Noel Saenz v. CSK Auto, Inc. et al
Filing
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PROTECTIVE ORDER by Magistrate Judge Margaret A. Nagle, re: Stipulation for Protective Order, 14 . (mz)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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NOEL SAENZ, an Individual on
behalf of himself and on behalf of all
others similarly situated,
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Plaintiff,
v.
CASE NO. 14-CV-9789 MWF(MANx)
PROTECTIVE ORDER ENTERED
PURSUANT TO STIPULATION OF
THE PARTIES
CSK AUTO INC., a Foreign
Corporation; O’REILLY AUTO
ENTERPRISES, LLC; and DOES 1
through 25, Inclusive,
Defendants.
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1.
PURPOSES AND LIMITATIONS
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Disclosure and discovery activity in this action are likely to involve
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production of confidential, proprietary, or private information for which special
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protection from public disclosure and from use for any purpose other than
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prosecuting this litigation may be warranted. Accordingly, the parties hereby
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stipulate to and petition the court to enter the following Protective Order (“Order”).
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The parties acknowledge that this Order does not confer blanket protections on all
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disclosures or responses to discovery and that the protection it affords from public
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disclosure and use extends only to the limited information or items that are entitled
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to confidential treatment under the applicable legal principles. The parties further
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acknowledge, as set forth in Section 12.3, below, that this Order does not entitle
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them to file confidential information under seal; Civil Local Rule 79-5.1 sets forth
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the procedures that must be followed and the standards that will be applied when a
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party seeks permission from the court to file material under seal.
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2.
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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
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how it is generated, stored or maintained) or tangible things that qualify for
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protection under Federal Rule of Civil Procedure 26(c).
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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
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items that it produces in disclosures or in responses to discovery as
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“CONFIDENTIAL.”
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2.5
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 maintained (including,
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among other things, testimony, transcripts, and tangible things), that are produced
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or generated in disclosures or responses to discovery in this matter.
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2.6
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 counsel to serve as
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an expert witness or as a consultant in this action.
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2.7
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 other outside
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counsel.
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2.8
Non-Party: any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.
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2.9
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 this action and
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have appeared in this action on behalf of that party or are affiliated with a law firm
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which has appeared on behalf of that party.
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2.10 Party: any party to this action, including all of its officers, directors,
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employees, consultants, retained experts, and Outside Counsel of Record (and their
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support staffs).
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2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
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2.12 Professional Vendors:
persons or entities that provide litigation
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support services (e.g., photocopying, videotaping, translating, preparing exhibits or
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demonstrations, and organizing, storing, or retrieving data in any form or medium)
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and their employees and subcontractors.
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2.13 Protected Material:
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any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
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2.14 Receiving Party:
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Material from a Producing Party.
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3.
a Party that receives Disclosure or Discovery
SCOPE
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The protections conferred by this Order cover not only Protected Material (as
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defined above), but also (1) any information copied or extracted from Protected
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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material;
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and (3) any testimony, conversations, or presentations by Parties or their Counsel
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that might reveal Protected Material. However, the protections conferred by this
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Order do not cover the following information: (a) any information that is in the
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public domain at the time of disclosure to a Receiving Party or becomes part of the
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public domain after its disclosure to a Receiving Party as a result of publication not
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involving a violation of this Order, including becoming part of the public record
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through trial or otherwise; and (b) any information known to the Receiving Party
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prior to the disclosure or obtained by the Receiving Party after the disclosure from a
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source who obtained the information lawfully and under no obligation of
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confidentiality to the Designating Party. Any use of Protected Material at trial shall
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be governed by a separate agreement or order.
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4.
DURATION
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Even after final disposition of this litigation, the confidentiality obligations
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imposed by this Order shall remain in effect until a Designating Party agrees
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otherwise in writing or a court order otherwise directs. Final disposition shall be
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deemed to be the later of (1) dismissal of all claims and defenses in this action, with
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or without prejudice; or (2) final judgment herein after the completion and
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exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
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including the time limits for filing any motions or applications for extension of time
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pursuant to applicable law.
