Uhlmeyer v. USAA Casualty Insurance Company

Opinion

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1 || ROBERT W. FREEMAN Nevada Bar No. 3062 2 || Robert. □□□□□□□□□□□□□□□□□□□□□□□□□ PRISCILLA L. O’BRIANT 3 || Nevada Bar No. 010171 Priscilla. □□□□□□□□□□□□□□□□□□□□□□□□□ 4 || MAYRA SALINAS-MENJIVAR Nevada Bar No.014607 5 |) Mayra. □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ LEWIS BRISBOIS BISGAARD & SMITH LLP 6 || 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 7 || 702.893.3383 FAX: 702.893.3789 8 || Attorneys for Defendants USAA Casualty Insurance Company and United Services 9 || Automobile Association 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA, NORTHERN DIVISION 12 kek 13 RYAN E. UHLMEYER, an Individual, CASE NO. 3:19-cv-00438-LRH-CLB 14 Plaintiff, STIPULATED CONFIDENTIALITY 15 AGREEMENT AND PROTECTIVE vs. ORDER 16 USAA CASUALTY INSURANCE 17 || COMPANY, a Texas Corporation; UNITED SERVICES AUTOMOBILE ASSOCIATION, 18 || an Unincorporated Association; DOES I- XXX, and ABC CORPORATIONS A-Z, 19 || inclusive, 20 Defendants. 21 22 In order to protect the confidentiality of certain information obtained by the parties herein, 23 || Plaintiff RYAN E. UHLMEYER, and Defendants USAA CASUALTY INSURANCE COMPANY 24||(SUSAA CIC”) and UNITED SERVICES AUTOMOBILE ASSOCIATION (“USAA”)' 25 26 ||! United Services Automobile Association (“USAA”) is not a proper party to this litigation as it 17 did not issue either of the insurance policies at issue in this case. To that end, USAA has filed a Motion to Dismiss [ECF No. 6], currently pending with the Court. In participating in this 28 Protective Order, USAA does not waive or abandon its position that it is an improper party to this (footnote continued)

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1 || (collectively, “Defendants”), hereby enter the following Stipulated Confidentiality Agreement and 2 || Protective Order (“Protective Order”): 3 1. This Stipulated Confidentiality Agreement and Protective Order (“Protective 4 || Order”) shall govern the use and treatment of information, documents, testimony or other tangible 5 || things produced in this action by any party hereto, as well as discovery and document production 6 || from third parties, in the above-referenced action. The nature of this Protective Order is to protect 7\| defendants USAA CIC and USAA’s respective member and business interests in its own 8 || intellectual property, information, and processes. The insurance, banking, and investment 9 || industries are highly competitive markets, and disclosure of Defendants’ trade secrets, confidential 10 || or proprietary information could cause irreparable and significant harm to the Defendants and their 11||members. This Protective Order is intended to prevent this foreseeable harm and any related 12 || unforeseeable harm. 13 2. As used in this Protective Order, the terms “Party” or “Parties” shall include the 14|| Plaintiff Ryan E. Uhlmeyer and the Defendants USAA and USAA CIC, an each of their 15 || employees, agents, representatives, and attorneys (including both outside counsel and inside 16 || counsel). 17 3. As used in this Protective Order, the term “Person(s)” shall include any “Party” or 18 || non-party to this action, whether an individual, corporation, partnership, company, unincorporated 19 || association, governmental agency, or other business or governmental entity. 20 4, As used in this Protective Order, the term “Confidential Material” or “Confidential 21 || Document” shall refer to any and all documents or other materials produced in response to 22 || Requests for Production of Documents as well as any confidential or proprietary documents, data, 23 |lor any information or documents provided in response to other written discovery requests, 24 25 litigation and all causes of action brought against it should be dismissed. USAA also does not 6 waive its right to object to discovery request, interrogatories, depositions, or any other discovery conducted by Plaintiff. USAA will remain a party to this Protective Order and will continue as 27 such throughout this litigation until such time that all claims asserted against it in this litigation are resolved. USAA’s rights and protections under this Protective Order, however, shall survive the 28 termination of claims brought against it in this litigation.

