Arconic, Inc. et al., v. APC Investment Co., et al.,

Filing 1156

STIPULATED PROTECTIVE ORDER by Magistrate Judge Charles F. Eick re Stipulation for Protective Order. 1155 (See document for details) (vmun)

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LATHROP GPM LLP
Nancy Sher Cohen (State Bar No. 81706)
[e-mail]
Ronald A. Valenzuela (State Bar No. 210025)
[e-mail]
2049 Century Park East, Suite 3500S
Los Angeles, CA 90067
Telephone: [phone]
Facsimile: 310.789.4601

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Attorneys for Plaintiffs
BASF Corporation et al.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BASF CORPORATION, et al.,
Plaintiffs,

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v.

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APC INVESTMENT CO., et al.,

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Defendants.

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AND RELATED CROSS ACTIONS,
COUNTERCLAIMS AND THIRDPARTY COMPLAINTS

Case No. 2:14-cv-06456 GW (Ex.)
STIPULATED PROTECTIVE
ORDER

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1.

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PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential,

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proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may

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be warranted. Accordingly, the parties hereby stipulate to and petition the Court to

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enter the following Stipulated Protective Order. The parties acknowledge that this

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Order does not confer blanket protections on all disclosures or responses to

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discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles.

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2.

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GOOD CAUSE STATEMENT
This action is likely to involve valuable commercial, financial, technical,

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settlement and/or proprietary information for which special protection from public

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disclosure and from use for any purpose other than prosecution of this action is

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warranted. Such confidential and proprietary materials and information consist of,

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among other things, confidential business or financial information, information

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regarding confidential business practices, or other confidential commercial

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information (including information implicating privacy rights of third parties),

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information otherwise generally unavailable to the public, or which may be

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privileged or otherwise protected from disclosure under state or federal statutes,

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court rules, case decisions, or common law. Accordingly, to expedite the flow of

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information, to facilitate the prompt resolution of disputes over confidentiality of

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discovery materials, to adequately protect information the parties are entitled to

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keep confidential, to ensure that the parties are permitted reasonable necessary uses

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of such material in preparation for and in the conduct of trial, to address their

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handling at the end of the litigation, and serve the ends of justice, a protective order

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for such information is justified in this action. It is the intent of the parties that

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information will not be designated as confidential for tactical reasons and that

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nothing be so designated without a good faith belief that it has been maintained in

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a confidential, non-public manner, and there is good cause why it should not be part

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of the public record of this case.

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3.

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ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
The parties further acknowledge, as set forth in Section 14(c), below, that

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this Stipulated Protective Order does not entitle them to file confidential

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information under seal; Local Civil Rule 79-5 sets forth the procedures that must be

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followed and the standards that will be applied when a party seeks permission from

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the court to file material under seal. There is a strong presumption that the public

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has a right of access to judicial proceedings and records in civil cases. In

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connection with non-dispositive motions, good cause must be shown to support a

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filing under seal. See Kamakana v. City and County of Honolulu, 447 F.3d 1172,

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1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th

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Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis.

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1999) (even stipulated protective orders require good cause showing), and a

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specific showing of good cause or compelling reasons with proper evidentiary

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support and legal justification, must be made with respect to Protected Material that

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a party seeks to file under seal. The parties’ mere designation of Disclosure or

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Discovery Material as CONFIDENTIAL does not—without the submission of

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competent evidence by declaration, establishing that the material sought to be filed

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under seal qualifies as confidential, privileged, or otherwise protectable—constitute

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good cause.

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Further, competent evidence supporting the application to file documents

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under seal must be provided by declaration. If a party requests sealing related to a

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dispositive motion or trial, then compelling reasons, not only good cause, for the

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sealing must be shown, and the relief sought shall be narrowly tailored to serve the

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specific interest to be protected. See Pintos v. Pacific Creditors Ass’n, 605 F.3d

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665, 677-79 (9th Cir. 2010). For each item or type of information, document, or

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thing sought to be filed or introduced under seal in connection with a dispositive

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motion or trial, the party seeking protection must articulate compelling reasons,

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supported by specific facts and legal justification, for the requested sealing order.

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Any document that is not confidential, privileged, or otherwise protectable in

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its entirety will not be filed under seal if the confidential portions can be redacted.

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If documents can be redacted, then a redacted version for public viewing, omitting

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only the confidential, privileged, or otherwise protectable portions of the document,

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shall be filed. Any application that seeks to file documents under seal in their

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entirety should include an explanation of why redaction is not feasible.

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4.

DEFINITIONS

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(a)

Action: the above-captioned lawsuit.

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(b)

Challenging Party: a Party or Non-Party that challenges

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the designation of information or items under this Order.
(c)

“CONFIDENTIAL” Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things that

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qualify for protection under Federal Rule of Civil Procedure 26(c),

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and as specified above in the Good Cause Statement.

