LLOYD D. GEORGE, District Judge.
COME NOW, Defendants PHW LAS VEGAS, LLC and PHW MANAGER, LLC (hereinafter "Defendants"), by and through their attorneys of record, the law firm of WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP and hereby submit their Motion To File Motion For Summary Judgment, Defendants' Statement Of Undisputed Facts, And Defendants' Exhibits In Support Of Motion For Summary Judgment Under Seal.
This Motion is made pursuant to the Protective Order entered in this case on December 9, 2011. A copy of said Protective Order is attached hereto and incorporated herein by reference. That Protective Order specifically provides that any filings that reference or included confidential materials should be filed Under Seal.
On December 9, 2011, this Honorable Court entered a Protective Order (Doc. 42) in order to resolve various discovery disputes that arose between Plaintiff and Defendants, concerning the Defendants' production of documents and responses to discovery requests pertaining to any prior instances of criminal conduct on the Planet Hollywood property, various security policies, procedures and protocols. The Protective Order provided a resolution to those discovery disputes and Planet Hollywood provided the documents requested by Plaintiff in her discovery requests.
Paragraph 7.4 of the Protective Order addresses court filings and provides that:
Defendants' Motion for Summary Judgment which will be subsequently filed after the filing of this Motion to Seal, contains excerpts and citations to the testimony and statements by various parties, and includes Confidential Information subject to the Protective Order.
Defendants' Motion for Summary Judgment and Exhibits attached in support of the same, include the Incident Report, dated June 20, 2010, including Plaintiff Vanessa Racine and Gary Gilchrist's, voluntary statements, Excerpts of the Videotaped Deposition of Plaintiff Vanessa Racine, dated June 15, 2012, Plaintiff Vanessa Racine's Voluntary Statement to the Las Vegas Metropolitan Police Department, dated June 20, 2010, Excerpts of the Deposition Testimony of Gary Gilchrist, dated July 12, 2013, Incident Report regarding the incident at the PH Tower by Westgate, dated June 20, 2010, including a photograph of the alleged assailant, two guest voluntary statements with redactions regarding the Westgate incident, a lock interrogation for room 5620 for June 19 and June 20, 2010, Excerpts of the Deposition Transcript of Scott Koss, the responding security officer to the Westgate incident, dated February 26, 2013, the preliminary report by Tommy J. Burns, Defendants' police and security expert, dated May 2, 2013.
This Report and Plaintiff Vanessa Racine and Gary Gilchrist's voluntary statements contain sensitive and personal information regarding Plaintiff's incident and her injuries, as a result of the alleged incident, on June 20, 2010.
During her deposition testimony, Plaintiff testified to the factual background leading up to the incident on June 20, 2010, which also formed the basis for her Complaint.
In this Voluntary Statement, Plaintiff discusses the details of the incident, and injuries she allegedly sustained because of the incident. The statement also bears a stamp which states that "the use and dissemination of this record is regulated by law. Secondary dissemination of any kind is prohibited and could subject the offender to Criminal and Civil Liability."
Mr. Gilchrist is Plaintiff Vanessa Racine's boyfriend and he testified regarding his knowledge of the incident in question and the impact it has had on Vanessa Racine.
This Report bears the stamp "Confidential — Do Not Distribute." The Report provides details about the Westgate Incident, which occurred shortly before Plaintiff's incident. It also contains personal information which has been redacted in order to protect the privacy of the guests, who were involved in this incident.
In his deposition, Mr. Koss discussed his involvement in the investigation of the Westgate Incident and also discussed the security protocol and procedure at Planet Hollywood.
Mr. Burns is Defendants' police and security expert who opined as to prior criminal activity that had occurred at Planet Hollywood. This information was also the subject matter of Defendants' request for the Protective Order in place. Mr. Burns also opined as to the security procedure and protocol.
