Southern California Institute of Law v. TCS Education System et al
Filing
69
PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich re Stipulation for Protective Order 67 . See document for details. (yb)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SOUTHERN CALIFORNIA
INSTITUTE OF LAW, a California
corporation,
CASE NO.: CV10-8026 JAK (AJWx)
[Assigned to Hon. John A. Kronstadt]
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Plaintiff,
vs.
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TCS EDUCATION SYSTEM, an
Illinois corporation; DAVID J.
FIGULI, an individual; and GLOBAL
EQUITIES, LLC d/b/a HIGHER
EDUCATION GROUP, a Colorado
limited liability company,
PROTECTIVE ORDER
GOVERNING THE PRODUCTION
AND USE OF INFORMATION
Action Filed: Oct. 25, 2010
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Defendants.
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______________________________________________________________________________
[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION
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On August 22, 2011, the parties filed a Stipulation requesting that the Court
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enter a Protective Order in this action pursuant to Rule 26(c) of the Federal Rules
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of Civil Procedure to limit the use of their confidential, proprietary, business,
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financial, technical, engineering and other private information;
The Court, having reviewed the parties' Stipulation, and for good cause
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shown, ORDERS as follows:
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1.
RECITALS OF GOOD CAUSE
1.1
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Preparation and trial of this action may require the discovery of certain
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business records and other materials that contain trade secrets or confidential
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information including, but not limited to, tax and financial information, strategic
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planning documents, personnel information, self-evaluation materials, confidential
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regulatory submissions and other competitively sensitive and proprietary
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information.
1.2.
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Public dissemination of trade secrets or the parties' confidential or
proprietary information may harm the parties and their respective businesses.
1.3
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Disclosure of confidential information to persons designated in this
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Stipulated Protective Order may be necessary to enable the parties to fairly prepare
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this case for trial and other proceedings.
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2.
DEFINITIONS
2.1
Party: Any party to this action, including all of its officers, directors,
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trustees, employees, consultants, retained experts, outside counsel (and their
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support staff), members, parents, subsidiaries and affiliates.
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2.2
Discovery Material:
All items or information, regardless of the
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medium or manner generated, stored, or maintained (including, among other things,
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documents, electronically stored information, testimony, and tangible things), that
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are produced in this matter.
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_____________________________________________________________________________________________
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION
2.3
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CONFIDENTIAL INFORMATION: Information that is sensitive
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and/or proprietary and that warrants protection under this Order, specifically: (1)
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trade secrets as defined under California Civil Code Section 3426.1(d) and
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applicable case law; (2) other confidential and proprietary technical, engineering,
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research or development information; (3) personal or commercial financial,
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budgeting, cost, pricing, and/or accounting information; (4) information about
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existing and potential clients, faculty and students; (5) marketing and branding
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studies, performance and projections, business strategies, decisions and/or
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negotiations; (6) personnel compensation, evaluations and other employment
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information; (7) attorney-client or work product information; and (8) confidential
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and proprietary information about affiliates, parents, subsidiaries, and third parties
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with whom a Party has had business relationships.
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includes the Confidential Information itself, any information derived therefrom,
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and all copies, photographs, excerpts, and summaries thereof, as well as testimony
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and oral conversations derived therefrom or related thereto. Confidential
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Information does not include any information that is or becomes publicly available
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provided that this Order was not violated when the information was disclosed.
2.4
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Confidential Information
Producing Party: A Party that produces Discovery Material in this
action.
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2.5
Receiving Party: A Party that receives Discovery Material from a
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Producing Party.
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2.6
Designating Party: A Party that designates Discovery Material as
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CONFIDENTIAL pursuant to this Order.
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3.
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SCOPE OF PROTECTIVE ORDER
3.1
The protections of this Protective Order may be invoked with respect
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to any Discovery Material produced or created in this action that contains
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CONFIDENTIAL INFORMATION of any Party or non-party witness, or that the
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Producing Party is otherwise required or entitled by law to maintain in confidence,
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION
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and with respect to any deposition, court filing, correspondence, exhibits or
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discovery request or response containing or referring to such materials.
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Discovery Material may be designated CONFIDENTIAL INFORMATION by any
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Party or by any non-party producing materials in this action. The terms "Producing
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Party" or "Designating Party" as used herein shall be deemed to include a non-party
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that produces materials in this action.