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1 || interrogatory answers or deposition testimony, that contains: (1) information which any party or 2 ||non-party believes in good faith to be a trade secret, proprietary information or confidential 3 || research, development, commercial, or other proprietary business information within the meaning 4 || of Fed. R. Civ. P. 26(c)(1)(G); and (2) documents and/or testimony that may reveal confidential, 5 || proprietary, personal, or commercially sensitive information. Such Confidential Material may be 6 || contained in any written, printed, recorded, or graphic matter of any kind and shall retain its 7 || confidential designation regardless of the medium on which it is produced, reproduced, or stored. 8 || Confidential Material includes all documents or information derived from Confidential Material, 9 || including excerpts, copies or summaries of Confidential Material. Any party or non-party may 10 || designate as Confidential Material (including interrogatory answers) any information or document 11 || or other items with a watermark or legend as indicated in paragraphs 8 or 9 below. 12 5. As used in this Protective Order, the term “Discovering Party” shall mean the Party 13 || who has requested the production of documents, information, testimony or other material 14 || designated as Confidential Material under this Protective Order. 15 6. As used in this Protective Order, the term “Producing Party” shall mean the Party 16 || who has produced documents designated as Confidential Material under this Protective Order. 17 7. It is the purpose of this Protective Order that Defendants will be provided reasonable 18 || assurance that: 19 (a) The documents produced by the Defendants, whether jointly or individually, 20 || will be used solely and exclusively for the purpose of this specific litigation only and for no other 21 || purpose; 22 (b) The documents produce by the Defendants, whether jointly or individually, 23 || will not be used for commercial purposes, including but without limitation, any business, 24 || competitive or educational purpose; 25 (c) The documents produced by the Defendants, whether jointly or individually, 26 || will not be used for any non-litigation purposes; and 27 (d) Such information shall not be disclosed or disseminated to any person, LEWIS 28 || organization, business, governmental body or administrative agency unless ordered by the Court.

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1 Defendants are relying on this Protective Order, and would not have produced the 2 || documents and information otherwise. Defendants’ production under this Protective Order does 3 || not admit or concede the documents or information are relevant or admissible in this litigation. 4 8. Any party or non-party may designate information contained in a document as 5 || Confidential Material, the designating party shall mark each page of the document with the word 6||“CONFIDENTIAL” and identify such Confidential Material at the time of production. 7 || Confidential Information may be used in the course of depositions in accordance with this 8 || Protective Order. Where a document or response consists of more than one page, the first page and 9 || each page on which Confidential Material appears shall be so designated. 10 9. Defendants may designate any information, document, testimony or other tangible 11 || thing disclosed during a deposition, in response to written discovery, or otherwise in connection 12 || with this litigation as Confidential Material by so indicating in said response, or on the record at the 13 || deposition and requesting the preparation of a separate transcript of such material. Documents 14 || may be designated Confidential Material by affixing the legend “CONFIDENTIAL” to each item 15 || or document page. Deposition testimony and/or exhibits may be designated Confidential Material 16 || either by: (a) stating on the record of the deposition that such deposition, or portion thereof, or 17 || exhibit is confidential; or (b) stating in writing served upon counsel of record within thirty (30) 18 || days after receipt of the deposition transcript and exhibits that such deposition, or portion thereof, 19 || or exhibit is confidential. Transcripts and exhibits from any deposition or hearing shall be 20 || temporarily designated as Confidential Material and be treated as subject to the terms of this 21 || Protective Order, until counsel for Defendants notifies all other parties of the pages of the 22 || transcripts or exhibits which shall remain designated as Confidential Material. If no designation is 23 || made within thirty (30) days, the entire transcript and all exhibits will be deemed not confidential. 24 || Any other party may object to such proposal, in writing or on the record. Upon such objection, the 25 || parties shall follow the procedures described in paragraph 10 below. After any designation made 26 || according to the procedure set forth in this paragraph, the designated documents or information 27|| shall be treated according to the Confidential designation until the matter is resolved according to LEWIS 28 || the procedures described in paragraph 10 below, and counsel for all parties shall be responsible for

