Wolf v. State of Nevada Ex Rel Department of Corrections

Opinion

1 | |MARGARET A. MCLETCHIE, Nevada Bar No. 10931 PIETER M. O’LEARY, Nevada Bar No. 15297 2| |LEO S. WOLPERT, Nevada Bar No. 12658 3 | |MCLETCHIE LAW 602 South 10" Street 4| |Las Vegas, NV 89101 Telephone: (702) 728-5300 / Fax: (702) 425-8220 >| |Email: efile@nvlitigation.com 6 | | Counsel for Plaintiff 7 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA g | |GREGORY WOLF, an individual, Case No.: 3:22-cv-00308-MMD-CSD 10 Plaintiff, [PROPOSED] STIPULATED PROTECTIVE ORDER 11 vs 12 STATE OF NEVADA, ex. rel. NEVADA ¢ 13|])DEPARTMENT OF CORRECTIONS; 14 DANA MARKS, an individual; RUSSELLE 228 DONNELLY, an_ individual, WILLIAM 15||DONNELLY, an individual; MICHAEL MINEV, an individual, 2 17 Defendants. 18 Plaintiff Gregory Wolf, and Defendants Dana Marks, Russelle Donnelly, and 19 | Michael Minev (collectively “Parties”), by and through their respective counsel, having 20 agreed to the following and for good cause under Rule 26(c)(1) of the Federal Rules of Civil |Procedure, IT IS HEREBY ORDERED as follows: 22 1. PURPOSES AND LIMITATIONS. 23 Disclosure and discovery activity in this action may involve production of 24 confidential, proprietary, or private information for which special protection from public 25 | |disclosure may be warranted under Rule 26(c)(1) of the Federal Rules of Civil Procedure. 26 | |The Parties acknowledge that this Order does not confer blanket protections on all disclosures 27) lor responses to discovery and that the protection it affords extends to only the limited 28 | information or items that are entitled under law to treatment as confidential.

1 2. SCOPE. 2 All documents produced in the course of discovery, all responses to discovery 3 | |requests, and all deposition testimony and exhibits and any other materials which may be 4 | {subject to discovery (hereinafter collectively “Discovery Material’) shall be subject to this 5 | |stipulated protective order concerning confidential information as set forth below. A copy of 6 | |this Order must be included with any subpoena to any third party. Any party, or any third 7 | |party who produces documents in this litigation, may designate documents as Confidential 8 | |but only after review of the documents by an attorney who has, in good faith, determined that 9 | |the documents contain “Confidential Information,” as defined below, and pursuant to the 10 | |procedure set forth below. 1 3. CONFIDENTIAL INFORMATION. 12 “Confidential Information” shall mean information meriting special protection g 13 | Junder the Federal Rules of Civil Procedure, applicable case law, and any and all health 14 | |information, including but not limited to medical records, treatment, diagnoses, medication, i 15 | |health information, and mental health treatment information. Confidential Information does 16 | |not include information that (a) is in the public domain at the time of disclosure; (b) becomes 2 17 | |part of the public domain through no fault of the Receiving Party; (c) the Receiving Party 18 | |can show was in its rightful and lawful possession at the time of disclosure; or (d) the 19 | |Receiving Party lawfully receives from a Non-party later without restriction as to disclosure. 20 4. OTHER DEFINITIONS. 21 Party: any party to this action, including all of its officers, directors, agents, and 22 | |attorney(s) of record for a Party in this action (including their associates, paralegals, and 23 | |support/ clerical staff). 24 Non-party: any individual, corporation, association, or natural person or entity 25 | jother than a party. 26 Protected Material: any Discovery Material containing Confidential Information 27 | |that is designated by a Party or Non-party as “CONFIDENTIAL,” unless the Receiving Party 28 | |challenges the confidentiality designation and (a) the Court decides such material is not

