Jose Jacobo v. Ross Stores, Inc., et al
Filing
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PROTECTIVE ORDER by Magistrate Judge Alicia G. Rosenberg 60 . SEE ORDER FOR DETAILS. (mp)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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JOSE JACOBO, et al.,
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Plaintiffs,
Case No.: CV 15-4701 MWF (AGRx)
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CLASS ACTION
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PROTECTIVE ORDER
v.
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ROSS STORES, INC., et al.,
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Defendants,
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1.
A. 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 disclosure
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and from use for any purpose other than prosecuting this litigation may be warranted.
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This Order does not confer blanket protections on all disclosures or responses to
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discovery and the protection it affords from public disclosure and use extends only to the
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limited information or items that are entitled to confidential treatment under the
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applicable legal principles. As set forth in Section 12.3, below, this Protective Order
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does not entitle parties to file confidential information under seal; Civil Local Rule 79-5
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sets forth the procedures that must be followed and the standards that will be applied
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when a party seeks permission from the court to file material under seal.
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B. GOOD CAUSE STATEMENT
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This action is likely to involve and the Parties’ pricing lists and/or other valuable
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development, commercial, and/or financial, technical and/or proprietary information for
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which special protection from public disclosure and from use for any purpose other than
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prosecution of this action is warranted. Such confidential and proprietary materials and
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information consist of, among other things, confidential business or financial
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information, information regarding confidential business practices, or other confidential
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research, development, or commercial information (including information implicating
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privacy rights of third parties), information otherwise generally unavailable to the
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public, or which may be privileged or otherwise protected from disclosure under state or
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federal statutes, court rules, case decisions, or common law. Accordingly, to expedite
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the flow of information, to facilitate the prompt resolution of disputes over
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confidentiality of discovery materials, to adequately protect information the parties are
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entitled to keep confidential, to ensure that the parties are permitted reasonable
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necessary uses of such material in preparation for and in the conduct of trial, to address
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their 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 matter.
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2.
DEFINITIONS
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2.1
Action: Jacobo v. Ross Stores, Inc., CV 15-4701 MWF (AGRx).
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2.2
Challenging Party: a Party or Non-Party that challenges the designation of
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information or items under this Order.
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2.3
“CONFIDENTIAL” Information or Items: information (regardless of how
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it is generated, stored or maintained) or tangible things that qualify for protection under
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Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
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Statement.
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2.4
Counsel: Outside Counsel of Record and House Counsel (as well as their
support staff).
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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 “CONFIDENTIAL”
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OR “HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY.”
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2.6
Disclosure or Discovery Material: all items or information, regardless of the
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medium or manner in which it is generated, stored, or maintained (including, among
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other things, testimony, transcripts, and tangible things), that are produced or generated
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in disclosures or responses to discovery in this matter.
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2.7
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 an
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expert witness or as a consultant in this Action.
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2.8
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information
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or Items: extremely sensitive Confidential Information, disclosure of which to another
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party or non-party (e.g., a competitor) would create a substantial risk of serious harm
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that could not reasonably be avoided by less restrictive means.
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2.9
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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2.10 Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
2.11 Outside Counsel of Record: attorneys who are not employees of a party to
this Action but are retained to represent or advise a party to this Action and have
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appeared in this Action on behalf of that party or are affiliated with a law firm which has
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appeared on behalf of that party, and includes support staff.
2.12 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).
2.13 Producing Party: a Party or Non-Party that produces Disclosure or
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Discovery Material in this Action.
2.14 Professional Vendors: persons or entities that provide litigation support
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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) and
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their employees and subcontractors.
2.15 Protected Material: any Disclosure or Discovery Material that is designated
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as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS EYES
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ONLY.”
2.16 Receiving Party: a Party that receives Disclosure or Discovery Material
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from a Producing Party.
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3.
SCOPE
The protections conferred by this Stipulation and Order cover not only Protected
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Material (as defined above), but also (1) any information copied or extracted from
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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
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Material; and (3) any testimony, conversations, or presentations by Parties or their
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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 trial
judge. This Order does not govern the use of Protected Material at trial.
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4.
DURATION
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 otherwise
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in writing or a court order otherwise directs. Final disposition shall be deemed to be the
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later of (1) dismissal of all claims and defenses in this Action, with or without prejudice;
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and (2) final judgment herein after the completion and exhaustion of all appeals,
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rehearings, remands, trials, or reviews of this Action, including the time limits for filing
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any motions or applications for extension of time pursuant to applicable law.
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5.
DESIGNATING PROTECTED MATERIAL
5.1 Exercise of Restraint and Care in Designating Material for Protection. Each
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Party or Non-Party that designates information or items for protection under this Order
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must take care to limit any such designation to specific material that qualifies under the
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appropriate standards. The Designating Party must designate for protection only those
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parts of material, documents, items, or oral or written communications that qualify so
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that other portions of the material, documents, items, or communications for which
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protection is not warranted are not swept unjustifiably within the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that
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are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,
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to unnecessarily encumber the case development process or to impose unnecessary
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expenses and burdens on other parties) may expose the 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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5.2 Manner and Timing of Designations. Except as otherwise provided in this
Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise or ordered,
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Disclosure or Discovery Material that qualifies for protection under this Order must be
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clearly so designated before the material is disclosed or produced.