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1 || making all previously unmarked copies of the designated material in their possession or control 2 || with the specified designation. 3 10. Except with the prior written consent of other parties, or upon prior order of this 4|| Court obtained upon notice to opposing counsel, Confidential Material may only be copied, 5 || disclosed, discussed, or inspected, in whole or in part, only for the purposes of this litigation only 6 || by the following persons and shall not be disclosed to any person other than: 7 (a) counsel of record for the respective parties to this litigation, in-house counsel 8 || and co-counsel retained for this litigation; 9 (b) personnel who are directly employed or contracted by the attorneys in (a) 10 || above or their respective firms and who are assisting the attorneys working on this action; 11 (c) any officer or employee of a party, to the extent deemed necessary by 12 || Counsel for the prosecution or defense of this litigation; 13 (d) consultants or expert witnesses retained for the prosecution or defense of this 14 || litigation, provided that each such person is provided with a copy of this Protective Order and shall 15 || agree in writing to be bound thereto by executing a copy of the Acknowledgement annexed to this 16 || Order as Exhibit “A” (which shall be retained by counsel to the party so disclosing the Confidential 17 || Material and made available for inspection by opposing counsel during the pendency or after the 18 || termination of the action only upon good cause shown and upon order of the Court) before being 19 || shown or given any Confidential Material; 20 (e) any authors or recipients of the Confidential Material; 21 (f) any person who is expected to testify as a witness either at a deposition or 22 || court proceeding in this action for the purpose of assisting in his/her preparation therefore, and any 23 || other person to whom the dissemination of the document is deemed necessary by any party in 24 || preparation for trial (other than persons described in paragraph 4(e)). A witness shall be provided 25 || with a copy of this Protective Order to review and shall sign the Acknowledgement annexed hereto 26 || before being shown or given access to Confidential Material. Confidential Material may be 27 || disclosed to a witness who will not sign the Acknowledgement only in a deposition at which the 28 || party who designated the Confidential Material is represented or has been given notice that

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1 || Confidential Material shall be designated “Confidential” pursuant to paragraph 2 above. Witnesses 2 || shown Confidential Material shall not be allowed to retain copies in any form; and 3 (g) the United States District Court for the Unofficial Northern District of 4 || Nevada (the “Court”), Court personnel, including court reporters engaged in such proceedings as 5 || are necessarily incidental to the preparation or trial of this lawsuit; 6 (h) any mediator or arbitrator selected with the consent of all parties or by the 7 || Court. 8 11. Any persons receiving Confidential Material shall not reveal or discuss such 9 || information to or with any person who is not entitled to receive such information, except as set 10 || forth herein. 11 12. Any designating party may elect to designate certain Confidential Material of a 12 ||highly confidential and/or proprietary nature as “HIGHLY CONFIDENTIAL-ATTORNEYS 13 ||EYES ONLY” (hereinafter “Attorney’s Eyes Only Material”), in the manner described in 14 || paragraphs 8 and 9 above. Attorney’s Eyes Only Material, and the information contained therein, 15 || may be disclosed to only those persons described in subparagraphs 10(a), (d), and (g)-(h) above, 16 || and shall not be disclosed to a party, or to an officer, director or employee of a party, unless 17 || otherwise agreed or ordered. If disclosure of Attorney’s Eyes Only Material is made pursuant to 18 || this paragraph, all other provisions in this order with respect to confidentiality shall also apply. Ifa 19 || party objects to materials designated “Highly Confidential-Attorneys & Experts Only,” the 20 || objecting party may follow the procedure set forth in paragraph 16 herein to remove such 21 || designation. 22 13. Prior to filing any document identified as Confidential Material, the party that 23 |lintends to file with the Court pleadings or other papers containing or referring to Confidential 24 || Material shall notify the designating party at least ten (10) days prior to filing the designated 25 ||document. The designating party will then make a good faith determination whether the 26 || document(s) meet the standard for sealing as set forth in the Ninth Circuit’s directives in Kamakana 27 || v. City and County of Honolulu, 447 F.3d 1172 (9th Cir. 2006). To the extent the designating party 28 || does not believe the relevant standard for sealing can be met, it shall indicate that the document

