Deckers Outdoor Corporation v. Skechers U.S.A., Inc. et al
Filing
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PROTECTIVE ORDER by Magistrate Judge Frederick F. Mumm re Stipulation for Protective Order 21 : NOTE CHANGES MADE BY COURT: (see attached) (jm)
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Brent H. Blakely (SBN 157292)
bblakely@blakelylawgroup.com
Cindy Chan (SBN 247495)
cchan@blakelylawgroup.com
BLAKELY LAW GROUP
1334 Parkview Avenue, Suite 280
Manhattan Beach, California 90266
Telephone: (310) 546-7400
Facsimile: (310) 546-7401
NOTE CHANGES MADE BY COURT
Attorneys for Plaintiff
Deckers Outdoor Corporation
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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DECKERS OUTDOOR CORPORATION, ) CASE NO. 2:14-CV-8988 SJO (FFMx)
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a Delaware Corporation,
) [PROPOSED] PROTECTIVE
) ORDER
Plaintiff,
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v.
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[DISCOVERY MATTER]
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SKECHERS U.S.A., INC., a Delaware
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Corporation; and DOES 1-10, inclusive,
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Defendants.
Hon. Frederick F. Mumm
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DEFINITIONS
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1.
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a.
b.
“Discovering Counsel” means counsel of record for a Discovering
c.
“Discovering Party” means the Party to whom Material is being
Party.
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“Designating Party” means any Person who designates Material as
Confidential Material.
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As used in this Protective Order,
Provided by a Producing Party.
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d.
“Confidential Material” refers to those materials designated as
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“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” as defined in Paragraphs 2
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and 3 below.
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[PROPOSED] PROTECTIVE ORDER
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e.
“Material” means any document, testimony or information in any
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form or medium whatsoever, including, without limitation, any written or printed
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matter, Provided in this action by a Party before or after the date of this Protective
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Order.
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f.
“Party” means the Parties to this action, their attorneys of record
and their agents.
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g.
“Person” means any individual, corporation, partnership,
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unincorporated association, governmental agency, or other business or governmental
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entity whether a Party or not.
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h.
the course of this action.
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i.
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“Provide” means to produce any Material, whether voluntarily or
involuntarily, whether pursuant to request or process.
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“Producing Party” means any Person who Provides Material during
CONFIDENTIAL DESIGNATION
2.
A Producing Party may designate as “CONFIDENTIAL” any material
provided to a Party which contains or discloses any of the following:
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a.
Non-public insider information, personnel files, financial
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information, trade secrets, confidential commercial information, proprietary
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information, or other confidential or sensitive information which the Producing Party
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determines in good faith should be kept confidential; and
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b.
Information that the Party is under a duty to preserve as
confidential under an agreement with or other obligation to another Person.
3.
The Producing Party may designate as “ATTORNEYS’ EYES ONLY,”
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documents Parties contend contain or disclose materials which they in good faith
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believe to be of an extremely high degree of current commercial sensitivity and/or
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would provide a competitive advantage to its competitors if disclosed.
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4.
A Producing Party shall stamp as CONFIDENTIAL or ATTORNEYS’
EYES ONLY Materials which the Producing Party in good faith believes are entitled
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[PROPOSED] PROTECTIVE ORDER
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to protection pursuant to the standards set forth in Paragraphs 2 and 3 of this Order. A
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Producing Party may designate Confidential Material for Protection under this order by
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either of the following methods:
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a.
By physically marking it with the following inscription prior to
Providing it to a Party:
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CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
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or
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ATTORNEYS’ EYES ONLY SUBJECT TO PROTECTIVE ORDER
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b.
By identifying with specificity in writing to the Discovering Party
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any previously Provided Material which was not designated as Confidential Material
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prior to its having been Provided. For purposes of this method of designation, it will be
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a sufficiently specific identification to refer to the bates numbers or deposition page
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numbers of previously Provided Material. Where a Producing Party designates
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previously Provided Material as Confidential Material pursuant to this subparagraph,
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the Producing Party will follow the procedures set forth in the previous subparagraph
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for designating Confidential Material, and Provide to the Discovering Party additional
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copies of the previously Provided Material marked with the inscription described in the
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previous subparagraph. Upon receipt of the additional copies which comply with the
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procedures set forth in the previous subparagraph, the Discovering Party will
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immediately return to the Producing Party the previously Provided Material, or
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alternatively, will destroy all the previously Provided Material, at the option of the
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Producing Party. For previously Provided Material which was not designated as
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Confidential Material at the time of its being Provided, this Protective Order shall
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apply to such materials beginning on the date that the Producing Party makes such
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designation.