1 | Jentitled to protection as confidential; (b) the Designating Party fails to apply the Court for an 2 | |order designating the material confidential within the time period specified below; or (c) the 3 | |Designating Party withdraws its confidentiality designation in writing. 4 Producing Party: a Party or Non-party that produces Discovery Material in this 5 | |action. 6 Receiving Party: a Party that receives Discovery Material from a Producing Party. 7 Designating Party: a Party or Non-party that designates Discovery Material as 8 | |“CONFIDENTIAL”. The Party or Non-party designating information or items as Protected 9 | |Material bears the burden of establishing good cause for the confidentiality of all such items. 10 Challenging Party: a party that elects to initiate a challenge to a Designating Party’s 11 | |confidentiality designation. 12 Confidentiality Log: a Confidentiality Log must accompany any production of g 13 | |documents designated as “CONFIDENTIAL” that includes the Bates numbers of the 14 | |documents designated (or the portions thereof) as “Confidential” and the basis for doing so. 15 | |Each Producing Party shall keep this log cumulatively and re-produce it every time they 16 | |designate something as “CONFIDENTIAL” so that it is a cumulative record of what the 17 | |party has marked “CONFIDENTIAL.” 18 5. FORM AND TIMING OF DESIGNATION. 19 Protected Material shall be so designated by the Producing Party by placing or 20 | jaffixing the word “CONFIDENTIAL” on the document in a manner which will not interfere 21] |}with the legibility of the document, and which will permit complete removal of the 22 | |“Confidential” designation. A Confidentiality Log must accompany any production of 23 | |Protected Material that includes the Bates numbers of the documents designated (or portions 24 | |thereof) as “CONFIDENTIAL” and the basis for doing so. Documents shall be designated 25 | |““Confidential” prior to, or contemporaneously with, the production or disclosure of the 26 | |documents. The designation of documents as “CONFIDENTIAL” shall be accompanied with 27 | ja Confidentiality Log in the form included at Exhibit A. 28 A Designating Party must exercise restraint and make good faith efforts to limit

1 | |CONFIDENTIAL designations to specific materials that qualify for protection under the 2 | |appropriate standard. Further, a Designating Party must use good faith efforts to designate |for protection only those parts of material, documents, items, or communications that 4 | |qualify—so that other portions of the materials, documents, items, or communications for 5 | |}which protection is not warranted are not swept unjustifiably within the ambit of this Order. 6 | |If only a portion or portions of materials on a page or within a document merit protection, a 7 | |Producing Party must so indicate by making appropriate markings in the margins but not 8 | jover text. The accompanying log should clearly explain which portion is designated as 9 | |CONFIDENTIAL. 10 A Producing Party that makes original documents or materials available for 11] Jinspection need not designate them for protection until after the inspecting Party has 12 | |indicated which material it would like copied and produced. During the inspection and before g 13 | |the designation, all of the material made available for inspection shall be deemed Bait 14 | |“Confidential.” After the inspecting Party has identified the documents it wants copied and i 15 | |produced, the Producing Party must determine which documents, or portions thereof, qualify |for protection under this Order, and, before producing the specified documents, the 2 |Producing Party must affix the appropriate legend on each page that contains Protected 18 | |Material. If only a portion or portions of the material on a page qualifies for protection, the |Producing Party also must clearly identify the protected portion(s) (e.g., by making 20 | |appropriated markings in the margins or by redacting protected portions). 21 Portions of depositions shall be designated CONFIDENTIAL when the deposition 22 | |is taken or within fourteen (14) business days after receipt of the transcript, if feasible. Such 23 | |designation shall be specific as to the portions to be protected and, if made by a Party, shall accompanied with a certification and log on the form, attached as Exhibit A. A 25||Designating Party must exercise restraint and make good faith efforts to limit 26 | |“CONFIDENTIAL” designations to specific materials that qualify for protection under the 27 | |appropriate standards. 28 Inadvertent or unintentional production of Protected Material without prior