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5.
DESIGNATING PROTECTED MATERIAL
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5.1
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Each Party or Non-Party that designates information or items 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.
Exercise of Restraint and Care in Designating Material for Protection.
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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 or retard the case development process or
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to impose unnecessary expenses and burdens on other parties) expose the
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Designating Party to sanctions.
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If it comes to a 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 mistaken designation.
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5.2
Manner and Timing of Designations. Except as otherwise provided in
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this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
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under this Order must be clearly so designated before the material is disclosed or
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produced.
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Designation in conformity with this Order requires:
(a)
for information in documentary form (e.g., paper or electronic
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documents, but excluding transcripts of depositions or other pretrial or trial
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proceedings), that the Producing Party affix the legend “CONFIDENTIAL” to each
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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
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protected portion(s) (e.g., by making appropriate markings in the margins).
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A Party or Non-Party that makes original documents or materials available
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for inspection need not designate them for protection until after the inspecting Party
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has indicated which material it would like copied and produced. During the
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inspection and before the designation, all of the material made available for
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inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
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identified the documents it wants copied and produced, the Producing Party must
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determine which documents, or portions thereof, qualify for protection under this
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Order. Then, before producing the specified documents, the Producing Party must
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affix the “CONFIDENTIAL” legend to each page that contains Protected Material.
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If only a portion or portions of the material on a page qualifies for protection, the
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Producing 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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(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
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the deposition, hearing, or other proceeding, all protected testimony.
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(c) for information produced in some form other than documentary and
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for any other tangible items, that the Producing Party affix in a prominent place on
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the exterior of the container or containers in which the information or item is stored
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the legend “CONFIDENTIAL.” If only a portion or portions of the information or
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item warrant protection, the Producing Party, to the extent practicable, shall identify
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the protected portion(s).
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5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent
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failure to designate qualified information or items does not, standing alone, waive
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the Designating Party’s right to secure protection under this Order for such
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material. Upon timely correction of a designation, the Receiving Party must make
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reasonable efforts to assure that the material is treated in accordance with the
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provisions of this Order.
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6.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges.
Any Party or Non-Party may challenge a
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designation of confidentiality at any time. Unless a prompt challenge to a
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Designating Party’s confidentiality designation is necessary to avoid foreseeable,
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substantial unfairness, unnecessary economic burdens, or a significant disruption or
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delay of the litigation, a Party does not waive its right to challenge a confidentiality
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designation by electing not to mount a challenge promptly after the original
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designation is disclosed.
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6.2
Meet and Confer. The Challenging Party shall initiate the dispute
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resolution process by providing written notice of each designation it is challenging
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and describing the basis for each challenge. To avoid ambiguity as to whether a
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challenge has been made, the written notice must recite that the challenge to
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confidentiality is being made in accordance with this specific paragraph of the
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Order. The parties shall attempt to resolve each challenge in good faith and must
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begin the process by conferring directly (in voice-to-voice dialogue; other forms of
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communication are not sufficient) within 14 days of the date of service of notice. In
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conferring, the Challenging Party must explain the basis for its belief that the
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confidentiality designation was not proper and must give the Designating Party an
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opportunity to review the designated material, to reconsider the circumstances, and,
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if no change in designation is offered, to explain the basis for the chosen
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designation. A Challenging Party may proceed to the next stage of the challenge
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process only if it has engaged in this meet and confer process first or establishes
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that the Designating Party is unwilling to participate in the meet and confer process
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in a timely manner.