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5.
All costs associated with the designations of materials as “Confidential”
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or “Attorneys’ Eyes Only” involving, for example, the cost of binding confidential
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portions of deposition transcripts, shall be initially borne by the Party making the
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[PROPOSED] PROTECTIVE ORDER
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designation with no prejudice regarding the Designating Party’s ability to recover its
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costs upon completion of the litigation.
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The designation of documents as “Confidential” or “Attorneys’ Eyes Only” does
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not entitle the parties to have those documents filed under seal. An application,
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including a stipulated application to filed documents under seal must comply with
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Local Rule 79-5.
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RESTRICTION ON USE OF CONFIDENTIAL MATERIAL
6.
Confidential Material designated as CONFIDENTIAL shall not be
disclosed, nor shall its contents be disclosed, to any person other than those described
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in Paragraph 9 of this Protective Order and other than in accordance with the terms,
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conditions and restrictions of this Protective Order. Confidential Material designated as
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ATTORNEYS’ EYES ONLY shall not be disclosed, nor shall its contents be disclosed
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to any person other than those described in Paragraph 10 of this Protective Order.
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7.
Confidential Material Provided by a Producing Party to a Discovering
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Party shall not be used by the Discovering Party or anyone other than the Producing
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Party, specifically including the persons identified in Paragraphs 9 or 10 as
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appropriate, for any purpose, including, without limitation any personal, business,
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governmental, commercial, publicity, public-relations, or litigation (administrative or
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judicial) purpose, other than the prosecution or defense of this action.
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8.
All Confidential Material shall be kept secure by Discovering Counsel
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and access to Confidential Material shall be limited to persons authorized pursuant to
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Paragraphs 9 or 10 of this Protective Order.
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9.
For purposes of the preparation of this action, and subject to the terms,
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conditions, and restrictions of this Protective Order, Discovering Counsel may disclose
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Material designated as CONFIDENTIAL and the contents of Material designated as
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CONFIDENTIAL only to the following persons:
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[PROPOSED] PROTECTIVE ORDER
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a.
Counsel of record working on this action on behalf of any party and
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counsel’s employees who are directly participating in this action, including counsel’s
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partners, associates, paralegals, assistants, secretaries, and clerical staff.
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b.
In-house counsel and such in-house counsel’s employees who are
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directly participating in this action, including counsel’s paralegals, assistants,
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secretaries, and clerical staff.
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c.
Court and deposition reporters and their staff.
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d.
The Court and any Person employed by the Court whose duties
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require access to Material designated as CONFIDENTIAL.
e.
Witnesses at depositions or pre-trial proceedings, in accordance
with procedures set forth in Paragraphs 13-15.
f.
Non-party experts and consultants assisting counsel with respect to
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this action and their secretarial, technical and clerical employees who are actively
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assisting in the preparation of this action, in accordance with the procedures set forth in
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Paragraph 11.
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g.
Officers, directors and employees of the Parties hereto who have a
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need to review Material designated as CONFIDENTIAL to assist in connection with
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this litigation, subject to the limitations set forth herein;
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h.
Photocopy service personnel who photocopied or assisted in the
photocopying or delivering of documents in this litigation;
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Any Person identified on the face of any such Material designated
as CONFIDENTIAL as an author or recipient thereof;
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Any Person who is determined to have been an author and/or
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previous recipient of the Material designated as CONFIDENTIAL, but is not identified
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on the face thereof, provided there is prior testimony of actual authorship or receipt of
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the Material designated as CONFIDENTIAL by such Person; and
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k.
Any Person who the Parties agree in writing may receive Material
designated as CONFIDENTIAL.
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[PROPOSED] PROTECTIVE ORDER
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The Parties shall make a good faith effort to limit dissemination of Material
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designated as CONFIDENTIAL within these categories to Persons who have a
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reasonable need for access thereto.
