United Fabrics International Inc v. Delias Inc et al
Filing
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PROTECTIVE ORDER by Judge Manuel L. Real. (bp)
2:13-cv-02858-R
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Stephen M. Doniger (SBN 179314)
stephendonigerlawfirm.com
Scott A. Burroughs (SBN 235718)
scottdonigerlawfirm.com
Annie Aboulian (SBN 280693)
anniedonigerlawfirm.com
Trevor W. Barrett (SBN 287174)
tbarrettdonigerlawfirm.com
DONIGER / BURROUGHS APC
300 Corporate Pointe, Suite 355
Culver City, California 90230
Telephone: (310) 590-1820
Facsimile: (310) 417-3538
Attorneys for Plaintiff
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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UNITED FABRICS INTERNATIONAL, Case No.: CV13-2858 R (PLAx)
INC., a California Corporation,
Honorable Manuel L. Real Presiding
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Plaintiff,
[P1
SED7 1)ROTECTI YE
ORDER
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by
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DELIA*S, INC., a New York Corporation;
ENTRY, INC., a California Corporation;
A’GACI, LLC, a Texas Corporation;
DOES 1-10,
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Defendants.
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1. PURPOSES AND LIMITATIONS
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Disclosure and discovery activity in this action are likely to involve production
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of confidential, proprietary, or private information for which special protection from
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public disclosure and from use for any purpose other than prosecuting this matter
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would be warranted. Accordingly, the parties hereby stipulate to and petition this
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Court to enter the following Stipulated Protective Order. The parties acknowledge
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that this Order does not confer blanket protections on all disclosures or responses to
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discovery and that the protection it affords extends only to the limited information or
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items that are entitled under the applicable legal principles to treatment as
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confidential. The parties have agreed that the terms of this Protective Order shall
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also apply to any future voluntary disclosures of confidential, proprietary, or private
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information. The parties reserve their rights to object to or withhold any information,
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including confidential, proprietary, or private information, on any other applicable
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grounds permitted by law, including third-party rights and relevancy.
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2.
DEFINITIONS
2.1
Party: any party to this action, including all of its officers,
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directors, employees, consultants, retained experts, and outside counsel (and their
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support staff).
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2.2 Disclosure or Discovery Material: all items or information,
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regardless of the medium or manner generated, stored, or maintained (including,
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among other things, testimony, transcripts, or tangible things), that are produced or
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generated in disclosures or responses to discovery in this matter.
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2.3 "Confidential" Information or Items: information (regardless of
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how generated, stored, or maintained) or tangible things that qualify for protection
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under standards developed under F.R.Civ.P. 26(c).
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2.4 "Attorneys’ Eyes Only": Discovery Material or such portion of
such material as consists of:
a) any commercially sensitive and/or confidential business or
financial information (including without limitation confidential nonpublic contracts,
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profitability reports or estimates, sales reports, and sales margins) which could
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reasonably create a competitive disadvantage if disclosed to the parties in this action;
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b) any business or financial information that is confidential,
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proprietary, or commercially sensitive to third parties who have had business dealings
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with parties to this action; or
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c) any other category of material or information hereinafter given
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Confidential status by the Court, to the extent said material could reasonably create a
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competitive disadvantage if disclosed to the parties in this action.
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2.5
Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.
2.6 Producing Party: a Party or non-party that produces Disclosure or
Discovery Material in this action.
2.7 Designating Party:
a Party or non-party that designates
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information or items that it produces in disclosures or in responses to discovery as
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"CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY."
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2.8 Protected Material: any Disclosure or Discovery Material that is
designated as "CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY."
