Lesa Amoore et al v. L Cheriyve LLC et al
Filing
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STIPULATED PROTECTIVE ORDER by Judge Manuel L. Real re Stipulation for Protective Order 28 . (See document for specifics) (mrgo)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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LESA AMOORE, an individual; KOJII
HELNWEIN, an individual; and
AMANDA BOOTH, an individual,
Plaintiffs,
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v.
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Case No. 2:15-CV-09988 –R-SS
STIPULATED PROTECTIVE
ORDER
Complaint Filed: December 30, 2015
L'CHERIYVE, LLC, a California
Limited Liability Corporation;
YVETTE POOLE, an individual,
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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
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disclosure and from use for any purpose other than prosecuting this litigation may
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be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
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enter the following Stipulated Protective Order. The parties acknowledge that this
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Order does not confer blanket protections on all disclosures or responses to
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discovery and that the protection it affords from public disclosure and use extends
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only to the limited information or items that are entitled to confidential or
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Attorney’s Eyes Only treatment under the applicable legal principles. The parties
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STIPULATED PROTECTIVE ORDER
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further acknowledge, as set forth in Section 12.3, below, that this Stipulated
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Protective Order does not entitle them to file confidential information under seal;
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Civil Local Rule 79-5 sets forth the procedures that must be followed and the
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standards that will be applied when a party seeks permission from the court to file
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material under seal.
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B.
GOOD CAUSE STATEMENT
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This action is likely to involve copyrights, customer and pricing lists, trade
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secrets, and other valuable research, development, commercial, financial, technical
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and/or proprietary information for which special protection from public disclosure
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and from use for any purpose other than prosecution of this action is warranted.
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Such confidential and proprietary materials and information consist of among other
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things, confidential business or financial information, information regarding
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confidential business practices, or other confidential research, development, or
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commercial information (including information implicating privacy rights of third
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parties), information otherwise generally unavailable to the public, or which may be
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privileged or otherwise protected from disclosure under state or federal statutes,
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court rules, case decisions, or common law. Accordingly, to expedite the flow of
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information, to facilitate the prompt resolution of disputes over confidentiality of
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discovery materials, to adequately protect information the parties are entitled to
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keep confidential, to ensure that the parties are permitted reasonable necessary uses
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of such material in preparation for and in the conduct of trial, to address their
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handling at the end of the litigation, and serve the ends of justice, a protective order
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for such information is justified in this matter. It is the intent of the parties that
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information will not be designated as confidential or Attorney’s Eyes Only for
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tactical reasons and that nothing be so designated without a good faith belief that it
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has been maintained in a confidential, non-public manner, and there is good cause
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why it should not be part of the public record of this case.
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///
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STIPULATED PROTECTIVE ORDER
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2.
DEFINITIONS
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2.1
Action: this pending federal law suit.
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2.2
“ATTORNEY’S EYES ONLY” Information or Items: information
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(regardless of how it is generated, stored, or maintained) for which the disclosure to
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another Party or Non-Party would create a substantial risk of serious injury that
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could not be avoided by less restrictive means. “Attorney’s Eyes Only” materials
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shall be considered “Confidential.”
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2.2
Challenging Party: a Party or Non-Party that challenges the
designation of information or items under this Order.
2.3
“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), and as specified above in
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the Good Cause Statement.
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2.4
Counsel: Outside Counsel of Record (as well as their support staff).
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2.5
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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2.6
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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2.7
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
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an expert witness or as a consultant in this Action.
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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.
2.9
Outside Counsel of Record: attorneys who are not employees of a
Party to this Action but are retained to represent or advise a Party to this Action and
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STIPULATED PROTECTIVE ORDER
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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, and includes support staff.
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).
2.11 Producing Party: a Party or Non-Party that produces Disclosure or
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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.
2.13 Protected Material: any Disclosure or Discovery Material that is
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designated as “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY.”
2.14 Receiving Party: a Party that receives Disclosure or Discovery
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Material from a Producing Party.
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3.
SCOPE
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The protections conferred by this Stipulation and Order cover not only
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Protected Material (as defined above), but also (1) any information copied or
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extracted from Protected Material; (2) all copies, excerpts, summaries, or
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compilations of Protected Material; and (3) any testimony, conversations, or
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presentations by Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the
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trial judge. This Order does not govern the use of Protected Material at trial.
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4.
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DURATION
By signing this Stipulation and Order, the Parties agree to be contractually
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bound by this Stipulation notwithstanding whether the Court enters an Order on the
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Stipulation.
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Once a case proceeds to trial, all of the information that was designated as
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STIPULATED PROTECTIVE ORDER
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confidential or maintained pursuant to this protective order becomes public and will
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be presumptively available to all members of the public, including the press, unless
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compelling reasons supported by specific factual findings to proceed otherwise are
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made to the trial judge in advance of the trial. See Kamakana v. City and County of
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Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause”
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showing for sealing documents produced in discovery from “compelling reasons”
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standard when merits-related documents are part of court record). Accordingly, the
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terms of this protective order do not extend beyond the commencement of the trial.
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5.
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DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection.
