Capbran Holdings, LLC et al v. Firemall LLC et al
Filing
53
PROTECTIVE ORDER by Magistrate Judge Alexander F. MacKinnon. Re Stipulation for Protective Order 52 . (ib)
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UNITED STATES DISTRICT COURT
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FOR THE CENTRAL DISTRICT OF CALIFORNIA
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CASE NO. 2:16-cv-02980-DSF(AFMx)
CAPBRAN HOLDINGS, LLC, a
California LLC, and NUTRIBULLET,
LLC, a California LLC,
STIPULATED PROTECTIVE
ORDER1
Plaintiffs,
v.
Hon. Alexander F. MacKinnon
FIREMALL LLC, a New York LLC,
and MITCHEL BERKOWITZ, an
individual,
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Defendants.
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This Stipulated Protective Order is based substantially on the model protective
order provided under Magistrate Judge Alexander F. MacKinnon’s Procedures.
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1.
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Discovery in this action is likely to involve production of confidential, proprietary
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or private information for which special protection from public disclosure and from
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use for any purpose other than prosecuting this litigation may be warranted.
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Accordingly, the parties hereby stipulate to and petition the Court to enter the
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following Stipulated Protective Order. The parties acknowledge that this Order does
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not confer blanket protections on all disclosures or responses to discovery and that
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the protection it affords from public disclosure and use extends only to the limited
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information or items that are entitled to confidential treatment under the applicable
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A.
PURPOSES AND LIMITATIONS
legal principles.
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B.
GOOD CAUSE STATEMENT
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This action is likely to involve trade secrets, customer and pricing lists and other
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valuable research, development, commercial, financial, technical and/or proprietary
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information for which special protection from public disclosure and from use for
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any purpose other than prosecution of this action is warranted. Such confidential
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and proprietary materials and information consist of, among other things,
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confidential business or financial information, information regarding confidential
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business practices, or other confidential research, development, or commercial
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information (including information implicating privacy rights of third parties),
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information otherwise generally unavailable to the public, or which may be
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privileged or otherwise protected from disclosure under state or federal statutes,
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court rules, case decisions, or common law. Accordingly, to expedite the flow of
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information, to facilitate the prompt resolution of disputes over confidentiality of
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discovery materials, to adequately protect information the parties are entitled to
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keep confidential, to ensure that the parties are permitted reasonable necessary uses
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of such material in preparation for and in the conduct of trial, to address their
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handling at the end of the litigation, and serve the ends of justice, a protective order
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for such information is justified in this matter. It is the intent of the parties that
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information will not be designated as confidential for tactical reasons and that
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nothing be so designated without a good faith belief that it has been maintained in a
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confidential, non-public manner, and there is good cause why it should not be part
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of the public record of this case.
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C.
ACKNOWLEDGEMENT OF PROCEDURE FOR FILING UNDER
SEAL
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The parties further acknowledge, as set forth in Section 12.3, below, that this
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Stipulated Protective Order does not entitle them to file confidential information
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under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
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and the standards that will be applied when a party seeks permission from the court
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to file material under seal.
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There is a strong presumption that the public has a right of access to judicial
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proceedings and records in civil cases. In connection with non-dispositive motions,
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good cause must be shown to support a filing under seal. See Kamakana v. City and
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County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
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Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
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Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
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require good cause showing), and a specific showing of good cause or compelling
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reasons with proper evidentiary support and legal justification, must be made with
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respect to Protected Material that a party seeks to file under seal. The parties’ mere
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designation of Disclosure or Discovery Material as CONFIDENTIAL or HIGHLY
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CONFIDENTIAL does not—without the submission of competent evidence by
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declaration, establishing that the material sought to be filed under seal qualifies as
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confidential, privileged, or otherwise protectable—constitute good cause.
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Further, if a party requests sealing related to a dispositive motion or trial,
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then compelling reasons, not only good cause, for the sealing must be shown, and
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the relief sought shall be narrowly tailored to serve the specific interest to be
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protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.
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2010). For each item or type of information, document, or thing sought to be filed
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or introduced under seal in connection with a dispositive motion or trial, the party
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seeking protection must articulate compelling reasons, supported by specific facts
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and legal justification, for the requested sealing order. Again, competent evidence
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supporting the application to file documents under seal must be provided by
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declaration.
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Any document that is not confidential, privileged, or otherwise protectable in
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its entirety will not be filed under seal if the confidential portions can be redacted.
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If documents can be redacted, then a redacted version for public viewing, omitting
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only the confidential, privileged, or otherwise protectable portions of the document,
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shall be filed. Any application that seeks to file documents under seal in their
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entirety should include an explanation of why redaction is not feasible.
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2.
DEFINITIONS
2.1
Action: this pending federal lawsuit, captioned Capbran Holdings,
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LLC and NutriBullet, LLC v. Firemall LLC and Mitchel Berkowitz, Case No. 2:16-
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cv-02980-DSF(AFMx), proceeding before the Honorable U.S. District Judge Dale
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S. Fischer, in the United States District Court for the Central District of California.
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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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“HIGHLY CONFIDENTIAL” Information or Items: information
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(regardless of how it is generated, stored or maintained) or tangible things that
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qualify for protection under Federal Rule of Civil Procedure 26(c), and as specified
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above in the Good Cause Statement, and the disclosure of which to a Party, even
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subject to the terms governing Confidential Information under this Order, is likely
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to cause competitive business injury.
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2.5
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
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“CONFIDENTIAL.”
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2.7
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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2.8
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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2.9
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.
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2.11 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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that has appeared on behalf of that party, and includes support staff.
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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).
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2.13 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
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2.14 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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2.15 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”
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2.16 Receiving Party: a Party that receives Disclosure or Discovery
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.