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(d)

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their support staff).
(e)

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Counsel: Outside Counsel of Record and House Counsel (as well as
Designating Party: a Party or Non-Party that designates Disclosure or
Discovery Material (as defined below) as “CONFIDENTIAL.”

(f)

Disclosure or Discovery Material: all items or information, regardless

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of the medium or manner in which it is generated, stored, or

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maintained (including, among other things, testimony, transcripts, and

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tangible things), that are produced or generated in disclosures or

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responses to discovery in this Action.
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(g)

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its

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Counsel to serve as an expert witness or as a consultant in this Action.

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(h)

no appeal is taken, when the time for filing of an appeal has run.

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Final Disposition: the conclusion of any appellate proceedings, or, if

(i)

House Counsel: attorneys who are employees of a party to this Action.

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House Counsel does not include Outside Counsel of Record or any

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other outside counsel.

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(j)

or other legal entity not named as a Party to this action.

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Non-Party: any natural person, partnership, corporation, association,

(k)

Outside Counsel of Record: attorneys who are not employees of a

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party to this Action but are retained to represent or advise a party to

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this Action and have appeared in this Action on behalf of that party or

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are affiliated with a law firm which has appeared on behalf of that

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party, and includes support staff.

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(l)

Party: any party to this Action, including all of its officers, directors,

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employees, Experts, House Counsel, and Outside Counsel of Record

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(and their support staffs).

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(m)

Discovery Material in this Action.

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Producing Party: a Party or Non-Party that produces Disclosure or

(n)

Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating,

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preparing exhibits or demonstrations, and organizing, storing, or

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retrieving data in any form or medium) and their employees and

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subcontractors.

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(o)

Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”

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(p)

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Material from a Producing Party.

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(q)

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Receiving Party: a Party that receives Disclosure or Discovery

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Third Party: a person or entity that is not a party to the Stipulation.

SCOPE

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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 (1) any information copied or

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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Any use of Protected Material at trial shall be governed by the orders of the

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trial judge. This Order does not govern the use of Protected Material at trial.

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6.

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DURATION
Except as set forth below, the terms of this protective order apply through

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Final Disposition of the Action. The parties may stipulate that they will be

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contractually bound by the terms of this agreement beyond Final Disposition, but

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will have to file a separate action for enforcement of the agreement once all

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proceedings in this case are complete.

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Once a case proceeds to trial, information that was designated as

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CONFIDENTIAL or maintained pursuant to this protective order used or

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introduced as an exhibit at trial becomes public and will be presumptively available

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to all members of the public, including the press, unless compelling reasons

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supported by specific factual findings to proceed otherwise are made to the trial

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judge in advance of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing

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“good cause” showing for sealing documents produced in discovery from

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“compelling reasons” standard when merits-related documents are part of court

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record). Accordingly, for such materials, the terms of this protective order do not

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extend beyond the commencement of the trial.

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DESIGNATING PROTECTED MATERIAL

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(a)

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Each Party or Non-Party that designates information or items for protection

Exercise of Restraint and Care in Designating Material for Protection.

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under this Order must take care to limit any such designation to specific material

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that qualifies under the appropriate standards. The Designating Party must

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designate for protection only those parts of material, documents, items, or oral or

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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. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber the case development process or to

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impose unnecessary expenses and burdens on other parties) may expose the

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Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the inapplicable designation.

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(b)

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Except as otherwise provided in this Order, or as otherwise stipulated or

Manner and Timing of Designations.

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ordered, Disclosure or Discovery Material that qualifies for protection under this

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Order must be clearly so designated before the material is disclosed or produced.

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For information in documentary form (e.g., paper or electronic documents,

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but excluding transcripts of depositions or other pretrial or trial proceedings),

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designation in conformity with this Order requires the Producing Party affix at a

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minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL

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legend”), to each 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

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the margins).

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A Party or Non-Party that makes original documents available for inspection

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need not designate them for protection until after the inspecting Party has indicated

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which documents it would like copied and produced. During the inspection and

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before the designation, all of the material made available for inspection shall be

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deemed “CONFIDENTIAL.” After the inspecting Party has identified the

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documents it wants copied and produced, the Producing Party must determine

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which documents, or portions thereof, qualify for protection under this Order. Then,

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before producing the specified documents, the Producing Party must affix the

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“CONFIDENTIAL legend” to each page that contains Protected Material. If only a

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portion or portions of the material on a page qualifies for protection, the Producing

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Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins).

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For testimony given in depositions, designation in conformity with this Order

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requires the Designating Party to identify the Disclosure or Discovery Material on

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the record, before the close of the deposition, all protected testimony.

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For information produced in some form other than documentary and for any

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other tangible items, designation in conformity with this Order requires that the

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Producing Party affix in a prominent place on the exterior of the container or

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containers in which the information is stored the legend “CONFIDENTIAL.” If

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only a portion or portions of the information warrants protection, the Producing

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Party, to the extent practicable, shall identify the protected portion(s).

