Wells v. The City of Las Vegas

• Court: District Court, D. Nevada
• Decided: December 17, 2021
• Docket: 2:21-cv-01346
• Status: Unknown

Opinion

Craig R. Anderson, Esq. 2 Nevada Bar No. 6882 10001 Park Run Drive 3 Las Vegas, Nevada 89145 Telephone: (702) 382-0711 4 Facsimile: (702) 382-5816 canderson@maclaw.com 5 Attorneys for Defendants LVMPD, Campbell, Vasquez, Gonzalez, Roman and Lombardo 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 MARCIA WELLS and TEENA ACREE, individually and as Co-Special Administrators of 9 the Estate of Byron Lee Williams, Deceased; Case No.: 2:21-cv-01346-JCM-EJY TINA LEWIS-STEVENSON, individually as an 10 heir; GWENDOLYN LEWIS, individually as an heir; ROBYN WILLIAMS, individually as an 11 heir and DEWAIN LEWIS, individually as an PROTECTIVE ORDER heir, 12 Plaintiffs, 13 vs. 14 LAS VEGAS METROPOLITAN POLICE 15 DEPARTMENT, a political subdivision of the State of Nevada; OFFICER PATRICK 16 CAMPBELL, individually and as an agent of the City of Las Vegas, Clark County, and the Las 17 Vegas Metropolitan Police Department; OFFICER BENJAMIN VASQUEZ, individually 18 and as an agent of the City of Las Vegas, Clark County, and the Las Vegas Metropolitan Police 19 Department; OFFICER ALEXANDER GONZALEZ, individually and as an agent of the 20 City of Las Vegas, Clark County, and the Las Vegas Metropolitan Police Department; 21 OFFICER ROCKY ROMAN, individually and as an agent of the City of Las Vegas, Clark 22 County, and the Las Vegas Metropolitan Police Department; and SHERIFF JOE LOMBARDO, 23 as agent of the City of Las Vegas, Clark County, and the Las Vegas Metropolitan Police 24 Department, 25 Defendants. 26 / / / 27 / / / 28 2 Metropolitan Police Department (“LVMPD”) contends contains private and sensitive 3 information, confidential information of LVMPD, its officers and employees, its internal 4 investigative and administrative actions, and other confidential information. Pursuant to an 5 agreement by the Parties, the Court hereby enters the following Order for Protection (“Protective 6 Order”): 7 TERMS OF PROTECTIVE ORDER 8 I. DEFINITIONS 9 The following definitions apply to the Protective Order: 10 1. Party. Any party to this action, including all of its officers, directors, employees, 11 consultants, Experts, and Outside Counsel. Party, as used in this Protective Order, shall also 12 refer to LVMPD, and its officers, agents and employees. 13 2. Disclosure or Discovery Material. All items or information, regardless of the 14 medium or manner generated, stored, or maintained (including, among other things, testimony, 15 transcripts, or tangible things) that are produced or generated in disclosures or responses to 16 discovery in this matter. 17 3. “Confidential” Information or Items. Information (regardless of how generated, 18 stored or maintained) or tangible things that qualify for protection under the law enforcement 19 investigative and/or official information privileges, or that contain Criminal History Information, 20 personal information regarding individuals including Social Security Numbers, dates of birth and 21 information which a person would have a reasonable expectation of privacy, such as medical 22 information. Confidential information shall also include information concerning, regarding, or 23 as a result of covert or undercover law enforcement investigation(s) technique(s), method(s) or 24 source(s), including the identity of any confidential informant, undercover officer information, or 25 information referring to any undercover or active criminal investigations. Further, Confidential 26 information shall also include any information protected from disclosure under Donrey v. 27 Bradshaw, 106 Nev. 630 (1990) or an official or executive information privilege. 28 2 Confidential Information from a Producing Party. 3 5. Producing Party. A Party or third-party that produces Disclosure or Discovery 4 Material or Confidential Information in this action. 5 6. Designating Party. A Party or third-party that designates information or items 6 that it produces in disclosures or in responses to discovery as “Confidential.” 7 7. Protected Material. Any Disclosure or Discovery Material or Confidential 8 Information that is designated as “Confidential.” 9 8. Outside Counsel. Attorneys who are not employees of a Party but who are 10 retained to represent or advise a Party in this action. 11 9. House Counsel. Attorneys who are employees of a Party. 12 10. Counsel (without qualifier). Outside Counsel and House Counsel (as well as their 13 support staffs). 14 11. Expert. A person with specialized knowledge or experience in a matter pertinent 15 to the litigation retained by a Party or its Counsel to serve as an expert witness or as a consultant 16 in this action. This definition includes, but is not limited to, a professional jury or trial consultant 17 retained in connection with this litigation. 