Ronald Kroenig v. Maxim Healthcare Services, Inc. et al
Filing
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PROTECTIVE ORDER by Magistrate Judge Alka Sagar re Stipulation for Protective Order 34 . (See Order for complete details) (afe)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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RONALD KROENIG, individually and
on behalf of all others similarly situated,
Plaintiff,
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v.
MAXIM HEALTHCARE SERVICES,
INC., a Maryland Corporation, EVERIFILE.COM, INC., a Georgia
Corporation ,
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Defendants.
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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
LOS ANGELES
Case No. CV 14-03471 FMO (ASx)
[DISCOVERY MATTER]
[PROPOSED] STIPULATED
PROTECTIVE ORDER
Complaint Filed: May 5, 2014
FAC Filed: July 9, 2014
SAC Filed: September 12, 2014
Based on the Joint Stipulation for Entry of Protective Order by Maxim
Healthcare Services, Inc. and Plaintiff, and good cause appearing, the Court orders
as follows:
1.
A. PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve
production of confidential, proprietary, or private information for which special
protection from public disclosure and from use for any purpose other than
prosecuting this litigation may be warranted. For example, Plaintiff will request that
Defendant produce information that references job applicants by name and other
identifying contact information (such as their names, addresses, telephone number,
[PROPOSED] STIPULATED
PROTECTIVE ORDER
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social security numbers, etc.). The applicants may have privacy interests in such
information. In addition, Plaintiff will request that Defendant produce information
related to business practices or other information subject to confidentiality
agreements with non-parties, the terms and content of which are not subject to
disclosure and Defendant would not share with its competitors.
Accordingly, the parties hereby stipulate to and petition the Court to enter the
following Stipulated Protective Order. The parties acknowledge that this Order does
not confer blanket protections on all disclosures or responses to discovery and that
the protection it affords from public disclosure and use extends only to the limited
information or items that are entitled to confidential treatment under the applicable
legal principles. The parties further acknowledge, as set forth in Section 12.3, below,
that this Stipulated Protective Order does not entitle them to file confidential
information under seal; Civil Local Rule 79-5.1 sets forth the procedures that must
be followed and the standards that will be applied when a party seeks permission
from the Court to file material under seal.
B. GOOD CAUSE STATEMENT
This action is likely to involve information that is the subject of a nondisclosure or confidentiality agreement or obligation and/or proprietary information
for which special protection from public disclosure and from use for any purpose
other than prosecution of this action is warranted. Such confidential and proprietary
materials and information may consist of, among other things, the names or other
information tending to reveal the identity of private individuals, information related
to internal operations, confidential business or financial information, information
regarding business practices, information otherwise generally unavailable to the
public, or which may be privileged or otherwise protected from disclosure under
state or federal statutes, court rules, case decisions, or common law. Accordingly, to
expedite the flow of information, to facilitate the prompt resolution of disputes over
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[PROPOSED] STIPULATED
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confidentiality of discovery materials, to adequately protect information the parties
are entitled to keep confidential, to ensure that the parties are permitted reasonable
necessary uses of such material in preparation for and in the conduct of trial, to
address their handling at the end of the litigation, and serve the ends of justice, a
protective order for such information is justified in this matter. It is the intent of the
parties that information will not be designated as confidential for tactical reasons and
that nothing be so designated without a good faith belief that it has been maintained
in a confidential, non-public manner, and there is good cause why it should not be
part of the public record of this case.
2.
DEFINITIONS
2.1
Challenging Party: a Party or Non-Party that challenges the designation
of information or items under this Order.
2.2
“CONFIDENTIAL” Information or Items: information (regardless of
how it is generated, stored or maintained) or tangible things that qualify for
protection under Federal Rule of Civil Procedure 26(c) and as specified in the above
Good Cause Statement.
2.3
Counsel (without qualifier): Outside Counsel of Record and House
Counsel (as well as their support staff).
2.4
Designating Party: a Party or Non-Party that designates information or
items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL.”
2.5
Disclosure or Discovery Material: all items or information, regardless
of the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced or
generated in disclosures or responses to discovery in this matter.
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ATTORNEYS AT LAW
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2
[PROPOSED] STIPULATED
PROTECTIVE ORDER
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2.6
Expert: a person with specialized knowledge or experience in a matter
pertinent to the litigation who has been retained by a Party or its counsel to serve as
an expert witness or as a consultant in this action.
2.7
House Counsel: attorneys who are employees of a party to this action.
House Counsel does not include Outside Counsel of Record or any other outside
counsel.