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(c)

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If timely corrected, an inadvertent failure to designate qualified information

Inadvertent Failures to Designate.

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or items does not, standing alone, waive the Designating Party’s right to secure

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protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the

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material is treated in accordance with the provisions of this Order.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

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(a)

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Any Party or Non-Party may challenge a designation of confidentiality at any

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Timing of Challenges.

time that is consistent with the Court’s Scheduling Order.

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(b)

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The Challenging Party shall initiate the dispute resolution process under

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Meet and Confer.

Local Rule 37.1 et seq., with the exception that the Designating Party must provide

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its portion of the Joint Stipulation under Local Rule 37-2.2 first, followed by the

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Challenging Party adding its portion second. The burden of persuasion in any such

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challenge proceeding shall be on the Designating Party. Frivolous challenges, and

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those made for an improper purpose (e.g., to harass or impose unnecessary

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expenses and burdens on other parties) may expose the Challenging Party to

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sanctions. Unless the Designating Party has waived or withdrawn the

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confidentiality designation, all parties shall continue to afford the material in

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question the level of protection to which it is entitled under the Producing Party’s

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designation until the Court rules on the challenge.

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9.

ACCESS TO AND USE OF PROTECTED MATERIAL

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(a)

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A Receiving Party may use Protected Material that is disclosed or produced

Basic Principles.

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by another Party or by a Non-Party in connection with this Action only for

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prosecuting, defending, or attempting to settle this Action. Such Protected Material

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may be disclosed only to the categories of persons and under the conditions

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described in this Order. Protected Material must be stored and maintained by a

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Receiving Party at a location and in a secure manner that ensures that access is

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limited to the persons authorized under this Order. Nothing in this Order prohibits a

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Party from discussing Protected Material with another Party, and such discussions

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shall not constitute disclosure of Protected Material.

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(b)

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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 “CONFIDENTIAL” only to:

Disclosure of “CONFIDENTIAL” Information or Items.

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(i) the Receiving Party’s Outside Counsel of Record in this Action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this Action;

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(ii) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this Action;
(iii) Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this Action and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(iv) the court and its personnel;

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(v) court reporters and their staff;

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(vi) professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this Action and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(vii) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
(viii) during their depositions, witnesses, and attorneys for witnesses, in the

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Action to whom disclosure is reasonably necessary provided: (1) the deposing party

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requests that the witness sign the “Acknowledgement and Agreement to Be Bound”

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(Exhibit A); and (2) they will not be permitted to keep any confidential information

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unless they sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A),

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unless otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected

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Material may be separately bound by the court reporter and may not be disclosed to

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anyone except as permitted under this Stipulated Protective Order; and

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(ix) any mediator or settlement officer, and their supporting personnel,

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mutually agreed upon by any of the parties engaged in settlement discussions.

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10.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this Action as
“CONFIDENTIAL,” that Party must:
(a)

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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

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to issue in the other litigation that some or all of the material covered

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by the subpoena or order is subject to this Protective Order. Such

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notification shall include a copy of this Stipulated Protective Order; and

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(c)

cooperate with respect to all reasonable procedures sought to be

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pursued by the Designating Party whose Protected Material may be

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affected.

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If the Designating Party timely seeks a protective order, the Party served

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with the subpoena or court order shall not produce any information designated in

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this action as “CONFIDENTIAL” before a determination by the court from which

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the subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this Action

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to disobey a lawful directive from another court.

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NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED

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IN THIS ACTION

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The terms of this Order are applicable to information produced by a Non-

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Party in this Action and designated as “CONFIDENTIAL.” Such information

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produced by Non-Parties in connection with this litigation is protected by the

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remedies and relief provided by this Order. Nothing in these provisions should be

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construed as prohibiting a Non-Party from seeking additional protections.

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In the event that a Party is required, by a valid discovery request, to produce

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a Non-Party’s confidential information in its possession, and the Party is subject to

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an agreement with the Non-Party not to produce the Non-Party’s confidential

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information, then the Party shall (a) promptly notify in writing the Requesting Party

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and the Non-Party that some or all of the information requested is subject to a

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confidentiality agreement with a Non-Party; (b) promptly provide the Non-Party

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with a copy of the Stipulated Protective Order in this Action, the relevant discovery

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request(s), and a reasonably specific description of the information requested; and

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(c) make the information requested available for inspection by the Non-Party, if

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requested.

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If the Non-Party fails to seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party

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may produce the Non-Party’s confidential information responsive to the discovery

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request. If the Non-Party timely seeks a protective order, the Receiving Party shall

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not produce any information in its possession or control that is subject to the

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confidentiality agreement with the Non-Party before a determination by the court.