3.2
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Said
This Protective Order does not in any way deprive any Party or non-
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party of its right to contest another Party's claims to protection for confidential or
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privileged information.
A Party's decision not to contest another party's
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designation of Discovery Material as "CONFIDENTIAL" is not to be construed as
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an admission that such material is a trade secret or otherwise deserving of
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protection under this Protective Order. No Party shall be deemed to be in violation
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of this Protective Order with respect to disclosures of any Discovery Materials to
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any other persons prior to the designation of that Discovery Material as
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"CONFIDENTIAL" pursuant to this Protective Order.
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4.
LIMITATIONS ON USE OF DISCOVERY MATERIAL
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Except as set forth herein, the Parties agree that all Discovery Material shall
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be used solely for the purpose of prosecuting or defending this action or any other
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proceeding between the Parties and may not be used for any other purpose. The
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Parties shall cooperate in maintaining the confidentiality of Discovery Material in
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any other action or proceeding, including seeking entry of an order similar in scope
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to this one. If the Parties cannot agree on a form of order, then any Party may
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apply for one.
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5.
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DESIGNATION OF CONFIDENTIAL INFORMATION
5.1
A Party may designate as CONFIDENTIAL any Discovery Material
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which it reasonably believes contains CONFIDENTIAL INFORMATION, and
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shall do so in the following manner:
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_____________________________________________________________________________________________
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION
(a)
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Written
discovery
responses
may
be
designated
as
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CONFIDENTIAL by marking the document CONFIDENTIAL in the
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caption and in the header/footer appearing on each page, or by marking
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individual responses within the document as CONFIDENTIAL.
(b)
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Hard copy documents may be designated as CONFIDENTIAL
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by
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CONFIDENTIAL.
(c)
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marking
CD-ROMs,
each
page
containing
Confidential
Material
as
Electronic, magnetic or optical media (such as diskettes,
tapes,
or
digital
devices)
may
be
designated
as
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CONFIDENTIAL by marking the outside of the device as CONFIDENTIAL
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or by affixing a CONFIDENTIAL label to the device. The Receiving Party
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shall apply the same marking to any printouts from any electronic, magnetic
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or optical media designated as CONFIDENTIAL.
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(d)
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CONFIDENTIAL by making a statement to that effect on the record at the
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deposition. The Court Reporter or other person recording the proceedings
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shall segregate and separately bind any portion of the transcript which has
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been designated as CONFIDENTIAL. In the alternative, the transcripts or
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portions thereof may be designated as CONFIDENTIAL by written notice to
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counsel for the parties given within 20 days of the Designating Party’s
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receipt of the transcript from the Court Reporter.
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5.2
Deposition transcripts, or any portions thereof, may be designated as
A Party that inadvertently fails to designate Discovery Material as
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CONFIDENTIAL does not waive its right to designate that material as
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CONFIDENTIAL. The Designating Party shall, upon discovery of the inadvertent
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failure to designate, promptly notify in writing the Receiving Party and provide it
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with substitute copies of the affected documents, marked as CONFIDENTIAL, at
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the expense of the Designating Party. The Receiving Party shall retrieve and
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_____________________________________________________________________________________________
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION
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destroy all copies of the undesignated materials, including copies previously
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provided to any persons in addition to the Receiving Party itself.
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6.