2.9 Expert: a person with specialized knowledge or experience in a
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matter pertinent to the litigation who has been retained by a Party or its counsel to
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serve as an expert witness or as a consultant in this action. This definition includes a
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professional jury or trial consultant retained in connection with this litigation. The
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expert witness or consultant may not be a past or a current employee of the Party
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(including any affiliates or related entities) adverse to the Party engaging the expert
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witness or consultant, or someone who at the time of retention is anticipated to
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become an employee of the Party (including any affiliates or related entities) adverse
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to the Party engaging the expert witness or consultant. Moreover, the expert witness
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or consultant may not be a current employee or anticipated to become an employee of
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any entity who is a competitor of the Party adverse to the Party engaging the expert
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witness or consultant.
2.10 Professional Vendors: persons or entities that provide litigation
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support services (e.g., photocopying; videotaping; translating; preparing exhibits or
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demonstrations; organizing, storing, or retrieving data in any form or medium; etc.)
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and their employees and subcontractors.
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3.
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The protections conferred by this Stipulation and Order cover not only
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Protected Material (as defined above), but also any information copied or extracted
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therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus
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testimony, conversations, or presentations by parties or counsel to or in litigation or
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in other settings that might reveal Protected Material.
SCOPE
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4. DURATION
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Even after the termination of this action, the confidentiality obligations
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imposed by this Order shall remain in effect until a Designating Party agrees
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otherwise in writing or a court order otherwise directs.
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5.
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for
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Protection. Each Party or non-party that designates information or items for
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protection under this Order must take care to limit any such designation to specific
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material that qualifies under the appropriate standards. A Designating Party must take
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care to designate for protection only those parts of material, documents, items, or oral
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or written communications that qualify - so that other portions of the material,
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documents, items, or communications for which protection is not warranted are not
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swept unjustifiably within the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited.
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Designations that are shown to be clearly unjustified, or that have been made for an
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improper purpose (e.g., to unnecessarily encumber or retard the case development
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process, or to impose unnecessary expenses and burdens on other parties), expose the
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Designating Party to sanctions.
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If it comes to a Party’s or a non-party’s attention that information or
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items that it designated for protection do not qualify for protection at all, or do not
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qualify for the level of protection initially asserted, that Party or non-party must
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promptly notify all other parties that it is withdrawing the mistaken designation.
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5.2
Manner and Timing of Designations. Except as otherwise
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provided in this Order (see, e.g., second paragraph of section 5.2(a), below), or as
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otherwise stipulated or ordered, material that qualifies for protection under this Order
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must be clearly so designated before the material is disclosed or produced.
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Designation in conformity with this Order requires:
(a) for information in documentary form (apart from transcripts
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of depositions or other pretrial or trial proceedings), that the Producing Party affix the
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legend "CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY" at the top or bottom
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of each page that contains protected material.
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A Party or non-party that makes originals or copies of documents
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or materials available for inspection need not designate them for protection until after
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the inspecting Party has indicated which material it intends to copy. During the
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inspection and before the designation, all of the material made available for
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inspection shall be deemed "ATTORNEYS’ EYES ONLY." After the inspecting
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Party has identified the documents it wants copied and produced, the Producing Party
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must designate, either in writing or on the record (at a deposition), which documents,
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or portions thereof, qualify for protection under this Order. Then the Receiving Party
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must affix the "CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY" legend at the
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top of each copied page that contains Protected Material. If only a portion or portions
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of the material on a page qualifies for protection, the Producing Party also must
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clearly identify the protected portion(s) (e.g., by making appropriate markings in the
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margins) and must specify, for each portion, the level of protection being asserted
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(either "CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY").
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(b)
for testimony given in deposition or in other pretrial or trial
proceedings, that the Party or non-party offering or sponsoring the testimony identify
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on the record, before the close of the deposition, hearing, or other proceeding, all
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protected testimony, and further specify any portions of the testimony that qualify as
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"CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY." When it is impractical to
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identify separately each portion of testimony that is entitled to protection, and when it
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appears that substantial portions of the testimony may qualify for protection, the
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Party or non-party that sponsors, offers, or gives the testimony may invoke on the
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record (before the deposition or proceeding is concluded) a right to have up to 20
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days to identify the specific portions of the testimony as to which protection is sought
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and to specify the level of protection being asserted ("CONFIDENTIAL" or
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"ATTORNEYS’ EYES ONLY"). Only those portions of the testimony that are
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appropriately designated for protection within the 20 days shall be covered by the
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provisions of this Stipulated Protective Order.