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Designation in conformity with this Order requires:
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(a) for information in documentary form (e.g., paper or electronic documents, but
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excluding transcripts of depositions or other pretrial or trial proceedings), that the
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Producing Party affix at a minimum, the legend “CONFIDENTIAL” OR “HIGHLY
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CONFIDENTIAL – ATTORNEYS EYES ONLY” to each page that contains Protected
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Material. If only a portion or portions of the material on a page qualifies for protection,
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the Producing Party also must clearly identify the protected portion(s) (e.g., by making
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appropriate markings in the margins).
A Party or Non-Party that makes original documents available for inspection need
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not designate them for protection until after the inspecting Party has indicated which
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documents it would like copied and produced. During the inspection and before the
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designation, all of the material made available for inspection shall be deemed “HIGHLY
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CONFIDENTIAL – ATTORNEYS EYES ONLY.” 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 Order.
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Then, before producing the specified documents, the Producing Party must affix the
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legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS EYES
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ONLY” to each page that contains Protected Material. If only a portion or portions of
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the material on a page qualifies for protection, the Producing Party also must clearly
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identify the protected portion(s) (e.g., by making appropriate markings in the margins).
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(b) for testimony given in depositions that the Designating Party identify the
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Disclosure or Discovery Material on the record, before the close of the deposition all
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protected testimony.
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(c) for information produced in some form other than documentary and for any
other tangible items, that the Producing Party affix in a prominent place on the exterior
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of the container or containers in which the information is stored the legend
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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY.”
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If only a portion or portions of the information warrants protection, the Producing Party,
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to the extent practicable, shall identify the protected portion(s).
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5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
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designate qualified information or items does not, standing alone, waive the Designating
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Party’s right to secure protection under this Order for such material. Upon timely
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correction of a designation, the Receiving Party must make reasonable efforts to assure
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that the material is treated in accordance with the provisions of this Order.
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6.
6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of
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confidentiality at any time that is consistent with the Court’s Scheduling Order.
6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
process under Local Rule 37.1 et seq.
6.3 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 (e.g.,
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to harass or impose unnecessary expenses and burdens on other parties) may expose the
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Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn
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the 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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7.
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 Action
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only for prosecuting, defending or attempting to settle this Action. Such Protected
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Material may be disclosed only to the categories of persons and under the conditions
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described in this Order. When this Action has been terminated, a Receiving Party must
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comply with the provisions of section 13 below (FINAL 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 otherwise
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ordered by the court or permitted in writing by the Designating Party, a Receiving Party
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may disclose any information or item designated “CONFIDENTIAL” only to:
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(a) 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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(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this Action;
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
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reasonably necessary for this Action and who have signed the “Acknowledgment and
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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 Vendors to
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whom disclosure is reasonably necessary for this Action and who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A) or, in the case of mock
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jurors, a substantially similar form that may redact the case name;
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(g) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses, and attorneys for witnesses, in the Action
to whom disclosure is reasonably necessary provided: (1) the deposing party requests
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that the witness sign the form attached as Exhibit a hereto; and (2) they will not be
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permitted to keep any confidential information unless they sign the “Acknowledgment
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and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating
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Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to
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depositions that reveal Protected Material may be separately bound by the court reporter
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and may not be disclosed to anyone except as permitted under this Protective Order;
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(i) any mediator or settlement officer, and their supporting personnel, mutually
agreed upon by any of the parties engaged in settlement discussions; and
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insurance carriers and insurance adjusters who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A).
7.3
Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS EYES
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ONLY” Information or Items. Unless otherwise ordered by the court or permitted in
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writing by the Designating Party, a Receiving Party may disclose any information or
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item designated “HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY” only to:
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(a) 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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(b) Experts (as defined in this Order) of the Receiving Party to whom disclosure
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is reasonably necessary for this Action and who have signed the “Acknowledgment and
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Agreement to Be Bound” (Exhibit A);
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(c) the court and its personnel;
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(d) court reporters and their staff;
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(e) professional jury or trial consultants, mock jurors, and Professional Vendors to
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whom disclosure is reasonably necessary for this Action and who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A) or, in the case of mock
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jurors, a substantially similar form that may redact the case name;
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(f) the author or recipient of a document containing the information or a custodian
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or other person who otherwise possessed or knew the information;
(g) employees of Ross Stores, Inc., for purposes of documents designated as
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“HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY” by Ross Stores, Inc., in
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this Action;
(h) any mediator or settlement officer, and their supporting personnel, mutually
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agreed upon by any of the parties engaged in settlement discussions; and
(i)
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insurance carriers and insurance adjusters who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A).
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8.