1 | |designation as “Confidential” shall not be deemed a waiver, in whole or in part, of the right 2 | |to designate documents as Protected Material as otherwise allowed by this Order. Further, a 3 | |Party may assert that disclosures or discovery material produced by another Party constitute 4 | |Protected Material by informing the opposing Party by following the procedures set forth 5 | |herein for a Designated Party. 6 6. PROTECTION OF PROTECTED MATERIAL. 7 a. General Protections. Protected Material shall not be used or disclosed by the 8 | |Parties or counsel for the Parties or any other persons identified below (§ 6.b.) for any 9 | |purposes whatsoever other than preparing for and conducting litigation in the above-entitled 10 | Jaction (including any appeal). 11 b. Qualified Receiving Parties and Limited Third-Party Disclosures. Protected 12 | |Material shall be held in confidence by each qualified Receiving Party to whom it is g 13 | |disclosed, shall be used only for purposes of this action, and shall not be disclosed to any 14 | |person who is not a qualified recipient. All Protected Material shall be carefully maintained i 15 | |so as to preclude access by persons who are not qualified Receiving Parties. 16 Subject to these requirements, in addition to Parties and the Court, the following 2 17 | |categories of persons may be allowed to review Protected Material pursuant to this Order 18 | |after executing an acknowledgment (in the form set forth at Exhibit B hereto), that he or she 19 | |has read and understands the terms of this Order and is bound by it: 20 (1) Any officers, directors, or designated employees of a Party deemed 21 necessary by counsel of record in this action to aid in the prosecution, 22 defense, or settlement of this action; 23 (2) Professional outside vendors for attorneys of record (such as copying 24 services and translators and interpreters), 25 (3) Court reporters, deposition notaries and staff; 26 (4) The author of any document designated as CONFIDENTIAL or the original 27 source of Confidential Information contained therein; 28 (5) Persons other than legal counsel who have been retained or specially

1 employed by a party as an expert witness for purposes of this lawsuit or to 2 perform investigative work or fact research; 3 (6) Deponents during the course of their depositions; 4 (7) Counsel for issuers of insurance policies under which any issuer may be 5 liable to satisfy part or all of a judgment that may be entered in these 6 proceedings or indemnify or re1mburse payments or costs associated with 7 these proceedings; 8 (8) Any private mediator or arbitrator appointed by the Court or selected by 9 mutual agreement of the Parties and the mediator or arbitrator’s secretarial 10 and clerical personnel; 11 (9) Any other person as to whom the Producing Party has consented to 12 disclosure in advance and in writing, on notice to each Party hereto. g 13 c. Control of Documents. Counsel for Parties shall take reasonable efforts to 2 14 | prevent unauthorized disclosure of Protected Material pursuant to the terms of this Order. No i 15 | |copies of Protected Material shall be made except by or on behalf of attorneys of record, in- a 16 | |house counsel, or the Parties in this action. 2 17 d. Copies. Any person making copies of Protected Material shall maintain all 18 | |copies within their possession or the possession of those entitled to access such information 19 | Junder the Protective Order. All copies shall be immediately affixed with the designation 20 | |““CONFIDENTIAL” if the word does not already appear on the copy. All such copies shall 21 | |be afforded the full protection of this Order. 22 7. UNAUTHORIZED DISCLOSURE. 23 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 24 | | Protected Material to any person or in any circumstance not authorized under this Stipulated 25 | |Protective Order, the Receiving Party must immediately (a) notify in writing the Designating 26 | |Party of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the 27 | | Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 28 | |made of all the terms of this Order, and (d) request such person or persons to execute the