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ACCESS TO CONFIDENTIAL INFORMATION
6.1
No disclosure or dissemination of CONFIDENTIAL INFORMATION
shall be made to anyone other than the following:
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(a)
This Court and any other court, jury, arbitrator or tribunal that is
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adjudicating claims between the Parties, including the staff of this
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Court and any other court, arbitrator or tribunal;
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(b)
Court reporters and videographers, and members of their staff,
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during the taking of testimony and to the extent necessary to provide a
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transcript or copy of the testimony taken;
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(c)
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is necessary that the designated material be shown for purposes of the
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litigation;
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(d)
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for supervising and/or actively engaged in the preparation of the case
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and their legal assistants and office personnel;
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(e)
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charged with the responsibility for supervising and/or actively
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engaged in the preparation of the case and their legal assistants and
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office personnel;
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(f)
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trial or other proceeding, if such person is informed of the terms of
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this Protective Order and provided with a copy of it. The witness shall
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be bound by the terms of this Order whether or not he or she complies
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with paragraph 6.2, below. The failure of a witness to comply with
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paragraph 6.2 shall not prevent the witness from being examined about
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the CONFIDENTIAL INFORMATION and/or Discovery Material;
Any Party, including any present employee thereof to whom it
Outside counsel for the Parties charged with the responsibility
In-house counsel for the Parties and any parent companies
Any person called to testify as a witness either at a deposition,
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION
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(g)
Outside experts or consultants retained by the Parties (or their
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counsel of record) to provide services in connection with this
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litigation, but only to the extent necessary for the expert or consultant
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to perform his or her work in connection with this litigation;
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(h)
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or a copy thereof was previously provided by the Designating Party, or
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who received it in the ordinary course of business;
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(i)
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if such person was an author, source or recipient of the material;
Persons who authored the document or to whom the document
Former directors, officers, employees and consultants of a Party
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(j)
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engaged by counsel to assist in the copying, imaging, handling or
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computerization of documents containing the material; and
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(k)
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upon motion of either Party, or upon stipulation of all Parties in
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writing.
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6.2
Employees of outside copying services or other vendors
Such other persons as hereafter may be authorized by the Court
Each individual who receives CONFIDENTIAL INFORMATION
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hereby agrees to subject himself or herself to the jurisdiction of this Court for
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purposes of any proceedings relating to the performance under, compliance with or
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violation of this Protective Order. In addition, each individual falling within the
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definitions of Paragraphs 6.1(c), (e), (f), (g), (h) and (k) above who is permitted by
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the Parties or their counsel to have access to CONFIDENTIAL INFORMATION
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shall be provided with a copy of this Protective Order for review prior to being
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given such access. Upon receiving the same, such person shall sign a Disclosure
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Agreement in the form attached hereto as Exhibit A indicating that he or she has
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read the Protective Order and agrees to comply with its terms.
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6.3
The signed Disclosure Agreements and Protective Orders provided for
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in Section 6.2 shall be retained by the counsel of record for the Party disclosing the
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CONFIDENTIAL INFORMATION to the person(s) signing the Disclosure
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION
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Agreements. Copies of the executed Disclosure Agreements shall be preserved by
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said counsel and shall be provided to the Producing Party if the Court so orders.
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7.
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SUBMISSION OF CONFIDENTIAL MATERIAL TO COURT
7.1
If a Party that designated Discovery Material as CONFIDENTIAL
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wishes to include such material in any filing with the Court, the document
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containing or attaching the CONFIDENTIAL Discovery Material shall be lodged
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with the Court with an application for filing under seal in accordance with Local
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Rule 79-5.1. If a Party wishes to include Discovery Material that another Party
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designated as CONFIDENTIAL in any filing with the Court, the filing Party shall
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notify the designating Party at least 7 days in advance of the filing date. The
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designating Party shall prepare an application for filing the CONFIDENTIAL
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Discovery Material under seal in accordance with Local Rule 79-5.1, which the
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filing Party shall file with its other filing, while lodging the CONFIDENTIAL
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Discovery material with the Court. The Party submitting the CONFIDENTIAL
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Discovery Material shall mark on the outside of the envelope containing the
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document the title of the action and a statement substantially in the following form:
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"CONFIDENTIAL, FILED UNDER SEAL
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By order of the United States District Court for the Central District of California,
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this envelope is not to be opened and its contents are not to be displayed or
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revealed except by further order of the Court."
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7.2
In the event a Party files a document containing CONFIDENTIAL
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Discovery Material other than in accordance with this paragraph, any Party may
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apply to the Court that such materials be placed under seal.
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7.3
All pleadings and other court filings that contain CONFIDENTIAL
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Discovery Materials shall include on the first page of such document, and all copies
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thereof, a statement substantially to the effect that "This Document Contains
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CONFIDENTIAL Materials."
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_____________________________________________________________________________________________
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION
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8.