18 12. Professional Vendor. Person or entity that provides litigation support services 19 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, organizing, 20 storing, retrieving data in any form or medium; etc.) and its employees and subcontractors. 21 13. The use of the singular form of any word includes the plural, and vice versa. 22 II. SCOPE 23 The protection conferred by this Protective Order covers not only Protected Material, but 24 also any information copied or extracted therefrom, as well as all copies excerpts, summaries, or 25 compilations thereof, testimony, conversations, or presentations by parties or counsel to or in 26 court or in other settings that might reveal Protected Material. 27 28 2 Even after the termination of this action, the confidentiality obligations imposed by this 3 Protective Order shall remain in effect until a Designating Party agrees otherwise in writing or a 4 court order otherwise directs. 5 IV. DESIGNATING PROTECTED MATERIAL 6 1. Manner and Timing of Designations. Except as otherwise provided herein, or as 7 otherwise ordered, material that qualifies for protection under this Order must be clearly 8 designated before it is disclosed or produced. Designations in conformity with this Order 9 require: 10 a. For information in documentary form. That the Producing Party 11 shall affix the legend “Confidential” on each page that contains Protected Material. If only a 12 portion or portions of the material on a page qualifies for protection, the Producing Party also 13 must clearly identify the protected portion(s) (e.g., by making appropriate makings in the 14 margins or redacting protected portions). A Producing Party that makes original documents or 15 materials available for inspection need not designate them for protection until after the inspecting 16 Party has indicated which material it would like copied and produced. During the inspection and 17 before the designation, all of the material made available for inspection shall be deemed 18 “Confidential.” After the inspecting Party has identified the documents it wants copied and 19 produced, the Producing Party must determine which documents, or portions thereof, qualify for 20 protection under this Order, and, before producing the specified documents, the Producing Party 21 must affix the appropriate legend on each page that contains Protected Material. If only a 22 portion or portions of the material on a page qualifies for protection, the Producing Party also 23 must clearly identify the protected portion(s) (e.g., by making appropriated markings in the 24 margins or by redacting protected portions). 25 b. For testimony given in deposition or in other pretrial or trial 26 proceedings. That before the close of the deposition, hearing, or other proceeding, the Party or 27 non-party offering or sponsoring the testimony shall identify on the record all protected 28 testimony and further specify any portions of the testimony that qualify as “Confidential.” When 2 Party or non-party that sponsors, offers, or gives the testimony may invoke on the record (before 3 the deposition or proceeding is concluded) a right to have up to thirty (30) days to identify the 4 specific portions or the testimony as to which protection is sought. Only those portions of the 5 testimony that are appropriately designated for protection under the standards set forth herein 6 within the thirty (30) days shall be covered by the provisions of this Protective Order. Upon 7 request of a Designating Party, transcript pages containing Protected Material must be separately 8 bound by the court reporter, who must affix to the top of each such page the legend 9 “Confidential” as instructed by the Party or non-party offering or sponsoring the witness or 10 presenting the testimony. 11 c. For information produced in some form other than documentary, 12 and for any other tangible items. That the Producing Party affix in a prominent place on the 13 exterior of the container or containers in which the information or item is stored the legend 14 “Confidential.” If only portions of the information or item warrant protection, the Producing 15 Party, to the extent practicable, shall identify the protected portions. 16 2. Inadvertent Failure to Designate. Inadvertent failure to identify documents or 17 things as “Confidential” pursuant to this Protective Order shall not constitute a waiver of any 18 otherwise valid claim for protection, provided that the provisions of this paragraph are satisfied. 