1 | |“Acknowledgment and Agreement to Be Bound by Stipulated Protective Order” (Exhibit 2 | |B). 3 8. FILING PROTECTED MATERIAL 4 The Parties shall follow Rule 10-5 of the Local Rules of Practice for the U.S. 5 | |District Court of Nevada and must file documents under seal under the Court’s electronic 6 | {filing procedures, 7 Further, the Parties recognize the presumption of public access inherent in judicial 8 | |records and that a Protective Order does not establish that documents meet the standard for 9 | |sealing set forth in Rule 10-5 of the Local Rules of Practice for the U.S. District Court of 10 | |Nevada and the Ninth Circuit’s decisions in Kamakana v. City and County of Honolulu, 447 11 | |F.3d 1172 (th Cir. 2006) and Ctr. for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 12 | |1097 (9th Cir.), cert. denied sub nom. FCA U.S. LLC v. Ctr. for Auto Safety, 137 S. Ct. 38 g 13 | |(2016). When a motion to seal is related to the merits of the case, a “party seeking to seal a 2 14 | |judicial record then bears the burden of overcoming this strong presumption by meeting the 15 | |‘compelling reasons’ standard.” Kamakana, 447 F.3d at 1178. But when motion to seal is 16 | Junrelated to the merits of the case, a party may overcome this presumption by meeting a less 2 17 | Jexacting “good cause standard.” Chrysler Group, 809 F.3d at 1097. To establish good cause, 18 | |a party must show specific prejudice or harm—such as protecting a party from annoyance, 19 | |}embarrassment, oppression, or undue burden or expense—will result if the motion to seal is 20 | |denied. 7d. (quoting Fed. R. Civ. P. 26(c)). Further, the Court should make an independent 21 | |determination regarding whether documents merits sealed status, and thus expressly reserves 22 | |the right to do. Kamakana 447 F.3d at 1186-87. 23 In recognition of this legal standard, and the fact that the party filing Protected 24 | |Material may not be the party that designated it confidential (and thus, may not believe good 25 | |cause exists for sealing), the Parties suggest that the procedure set forth below is followed if 26 | |the sole ground for a motion to seal is that the opposing party (or non-party) has designated 27 | |a document as subject to protection pursuant to this Stipulated Protective Order: the Party 28 | |filing such Protected Materials may assert in the accompanying motion any reasons why the

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

1 | Jor designation. 2 10. DURATION; CONCLUSION OF LITIGATION. 3 All provisions of this Order restricting the use of Protected Material shall continue 4| |to be binding after the conclusion of the litigation unless otherwise agreed or ordered. 5 | |However, the dismissal of this action will terminate the jurisdiction of this Court, including 6 | jover this Order. 7 Within thirty (30) days of the final termination of in the above-entitled action, 8 | |which would be either a final judgment on all claims or stipulation and order for dismissal 9||with prejudice, all documents and information designated as CONFIDENTIAL by a 10 | |Designating Party and which has not been challenged, including any copies, or documents 11 | |containing information taken therefrom, shall be returned to the Designating Party. In the 12 | |alternative, within thirty (30) days of the final termination of this case, which would be either g 13 | Ja final judgment on all claims or stipulation and order for dismissal with prejudice, all such Bait 14 | |documents, including copies, may be shredded or disposed of in a manner to ensure the i 15 | {destruction thereof and a declaration certifying such destruction or disposal provided to the : 16 | |Designating Party. To the extent a party has designated portions of a deposition transcript as 17 | |CONFIDENTIAL, the non-designating party is under no obligation or duty to shred or 18 | |dispose of the deposition transcript, however, the CONFIDENTIAL designation will remain. 19 11. PROTECTED MATERIAL SUBPOENAED OR ORDERED 20 PRODUCED IN OTHER LITIGATION. 21 If a Party is served with a subpoena or an order issued in other litigation that would 22 | |compel disclosure of Protected Material designated by another Party or Non-party, the Party 23 | |must so notify the Designating Party, in writing (by e-mail or fax, if possible) within three 24 | |(3) court days after receiving the subpoena or order. Such notification must include a copy 25 | |of the subpoena or court order. 26 12, ORDER SUBJECT TO MODIFICATION. 27 This Order shall be subject to modification on motion of any Party or any other 28 | |person who may show an adequate interest in the above-entitled action to intervene for