CHALLENGES TO CONFIDENTIAL DESIGNATIONS
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If, at any time, any Party claims that certain Discovery Material was
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improperly designated as CONFIDENTIAL, or believes that it is necessary to
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disclose such Material to persons other than those permitted by this Protective
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Order, said Party shall notify the Designating Party in writing and the Parties shall
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try to resolve their dispute in good faith on an informal basis. If the Parties are
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unable to do so, the objecting Party may make an appropriate application to the
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Court requesting that the specifically identified CONFIDENTIAL Discovery
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Material be excluded from the provisions of this Protective Order or that they be
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made available to specified other persons. The application shall be filed in
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accordance with Local Rule 37. It shall be the burden of the Designating Party to
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establish that the contested material is CONFIDENTIAL Discovery Material and
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therefore properly designated as such. Unless and until a Court’s ruling is obtained
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changing a designation, or the Parties agree otherwise, the Discovery Material
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involved shall be treated according to its designation.
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9.
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RETURN OF CONFIDENTIAL DISCOVERY MATERIALS
9.1
The parties acknowledge that if the case proceeds to trial, all trial
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exhibits and other information disclosed at trial that had been designated as
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CONFIDENTIAL during the action will become public and will be presumptively
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available to all members of the public, including the press, unless good cause is
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shown to the Court in advance of the trial to proceed otherwise.
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9.2
All other CONFIDENTIAL Discovery Material that has been
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disclosed under this Protective Order, and all copies, summaries and excerpts
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thereof, shall be returned to the Designating Party or destroyed, at the Receiving
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Party’s election, within ninety (90) days of the final disposition of this action,
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including any appeals. The Receiving Party shall certify in writing that all such
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material has been destroyed or returned at the end of said ninety (90) day period.
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The terms of this Protective Order will survive the termination of this litigation.
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION
9.3
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Notwithstanding the foregoing, counsel for the parties shall be
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permitted to retain a file copy of materials created during the course of the
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litigation, or made part of the record, or which have been filed under seal with the
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Clerk of the Court and a copy of all depositions, including exhibits, and deposition
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evaluations.
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10.
INADVERTENT PRODUCTION OF PRIVILEGED OR WORK
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PRODUCT INFORMATION
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10.1 This Protective Order does not prejudice or otherwise limit the right
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of any Party to oppose production of any documents or information on the ground
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of attorney-client privilege, work product immunity or any other privilege or
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protection provided under law.
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10.2 If a Party inadvertently produces information that it considers
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privileged or protected, in whole or in part, or learns of the production of privileged
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or protected material by a third person, the Party asserting that an inadvertent
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production has occurred must, within 30 days of the date of discovery of the
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inadvertent production, give notice to all Parties that the Party claims that the
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document, in whole or in part, is privileged or protected. In addition, the notice
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must state the nature of the privilege or protection and the factual basis for
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asserting it. If the Parties cannot resolve the matter independently, the Parties
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agree to meet and confer and file a joint statement with the Judge assigned to this
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case of the results of such meeting. Thereafter, the Judge will order a conference
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or set the matter for briefing and hearing, after which the Judge will enter an order
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on the dispute.
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protected document elects not to voluntarily return same to the Producing Party, no
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use of the document may be made by the recipient until the Judge rules on the
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matter and the Court rules on any appeal from that order.
If the recipient of the inadvertently produced privileged or
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10.3 If the Judge rules that an inadvertently produced document is
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privileged or protected, all Parties shall, within thirty (30) days, return or destroy
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION
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the segregated copy and any other copies in their possession or control, and provide
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written assurance that a diligent search has been conducted and that all such
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documents have either been returned or destroyed.
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11.
INADVERTENT DISCLOSURE OF CONFIDENTIAL DISCOVERY
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MATERIAL
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11.1 An inadvertent or unintentional disclosure of "CONFIDENTIAL"
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Discovery Material will not be construed as a waiver, in whole or in part, of (i) any
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Party's claims of confidentiality either as to the specific information inadvertently
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or unintentionally disclosed or as to any other confidential material disclosed prior
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or subsequent to that date, or (ii) any Party's right to designate said material as
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"CONFIDENTIAL" or pursuant to this Protective Order.