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Each Party or Non-Party that designates information or items for protection under
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this Order must take care to limit any such designation to specific material that
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qualifies under the appropriate standards. The Designating Party must designate for
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protection only those parts of material, documents, items, or oral or written
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communications that qualify so that other portions of the material, documents,
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items, or communications for which protection is not warranted are not swept
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unjustifiably within the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations
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that are shown to be clearly unjustified or that have been made for an improper
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purpose (e.g., to unnecessarily encumber the case development process or to
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impose unnecessary expenses and burdens on other parties) may expose the
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Designating Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it
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designated for protection do not qualify for protection, that Designating Party must
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promptly notify all other Parties that it is withdrawing the inapplicable designation.
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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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STIPULATED PROTECTIVE ORDER
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under this Order must be clearly so designated before the material is disclosed or
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produced.
Designation in conformity with this Order requires:
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(a)
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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 at a minimum, the legend
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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”) or “ATTORNEY’S
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EYES ONLY”, to each page that contains protected material. If only a portion or
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portions of the material on a page qualifies for protection, the Producing Party also
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must clearly identify the protected portion(s) (e.g., by making appropriate markings
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in the margins).
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(b)
for testimony given in depositions that the Designating Party
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identify the Disclosure or Discovery Material on the record, before the close of the
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deposition.
(c)
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for information produced in some form other than documentary
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and for any other tangible items, that the Producing Party affix in a prominent place
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on the exterior of the container or containers in which the information is stored the
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legend “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY.” If only a portion
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or portions of the information warrants protection, the Producing Party, to the
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extent practicable, shall identify the protected portion(s).
5.3
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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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STIPULATED PROTECTIVE ORDER
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designation of confidentiality at any time that is consistent with the Court’s
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Scheduling Order.
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Meet and Confer. The Challenging Party shall initiate the dispute
resolution process under Local Rule 37.1 et seq.
6.3
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The burden of persuasion in any such challenge proceeding shall be on
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the Designating Party. Frivolous challenges, and those made for an improper
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purpose (e.g., to harass or impose unnecessary expenses and burdens on other
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parties) may expose the Challenging Party to sanctions. Unless the Designating
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Party has waived or withdrawn the confidentiality designation, all parties shall
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continue to afford the material in question the level of protection to which it is
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entitled under the Producing Party’s designation until the Court rules on the
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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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Action only for prosecuting, defending, or attempting to settle this Action. 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 Action 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 Party may disclose any information or item designated
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“CONFIDENTIAL” only to:
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(a)
SD502/4830-9512-4022-1
the Receiving Party’s Outside Counsel of Record in this Action,
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STIPULATED PROTECTIVE ORDER
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as 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 Action, including, but not limited to,
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contract review attorneys, law clerks, paralegals, legal secretaries, and graphics or
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design services professionals or firms retained by counsel;.
(b)
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the officers, directors, and employees of the Receiving Party to
whom disclosure is reasonably necessary for this Action;
(c)
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Experts (as defined in this Order) of the Receiving Party 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);
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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
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Professional Vendors to whom disclosure is reasonably necessary for this Action
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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
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A);
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(g)
copy, document management, or electronic discovery or
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imaging services retained by counsel to assist in the management and duplication of
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confidential material, provided that counsel for the party retaining the copy or
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imaging service instructs the service not to disclose any confidential material to
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third parties and to immediately return all originals and copies of any confidential
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material; upon completion of the service;
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(h)
the author or recipient of a document containing the information
or a custodian or other person who otherwise possessed or knew the information;
(i)
during their depositions, witnesses, and attorneys for witnesses
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in the Action to whom disclosure is reasonably necessary provided: (1) the
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deposing party requests that the witness sign the form attached as Exhibit 1 hereto;
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and (2) they will not be permitted to keep any confidential information unless they
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sign the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless
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STIPULATED PROTECTIVE ORDER
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otherwise agreed by the Designating Party or ordered by the court. Pages of
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transcribed deposition testimony or exhibits to depositions that reveal Protected
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Material may be separately bound by the court reporter and may not be disclosed to
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anyone except as permitted under this Stipulated Protective Order; and
(j)
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any mediator or settlement officer, and their supporting
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personnel, mutually agreed upon by any of the parties engaged in settlement
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discussions.
7.3
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Disclosure of “ATTORNEY’S EYES ONLY” Information or Items.
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Unless otherwise ordered by the court or permitted in writing by the designating
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party, a receiving party may disclose Attorney’s Eyes Only material only to those
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persons identified in Section 7.2(a, c-h).
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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
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that compels disclosure of any information or items designated in this Action as
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“CONFIDENTIAL” or “ATTORNEY’S EYES ONLY,” 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;
(b)
promptly notify in writing the party who caused the subpoena or
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order 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 Protective Order. Such notification shall
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include a copy of this Stipulated Protective 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
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the subpoena or court order shall not produce any information designated in this
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action as “CONFIDENTIAL” or “ATTORNEY’S EYES ONLY” before a
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determination by the court from which the subpoena or order issued, unless the
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STIPULATED PROTECTIVE ORDER
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Party has obtained the Designating Party’s permission. The Designating Party shall
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bear the burden and expense of seeking protection in that court of its confidential
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material and nothing in these provisions should be construed as authorizing or
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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
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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
(a)
The terms of this Order are applicable to information produced
by a Non-Party in this Action and designated as “CONFIDENTIAL” or
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“ATTORNEY’S 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
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this Order. Nothing in these provisions should be construed as prohibiting a Non-
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Party from seeking additional protections.