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1 || may be filed publicly no later than seven (7) days after receiving notice of the intended filing. To 2 ||the extent the designating party believes the relevant standard for sealing can be met, it shall 3 || provide a declaration supporting that assertion no later than seven (7) days after receiving notice of 4|ithe intended filing. The filing party shall take all reasonable steps to file documents as 5 || “Confidential” under seal and attach the declaration of the designating party to its motion to □□□□ 6 || the designated material. If the designating party fails to provide such a declaration in support of the 7 || motion to seal, the filing party shall file a motion to seal so indicating and the Court may order the 8 || document filed in the public record. 9 In the event of an emergency motion, the above procedures shall not apply. Instead, the 10 || movant shall file a motion to seal and the designating party shall file a declaration in support of that 11 || motion to seal within three (3) days of its filing. If the designating party fails to timely file such a 12 || declaration, the Court may order the document filed in the public record. 13 14. Any party filing Confidential Material or motions to seal shall comply with this 14 || Protective Order and LR 10-5. 15 15. A party may designate as Confidential Material documents or discovery materials 16 || produced by a non-party by providing written notice to all parties of the relevant document 17 || numbers or other identification within thirty (30) days after receiving such documents or discovery 18 || materials. Any party or non-party may voluntarily disclose to others without restriction any 19 || information designated by that party or non-party as Confidential Material, although a document 20 || may lose its protected status if it is made public. 21 16. If any Party disagrees with the designation of materials marked “Confidential” or 22 || “Highly Confidential-Attorneys Eyes Only”, the objecting party shall within five (5) days of receipt 23 || of the materials, provide written notice of the disagreement to the Defendants, requesting a meeting 24 confer with counsel for Defendants to resolve the dispute over the designation. If the dispute 25 || over the designation is not resolved informally between the parties, Defendants will file a motion 26 || with the Court to resolve the dispute regarding the “Confidential” or “Highly Confidential- 27 || Attorneys Eyes Only” designation. Defendants will have 30 days from the date in which the parties 28 || meet and confer regarding the dispute over the designation, in which to file a motion with the court

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1 || regarding the designation. In any event, unless and until a Court ruling is obtained changing a 2 || designation, or the designating party agrees otherwise in writing, the material involved shall be 3 || treated according to the existing Confidential Material designation. 4 17. | Notwithstanding any challenge to the designation of material as Confidential 5 || Material, all documents shall be treated as Confidential and shall be subject to the provisions hereof 6 || unless and until one of the following occurs: 7 (a) the party or non-party claims that the material is Confidential Material 8 || withdraws such designation in writing; or 9 (b) the party or non-party who claims that the material is Confidential Material 10 || fails to apply to the Court for an order designating the material confidential within the time period 11 || specified in paragraph 10 after receipt of a written challenge to such designation; or 12 (c) the Court rules the material is not confidential. 13 18. This Protective Order survives the end of the above-styled litigation. All provisions 14 |lof this Protective Order restricting the communication or use of Confidential Material shall 15 continue to be binding after the conclusion of this action, unless otherwise agreed or ordered. 16 || Upon final settlement or conclusion of this action, a party in the possession of Confidential 17 || Material, other than that which is contained in pleadings, correspondence, and deposition 18 || transcripts (with the exception of exhibits therein), shall either: 19 (a) return such documents no later than thirty (30) days after the final settlement 20 || or termination of this action to counsel for the party or non-party who provided such information, 21 || or 22 (b) destroy such documents within the time period upon consent of the 23 || producing party and certify in writing within thirty (30) days that the documents have been 24 || destroyed. 25 The party in possession of Confidential Material shall return or destroy all Confidential 26 || Material as specified above, including all copies, notes, tapes, papers and any other medium 27 || containing, summarizing, excerpting, or otherwise embodying any Confidential Material. The 28 || party shall be entitled to destroy, rather than return (a) any Confidential Material stored in or by