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11.2 Should any documents, testimony, or information designated as
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"CONFIDENTIAL" be disclosed, inadvertently or otherwise, to any person or
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Party not authorized under this Order, then the Party responsible for the disclosure
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shall use its best efforts to (i) promptly retrieve the disclosed documents, testimony,
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or information from such unauthorized person or party, (ii) promptly inform such
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person or Party of all the provisions of this Protective Order, (iii) request such
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person or Party sign the "Non-Disclosure Agreement" attached as Exhibit A, if
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appropriate, (iv) identify such person or party immediately in writing to the
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Producing Party that designated the documents, testimony or information as
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"CONFIDENTIAL" and (v) identify the "CONFIDENTIAL" material in writing
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immediately
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"CONFIDENTIAL." If a Non-Disclosure Agreement is executed, it shall promptly
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be served upon the party that designated the "CONFIDENTIAL" material. Nothing
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in this paragraph shall limit the right of the party that designated the
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"CONFIDENTIAL" material to seek relief from the Court as a result of a Party that
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inadvertently or otherwise disclosed the material to a person or Party not authorized
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under this Protective Order.
to
the
producing
party
that
designated
the
material
as
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION
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12.
ADDITIONAL PROVISIONS
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12.1 This Protective Order does not prevent: (a) any disclosure of
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CONFIDENTIAL Discovery Material by the Party who has designated such
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Material; (b) any disclosure of CONFIDENTIAL Discovery Materials to the Court
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or any other court, jury, arbitrator or tribunal adjudicating claims between the
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Parties, except as may be limited by this Order; or (c) any disclosure of information
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that a Receiving Party has obtained lawfully from a source other than the
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Designating Party, even if the Designating Party has produced the same
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information and designated it as CONFIDENTIAL pursuant to this Protective
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Order.
12.2 This Protective Order may be modified by further order of this Court.
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Nothing contained herein shall be deemed to preclude any Party from waiving any
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protection afforded to it under this Protective Order, provided such waiver is in
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writing or is recorded in a transcript during deposition testimony.
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12.3 The Court shall retain jurisdiction over all persons bound by this
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Protective Order during the pendency of this action and for such time thereafter as
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is needed to carry out the terms of this Protective Order.
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12.4 If any Party who previously received CONFIDENTIAL Discovery
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Materials receives a subpoena or other compulsory process seeking the production
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of all or some of those materials, that Party or its counsel shall notify counsel for
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the Designating Party immediately in writing, via overnight mail, email or
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facsimile transmission, of the receipt of such compulsory process. Said Party shall
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provide counsel for the Designating Party with copies of that process and shall
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cooperate with respect to any procedure sought to be pursued by the Party whose
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interest may be affected. The Disclosing Party asserting the confidential treatment
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shall have the burden of defending against such subpoena, process or order.
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Subject to any reasonable procedure sought to be pursued by the Party whose
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interest may be affected, the person or Party receiving the subpoena or other
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION
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process or order shall be entitled to comply with it except to the extent the
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Disclosing Party asserting the confidential treatment is successful in obtaining an
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order modifying or quashing it.
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DATED: September 14, 2011
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_________________________________
Hon. Andrew J. Wistrich
Magistrate Judge of the
United States District Court
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Respectfully submitted:
George A. Shohet SBN 112697
LAW OFFICES OF GEORGE A. SHOHET,
A PROFESSIONAL CORPORATION
245 Main Street, Suite 310
Venice, CA 90291-5216
Tel.: (310) 452-3176
Fax: (310) 452-2270
Gretchen M. Nelson SBN 112566
KREINDLER & KREINDLER LLP
707 Wilshire Blvd, Suite 4100
Los Angeles, CA 90017
Tel.: (213) 622-6469
Fax: (213) 622-6019
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Attorneys for Plaintiff Southern California Institute of Law
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Nicholas W. Sarris, Esq.
KAUFMAN BORGEEST AND RYAN LLP
23975 Park Sorrento, Suite 370
Calabasas, CA 91302
Tel: 818-880-0992
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION
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Fax: 818-880-0993
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Attorneys for Defendant TCS Education System
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Maurice Fitzgerald, Esq.
STRAZULO FITZGERALD LLP
3991 MacArthur Blvd. Suite 400
Newport Beach, CA 92660
Tel.: 949-333-0883
Fax: 949-748-6146
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Attorneys for Defendants David J. Figuli and Global Equities, LLC
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[PROPOSED] PROTECTIVE ORDER GOVERNING THE PRODUCTION AND USE OF INFORMATION
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