Defendants' Motion for Summary Judgment and the Exhibits in Support of the Summary Judgment has been provisionally sealed pending this Honorable Court's review of this Motion. Accordingly, this Honorable Court can inspect those documents to verify the existence of confidential information in the above mentioned documents. In order to comply with this Honorable Court's Protective Order, Defendants are filing their Motion for Summary Judgment and all Exhibits in support of the same under seal.
IT IS SO ORDERED.
Before the court is defendants PHW Las Vegas, LLC, et al's proposed protective order (#37-2) and plaintiff Vanessa Racine's objections thereto (#38-1).
Accordingly, and for good cause shown,
IT IS ORDERED that this Protective Order shall govern the disclosure, handling and disposition of documents and information in this litigation as follows:
1.1 This Protective Order shall govern any document, information or other material that is designated as containing "Confidential Information" or "Attorney's Eyes Only Information" as defined herein, and is produced in connection with this litigation by any person or entity (the "producing party"), whether in response to a discovery request, subpoena or otherwise, to any other person or entity (the "receiving party") regardless of whether the person or entity producing or receiving such information is a party to this litigation.
2.1 Confidential Information. "Confidential Information" shall mean and include, without limitation, any non-public information that concerns or relates to the following areas: confidential proprietary information, trade secrets, security and surveillance policies, practices and procedures, commercial, financial, pricing, budgeting, and/or accounting information, information about existing and potential customers, marketing studies, performance projections, business strategies, decisions and/or negotiations, personnel compensation, evaluations and other employment information, and confidential proprietary information about affiliates, parents, subsidiaries and third-parties with whom the parties to this action have or have had business relationships. "Confidential information" may be contained in the following documents: manuals, contracts, correspondence (electronic or otherwise), blueprints, specifications, drawings, security records, security reports, security shift information and staffing levels, security patrols, security policies and procedures, locations of surveillance and security cameras, documents regarding surveillance and security camera capabilities, production documents, analytical reports, certification-related documents, meeting minutes, meeting notices, presentation documents, and other documents relating to the acquisition of Planet Hollywood Resort & Casino by Defendants.
2.2 Attorney's Eyes Only Information. "Attorney's Eyes Only Information" is a subset of Confidential Information that includes any document or testimony that contains highly sensitive proprietary, security, surveillance, private, financial or trade secret information where the disclosing party reasonably believes that disclosure of such information to other parties in the litigation would cause severe competitive damage.
2.3 Documents, As used herein, the term "documents" includes all writings, records, files, drawings, graphs, charts, photographs, e-mails, video tapes, audio tapes, compact discs, electronic messages, other data compilations from which information can be obtained and other tangible things subject to production under the Federal Rules of Civil Procedure.
3.1 Good Faith Claims. Claims of confidentiality will be made only with respect to documents, other tangible things and information that the asserting party has a good faith belief are within the definition set forth in subparagraph 2.1 of this Protective Order. Objections to such claims made pursuant to paragraph 5, below, shall also be made only in good faith.
3.2 Produced Documents. A party producing documents that it believes constitute or contain Confidential Information shall produce copies bearing a label that contains or includes language substantially identical to the following:
This label shall be affixed in a manner that does not obliterate or obscure the contents of the copies. If any person or party makes copies of documents designated as containing Confidential Information, the copying, person or party shall mark each such copy as containing Confidential Information in the same form as the Confidentiality notice on the original document.
A party producing documents that are stored on electronic, magnetic, optical or other non-paper media, such as compact discs, DVD's, video tapes and audio tapes (collectively, "data storage devices") shall designate the data storage device as containing Confidential Information, by affixing a label or stamp to the data storage device in the manner described above at the time copies of such data storage devices are produced. If the receiving party or other persons or entities to whom disclosure is authorized pursuant to subparagraph 7.1 make a copy of any data storage device designated by the producing party as containing Confidential Information, the receiving party or other authorized person shall mark each such copy as containing Confidential Information in the same form as the confidentiality notice on the original data storage device produced. If the receiving party or other authorized person prints out or otherwise makes copies of the documents or information stored on such data storage device, the receiving party or other authorized person shall mark each page so copied with the label or stamp specified in subparagraph 3.2.