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Absent a court order to the contrary, the Non-Party shall bear the burden and

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expense of seeking protection in this court of its Protected Material.

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12.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately (i)

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notify in writing the Designating Party of the unauthorized disclosures, (ii) use its

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best efforts to retrieve all unauthorized copies of the Protected Material, (iii) inform

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the person or persons to whom unauthorized disclosures were made of all the terms

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of this Order, and (iv) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” attached hereto as Exhibit A.

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13.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides for

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production without prior privilege review. Pursuant to Federal Rule of Evidence

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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

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of a communication or information covered by the attorney-client privilege or work

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product protection, the parties may incorporate their agreement in the stipulated

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protective order submitted to the court.

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14.

MISCELLANEOUS

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(a)

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Nothing in this Order abridges the right of any person to seek its

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Right to Further Relief.

modification by the Court in the future.

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(b)

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By stipulating to the entry of this Protective Order no Party waives any right

Right to Assert Other Objections.

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it otherwise would have to object to disclosing or producing any information or

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item on any ground not addressed in this Stipulated Protective Order. Similarly, no

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Party waives any right to object on any ground to use in evidence of any of the

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material covered by this Protective Order.

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(c)

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A Party that seeks to file under seal any Protected Material must comply with

Filing Protected Material.

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Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant to

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a court order authorizing the sealing of the specific Protected Material at issue. If a

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Party's request to file Protected Material under seal is denied by the court, then the

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Receiving Party may file the information in the public record unless otherwise

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instructed by the court.

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15.

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FINAL DISPOSITION
After the Final Disposition of this Action, within 60 days of a written request

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by the Designating Party, each Receiving Party must return all Protected Material

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to the Producing Party or destroy such material. As used in this subdivision, “all

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Protected Material” includes all copies, abstracts, compilations, summaries, and any

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other format reproducing or capturing any of the Protected Material. Whether the

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Protected Material is returned or destroyed, the Receiving Party must submit a

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written certification to the Producing Party (and, if not the same person or entity, to

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the Designating Party) by the 60 day deadline that identifies (by category, where

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appropriate) all the Protected Material that was returned or destroyed, and affirms

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that the Receiving Party has not retained any copies, abstracts, compilations,

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summaries or any other format reproducing or capturing any of the Protected

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Material.

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Notwithstanding this provision, Counsel are entitled to retain an archival

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copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal

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memoranda, correspondence, deposition and trial exhibits, expert reports, attorney

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work product, and consultant and expert work product, even if such materials

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contain Protected Material. Any such archival copies that contain or constitute

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Protected Material remain subject to this Protective Order as set forth in Section 6

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(DURATION).

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16.

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VIOLATIONS
Any violation of this Order may be punished by any and all appropriate

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measures including, without limitation, contempt proceedings and/or monetary

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sanctions in the Court’s discretion.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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We hereby attest that concurrence in the filing of this stipulation was
obtained by each of the below identified signatories.

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Dated: December 14, 2022

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LATHROP GPM LLP
By: /s/ Nancy Sher Cohen
Nancy Sher Cohen
Ronald A. Valenzuela
Attorneys for Plaintiffs

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Dated: December 14, 2022

SSL LAW FIRM LLP
By: /s/ Robert B. Martin III
Defendants’ Liaison Counsel and
Attorneys for Defendants Phibro-Tech,
Inc., and First Dice Road Co.

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CERTIFICATION OF CONCURRENCE FROM ALL SIGNATORIES
I, Nancy Sher Cohen, am the ECF user whose ID and password are being

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used to file this Parties’ Stipulated Protective Order. In compliance with C.D. Cal.

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Civ. L.R. 5-4.3.4(a)(2)(i), I hereby attest that I have obtained the concurrence of

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each signatory to this document.

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/s/ Nancy Sher Cohen
Nancy Sher Cohen

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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12/14/22
DATED: ________

/S/ CHARLES F. EICK
By: _________________________________
Hon. Charles F. Eick
United States Magistrate Judge
Central District of California

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

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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

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California on [date] in the case of __________ [insert formal name of the

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case and the number and initials assigned to it by the court]. I agree to

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comply with and to be bound by all the terms of this Stipulated Protective Order

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and I understand and acknowledge that failure to so comply could expose me to

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sanctions and punishment in the nature of contempt. I solemnly promise that I

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will not disclose in any manner any information or item that is subject to this

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Stipulated Protective Order to any person or entity except in strict compliance

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with the provisions of this Order.

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________________________

[print

or

type full

name], of

I further agree to submit to the jurisdiction of the United States District Court for

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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. I hereby appoint ________________________ [print

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or type full name] of _________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this
action or any proceedings related to enforcement of this Stipulated Protective
Order.
Date: __________________________
City and State where sworn and signed: _____________________________
Printed name: ____________________________________

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Signature: ________________________________

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