 (7) Counsel for issuers of insurance policies under which any issuer may be 18 liable to satisfy part or all of a judgment that may be entered in these 19 proceedings or indemnify or reimburse payments or costs associated with 20 these proceedings; 21 (8) Any private mediator or arbitrator appointed by the Court or selected by 22 mutual agreement of the parties and the mediator or arbitrator’s secretarial 23 and clerical personnel; 24 (9) Any other person as to whom the Producing Party has consented to 25 disclosure in advance and in writing, on notice to each Party hereto. 26 | |/// 27 | |/// 28 | |///

1 c. Control of Documents. Counsel for Parties shall take reasonable efforts to 2 | prevent unauthorized disclosure of Protected Material pursuant to the terms of this Order. No 3 | |copies of Protected Material shall be made except by or on behalf of attorneys of record, in- 4 | |house counsel, or the parties in this action. 5 d. Copies. Any person making copies of Protected Material shall maintain all 6 | |copies within their possession or the possession of those entitled to access such information 7 | junder the Protective Order. All copies shall be immediately affixed with the designation 8 | |““CONFIDENTIAL” if the word does not already appear on the copy. All such copies shall 9 | |be afforded the full protection of this Order. 10 7. UNAUTHORIZED DISCLOSURE. 11 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 12 | |Protected Material to any person or in any circumstance not authorized under this Stipulated 13 | |Protective Order, the Receiving Party must immediately (a) notify in writing the Designating 14 | |Party of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the 15 | |Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 16 | |made of all the terms of this Order, and (d) request such person or persons to execute the 17 | |““Acknowledgment and Agreement to Be Bound by Stipulated Protective Order” (Exhibit B). 18 8. FILING PROTECTED MATERIAL 19 The Parties shall follow Rule 10-5 of the Local Rules of Practice for the U.S. 20 | |District Court of Nevada and must file documents under seal under the Court’s electronic 21 | |filing procedures, 22 Further, the Parties recognize the presumption of public access inherent in judicial 23 | |records and that a Protective Order does not establish that documents meet the standard for 24 | |sealing set forth in Rule 10-5 of the Local Rules of Practice for the U.S. District Court of 25 | |Nevada and the Ninth Circuit’s decisions in Kamakana v. City and County of Honolulu, 447 26 | |F.3d 1172 (9th Cir. 2006) and Ctr. for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 27 | |1097 (9th Cir.), cert. denied sub nom. FCA U.S. LLC v. Ctr. for Auto Safety, 137 S. Ct. 38 28 | |(2016). When a motion to seal is related to the merits of the case, a “party seeking to seal a

1 | |judicial record then bears the burden of overcoming this strong presumption by meeting the 2 | |‘compelling reasons’ standard.” Kamakana, 447 F.3d at 1178. But when motion to seal is 3 | Junrelated to the merits of the case, a party may overcome this presumption by meeting a less 4 | |exacting “good cause standard.” Chrysler Group, 809 F.3d at 1097. To establish good cause, 5 | |a party must show specific prejudice or harm—such as protecting a party from annoyance, 6 | |embarrassment, oppression, or undue burden or expense—will result if the motion to seal is 7 | |denied. Jd. (quoting Fed. R. Civ. P. 26(c)). Further, the Court should make an independent 8 | |determination regarding whether documents merits sealed status, and thus expressly reserves 9 | |the right to do. Kamakana 447 F.3d at 1186-87. 10 In recognition of this legal standard, and the fact that the party filing Protected 11 | |Material may not be the party that designated it confidential (and thus, may not believe good 12 | |cause exists for sealing), the Parties suggest that the procedure set forth below is followed if 13 | |the sole ground for a motion to seal is that the opposing party (or non-party) has designated 14 | ja document as subject to protection pursuant to this Stipulated Protective Order: the Party 15 | |filing such Protected Materials may assert in the accompanying motion any reasons why the 16 | |Protected Materials should not, in fact, be kept under seal and the Designating Party, who 17 | |must be properly noticed, may likewise file a response asserting its position that the Protected 18 | |Material merits protection under Rule 26(c) of the Federal Rules of Civil Procedure and 19 | Jattaching a declaration supporting the assertion that the designated material meets the 20 | |applicable standard. 21] |/// 22 | |/// 23 | |/// 24 | |/// 25 | |/// 26 | |/// 27 | |/// 28 | |///