1 | |purposes of addressing the scope and terms of this Order. The Order shall not, however, be 2 | |modified until the Parties shall have been given notice and an opportunity to be heard on the 3 | |proposed modification. 4 13. NO JUDICIAL DETERMINATION. 5 This Order is entered based on the representations and agreements of the Parties 6 | |and for the purpose of facilitating discovery. Nothing herein shall be construed or presented 7 | Jas a judicial determination that any specific document or item of information designated as 8 | |CONFIDENTIAL by counsel is subject to protection under Rule 26(c) of the Federal Rules 9 | jof Civil Procedure or otherwise until such time as a document-specific ruling shall have been 10 | |made. 11 14. MISCELLANEOUS. 12 a. Public Health and Safety. Nothing in this Order is intended to prevent any Party g 13 | |from raising with the Court any concern that the disclosure of certain Protected Material may 14 | |have a possible adverse effect upon the general public health or safety, or the administration i 15 | Jor operation of government or public office. a 16 b. Right to Further Relief. Nothing is this Order abridges the right of any person 2 17 | |to seek its modification by the Court in the future. 18 c. Right to Assert Other Objections. By stipulating to the entry of this Order, no 19 | |Party waives any right it otherwise would have to object to disclosing or producing any 20 | |information or item on any ground not addressed in this Order. Similarly, no Party waives 21 | Jany right to object on any ground to use in evidence of any of the material covered by this 22 | |Protective Order. 23 | \/// 24 | |/// 25 | |/// 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). > IT IS SO STIPULATED. 6 4 DATED this 27" day of July, 2023 DATED this 27" day of July, 2023 8 MCLETCHIE LAW AARON D. FORD Attorney General 9 By:_/s/ Pieter M. O’Leary By: /s/ Lorin M. Taylor MARGARET A. MCLETCHIE, LORIN M. TAYLOR, Nevada Bar No. 10931 Nevada Bar No. 14958 PIETER M. O’LEARY, Imtaylor@ag.nv.gov 12 Nevada Bar No. 15297 STATE OF NEVADA LEO S. WOLPERT, OFFICE OF ATTORNEY 13 Nevada Bar No. 12658 GENERAL 14 MCLETCHIE LAW 555 E. Washington Ave., Ste. 3900 2 602 South Tenth Street Las Vegas, Nevada 89101 é dee 15 Las Vegas, Nevada 89101 Telephone: (702) 486-2389 3282 Telephone: (702) 728-5300 Fax: (702) 486-3773 16 Fax: (702) 425-8220 Attorneys for Defendants = 417 Email: efile@nvlitigation.com Counsel for Plaintiff 18 19 20 21 22 ORDER 23 IT IS SO ORDERED. 24 CS 26 UNITED STATES MAGJ®@TRATE JUDGE 27 DATED: July 28, 2023

1 EXHIBIT A [Name]’s LOG OF CONFIDENTIAL DESIGNATIONS 2 | a as Sees bcm Date of pr Other Specific Description of Authority/Basis for 4 Production Identifier | Documents or Information Designation spt —_— yo sft OT

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18 19 20 21 22 23 24 25 26 27 28

1 EXHIBIT B 2 ACKNOWLEDGMENT OF UNDERSTANDING AND AGREEMENT TO BE BOUND 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5 ‘ GREGORY WOLF, an individual, Case No.: 3:22-cv-00308-MMD-CSD

7 Plaintiffs, [PROPOSED] STIPULATED PROTECTIVE ORDER 8 VS. ?||STATE OF NEVADA, ex. rel. NEVADA 19 | DEPARTMENT OF CORRECTIONS; DANA MARKS, an individual; RUSSELLE |DONNELLY, an individual, WILLIAM DONNELLY, an individual; MICHAEL 12 MINE\V, an individual, e 13 Defendants.

© 17 18 The undersigned hereby acknowledges that he or she has read the Confidentiality 19 | |Order dated , 2023, in the above-captioned action, understands the terms 20 | |thereof, and agrees to be bound by such terms. The undersigned submits to the jurisdiction 21 | |of the United States District Court for the District of Nevada relating to the Confidentiality 22 | |Order during the pendency of the abhove-entitled action and understands that the terms of 23 | |said Order obligate him/her to use discovery materials designated CONFIDENTIAL solely 24 | |for the purposes of the above-captioned action, and not to disclose any such Protected 25 | |Material to any person, firm, entity, or concern. 26 The undersigned acknowledges that violation of the Stipulated Confidentiality 27 | |Order may result in penalties for contempt of court. 28 | |///

I Name: 2 Job Title: Employer: 3 Business Address: 4 Signature —i—S 7 8 9 10 11 12 13