A party producing documents that it believes constitute or contain Attorney's Eyes Only Information shall follow the procedures set forth above with respect to Confidential Information, except that the copies shall be produced bearing a label that contains or includes language substantially identical to the following:
3.3 Interrogatory Answers. If a party answering an interrogatory or other discovery demand believes that its answer contains Confidential Information or Attorney's Eyes Only Information, it shall set forth that answer in a separate document that is produced and designated in the same manner as a produced document under subparagraph 3.2. Such answers should make reference to the separately-produced document containing the answer, but such document should not be attached to the response.
3.4 Inspection of Documents. In the event a party elects to produce files and records for inspection and the requesting party elects to inspect them, no designation of Confidential Information or Attorney's Eyes Only Information needs to be made in advance of the inspection. For purposes of such inspection, all material produced shall be considered as Confidential Information. If the inspecting party selects specified documents to be copied, the producing party shall designate Confidential Information or Attorney's Eyes Only Information in accordance with subparagraph 3.2 at the time the copies are produced.
3.5 Deposition Transcripts. Within twenty-one (21) days after the receipt of a deposition transcript, a party may inform the other parties to the action of the portions of the transcript that it wishes to designate as Confidential Information or Attorney's Eyes Only Information. Until such time has elapsed, deposition transcripts in their entirety are to be considered as Confidential Information. All parties in possession of a copy off a designated deposition transcript shall mark it appropriately.
3.6 Multi-page Documents. A party may designate all pages of an integrated, multi-page document, including a deposition transcript and interrogatory answers, as Confidential Information or Attorney's Eyes Only Information by placing the label specified in subparagraph 3.2 on the first page of the document or on each page of the document. If a party wishes to designate only certain portions of an integrated, multi-page document as Confidential Information or Attorney's Eyes Only Information, it should designate such portions immediately below the label on the first page of the document and place the label specified in subparagraph 3.2 on each page of the document containing Confidential Information or Attorney's Eyes Only Information.
4.1 Notification of Designation. If a party other than the producing party believes that a producing party has produced a document that contains or constitutes Confidential Information or Attorney's Eyes Only Information of the non-producing party, the non-producing party may designate the document as Confidential Information or Attorney's Eyes Only Information by so notifying all parties in writing within fourteen (14) days of service of the document.
4.2 Return of Documents; Non-disclosure. Whenever a party other than the producing party designates a document produced by a producing party as Confidential Information or Attorney's Eyes Only Information in accordance with subparagraph 4.1, each party receiving the document shall either add the Confidential Information or Attorney's Eyes Only Information designation in accordance with subparagraph 3.2 or substitute a copy of the document bearing such designation for each copy of the document produced by the producing party. Each party shall destroy all undesignated copies of the document or return those copies to the producing party, at the direction of the producing party. No party shall disclose a produced document to any person, other than the persons authorized to receive Confidential Information or Attorney's Eyes Only Information under subparagraph 7.1, until after the expiration of the fourteen (14) day designation period specified in subparagraph 4.1. If during the fourteen (14) day designation period a party discloses a produced document to a person authorized to receive Confidential Information or Attorney's Eyes Only Information under subparagraph 7.1, and that document is subsequently designated as Confidential Information or Attorney's Eyes Only Information in accordance with subparagraph 4.1, the disclosing party shall cause all copies of the document to be destroyed or returned to the producing party, at the direction of the producing party. The party may thereafter disclose a copy of the document that has been marked as Confidential Information or Attorney's Eyes Only Information by the designating party, in accordance with subparagraphs 3.2 and 7.1.
All documents, information and other materials initially designated as Confidential Information or Attorney's Eyes Only Information shall be treated as such in accordance with this Protective Order unless and until the Court rules otherwise, except for deposition transcripts and exhibits initially considered as containing Confidential Information under subparagraph 3.5, which will lose their confidential status after twenty-one (21) days unless so designated as Confidential Information or Attorney's Eyes Only Information. If the Court rules that a designation should not be maintained as to a particular document, the producing party shall, upon written request by a party, provide that party a copy of that document without the designation described in subparagraph 3.2.