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10.
For purposes of the preparation of this action, and subject to the terms,
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conditions, and restrictions of this Protective Order, the Discovering Counsel may
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disclose confidential Material designated as ATTORNEYS’ EYES ONLY, and the
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contents of Material so designated, only to the following persons:
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a.
Counsel of record for the Parties to this action and counsel’s
employees who are directly participating in this action, including counsel’s partners,
associates, paralegals, assistants, secretarial, and clerical staff.
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b.
Court and deposition reporters and their staff.
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c.
The Court and any person employed by the Court whose duties
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require access to Material designated as ATTORNEYS’ EYES ONLY.
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d.
Witnesses at depositions or pre-trial proceedings, in accordance
with procedures set forth in Paragraphs 13-15.
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e.
Non-party experts and consultants assisting counsel with respect to
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this action and their secretarial, technical and clerical employees who are actively
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assisting in the preparation of this action, in accordance with the procedures set forth in
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Paragraph 11.
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f.
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Any Person identified on the face of any such Material designated
as ATTORNEYS’ EYES ONLY as an author or recipient thereof; and
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g.
Any Person who is determined to have been an author and/or
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previous recipient of the Material designated as ATTORNEYS’ EYES ONLY, but is
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not identified on the face thereof, provided there is prior testimony of actual authorship
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or receipt of the Material designated as ATTORNEYS’ EYES ONLY by such Person;
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and
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h.
Any Person who the Parties agree in writing may receive Material
designated as ATTORNEYS’ EYES ONLY.
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[PROPOSED] PROTECTIVE ORDER
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UNDERTAKING TO BE BOUND BY PROTECTIVE ORDER
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11.
Before Discovering Counsel may disclose Confidential Material to any
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Person described in subparagraphs 9(f) or 10(e) above, the Person to whom disclosure
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is to be made shall receive and read a copy of this Protective Order, shall evidence his
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or her agreement to be bound by the terms, conditions, and restrictions of the
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Protective Order by signing an undertaking in the form attached hereto as Exhibit A
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(the “Undertaking”), and shall retain the copy of this Protective Order, with a copy of
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his or her signed Undertaking attached. Discovering Counsel shall keep a copy of the
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signed Undertaking for each person described in subparagraphs 9(f) or 10(e) to whom
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Discovering Counsel discloses Confidential Material.
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The individuals designated in subparagraph 10(a) above, are specifically
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prohibited from publishing, releasing, or otherwise disclosing Material designated as
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ATTORNEYS’ EYES ONLY, or the contents thereof, to any directors, officers, or
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employees of the company for which the individual is employed, or to any other
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persons not authorized under this Protective Order to receive such information. The
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designated individuals in subparagraph 10(a) shall retain all ATTORNEYS’ EYES
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ONLY material in a secure manner under separate and confidential file, so as to avoid
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inadvertent access by, or disclosure to, unauthorized persons.
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DEPOSITIONS
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Those portions of depositions taken by any Party at which any Material
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designated as CONFIDENTIAL is used or inquired into, may not be conducted in the
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presence of any Person(s) other than (a) the deposition witness, (b) his or her counsel,
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and (c) Persons authorized under Paragraph 9 of this Protective Order to view such
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Confidential Material. During those portions of depositions in which Material
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designated ATTORNEYS’ EYES ONLY is used or inquired into, only those persons
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authorized under Paragraph 10 to view such Materials may be present.
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14.
Counsel for any deponent may designate testimony or exhibits as
Confidential Material by indicating on the record at the deposition that the testimony
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[PROPOSED] PROTECTIVE ORDER
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of the deponent or any exhibits to his or her testimony are to be treated as Confidential
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Material. Counsel for any Party may designate exhibits in which that Party has a
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cognizable interest as Confidential Material by indicating on the record at the
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deposition that such exhibit(s) are to be treated as Confidential Material. Failure of
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counsel to designate testimony or exhibits as confidential at deposition, however, shall
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not constitute a waiver of the protected status of the testimony or exhibits. Within
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thirty calendar days of receipt of the transcript of the deposition, or thirty days of the
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date on which this Protective Order becomes effective, whichever occurs last, counsel
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shall be entitled to designate specific testimony or exhibits as Confidential Material. If
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counsel for the deponent or Party fails to designate the transcript or exhibits as
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Confidential within the above-described thirty day period, any other Party shall be
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entitled to treat the transcript or exhibits as non-confidential material. For purposes of
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this Paragraph 14, this Protective Order shall be deemed “effective” on the date on
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which it has been executed by all counsel for the Parties.