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Transcript pages containing Protected Material must be separately
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bound by the court reporter, who must affix to the top of each such page the legend
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"CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY," as instructed by the Party or
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non-party offering or sponsoring the witness or presenting the testimony.
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(c) for information produced in some form other than
documentary, and for any other tangible items, that the Producing Party affix in a
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prominent place on the exterior of the container or containers in which the
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information or item is stored the legend "CONFIDENTIAL" or "ATTORNEYS’
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EYES ONLY." If only portions of the information or item warrant protection, the
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Producing Party, to the extent practicable, shall identify the protected portions,
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specifying whether they qualify as "CONFIDENTIAL" or as "ATTORNEYS’ EYES
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ONLY."
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5.3
Inadvertent Failures to Designate.
If timely corrected, an
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inadvertent failure to designate qualified information or items as "CONFIDENTIAL"
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or "ATTORNEYS’ EYES ONLY" does not, standing alone, waive the Designating
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Party’s right to secure protection under this Order for such material. If material is
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appropriately designated as "CONFIDENTIAL" or "ATTORNEYS’ EYES ONLY"
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after the material was initially produced, the Receiving Party, on timely notification
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of the designation, must make reasonable efforts to assure that the material is treated
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in accordance with the provisions of this Order.
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6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges.
Unless a prompt challenge to a
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Designating Party’s confidentiality designation is necessary to avoid foreseeable
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substantial unfairness, unnecessary economic burdens, or a later significant
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disruption or delay of the litigation, a Party does not waive its right to challenge a
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confidentiality designation by electing not to mount a challenge promptly after the
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original designation is disclosed.
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6.2 Meet and Confer. A Party that elects to initiate a challenge to a
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Designating Party’s confidentiality designation must do so in good faith and must
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begin the process by conferring with counsel for the Designating Party in writing. In
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conferring, the challenging Party must explain the basis for its belief that the
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confidentiality designation was not proper and must give the Designating Party an
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opportunity to review the designated material, to reconsider the circumstances, and, if
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no change in designation is offered, to explain the basis for the chosen designation.
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A challenging Party may proceed to the next stage of the challenge process only if it
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has engaged in this meet-and-confer process first.
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6.3 Court Intervention. A Party that elects to press a challenge to a
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confidentiality designation after considering the justification offered by the
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Designating Party may file and serve a motion that identifies the challenged material
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I and sets forth in detail the basis for the challenge. Each such motion must be
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accompanied by a competent declaration that affirms that the movant has complied
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with the meet-and-confer requirements imposed in the preceding paragraph and that
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sets forth with specificity the justification for the confidentiality designation that was
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given by the Designating Party in the meet-and-confer dialogue. The parties agree
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that a confidentiality designation shall not create a presumption in favor of such
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confidentiality designation, and that the Court shall decide the issue as such.
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Until the Court rules on the challenge, all parties shall continue to afford
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the material in question the level of protection to which it is entitled under the
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Producing Party’s designation.
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7. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles. A Receiving Party may use Protected Material
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that is disclosed or produced by another Party or by a non-party in connection with
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this case only for prosecuting, defending, or attempting to settle this litigation. Such
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Protected Material may be disclosed only to the categories of persons and under the
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conditions described in this Order. When the litigation has been terminated, a
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Receiving Party must comply with the provisions of section 11, below (FINAL
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DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party
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at a location and in a secure manner that ensures that access is limited to the persons
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authorized under this Order.