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1 || data processing equipment, and (b) work-product memoranda embodying Confidential Material, 2 || subject to privilege under State Bar rules, and confirm in writing to the producing party its 3 || compliance with this section. 4 19. The Confidential Material shall not be published or reproduced in any manner on the § || internet, blogs, bulletin boards, email, newspapers, magazines, bulletins, or other media available 6 || publicly or privately. Likewise, persons may not verbally share the Confidential Material to any 7 || persons or entities not listed in subsections 10(a)-(h). 8 20. The parties agree to limit dissemination of any Confidential Material as set forth □□ 9 || this Protective Order and are materially relying on the representations and covenants contained 10 || herein. 11 21. Inthe event that Confidential Material is inadvertently produced without designating 12 || such documents or information as “Confidential” or “Highly Confidential-Attorneys Eyes Only” 13 || within the time periods established in this Protective Order, any party or nonparty shall properly 14 || designate such documents or information as “Confidential” or “Highly Confidential-Attorneys 15 ||Eyes Only,” and the parties shall be bound by such designations pursuant to the terms of this 16 || Protective Order, but shall not be deemed to be in breach of this Protective Order by reason of any 17 || use or disclosure of such Confidential Material that occurred prior to notification of the correct 18 || designation. Inadvertent production of such documents or information in this case without 19 || designation as “Confidential” or “Highly □□□□□□□□□□□□□□□□□□□□□□ Eyes Only” shall not be deemed a 20 || waiver, in whole or in part, of any party’sclaim to confidentiality of such documents or 21 || information, either as to the specific information disclosed or as to any other information relating to 22 || the subject matter of the information disclosed. 23 22. Confidential Material designated by Defendants shall be used only for the purposes 24 || of prosecuting or defending this action. Under no circumstances shall information or materials 25 || covered by this Protective Order be disclosed to or discussed with anyone other than the individuals 26 || designated in paragraph 10. 27 23. The terms of this Order do not preclude, limit, restrict, or otherwise apply to the use 28 || of documents at trial.

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1 24. Nothing herein shall be deemed to waive any applicable privilege or work-product 2 || protection, or to affect the ability of a party to seek relief for an inadvertent disclosure of material 3 || protected by privilege or work product protection. 4 25. If any party receives a subpoena from a nonparty to this Protective Order seeking 5 || production or other disclosure of Confidential Material, it shall refuse to produce any Confidential 6 || Material under the authority of this Protective Order and shall immediately give written notice to 7 || counsel for the designating party, identifying the Confidential Material sought and enclosing a copy 8 || of the subpoena. 9 26. Any witness or other person, firm or entity from which discovery is sought may be 10 || informed of and may obtain the protection of this Order by written advice to the parties; respective 11 || counsel or by oral advice at the time of any deposition or similar proceeding. 12 27, The parties stipulate that this Court shall retain jurisdiction over them and any 13 || person to whom Confidential Material is disclosed to the extent necessary to enforce the terms of 14 || this Protective Order. Any party, including attorneys of record, and outside consultants and experts 15 || retained in this action, who violates this Order, including but not limited to unauthorized disclosure 16 || of Confidential Material or Confidential Documents, is subject to sanctions, including but not 17 || limited to, dismissal of claims or defenses, civil contempt, damages, assessment of reasonable 18 || expenses, including attorneys’ fees incurred by the person whose Confidential Material was 19 || disclosed in violation of this Order, and/or any other sanction deemed appropriate by the 20 || Court. Disclosure of confidential material in violation of this order will also entitle a party to 21 || recover all damages proximately flowing from the violation, including attorneys’ fees expended in 22 || the enforcement of this order. Upon an alleged violation of this Protective Order, the Court on its 23 || own motion or on the motion of any party may grant relief as it deems appropriate in law or equity. 24 28. Should any provision of this Stipulation be struck or held invalid by a court of 25 || competent jurisdiction, all remaining provisions shall remain in full force and effect. 26 29. The documents and information at issue do not involve the public health and safety, 27 || a public entity, or issues important to the general public. 28 30. The terms of this Protective Order are subject to modification, extension or