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15.
When Material disclosed during a deposition is designated Confidential
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Material at the time testimony is given, the reporter shall separately transcribe those
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portions of the testimony so designated, shall mark the face of the transcript in
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accordance with Paragraph 5 above, and shall maintain that portion of the transcript or
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exhibits in separate files marked to designate the confidentiality of their contents. The
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reporter shall not file or lodge with the Court any Confidential Material without
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obtaining written consent from the Party who designated the Material as Confidential
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Material. For convenience, if a deposition transcript or exhibit contains repeated
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references to Confidential Material which cannot conveniently be segregated from
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non-confidential material, any Party may request that the entire transcript or exhibit be
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maintained by the reporter as Confidential Material.
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[PROPOSED] PROTECTIVE ORDER
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USE OF CONFIDENTIAL MATERIAL IN PLEADINGS AND OTHER COURT
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PAPERS
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16.
If any Party or non-party seeks to file or lodge with the Court any
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Confidential Material, such materials shall be submitted to the Court in accordance
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with the procedures set forth in Local Rule 79-5.1. No documents may be filed or
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lodged under seal absent a court order pertinent to the specific document(s). If a Party
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wishes to file or lodge documents under seal, the other Party shall not unreasonably
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withhold agreement to such procedure. If an agreement is reached, the Parties shall
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submit to the Court a Stipulation and Proposed Order for such filing or lodging under
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seal. If no such agreement is reached, then the proponent of lodging or filing under seal
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shall submit an Application and Proposed Order pursuant to Local Rule 79-5.1.
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OBJECTIONS TO DESIGNATION
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Any Party may at any time notify the Designating Party in writing of its
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contention that specified Material designated as Confidential Material is not properly
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so designated because such Material does not warrant protection under applicable law.
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The Designating Party shall within five court days, meet and confer in good faith with
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the Party challenging the designation in an attempt to resolve such dispute. The
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Designating Party shall have ten (10) calendar days from the initial meet and confer to
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file a motion to uphold the designation of the material in question. Any such motion
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shall be set for hearing on the first available calendar date. If no motion is filed within
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10 days, or any mutually agreed to extension of time, all Parties may treat the Material
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as non-confidential. To maintain the designation as Confidential Material and to
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prevail on such a motion, the Designating Party must show by a preponderance of the
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evidence that there is good cause for the designation as Confidential Material. Pending
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resolution of any motion filed pursuant to this Paragraph, all Persons bound by this
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Protective Order shall continue to treat the Material which is the subject of the motion
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as Confidential Material.
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[PROPOSED] PROTECTIVE ORDER
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18.
Any discovery disputes concerning the designation of materials or
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disclosure of documents or information under this Protective Order shall be brought in
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compliance with Local Rule 37 and a proposed stipulated protective order should so
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provide.
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RETURN OF MATERIAL
19.
Within ninety (90) calendar days after the final settlement or termination
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of this action, Discovering Counsel shall return or destroy (at the option and expense
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of Discovering Counsel) all Materials provided by a Producing Party and all copies
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thereof except to the extent that any of the foregoing includes or reflects Discovering
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Counsel’s work product, and except to the extent that such Material has been filed with
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a court in which proceedings related to this action are being conducted. In addition,
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with respect to any such retained work product and unless otherwise agreed to, at the
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conclusion of this action, counsel for each Party shall store in a secure area all work
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product which embodies Confidential Material together with all of the signed
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undertakings they are required to preserve pursuant to Paragraph 11 above, and shall
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not make use of such Material except in connection with any action arising directly out
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of these actions, or pursuant to a court order for good cause shown. The obligation of
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this Protective Order shall survive the termination of this action. To the extent that
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Confidential Materials are or become known to the public through no fault of the
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Discovering Party, such Confidential Materials shall no longer be subject to the terms
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of this Protective Order. Upon request, counsel for each Party shall verify in writing
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that they have complied with the provisions of this paragraph.