1 9. CHALLENGES TO PROTECTED MATERIAL. 2 Any designation of Protected Material is subject to challenge. The following 3 | |procedures shall apply to any such challenge: 4 a. Burden. The burden of proving the necessity of a “CONFIDENTIAL” 5 | |designation remains with the party asserting confidentiality. 6 b. Notice; Opportunity to Challenge. A party who contends that Protected 7 | |Material is not entitled to confidential treatment shall give written notice to the party who 8 | |affixed the “CONFIDENTIAL” designation of the specific basis for the challenge. The party 9 | |who so designated the documents shall have ten (10) days from service of the written notice 10 | |to determine if the dispute can be resolved without judicial intervention and, if not, to move 11 | |for an Order confirming the “CONFIDENTIAL” designation, and the status as Protected 12 | | Material. 13 c. Treatment as Protected Material until Order or Withdrawal. 14 | |Notwithstanding any challenge to the designation of documents as such, all material 15 | |previously designated “CONFIDENTIAL” shall continue to be treated as Protected Material 16 | |subject to the full protections of this Order until one of the following occurs: (1) the Party 17 | |who claims that the documents are Protected Material withdraws such designation in writing; 18 | |(2) the Party who claims that the documents are confidential fails to move timely for an Order 19 | |designating the documents as confidential as set forth in paragraph 9.b. above; or (3) the 20 | |Court rules that the documents are not Protected Material and/or should no longer be 21 | |designated as “CONFIDENTIAL.” 22 d. No Waiver. Challenges to the confidentiality of documents may be made at any 23 | |time and are not waived by the failure to raise the challenge at the time of initial disclosure 24 | |or designation. 25 | |/// 26 | |/// 27 | |/// 28 | |///

1 10. DURATION; CONCLUSION OF LITIGATION. 2 All provisions of this Order restricting the use of Protected Material shall continue 3 | |to be binding after the conclusion of the litigation unless otherwise agreed or ordered. 4 | |However, the dismissal of this action will terminate the jurisdiction of this Court, including 5 | jover this Order. 6 Within thirty (30) days of the final termination of in the above-entitled action, 7 | |which would be either a final judgment on all claims or stipulation and order for dismissal 8 | with prejudice, all documents and information designated as CONFIDENTIAL by a 9 | |Designating Party and which has not been challenged, including any copies, or documents 10 | |containing information taken therefrom, shall be returned to the Designating Party. In the 11 | Jalternative, within thirty (30) days of the final termination of this case, which would be either 12 | Ja final judgment on all claims or stipulation and order for dismissal with prejudice, all such 13 | |documents, including copies, may be shredded or disposed of in a manner to ensure the 14 | |destruction thereof and a declaration certifying such destruction or disposal provided to the 15 | |Designating Party. To the extent a party has designated portions of a deposition transcript as 16 | |CONFIDENTIAL, the non-designating party is under no obligation or duty to shred or 17 | |dispose of the deposition transcript, however, the CONFIDENTIAL designation will remain. 18 11. PROTECTED MATERIAL _SUBPOENAED OR ORDERED 20 If a Party is served with a subpoena or an order issued in other litigation that would 21 | |compel disclosure of Protected Material designated by another Party or Non-party, the Party 22 | |must so notify the Designating Party, in writing (by e-mail or fax, if possible) within three 23 | |(3) court days after receiving the subpoena or order. Such notification must include a copy 74 | |of the subpoena or court order. 95 | \/// 26 | \/// 97 | |/// 2g | |///

1 12, ORDER SUBJECT TO MODIFICATION. 2 This Order shall be subject to modification on motion of any Party or any other 3 | |person who may show an adequate interest in the above-entitled action to intervene for 4 | |purposes of addressing the scope and terms of this Order. The Order shall not, however, be 5 | |modified until the Parties shall have been given notice and an opportunity to be heard on the 6 | |proposed modification. 7 13. NOJUDICIAL DETERMINATION. 8 This Order is entered based on the representations and agreements of the Parties 9 | |and for the purpose of facilitating discovery. Nothing herein shall be construed or presented 10 | Jas a judicial determination that any specific document or item of information designated as 11 | }|CONFIDENTIAL by counsel is subject to protection under Rule 26(c) of the Federal Rules 12 | J}of Civil Procedure or otherwise until such time as a document-specific ruling shall have been 13 | |made. 14 14. MISCELLANEOUS. 15 a. Public Health and Safety. Nothing in this Order is intended to prevent any Party 16 | |from raising with the Court any concern that the disclosure of certain Protected Material may 17 | |have a possible adverse effect upon the general public health or safety, or the administration 18 | Jor operation of government or public office. 19 b. Right to Further Relief. Nothing is this Order abridges the right of any person 20 | |to seek its modification by the Court in the future. 21 c. Right to Assert Other Objections. By stipulating to the entry of this Order, no 22 | |Party waives any right it otherwise would have to object to disclosing or producing any 23 | |information or item on any ground not addressed in this Order. Similarly, no Party waives 24 | Jany right to object on any ground to use in evidence of any of the material covered by this 25 | |Protective Order. 26 | |/// 27 | |/// 28 | |///