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IN OTHER LITIGATION
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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
If a Party is served with a subpoena or a court order issued in other litigation that
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compels disclosure of any information or items designated in this Action as
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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS EYES ONLY”
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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 to issue
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in the other litigation that some or all of the material covered by the subpoena or order is
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subject to this Protective Order. Such notification shall include a copy of this Protective
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Order; and
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(c) cooperate with respect to all reasonable procedures sought to be pursued by
the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
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subpoena or court order shall not produce any information designated in this action as
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“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” before a determination by the
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court unless the Party has obtained the Designating Party’s permission. The Designating
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Party shall bear the burden and expense of seeking protection in that court of its
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confidential material and nothing in these provisions should be construed as authorizing
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or encouraging a Receiving Party in this Action to disobey a lawful directive from
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another court.
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9.
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PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a Non-Party
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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
in this Action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
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ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in
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connection with this litigation is protected by the remedies and relief provided by this
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Order. Nothing in these provisions should be construed as prohibiting a Non-Party from
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seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to produce a
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Non-Party’s confidential information in its possession, and the Party is subject to an
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agreement with the Non-Party not to produce the Non-Party’s confidential information,
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then the Party shall:
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(1) promptly notify in writing the Requesting Party and the Non-Party that some
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or all of the information requested is subject to a confidentiality agreement with a Non-
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Party;
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(2) promptly provide the Non-Party with a copy of the Protective Order in this
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Action, the 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, if
requested.
(c) If the Non-Party fails to seek a protective order from this court within 14 days
of receiving the notice and accompanying information, the Receiving Party may produce
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the Non-Party’s confidential information responsive to the discovery request. If the Non-
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Party timely seeks a protective order, the Receiving Party shall not produce any
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information in its possession or control that is subject to the confidentiality agreement
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with the Non-Party before a determination by the court. Absent a court order to the
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contrary, the Non-Party shall bear the burden and expense of seeking protection in this
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court of its Protected Material.
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10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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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Protective Order, the Receiving Party must immediately (a) notify in writing the
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Designating 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 whom
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unauthorized disclosures were made of all the terms of this Order, and (d) request such
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person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is
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attached hereto as Exhibit A.
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11.
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PROTECTED MATERIAL
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
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 protection, the
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obligations of the Receiving Parties are those set forth in Federal Rule of Civil
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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
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may be established in an e-discovery order that provides for production without prior
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privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
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parties reach an agreement on the effect of disclosure of a communication or information
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covered by the attorney-client privilege or work product protection, the parties may
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incorporate their agreement in a protective order submitted to the court.
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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.
12.2 Right to Assert Other Objections. No Party waives any right it otherwise
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would have to object to disclosing or producing any information or item on any ground
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not addressed in this Protective Order. Similarly, no Party waives any right to object on
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any ground to use in evidence of any of the material covered by this Protective Order.
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12.3 Filing Protected Material. A Party that seeks to file under seal any Protected
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Material must comply with Civil Local Rule 79-5. Protected Material may only be filed
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under seal pursuant to a court order authorizing the sealing of the specific Protected
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Material at issue. If a Party's request to file Protected Material under seal is denied by
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the court, then the Receiving Party may file the information in the public record unless
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otherwise instructed by the court.
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13.
FINAL DISPOSITION
After the final disposition of this Action, within 60 days of a written request by
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the Designating Party, 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 format
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reproducing or capturing any of the Protected Material. Whether the Protected Material
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is returned or destroyed, the Receiving Party must submit a written certification to the
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Producing Party (and, if not the same person or entity, to the Designating Party) by the
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60 day deadline that (1) identifies (by category, where appropriate) all the Protected
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Material that was returned or destroyed and (2)affirms that the Receiving Party has not
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retained any copies, abstracts, compilations, summaries or any other format reproducing
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or capturing any of the Protected Material. Notwithstanding this provision, Counsel are
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entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and
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hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits,
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expert reports, attorney work product, and consultant and expert work product, even if
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such materials contain Protected Material. Any such archival copies that contain or
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constitute Protected Material remain subject to this Protective Order as set forth in
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Section 4 (DURATION).
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14. Any violation of this Order may be punished by any and all appropriate
measures including, without limitation, contempt proceedings and/or monetary
sanctions.
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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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DATED: July 12, 2016
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_____________________________________
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ALICIA G. ROSENBERG
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United States Magistrate Judge
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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 that I
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have read in its entirety and understand the Protective Order that was issued by the
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United States District Court for the Central District of California in the case of Jacobo v.
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Ross Stores, Inc., CV 15-4701 MWF (AGRx). I agree to comply with and to be bound
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by all the terms of this Protective Order and I understand and acknowledge that failure to
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so comply could expose me to sanctions and punishment in the nature of contempt. I
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solemnly promise that I will not disclose in any manner any information or item that is
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subject to this Protective Order to any person or entity except in strict compliance with
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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 Protective
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Order, even if such enforcement proceedings occur after termination of this action.
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Date: ______________________________________
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City and State where sworn and signed: _________________________________
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Printed name: _______________________________
Signature: _____________________________________
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PROTECTIVE15
ORDER
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