2.8
Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
2.9
Outside Counsel of Record: attorneys who are not employees of a party
to this action but are retained to represent or advise a party to this action and have
appeared in this action on behalf of that party or are affiliated with a law firm which
has appeared on behalf of that party.
2.10 Party: any party to this action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
2.12 Professional Vendors: persons or entities that provide litigation support
services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
2.13 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.
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[PROPOSED] STIPULATED
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3.
SCOPE
The protections conferred by this Stipulation and Order cover not only
Protected Material (as defined above), but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts, summaries, or
compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the
following information: (a) any information that is in the public domain at the time of
disclosure to a Receiving Party or becomes part of the public domain after its
disclosure to a Receiving Party as a result of publication not involving a violation of
this Order, including becoming part of the public record through trial or otherwise;
and (b) any information known to the Receiving Party prior to the disclosure or
obtained by the Receiving Party after the disclosure from a source who obtained the
information lawfully and under no obligation of confidentiality to the Designating
Party. Any use of Protected Material at trial shall be governed by the orders of the
trial judge. This Order does not govern the use of Protected Material at trial.
4.
DURATION
Even after final disposition of this litigation, the confidentiality obligations
imposed by this Order shall remain in effect until a Designating Party agrees
otherwise in writing or a court order otherwise directs. Final disposition shall be
deemed to be the later of (1) dismissal of all claims and defenses in this action, with
or without prejudice; and (2) final judgment herein after the completion and
exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
including the time limits for filing any motions or applications for extension of time
pursuant to applicable law.
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5.
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection.
Each Party or Non-Party that designates information or items for protection under
this Order must take care to limit any such designation to specific material that
qualifies under the appropriate standards. The Designating Party must designate for
protection only those parts of material, documents, items, or oral or written
communications that qualify – so that other portions of the material, documents,
items, or communications for which protection is not warranted are not swept
unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber or retard the case development process or
to impose unnecessary expenses and burdens on other parties) expose the
Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the mistaken designation.
5.2
Manner and Timing of Designations. Except as otherwise provided in
this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
under this Order must be clearly so designated before the material is disclosed or
produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or trial
proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each
page that contains protected material. If only a portion or portions of the material on
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a page qualifies for protection, the Producing Party also must clearly identify the
protected portion(s) (e.g., by making appropriate markings in the margins).
A Party or Non-Party that makes original documents or materials available for
inspection need not designate them for protection until after the inspecting Party has
indicated which material it would like copied and produced. During the inspection
and before the designation, all of the material made available for inspection shall be
deemed “CONFIDENTIAL.” After the inspecting Party has identified the
documents it wants copied and produced, the Producing Party must determine which
documents, or portions thereof, qualify for protection under this Order. Then, before
producing the specified documents, the Producing Party must affix the
“CONFIDENTIAL” legend to each page that contains Protected Material. If only a
portion or portions of the material on a page qualifies for protection, the Producing
Party also must clearly identify the protected portion(s) (e.g., by making appropriate
markings in the margins).
(b) for testimony given in deposition or in other pretrial or trial
proceedings, that the Designating Party identify on the record, before the close of the
deposition, hearing, or other proceeding, all protected testimony.
(c) for information produced in some form other than documentary and for
any other tangible items, that the Producing Party affix in a prominent place on the
exterior of the container or containers in which the information or item is stored the
legend “CONFIDENTIAL.” If only a portion or portions of the information or item
warrant protection, the Producing Party, to the extent practicable, shall identify the
protected portion(s).
5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent
failure to designate qualified information or items does not, standing alone, waive
the Designating Party’s right to secure protection under this Order for such material.
Upon timely correction of a designation, the Receiving Party must make reasonable
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efforts to assure that the material is treated in accordance with the provisions of this
Order.
6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a
designation of confidentiality at any time that is consistent with the Court’s
Scheduling Order. Unless a prompt challenge to a Designating Party’s
confidentiality designation is necessary to avoid foreseeable, substantial unfairness,
unnecessary economic burdens, or a significant disruption or delay of the litigation,
a Party does not waive its right to challenge a confidentiality designation by electing
not to mount a challenge promptly after the original designation is disclosed.