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6.3
Judicial Intervention. If the Parties cannot resolve a challenge without
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court intervention, the Challenging Party shall file and serve a motion to remove
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confidentiality designation under Civil Local Rule 7-1 et seq. (and in compliance
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with Civil Local Rule 79-5.1, if applicable) within 28 days of the initial notice of
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challenge or within 14 days of the parties agreeing that the meet and confer process
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will not resolve their dispute, whichever is earlier. Each such motion must be
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accompanied by a competent declaration affirming that the movant has complied
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with the meet and confer requirements imposed in the preceding paragraph. Failure
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by the Challenging Party to make such a motion including the required declaration
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within 28 days (or 14 days, if applicable) shall automatically waive the
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confidentiality objection for each challenged designation. In addition, the
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Designating Party may file a motion to retain a confidentiality designation at any
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time if there is good cause for doing so, including a challenge to the designation of
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a deposition transcript or any portions thereof. Any motion brought pursuant to this
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provision must be accompanied by a competent declaration affirming that the
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movant has complied with the meet and confer requirements imposed by the
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preceding paragraph.
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The burden of persuasion in any such challenge proceeding shall be on the
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Designating Party. Frivolous challenges, and those made for an improper purpose
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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may
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expose the Challenging Party to sanctions. Unless the Challenging Party has waived
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the objection to the confidentiality designation by failing to file a motion to remove
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confidentiality as described above, 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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7.
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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is
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disclosed or produced by another Party or by a Non-Party in connection with this
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case only for prosecuting, defending, or attempting to settle this litigation. Such
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Protected Material may be disclosed only to the categories of persons and under the
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conditions described in this Order. When the litigation has been terminated, a
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Receiving Party must comply with the provisions of section 13 below (FINAL
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DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a
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location and in a secure manner that ensures that access is limited to the persons
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authorized under this Order.
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7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless
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otherwise ordered by the court or permitted in writing by the Designating Party, a
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Receiving
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“CONFIDENTIAL” only to:
Party
may
disclose
any
information
or
item
designated
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(a) the Receiving Party’s Outside Counsel of Record in this action, as
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well as employees of said Outside Counsel of Record to whom it is reasonably
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necessary to disclose the information for this litigation and who have signed the
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“Acknowledgment And Agreement To Be Bound” that is attached hereto as Exhibit
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A;
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(b) the officers, directors, and employees (including House Counsel) of
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the Receiving Party to whom disclosure is reasonably necessary for this litigation
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and who have signed the “Acknowledgment And Agreement To Be Bound”
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(Exhibit A);
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(c) Experts (as defined in this Order) of the Receiving Party to whom
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disclosure is reasonably necessary for this litigation and who have signed the
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“Acknowledgment And Agreement To Be Bound” (Exhibit A);
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(d) the court and its personnel;
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(e) court reporters and their staff;
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(f) professional jury or trial consultants, mock jurors, and Professional
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Vendors to whom disclosure is reasonably necessary for this litigation and who
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have signed the “Acknowledgment And Agreement To Be Bound” (Exhibit A);
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(g) during their depositions, witnesses in the action to whom disclosure is
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reasonably necessary and who have signed the “Acknowledgment and Agreement
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to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or
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ordered by the court. Pages of transcribed deposition testimony or exhibits to
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depositions that reveal Protected Material must be separately bound by the court
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reporter and may not be disclosed to anyone except as permitted under this Order.
(h) the author or recipient of a document containing the information or a
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custodian or other person who otherwise possessed or knew the information.
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8.
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
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“CONFIDENTIAL,” that Party must:
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(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;
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(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 by the
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subpoena or order is subject to this Order. Such notification shall include a copy of
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this Order; and
(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 affected.
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If the Designating Party timely seeks a protective order, the Party served with
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the subpoena or court order shall not produce any information designated in this
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action as “CONFIDENTIAL” before a determination by the court from which the
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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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9.