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1 || limitation as may be hereinafter agreed to by the parties in writing or as ordered by the Court. Any 2 || modifications, extensions or limitations agreed to in writing by the parties shall be deemed 3 || effective pending approval by the Court. 4 31. No modifications of this Protective Order or waiver of its provisions will be binding 5 || upon the parties, unless made in writing by the parties. 6 || Dated this 13th day of December, 2019. Dated this day of December, 2019. 7\|LEVERTY & ASSOCIATES LAW CHTD. LEWIS BRISBOIS BISGAARD & SMITH LLP /s/ Patrick R. Leverty /s/ Mayra Salinas-Menjivar 9 || PATRICK R. LEVERTY ROBERT W. FREEMAN Nevada Bar No. 8840 Nevada Bar No. 3062 10 || WILLIAM R. GINN PRISCILLA L. O’BRIANT Nevada Bar No. 6989 Nevada Bar No. 10171 || rane are MAYRA SALINAS-MENJIVAR 832 Willow Street d No.014607 Reno, Nevada 89502 Nevada Bar No. 12 || Keno, owe 6385 S. Rainbow Boulevard, Suite 600 Attorneys for Plaintiff Ryan E. Uhlmeyer Las Vegas, Nevada 89118 13 Attorneys for Defendants USAA Casualty Insurance Company and 14 United Services Automobile Association 15 ORDER 16 18 Dated this ( OO say of December, 2019. 19 20 > 1 STATES MAGISTRATE JUDGE 22 23 24 25 26 27 78

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COMPLY WITH STIPULATED CONFIDENTIALITY AGREEMENT AND 5 I, , have reviewed carefully the Stipulated Confidentiality 6 Agreement And Protective Order (“Protective Order”) concerning the treatment of confidential or proprietary information, or other commercially sensitive or personally sensitive information of a 9 non-public nature (“Confidential Material”) executed by the parties in the above-captioned case,

10 and its significance has been explained to me by counsel. I agree to be bound by the terms of the 11 || Protective Order, and to treat as confidential and not to disclose Confidential Material to any 12 || person who is not authorized to receive that information under the Protected Order. | hereby 13 || consent to the jurisdiction of that Court for the purposes of enforcing that Protective Order. 14 I declare under penalty of perjury under the laws of the United States of America that the 15 foregoing is true and correct. 16 17 19 21 23 25 26 27 678

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2 Pursuant to FRCP 5(b) and Section IV of the District of Nevada Electronic Filing 3 || Procedures, | hereby certify that on the 13th day of December, 2019, I caused to be served a true || and correct copy of the foregoing STIRULATED CONFIDENTIALITY AGREEMENT AND || PROTECTIVE ORDER in Ryan E. Uhimeyer v. USAA Casualty Insurance Company et al., 6 || United States District Court Case No. 3:19-cv-00438-LRH-CBC, to be served via electronic service 7 || by the U.S. District Court CM/ECF system to the parties on the Electronic Filing System. 9 || Patrick R. Leverty, Esq. 10 William R. Ginn, Esq. LEVERTY & ASSOCAITES LAW CHTD. 11 || 832 Willow Street Reno, NV 89502 12 || Attorneys for Plaintiff 13 14 15 By _/s/ Patricia Somerville 16 An Employee of LEWIS BRISBOIS BIGAARD & SMITH 17 18 19 20 21 22 23 24 25 26 27 78

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