19 If the Designating Party discovers that information should have been but was not designated 20 “Confidential” or if the Designating Party receives notice that would enable the Designating 21 Party to learn that it has disclosed such information, the Designating Party must immediately 22 notify all other parties. In such event, within thirty (30) days of notifying all other Parties, the 23 Designating Party must also provide copies of the “Confidential” information designated in 24 accordance with this Protective Order. After receipt of such re-designated information, the 25 “Confidential” information shall be treated as required by this Protective Order, and the 26 Receiving Party shall promptly, but in no event more than fourteen (14) calendar days from the 27 receipt of the re-designated information, return to the Designating Party all previously produced 28 copies of the same unlegended documents or things. The Designating Party and the Parties may 2 Order or otherwise, for any disclosure of information contained in unlegended documents or 3 things occurring before the Receiving Party was placed on notice of the Designating Party’s 4 claims of confidentiality. 5 V. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6 1. Meet and Confer. A Party that elects to initiate a challenge to a Designating 7 Party’s confidentiality designation must do so in good faith and must begin the process by 8 conferring with counsel for the Designating Party. The challenging Party must give the 9 Designating Party an opportunity of not less than ten (10) calendar days to review the designated 10 material, to reconsider the circumstances, and, if no change in the designations is offered, to 11 explain in writing the basis for the confidentiality designation. 12 2. Judicial Intervention. A Party that elects to press a challenge to a confidentiality 13 designation after considering the justification offered by the Designating Party may file and 14 serve a motion that identifies the challenged material and sets forth in detail the basis for the 15 challenge. Until the Court rules on the challenge, all parties shall continue to afford the material 16 in question the level of protection to which it is entitled under the Producing Party’s designation. 17 VI. ACCESS TO AND USE OF PROTECTED MATERIAL 18 1. Basic Principles. A Receiving Party may use Protected Material that is disclosed 19 or produced by another Party or by a third-party in connection with this case solely for the 20 limited purposes of prosecuting, defending, attempting to settle, or settling this action. Such 21 Protected Material may be disclosed only to the categories of persons and under the conditions 22 described in the Protective Order. Protected Material must be stored and maintained by a 23 Receiving Party at a location and in a secure manner that ensures that access is limited to the 24 persons authorized under this Protective Order. 25 2. Disclosure of “Confidential” Information or Items. Unless otherwise ordered by 26 the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any 27 information or item designated Confidential only to: 28 2 Counsel of record in this action, as well as employees of said Counsel to whom it is reasonably 3 necessary to disclose the information for this litigation. Counsel of Record shall be responsible 4 for advising all of their staff of the existence of, and their confidentiality obligations under, the 5 Protective Order, and shall be responsible for any non-compliance with the Protective Order by 6 members of their staff that have not signed an agreement to be bound by the Protective Order; 7 b. The officers, directors, and employees of the Receiving Party to 8 whom disclosure is reasonably necessary for this litigation and who have signed or have agreed 9 under oath and on the record to be bound by the “Agreement to Be Bound by Protective Order” 10 (Exhibit A); 11 c. Experts of the Receiving Party to whom disclosure is reasonably 12 necessary for this litigation and who have signed or have agreed under oath and on the record to 13 be bound by the “Agreement to Be Bound by Protective Order” (Exhibit A); 14 d. The Court and its personnel; 15 e. Court reporters, their staffs, and Professional Vendors to whom 16 disclosure is reasonably necessary for this litigation; 17 f. During their depositions or at trial, witnesses in the action to whom 18 disclosure is reasonably necessary. Witnesses will not be permitted to retain copies of Protected 19 Material unless they have signed or agreed under oath and on the record to be bound by the 20 “Agreement to Be Bound by Protective Order” (Exhibit A). Upon request of a Designating 21 Party, pages of transcribed deposition testimony or exhibits to depositions that reveal Protected 22 Material must be separately bound by the court reporter and may not be disclosed to anyone 23 except as permitted under this Protective Order; and 24 g. The author of the document or the original source of the 25 information and recipients or addressees in the normal course of business. 