7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless
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otherwise ordered by the Court or permitted in writing by the Designating Party, a
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Receiving Party may disclose any information or item designated
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"CONFIDENTIAL" only to:
(a) the Receiving Party’s outside counsel, as well as employees
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of said outside counsel to whom it is reasonably necessary to disclose the information
for this litigation;
(b) Board members, officers and directors of the Receiving
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Party;
(c) Other employees of the Receiving Party to whom disclosure
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is reasonably necessary for this litigation and who are bound by internal
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confidentiality obligations as part of their employment or who have signed the
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"Acknowledgment and Agreement to Be Bound" (Exhibit A);
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(d) Experts (as defined in this Order) of the Receiving Party to
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whom disclosure is reasonably necessary for this litigation and who have signed the
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"Acknowledgment and Agreement to Be Bound" (Exhibit A);
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(e)
the Court personnel assigned to this litigation;
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(f)
court reporters, their staffs, and professional vendors to
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whom disclosure is reasonably necessary for this litigation and who have signed the
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"Acknowledgment and Agreement to Be Bound" (Exhibit A);
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(g) during their depositions, witnesses in the action to whom
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disclosure is reasonably necessary and who have signed the "Acknowledgment and
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Agreement to Be Bound" (Exhibit A). Pages of transcribed deposition testimony or
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exhibits to depositions that reveal Protected Material must be separately bound by the
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court reporter and may not be disclosed to anyone except as permitted under this
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Stipulated Protective Order; and
(h) the author and recipients of the document or the original
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source of the information.
7.3 Disclosure of "ATTORNEYS’ EYES ONLY" Information or
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Items. Unless otherwise ordered by the Court or permitted in writing by the
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Designating Party, a Receiving Party may disclose any information or item
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designated "ATTORNEYS’ EYES ONLY" only to:
(a) the Receiving Party’s outside counsel, as well as employees
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of said outside counsel to whom it is reasonably necessary to disclose the information
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for this litigation;
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(b) Experts (as defined in this Order) of the Receiving Party to
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whom disclosure is reasonably necessary for this litigation and who have signed the
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"Acknowledgment and Agreement to Be Bound" (Exhibit A);
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(c)
the Court personnel assigned to this litigation;
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(d)
court reporters, their staffs, and professional vendors to
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whom disclosure is reasonably necessary for this litigation and who have signed the
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"Acknowledgment and Agreement to Be Bound" (Exhibit A); and
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(e) the author and recipients of the document or the original
source of the information.
7.4 Nothing in this Order shall be read to prohibit the use of otherwise
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Protected Material to prosecute claims against additional potential defendants
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identified in said materials.
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8. PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
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If a Receiving Party is served with a subpoena or an order issued in other
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litigation that would compel disclosure of any Discovery Material, the Receiving
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Party must so notify the Designating Party, in writing immediately and in no event
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more than five business days after receiving the subpoena or order. Such notification
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must include a copy of the subpoena or court order. The Receiving Party also must
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immediately inform in writing the Party who caused the subpoena or order to issue in
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the other litigation that some or all of the material covered by the subpoena or order
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is the subject of this Protective Order. In addition, the Receiving Party must deliver a
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copy of this Stipulated Protective Order promptly to the Party in the other action that
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caused the subpoena or order to issue.
The purpose of imposing these duties is to alert the interested parties to the
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existence of this Protective Order and to afford the Designating Party in this case an
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opportunity to try to protect its confidentiality interests in the court from which the
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subpoena or order issued. The Designating Party shall bear the burdens and the
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expenses of seeking protection in that court of its confidential material - and nothing
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in these provisions should be construed as authorizing or encouraging a Receiving
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Party in this action to disobey a lawful directive from another court.
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9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
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Protected Material to any person or in any circumstance not authorized under this
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Stipulated Protective Order, the Receiving Party must immediately (a) notify in
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writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
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to retrieve all copies of the Protected Material, (c) inform the person or persons to
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whom unauthorized disclosures were made of all the terms of this Order, and (d)
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request such person or persons to execute the "Acknowledgment and Agreement to
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Be Bound" that is attached hereto as Exhibit A.