1 15. PERSONS BOUND UPON ENTRY OF ORDER. 2 This Order shall take effect when entered and shall be immediately binding upon 3 | |the Parties (as defined herein). It shall also be binding upon subsequent parties that are added 4 | |to this matter, each of which shall execute Exhibit B (Agreement to be bound). 5 | |IT IS SO STIPULATED. 6 | |DATED this the 5"" day of September, 2019. DATED this the 5 day of September, 2019. 7| |MARQUIS AURBACH COFFING KAEMPFER CROWELL 8 /s/ Nick D. Crosby /s/ Bryan M. Viellion g | |Nick D. Crosby, NBN 8996 Bryan M. Viellion, NBN 13607 10001 Park Run Drive 1980 Festival Plaza Drive, Suite 650 10 | |Las Vegas, NV 89145 Las Vegas, NV 89135 ll Email: ncrosby @maclaw.com Email: bviellion@kcnvlaw.com Attorney for LVMPD Defendants Attorney for Fashion Show Mall LLC 12 13 | |DATED this the day of September, 2019. 14 | |MCLETCHIE LAW 15 | ly Margaret A. McLetchie 16 Margaret A. McLetchie, NBN 10931 701 East Bridger Ave., Suite 520 17 | |Las Vegas, Nevada 89101 Email: maggie nvlitigation.com 18 Attorney for Plaintiff Nebyou Solomon 19 21 IT IS SO ORDERED. 22 DATED this 9th day of SePtember ao □□□ 23 WO 5 Daniel J. Albregts United States Magistrate Judge 26 27 28

I EXHIBIT A [Name]’s LOG OF CONFIDENTIAL DESIGNATIONS 2 3 Bates No. Date of or Other = Specific Description of Authority/Basis for 4 Production [Identifier | Documents or Information Designation fF Pf HAE sft fp Pf

nif Pf

wifi 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I EXHIBIT B AND AGREEMENT TO BE BOUND 3 DISTRICT OF NEVADA 5 6 NEBYOU SOLOMON, an individual, Case. No.: 2:19-cv-00652-JAD-DJA

7 Plaintiff, ACKNOWLEDGMENT OF Vs. UNDERSTANDING AND 8 AGREEMENT TO BE BOUND 10 DEPARTMENT; JOSEPH LOMBARDO, individually and in his official capacity as 11 Sheriff; JOHN L. PELLETIER, an individual; RICHARD E. MAUPIN, an individual; RYAN J. FRYMAN, an 13 individual; JUAN D. CONTRERAS, an individual; ALLEN J. PAVESE, an 14 individual; BRANDON M. MEADS, an 15 individual; FASHION SHOW MALL, LLC, a Nevada limited-liability company; LLC, a Nevada limited-liability company; 18 individuals, 19 Defendants. 20 The undersigned hereby acknowledges that he or she has read the Confidentiality 91 | |Order dated , 2019, in the above-captioned action, understands the terms 72 | |thereof, and agrees to be bound by such terms. The undersigned submits to the jurisdiction 73 | |of the United States District Court for the District of Nevada relating to the Confidentiality 74 | |Order during the pendency of the above-entitled action and understands that the terms of said 25 | {Order obligate him/her to use discovery materials designated CONFIDENTIAL solely for 26 | |the purposes of the above-captioned action, and not to disclose any such Protected Material 97 | |to any person, firm, entity, or concern. 9g | |///

1 The undersigned acknowledges that violation of the Stipulated Confidentiality 2 | |Order may result in penalties for contempt of court. 3 Name: 4 Job Title: Employer: 5 Business Address: 6 , 9 Date Signature 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28