6.2
Meet and Confer. The parties shall comply with the requirements of
Local Rule 37.1, et seq. in challenging confidentiality designations. The
Challenging Party shall initiate the dispute resolution process by providing written
notice of each designation it is challenging and describing the basis for each
challenge. In addition to the requirements in Local Rule 37.1, to avoid ambiguity as
to whether a challenge has been made, the written notice must recite that the
challenge to confidentiality is being made in accordance with this specific paragraph
of the Protective Order. The parties shall attempt to resolve each challenge in good
faith and must begin the process by conferring directly (in voice to voice dialogue;
other forms of communication are not sufficient) within 10 days of the date of
service of notice. In conferring, the Challenging Party must explain the basis for its
belief that the confidentiality designation was not proper and must give the
Designating Party an opportunity to review the designated material, to reconsider the
circumstances, and, if no change in designation is offered, to explain the basis for
the chosen designation. A Challenging Party may proceed to the next stage of the
challenge process only if it has engaged in this meet and confer process first or
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establishes that the Designating Party is unwilling to participate in the meet and
confer process in a timely manner.
6.3
Judicial Intervention. If the Parties cannot resolve a challenge without
court intervention, the Designating Party shall file and serve a motion to retain
confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule
79-5.1, if applicable) within 21 days of the initial notice of challenge or within 14
days of the parties agreeing that the meet and confer process will not resolve their
dispute, whichever is earlier. Each such motion must be accompanied by a
competent declaration affirming that the movant has complied with the meet and
confer requirements imposed in the preceding paragraph. Failure by the Designating
Party to make such a motion including the required declaration within 21 days (or 14
days, if applicable) shall automatically waive the confidentiality designation for each
challenged designation. In addition, the Challenging Party may file a motion
challenging a confidentiality designation at any time if there is good cause for doing
so, including a challenge to the designation of a deposition transcript or any portions
thereof. Any motion brought pursuant to this provision must be accompanied by a
competent declaration affirming that the movant has complied with the meet and
confer requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. Frivolous challenges, and those made for an improper purpose
(e.g., to harass or impose unnecessary expenses and burdens on other parties) may
expose the Challenging Party to sanctions. Unless the Designating Party has waived
the confidentiality designation by failing to file a motion to retain confidentiality as
described above, all parties shall continue to afford the material in question the level
of protection to which it is entitled under the Producing Party’s designation until the
Court rules on the challenge.
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7.
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is
disclosed or produced by another Party or by a Non-Party in connection with this
case only for prosecuting, defending, or attempting to settle this litigation. Such
Protected Material may be disclosed only to the categories of persons and under the
conditions described in this Order. When the litigation has been terminated, a
Receiving Party must comply with the provisions of section 13 below (FINAL
DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless
otherwise ordered by the Court or permitted in writing by the Designating Party, a
Receiving Party may disclose any information or item designated
“CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well
as employees of said Outside Counsel of Record to whom it is reasonably necessary
to disclose the information for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
A;
(b) the officers, directors, and employees (including House Counsel) of
the Receiving Party to whom disclosure is reasonably necessary for this litigation
and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
A);
(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(d) the Court and its personnel;
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(e) court reporters and their staff, professional jury or trial consultants,
mock jurors, and Professional Vendors to whom disclosure is reasonably necessary
for this litigation and who have signed the “Acknowledgment and Agreement to Be
Bound” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement to
Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered
by the Court. Pages of transcribed deposition testimony or exhibits to depositions
that reveal Protected Material must be separately bound by the court reporter and
may not be disclosed to anyone except as permitted under this Stipulated Protective
Order.
(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
If a Party is served with a subpoena or a Court order issued in other litigation
that compels disclosure of any information or items designated in this action as
“CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or Court order;
(b) promptly notify in writing the party who caused the subpoena or order
to issue in the other litigation that some or all of the material covered by the
subpoena or order is subject to this Protective Order. Such notification shall include
a copy of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.
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If the Designating Party timely seeks a protective order, the Party served with
the subpoena or Court order shall not produce any information designated in this
action as “CONFIDENTIAL” before a determination by the Court from which the
subpoena or order issued, unless the Party has obtained the Designating Party’s
permission. The Designating Party shall bear the burden and expense of seeking
protection in that court of its confidential material – and nothing in these provisions
should be construed as authorizing or encouraging a Receiving Party in this action to
disobey a lawful directive from another court.
9.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a
Non-Party in this action and designated as “CONFIDENTIAL.” Such information
produced by Non-Parties in connection with this litigation is protected by the
remedies and relief provided by this Order. Nothing in these provisions should be
construed as prohibiting a Non-Party from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to
produce a Non-Party’s confidential information in its possession, and the Party is
subject to an agreement with the Non-Party not to produce the Non-Party’s
confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party
that some or all of the information requested is subject to a confidentiality agreement
with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated
Protective Order in this litigation, the relevant discovery request(s), and a reasonably
specific description of the information requested; and
(3) make the information requested available for inspection by the
Non-Party.