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A
NON-PARTY’S
PROTECTED
MATERIAL
SOUGHT
TO
BE
PRODUCED IN THIS LITIGATION
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(a) The terms of this Order are applicable to information produced by a
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Non-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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(b) In the event that a Party is required, by a valid discovery request, to
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produce a Non-Party’s confidential information in its possession, and the Party is
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subject to an agreement with the Non-Party not to produce the Non-Party’s
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confidential information, then the Party shall:
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(1) promptly notify in writing the Requesting Party and the Non-Party
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that some or all of the information requested is subject to a confidentiality
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agreement with a Non-Party;
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(2) promptly provide the Non-Party with a copy of this Order, the
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relevant discovery request(s), and a reasonably specific description of the
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information requested; and
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(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
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court within 14 days of receiving the notice and accompanying information, the
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Receiving Party may produce the Non-Party’s confidential information responsive
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to the discovery request. If the Non-Party timely seeks a protective order, the
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Receiving Party shall not produce any information in its possession or control that
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is subject to the confidentiality agreement with the Non-Party before a
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determination by the court. Absent a court order to the contrary, the Non-Party
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shall bear the burden and expense of seeking protection in this court of its Protected
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Material.
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10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
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Protected Material to any person or in any circumstance not authorized under this
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Order, the Receiving Party must immediately: (a) notify in writing the Designating
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Party of the unauthorized disclosures; (b) use its best efforts to retrieve all
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unauthorized copies of the Protected Material; (c) inform the person or persons to
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whom unauthorized disclosures were made of all the terms of this Order; and (d)
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request such person or persons to execute the “Acknowledgment And Agreement
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To Be Bound” that is attached hereto as Exhibit A.
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11.
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.
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12.
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
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MISCELLANEOUS
person to seek its modification by the court in the future.
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12.2 Right to Assert Other Objections. By stipulating to the entry of this
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Protective Order no party waives any right it otherwise would have to object to
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disclosing or producing any information or item on any ground not addressed in
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this Order. Similarly, no party waives any right to object on any ground to use in
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evidence of any of the material covered by this Order.
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12.3 Filing Protected Material. Without written permission from the
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Designating Party or a court order secured after appropriate notice to all interested
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persons, a Party may not file in the public record in this action any Protected
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Material. A Party that seeks to file under seal any Protected Material must comply
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with Civil Local Rule 79-5.1. Protected Material may only be filed under seal
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pursuant to a court order authorizing the sealing of the specific Protected Material
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at issue. Pursuant to Civil Local Rule 79-5.1, a sealing order will issue only upon a
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request establishing that the Protected Material at issue is privileged, protectable as
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a trade secret, or otherwise entitled to protection under the law. If a Receiving
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Party’s request to file Protected Material under seal pursuant to Civil Local Rule
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79-5.1 is denied by the court, then the Receiving Party may file the information in
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the public record pursuant to Local Rules unless otherwise instructed by the court.
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13.
FINAL DISPOSITION
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Within 60 days after the final disposition of this action, as defined in
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paragraph 4, each Receiving Party must return all Protected Material to the
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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
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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 (1) identifies (by category, where
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appropriate) all the Protected Material that was returned or destroyed and (2)
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affirms that the Receiving Party has not retained any copies, abstracts,
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compilations, summaries or any other format reproducing or capturing any of the
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Protected Material. Notwithstanding this provision, Counsel are entitled to retain
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an archival copy of all pleadings, motion papers, trial, deposition, and hearing
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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
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reports, attorney work product, and consultant and expert work product, even if
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such materials contain Protected Material.
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Any such archival copies that contain or constitute Protected Material remain
subject to this Order as set forth in Section 4 (DURATION).
IT IS SO ORDERED.
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DATED: May 6, 2015
MARGARET NAGLE
MARGARET A. NAGLE
L
UNITED STATES MAGISTRATE JUDGE
NITED STATES
T
JUD
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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 Protective Order that was issued
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by the United States District Court for the Central District of California on [date] in
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the case of _______________________________________________ [insert
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formal name of the case and the number and initials assigned to it by the
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court]. I agree to comply with and to be bound by all the terms of this Protective
10
Order and I understand and acknowledge that failure to so comply could expose me
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to 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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Protective Order to any person or entity except in strict compliance with the
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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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Protective Order, even if such enforcement proceedings occur after termination of
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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 Protective Order.
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Date: ______________________________________
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City and State where sworn and signed: _________________________________
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Printed name: _______________________________
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Signature: __________________________________
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