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10. FILING PROTECTED MATERIAL
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Without written permission from the Designating Party, or a court order
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secured after appropriate notice to all interested persons and after following the
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procedures provided for in Local Rule 79-5.1, a Party may not file in the public
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I record in this action any Protected Material.
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11. FINAL DISPOSITION
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Unless otherwise ordered or agreed to in writing by the Producing Party,
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within 60 days after the final termination of this action, each Receiving Party must
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either return all Protected Material to the Producing Party or certify the destruction of
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said material. As used in this subdivision, "all Protected Material" includes all copies,
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abstracts, compilations, summaries or any other form of reproducing or capturing any
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of the Protected Material. Whether the Protected Material is returned or destroyed,
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the Receiving Party must submit a written certification to the Producing Party (and, if
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not the same person or entity, to the Designating Party) by the 60-day deadline that
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identifies (by category, where appropriate) all the Protected Material that was
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returned or destroyed and that affirms that the Receiving Party has not retained any
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copies, abstracts, compilations, summaries or other forms of reproducing or capturing
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any of the Protected Material.
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Notwithstanding this provision, counsel are entitled to retain an archival copy
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of all pleadings, motion papers, transcripts, legal memoranda, correspondence or
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attorney work product, even if such materials contain Protected Material. Any such
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archival copies that contain or constitute Protected Material remain subject to this
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Protective Order as set forth in Section 4 (DURATION), above.
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12. MISCELLANEOUS
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12.1 Right to Further Relief. Nothing in this Order abridges the right
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of any person to seek its modification in the future.
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12.2 Right to Assert Other Objections. By stipulating to the entry of
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this Protective Order no Party waives any right it otherwise would have to object to
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disclosing or producing any information or item on any ground not addressed in this
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Stipulated Protective Order. Similarly, no Party waives any right to object on any
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ground to use in evidence of any of the material covered by this Protective Order.
12.3 Inadvertent Production of Privileged Documents. If a Party,
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through inadvertence, produces any document or information that it believes is
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immune from discovery pursuant to an attorney-client privilege, the work product
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privilege, or any other privilege, such production shall not be deemed a waiver of any
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privilege, and the Producing Party may give written notice to the Receiving Party that
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the document or information produced is deemed privileged and that return of the
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document or information is requested. Upon receipt of such notice, the Receiving
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Party shall immediately gather the original and all copies of the document or
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information of which the Receiving Party is aware, in addition to any abstracts,
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summaries, or descriptions thereof, and shall immediately return the original and all
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such copies to the Producing Party. Nothing stated herein shall preclude a Party from
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challenging an assertion by the other Party of privilege or confidentiality.
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Dated:
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A//
HON. MI(NbEL L. REAL
UNITED STATES DISTRICT COURT
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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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[print full
I,
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[print full
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name], of
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address], declare under penalty of perjury that I have read in its entirety and
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understand the Stipulated Protective Order that was issued by the United States
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District Court for the Central District of California in the case of
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Inc. v. DELIA*S, Inc., et al., Case No. CV13-2858 R (PLAx). I agree to comply with
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and to be bound by all of the terms of this Stipulated Protective Order and I
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understand and acknowledge that failure to so comply could expose me to sanctions
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and punishment in the nature of contempt. I solemnly promise that I will not disclose
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in any manner any information or item that is subject to this Stipulated Protective
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Order to any person or entity except in strict compliance with the provisions of this
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Order.
United Fabrics Intl,
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I further agree to submit to the jurisdiction of the United States District Court
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for the Central District of California for the purpose of enforcing the terms of this
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Stipulated Protective Order, even if such enforcement proceedings occur after
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termination of this action.
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I hereby appoint
[print full
[print full
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name] of
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address and telephone number] as my California agent for service of process in
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connection with this action or any proceedings related to enforcement of this
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Stipulated Protective Order.
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Date:
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City and State where sworn and signed:
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Printed name:
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Signature:
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