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(b)
In the event that a Party is required, by a valid discovery
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request, to produce a Non-Party’s confidential information in its possession, and the
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Party is 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:
(1)
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promptly notify in writing the Requesting Party and the
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Non-Party that some or all of the information requested is subject to a
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confidentiality agreement with a Non-Party;
(2)
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promptly provide the Non-Party with a copy of the
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Stipulated Protective Order in this Action, the relevant discovery request(s), and a
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reasonably specific description of the information requested; and
(3)
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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
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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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STIPULATED PROTECTIVE ORDER
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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.
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
Protected Material to any person or in any circumstance not authorized under this
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Stipulated Protective Order, the Receiving Party must immediately (a) notify in
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writing the Designating Party of the unauthorized disclosures, (b) use its best
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efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the
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person or persons to whom unauthorized disclosures were made of all the terms of
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this Order, and (d) request such person or persons to execute the “Acknowledgment
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and Agreement to Be Bound” that is attached hereto as Exhibit A.
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11.
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PROTECTED MATERIAL
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
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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). This provision is not intended to modify
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whatever procedure may be established in an e-discovery order that provides for
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production without prior privilege review. Pursuant to Federal Rule of Evidence
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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
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of a communication or information covered by the attorney-client privilege or work
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product protection, the parties may incorporate their agreement in the stipulated
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protective order submitted to the court.
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STIPULATED PROTECTIVE ORDER
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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. 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 Stipulated 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
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Order.
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12.3 Filing Protected Material. A Party that seeks to file under seal any
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Protected Material must comply with Civil Local Rule 79-5. Protected Material
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may only be filed under seal pursuant to a court order authorizing the sealing of the
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specific Protected Material at issue. If a Party’s request to file Protected Material
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under seal is denied by the court, then the Receiving Party may file the information
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in the public record unless otherwise instructed by the court.
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13.
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FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within 60
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days of a written request by the Designating Party, each Receiving Party must
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return all Protected Material to the Producing Party or destroy such material. As
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used in this subdivision, “all Protected Material” includes all copies, abstracts,
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compilations, summaries, and any other format reproducing or capturing any of the
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Protected Material. Whether the Protected Material is returned or destroyed, the
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Receiving Party must, upon request by another Party, submit a written certification
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to the Producing Party (and, if not the same person or entity, to the Designating
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Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all
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the Protected Material that was returned or destroyed and (2) affirms that the
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Receiving Party has not retained any copies, abstracts, compilations, summaries or
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any other format reproducing or capturing any of the Protected Material.
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STIPULATED PROTECTIVE ORDER
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Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
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pleadings, motion papers, trial, deposition, and hearing transcripts, legal
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memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
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work product, and consultant and expert work product, even if such materials
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contain Protected Material. Any such archival copies that contain or constitute
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Protected Material remain subject to this Protective Order as set forth in Section 4
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(DURATION).
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14.
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measures including, without limitation, contempt proceedings and/or monetary
Any violation of this Order may be punished by any and all appropriate
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sanctions.
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Dated:
August 11, 2016
SHERMAN LAW GROUP
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/s/ Richard Lloyd Sherman
Richard Lloyd Sherman
Attorneys for Plaintiffs
LESA AMOORE, KOHII HELNWEIN,
and AMANDA BOOTH
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Dated:
August 16, 2016
ARCHER NORRIS
/s/ Gabriel G. Green
Gabriel G. Green
Kevin L. Place
Jihee Yoo
Attorneys for Defendants
L'CHERIYVE, LLC and YVETTE
POOLE
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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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DATED: August 18, 2016
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_____________________________
Manuel L. Real
United States District Judge
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STIPULATED PROTECTIVE ORDER
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, ________________________________ [print or type full name],of
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________________________________ [print or type full address], declare under
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penalty of perjury that I have read in its entirety and understand the Stipulated
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Protective Order that was issued by the United States District Court for the Central
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District of California on ________________________________ [date] in the case
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of Lesa Amoore, et al. v. L’Cheriyve, LLC, et al., Case No. 2:15-CV-09988 –R-SS.
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I agree to comply with and to be bound by all the terms of this Stipulated Protective
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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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Stipulated Protective Order to any person or entity except in strict compliance with
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the provisions of this Order. I further agree to submit to the jurisdiction of the
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United States District Court for the Central District of California for the purpose of
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enforcing the terms of this Stipulated Protective Order, even if such enforcement
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proceedings occur after termination of this action. I hereby appoint
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________________________________ [print or type full name] of
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________________________________ [print or type full address and telephone
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number] as my California agent for service of process in connection with this action
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or any proceedings related to enforcement of this Stipulated 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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STIPULATED PROTECTIVE ORDER
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