26 Notwithstanding the preceding of this paragraph VI(2), a Party that has produced its, his 27 or her own Protected Material may disclose such Protected Material to any persons, with or 28 2 3. Trial and Dispositive Motion Disclosure: For the purpose of trial and/or 3 dispositive motions, the parties acknowledge that a “strong presumption in favor of access” 4 exists. A party seeking to seal a judicial record at trial and/or the dispositive motions stage bears 5 the burden of establishing “compelling reasons” by “articulating compelling reasons supported 6 by specific factual findings,” that outweigh the public policies favoring disclosure.1 7 4. Disclosure of Possession of Confidential Information. All persons described in 8 paragraph VI above shall not under any circumstances sell, offer for sale, advertise, or publicize 9 either the Confidential Information or the fact that such persons have obtained Confidential 10 Information. 11 VII. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 12 If a Receiving Party is served with a subpoena or an order issued in other litigation that 13 would compel disclosure of any information or items designated in this action as “Confidential” 14 the Receiving Party must so notify the Designating Party, in writing (by fax or email if possible) 15 immediately and in no event more than seven (7) calendar days after receiving the subpoena or 16 order. Such notification must include a copy of the subpoena or court order. The Receiving 17 Party also must within ten (10) calendar days inform in writing the party who caused the 18 subpoena or order to issue in the other litigation that some or all the material covered by the 19 subpoena or order is the subject of this Protective Order and deliver to such party a copy of this 20 Protective Order. The Designating Party shall bear the burdens and the expenses of seeking 21 protection in that court of its Confidential material – and nothing in these provisions should be 22 construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful 23 directive from another court. Once notice is given, and five business days have elapsed, the 24 receiving party shall have no further liability for disclosure pursuant to a subpoena or its 25 equivalent. 26 27 1 See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006). 28 2 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 3 Material to any person or in any circumstance not authorized under this Protective Order, the 4 Receiving Party must immediately and within not more than seven (7) calendar days: (a) notify 5 in writing (using best efforts to use email or fax) the Designating Party of the unauthorized 6 disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the 7 person or persons to whom unauthorized disclosures were made of all the terms of the Protective 8 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement 9 to Be Bound” (Exhibit A). The Receiving Party shall promptly notify the Designating Party of 10 the results of its efforts with regards to (b), (c), and (d) herein. After a good faith meet and 11 confer effort to resolve and remaining disputes concerning compliance with this paragraph, and 12 Party, Receiving Party or Designating Party may seek relief from this Court for non-compliance 13 with this provision. Said relief may include, but is not limited to, preclusion of the Receiving 14 Party’s use in this litigation of the Protected Material that was disclosed contrary to this 15 Protective Order, or any other sanction deemed appropriate by the Court. 16 IX. PUBLICLY AVAILABLE OR PREVIOUSLY POSSESSED INFORMATION 17 The restrictions in the preceding paragraphs regarding disclosure or Protected Material do 18 not and shall not apply to information or material that: was, is, or becomes public knowledge in a 19 manner other than by violation of the Protective Order, is acquired by the non-designating party 20 from a third-party having the right to disclose such information or material; or was lawfully 21 possessed by the non-designating party before the date of this Protective Order. The Designating 22 Party shall act in good faith to notify the Receiving Party of any change in circumstances that 23 renders Confidential Information or Items no longer Confidential within a reasonable time period 24 after the change becomes known to the Designating Party. 25 X. FILING PROTECTED MATERIAL 26 With respect to non-dispositive motions and pleadings, Protected Material or information 27 derived therefrom is included with, or the contents of such a document are disclosed in, any 28 documents filed with the Clerk or this Court or any other court, the filing Party shall file said 2 Parties to permit service by some other means such as by email or facsimile, copies of any 3 pleading, brief or other document containing Protected Material that is served on opposing 4 counsel shall be delivered in a sealed envelope stamped: 5 CONFIDENTIAL PURSUANT TO PROTECTIVE ORDER 6 and shall be treated in accordance with the provisions of this Protective Order. Subject to the 7 Court’s convenience and needs, all material files in this fashion will be kept under seal by the 8 Clerk until further order from the Court. 