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SCOPE OF THIS ORDER
20.
Except for the provisions regarding post-trial or post-settlement return and
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destruction of Material, or segregation of work product which embodies Confidential
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Material, this order is strictly a pretrial order; it does not govern the trial in this action.
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21.
Not later than seven days before trial in the action, Counsel agree to meet
and confer concerning the use at trial of Confidential Material.
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[PROPOSED] PROTECTIVE ORDER
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22.
Nothing in this Protective Order shall be deemed to limit, prejudice, or
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waive any right of any Party or Person (a) to resist or compel discovery with respect to,
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or to seek to obtain additional or different protection for, Material claimed to be
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protected work product or privileged under California or federal law, Material as to
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which the Producing Party claims a legal obligation not to disclose, or Material not
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required to be provided pursuant to California law; (b) to seek to modify or obtain
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relief from any aspect of this Protective Order; (c) to object to the use, relevance, or
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admissibility at trial or otherwise of any Material, whether or not designated in whole
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or in part as Confidential Material governed by this Protective Order; or (d) otherwise
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to require that discovery be conducted according to governing laws and rules.
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23.
Designation of Material as Confidential Material on the face of such
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Material shall have no effect on the authenticity or admissibility of such Material at
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trial.
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24.
This Protective Order shall not preclude any Person from waiving the
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applicability of this Protective Order with respect to any Confidential Material
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Provided by that Person or using any Confidential Material Provided by that Person or
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using any Confidential Material owned by that Person in any manner that Person
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deems appropriate.
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25.
This Protective Order shall not affect any contractual, statutory or other
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legal obligation or the rights of any Party or Person with respect to Confidential
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Material designated by that Party.
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26.
The restrictions set out in the Protective Order shall not apply to any
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Material which:
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a.
At the time it is Provided is available to the public;
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b.
After it is Provided, becomes available to the public through no act,
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or failure to act, of the Discovering Party; or
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The Discovering Party can show
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i.
Was already known to the Discovering Party independently
of receipt of the Confidential Material in this or prior litigation; or
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ii.
Was received by the Discovering Party, after the time it was
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designated as Confidential Material hereunder, from a third party having the right to
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make such disclosure.
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27.
If at any time any Material protected by this Protective Order is
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subpoenaed from the Discovering Party by any Court, administrative or legislative
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body, or is requested by any other Person or entity purporting to have authority to
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require the production of such material, the Party to whom the subpoena or other
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request is directed shall immediately give written notice thereof to the Producing Party
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with respect to Confidential Material sought and shall afford the Producing Party
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reasonable opportunity to pursue formal objections to such disclosures. If the
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Producing Party does not obtain an order preventing the production, prevail on its
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objections to such disclosure, the Discovering Party may produce the Confidential
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Material without violating this Protective Order. (FFM)
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SUBMISSION TO COURT
28.
The Parties agree to submit this Protective Order to the Court for adoption
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as an order of the Court. The Parties reserve the right to seek, upon good cause,
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modification of this Protective Order by the Court.
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IT IS SO ORDERED.
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Date: May 20, 2015
/S/ FREDERICK F. MUMM
Honorable Frederick F. Mumm
United States Magistrate Judge
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[PROPOSED] PROTECTIVE ORDER
EXHIBIT A
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UNDERTAKING TO BE BOUND BY THE PRETRIAL PROTECTIVE ORDER
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REGARDING CONFIDENTIALITY OF DOCUMENTS
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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 that I have read in its
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entirety and understand the 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 Deckers Outdoor
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Corporation v. Skechers U.S.A., Inc., No. 2:14-CV-08988-SJO-FFM. I agree to
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comply with and to be bound by all the terms of this Protective Order and I understand
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and acknowledge that failure to so comply could expose me to sanctions and
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punishment in the nature of contempt. I solemnly promise that I will not disclose in
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any manner any information or item that is subject to this 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 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.
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Date:
________________, 2015
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City and State where sworn and signed:
_______________________
Signed:
_______________________
[Signature]
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_________________
[Print Name]
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[PROPOSED] PROTECTIVE ORDER
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