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(c) If the Non-Party fails to object or seek a protective order from this
Court within 14 days of receiving the notice and accompanying information, the
Receiving Party may produce the Non-Party’s confidential information responsive to
the discovery request. If the Non-Party timely seeks a protective order, the
Receiving Party shall not produce any information in its possession or control that is
subject to the confidentiality agreement with the Non-Party before a determination
by the Court. Absent a Court order to the contrary, the Non-Party shall bear the
burden and expense of seeking protection in this Court of its Protected Material.
10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Protected Material to any person or in any circumstance not authorized under this
Stipulated Protective Order, the Receiving Party must immediately (a) notify in
writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
persons to whom unauthorized disclosures were made of all the terms of this Order,
and (d) request such person or persons to execute the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A.
11.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other protection,
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
may be established in an e-discovery order that provides for production without prior
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
parties reach an agreement on the effect of disclosure of a communication or
information covered by the attorney-client privilege or work product protection, the
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parties may incorporate their agreement in the stipulated protective order submitted
to the Court.
12.
MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this
Protective Order no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in this
Stipulated Protective Order. Similarly, no Party waives any right to object on any
ground to use in evidence of any of the material covered by this Protective Order.
12.3 Filing Protected Material. Without written permission from the
Designating Party or a Court order secured after appropriate notice to all interested
persons, a Party may not file in the public record in this action any Protected
Material. A Party that seeks to file under seal any Protected Material must comply
with Civil Local Rule 79-5.1. Protected Material may only be filed under seal
pursuant to a Court order authorizing the sealing of the specific Protected Material at
issue. Pursuant to Civil Local Rule 79-5.1, a sealing order will issue only upon a
request establishing that the Protected Material at issue is privileged, protectable as a
trade secret, or otherwise entitled to protection under the law. If a Receiving Party's
request to file Protected Material under seal pursuant to Civil Local Rule 79-5.1 is
denied by the Court, then the Receiving Party may file the information in the public
record unless (1) the designator seeks reconsideration within four days of the denial,
or (2) as otherwise instructed by the Court.
13.
FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in
paragraph 4, each Receiving Party must return all Protected Material to the
Producing Party or destroy such material. As used in this subdivision, “all Protected
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Material” includes all copies, abstracts, compilations, summaries, and any other
format reproducing or capturing any of the Protected Material. Whether the
Protected Material is returned or destroyed, the Receiving Party must submit a
written certification to the Producing Party (and, if not the same person or entity, to
the Designating Party) by the 60 day deadline that (1) identifies (by category, where
appropriate) all the Protected Material that was returned or destroyed and (2) affirms
that the Receiving Party has not retained any copies, abstracts, compilations,
summaries or any other format reproducing or capturing any of the Protected
Material. Notwithstanding this provision, Counsel are entitled to retain an archival
copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal
memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
work product, and consultant and expert work product, even if such materials
contain Protected Material. Any such archival copies that contain or constitute
Protected Material remain subject to this Protective Order as set forth in Section 4
(DURATION).
PURSUANT TO STIPULATION, IT IS SO ORDERED.
DATED: December ___, 2014
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/s/
HON. ALKA SAGAR
United States Magistrate Judge
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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
LOS ANGELES
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[PROPOSED] STIPULATED
PROTECTIVE ORDER
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, _____________________________ [print or type full name], of
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_________________ [print or type full address], declare under penalty of perjury
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that I have read in its entirety and understand the Stipulated Protective Order that
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was issued by the United States District Court for the Central District of California
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on ________[date] in the case of Ronald Kroenig v. Maxim Healthcare Services,
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Inc. et al, Case No. CV 14-3471 FMO (ASx). I agree to comply with and to be
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bound by all the terms of this Stipulated Protective Order and I understand and
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acknowledge that failure to so comply could expose me to sanctions and punishment
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in the nature of contempt. I solemnly promise that I will not disclose in any manner
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any information or item that is subject to this Stipulated Protective Order to any
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person or entity except in strict compliance with the provisions of this Order.
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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 or type full name] of
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_______________________________________ [print or type full address and
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telephone number] as my California agent for service of process in connection with
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this action or any proceedings related to enforcement of this Stipulated Protective
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Order.
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Date: _
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City and State where sworn and signed: _________________________________
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Printed name: _______________________________
Signature: __________________________________
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MORGAN, LEWIS &
BOCKIUS LLP
ATTORNEYS AT LAW
LOS ANGELES
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[PROPOSED] STIPULATED
PROTECTIVE ORDER
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