9 XI. FINAL DISPOSITION 10 Unless otherwise ordered or agreed in writing by the Producing Party, within sixty (60) 11 calendar days of a written request, after the final termination of this action, each Receiving Party 12 must return all Protected Material to the Producing Party. As used in this subdivision, “all 13 Protected Material” includes all copies, abstracts, compilations, summaries or any other form of 14 reproducing or capturing any of the Protected Material. With permission in writing from the 15 Designating Party, the Receiving Party may destroy some or all of the Protected Material instead 16 of returning it. Whether the Protected Material is returned or destroyed, the Receiving Party 17 must submit a written certification to the Producing Party (and, if not the same person or entity, 18 to the Designating Party) by the thirty (30) calendar day deadline that identifies (by category, 19 where appropriate) all the Protected Material that was returned or destroyed and that affirms that 20 the Receiving Party has not retained any copies, abstracts, compilations, summaries or other 21 forms of reproducing or capturing any of the Protected Material. Notwithstanding this provision, 22 Counsel are entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal 23 memoranda, correspondence or attorney work product, even if such materials contain Protected 24 Material. Any such archival copies that contain or constitute Protected Material remain subject 25 to this Protective Order as set forth herein. In the event of an appeal, “Final Disposition” shall 26 not occur until the conclusion of all appeals. 27 28 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 “Acknowledgment and Agreement to Be Bound” Forms 20 (Exhibit A). Completed “Acknowledgement and Agreement to Be Bound” 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 25 26 the representations in the form and this Protective Order. If the parties are unable to resolve any 27 such disputes or challenges through a good faith meet and confer process, the challenging Party 28 2 IT IS SO STIPULATED this 17th day of December, 2021. 3 MARQUIS AURBACH COFFING ROMANUCCI & BLANDIN, LLC 4 By: s/Craig R. Anderson By: s/Ian Fallon 5 Craig R. Anderson, Esq. Ian Fallon, Esq. (Pro Hac Vice) Nevada Bar No. 6882 321 N. Clark St., Ste. 900 6 10001 Park Run Drive Chicago, Illinois 60654 Las Vegas, Nevada 89145 Attorney for Plaintiffs 7 Attorneys for LVMPD Defendants 8 9 IT IS SO ORDERED THIS 17th day of December, 2021. 10 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________, have read in its entirety and understand the Protective Order that was 4 issued by the United States District Court, for the District of Nevada on ______________, 2021, 5 in the case of Marcia Wells, Co-Special Administrator of the Estate of Byron Williams, et al. v. 6 LVMPD, et al., Case No. 2:21-cv-01346-JCM (EJY). I agree to comply with and to be bound by 7 all terms of this Protective Order and I understand and acknowledge that failure to so comply 8 could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that 9 I will not disclose in any manner any information or item that is subject to this Protective Order 10 that any person entity except in strict compliance with the provisions of this Order. Further, I 11 solemnly promise that I will not offer to sell, advertise or publicize that I have obtained any 12 Protected Material subject to this Protective Order. 13 At the conclusion of this matter, I will return all Protected Material which came into my 14 possession to counsel for the party from whom I received the Protected Material, or I will 15 destroy those materials. I understand that any Confidential Information contained within any 16 summaries of Protected Material shall remain protected pursuant to the terms of this Order. 17 I further agree to submit to the jurisdiction of the United States District Court, for the 18 District of Nevada for the purpose of enforcing the terms of this Protective Order, even if such 19 enforcement proceedings occur after termination of this action. 20 I certify under the penalty of perjury that the foregoing is true and correct. 21 Date: ____________________ 22 City and State where signed: __________________________________________ 23 Printed name: _______________________________ 24 Address: ___________________________________________________________ 25 Signature: __________________________________ 26 27 28