If an objecting party elects not to make such a motion with respect to documents, information or other materials to which an objection has been made, the objection shall be deemed withdrawn. If such a motion is made, the moving party shall bear the burden of proving that the document, information, or other material is not entitled to protection under the applicable law.
7.1 Authorized Disclosures. Confidential Information shall be disclosed by the receiving party only to the following persons:
Such disclosures are authorized only to the extent necessary to investigate, prosecute, or defend the litigation.
Confidential Information may not be disclosed to persons under subparagraph (c) until the receiving party has obtained a written acknowledgement from the person receiving Confidential Information, in the form of the Declaration attached hereto, that he or she has received a copy of this Protective Order and has agreed to be bound by it. A party who discloses Confidential Information in accordance with subparagraph 7.1 shall retain the written acknowledgment from each person receiving Confidential Information, shall maintain a list of all persons to whom a receiving party has disclosed Confidential Information and identify what documents have been disclosed, and shall furnish the written acknowledgments and disclosure list to the Court for in camera review upon its request or order. Furnishing the written acknowledgments and disclosure list to the Court shall not constitute a waiver of the attorney work product or attorney-client privilege. Disclosure of Confidential Information to this Court, including judicial staff, shall be made in accordance with subparagraph 7.4 of this Protective Order.
The disclosure of Attorney's Eyes Only Information is limited in the same ways as set forth above for Confidential Information except that, in addition, Attorney's Eyes Only Information may not be disclosed to persons described above in subparagraphs (d) and (e) without prior written consent by the designating party nor to persons within the category described above in subparagraph (g) without prior notice to the designating party under circumstances allowing the designating party to obtain adequate protection with respect to the Attorney's Eyes Only Information either by agreement or by application to the Court.
7.2 Disclosure to Competitors. In general, Confidential Information and Attorney Eyes Only Information may not be disclosed to competitors of a designating party. However, if at any time such disclosure is believed to be necessary to advance the interest of a party, then before disclosing Confidential Information or Attorney's Eyes Only Information to any authorized person who is a competitor (or on employee of a competitor) of the designating party, the party wishing to make such disclosure shall give at least fourteen (14) days notice in writing to the designating party, stating the names and addresses of the person(s) to whom the disclosure will be made, and identifying with particularity the documents to be disclosed. If, within the fourteen (14) day period, a motion is filed objecting to the proposed disclosure, disclosure is not authorized unless and until the Court orders otherwise. For purposes of this Protective Order, "competitor" is defined as any person or entity that designs, manufactures, assembles or supplies products to or for the market(s) served by the designating party ("competitive products") or components of competitive products.
7.3 Unauthorized Disclosures. All persons receiving Confidential Information or Attorney's Eyes Only Information under the terms of this Protective Order are under the jurisdiction of the state courts and U.S. federal courts located in Nevada for all matters arising from the improper disclosure or use of such information. If Confidential Information or Attorney's Eyes Only Information is disclosed to any person other than in the manner authorized by this Protective Order, the party or person responsible for the disclosure, and any other party or person who is subject to this Protective Order and learns of such disclosure, shall immediately bring such disclosure to the attention of the designating party. Without prejudice to other rights and remedies of the designating party, the responsible party or person shall make every effort to obtain and return the Confidential Information or Attorney's Eyes Only Information and to prevent further disclosure on its own part or on the part of the person who was the unauthorized recipient of such information.
7.4 Court Filings. In the event any Confidential Information or Attorney's Eyes Only Information must be filed with the Court prior to trial, the proposed filing shall comply with the Nevada Rules of Civil Procedure. In accordance with these rules, the proposed filing shall be accompanied by a motion to file the Confidential Information under seal and a proposed order, and the application and proposed order shall be directed to the judge to whom the Confidential Information is directed. This provision is applicable to briefs, memoranda, and other filings which quote, summarize, or describe Confidential Information.