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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
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Once a case proceeds to trial, information that was designated as
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CONFIDENTIAL, HIGHLY CONFIDENTIAL or maintained pursuant to this
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protective order used or introduced as an exhibit at trial becomes public and will be
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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, 447 F.3d at 1180-81
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(distinguishing “good cause” showing for sealing documents produced in discovery
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from “compelling reasons” standard when merits-related documents are part of
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court record). Accordingly, the terms of this protective order do not extend beyond
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the commencement of the trial.
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5.
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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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:
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(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 at a minimum, the legend
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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”) or “HIGHLY
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CONFIDENTIAL” (hereinafter “HIGHLY CONFIDENTIAL legend), to each page
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that contains protected material. If only a portion of the material on a page qualifies
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for protection, the Producing Party also must clearly identify the protected
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portion(s) (e.g., by making appropriate markings in the margins).
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A Party or Non-Party that makes original documents available for inspection
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need not designate them for protection until after the inspecting Party has indicated
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which documents it would like copied and produced. During the inspection and
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before the designation, all of the material made available for inspection shall be
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deemed “HIGHLY CONFIDENTIAL.” After the inspecting Party has identified the
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documents it wants copied and produced, the Producing Party must determine
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which documents, or portions thereof, qualify for protection under this Order. Then,
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before producing the specified documents, the Producing Party must affix the
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“CONFIDENTIAL legend” or “HIGHLY CONFIDENTIAL legend” to each page
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that contains Protected Material. If only a portion of the material on a page qualifies
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for protection, the Producing Party also must clearly identify the protected
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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 identifies
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the Disclosure or Discovery Material on the record, before the close of the
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deposition all protected testimony.
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(c) for information produced in some form other than documentary and for
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any other tangible items, that the Producing Party affix in a prominent place on the
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exterior of the container or containers in which the information is stored the legend
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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” If only a portion or portions
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of the information warrants protection, the Producing Party, to the extent
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practicable, shall identify 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.
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 that is consistent with the Court’s
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Scheduling Order.
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6.2
Meet and Confer. The Challenging Party shall initiate the dispute
resolution process under Local Rule 37-1 et seq.
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Joint Stipulation. Any challenge submitted to the Court shall be via a
joint stipulation pursuant to Local Rule 37-2.
6.4
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.
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
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“CONFIDENTIAL” only to:
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(a)
Party
may
disclose
any
information
or
item
designated
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 Action;
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(b)
the officers, directors, and employees of the Receiving Party to whom
disclosure is reasonably necessary for this Action;
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(c)
House Counsel of the Receiving Party;
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(d)
Experts (as defined in this Order) of the Receiving Party to whom
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disclosure is reasonably necessary for this Action and who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(e)
the court and its personnel;
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(f)
court reporters and their staff;
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(g)
professional jury or trial consultants, mock jurors, and Professional
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Vendors to whom disclosure is reasonably necessary for this Action and who have
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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(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, in the
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Action to whom disclosure is reasonably necessary provided: (1) the deposing party
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requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they
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will not be permitted to keep any confidential information unless they sign the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
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agreed by the Designating Party or ordered by the court. Pages of transcribed
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deposition testimony or exhibits to depositions that reveal Protected Material may
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be separately bound by the court reporter and may not be disclosed to anyone
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except as permitted under this Stipulated Protective Order; and
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(j)
any mediator or settlement officer, and their supporting personnel,
mutually agreed upon by any of the parties engaged in settlement discussions.
7.3
Disclosure of “HIGHLY CONFIDENTIAL” 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 any information or item designated
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“HIGHLY CONFIDENTIAL” only to:
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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 Action;
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(b)
House Counsel of the Receiving Party;
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(c)
Experts (as defined in this Order) of the Receiving Party, who is not an
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employee of a Party, 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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(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 Action and who have
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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
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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.
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8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
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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,” 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
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issue in the other litigation that some or all of the material covered by the subpoena
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or order is subject to this Protective Order. Such notification shall include a copy of
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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.
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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” or “HIGHLY CONFIDENTIAL” before a
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determination by the court from which the subpoena or order issued, unless the
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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.
A
NON-PARTY’S
PROTECTED
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(a)
SOUGHT
TO
BE
PRODUCED IN THIS LITIGATION
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MATERIAL
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” or “HIGHLY
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CONFIDENTIAL.” Such information produced by Non-Parties in connection with
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this litigation is protected by the remedies and relief provided by this Order.
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Nothing in these provisions should be construed as prohibiting a Non-Party from
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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
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Party 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 the Stipulated
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Protective Order in this Action, the relevant discovery request(s), and a reasonably
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specific description of the information requested; and
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(3)
make the information requested available for inspection by the
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Non-Party, if requested.
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(c)
If the Non-Party fails to seek a protective order from this court within
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14 days of receiving the notice and accompanying information, the Receiving Party
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may produce the Non-Party’s confidential information responsive to the discovery
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request. If the Non-Party timely seeks a protective order, the Receiving Party shall
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not produce any information in its possession or control that is subject to the
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confidentiality agreement with the Non-Party before a determination by the court.
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Absent a court order to the contrary, the Non-Party shall bear the burden and
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expense of seeking protection in this court of its Protected Material.
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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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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.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
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PROTECTED MATERIAL
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When a Producing Party gives notice to Receiving Parties that certain
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inadvertently produced material is subject to a claim of privilege or other
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protection, the obligations of the Receiving Parties are those set forth in Federal
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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
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whatever procedure may be established in an e-discovery order that provides for
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production without prior privilege review. Pursuant to Federal Rule of Evidence
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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
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of a communication or information covered by the attorney-client privilege or work
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product protection, the parties may incorporate their agreement in the stipulated
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protective order submitted to the court.
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12.
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MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
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 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 Local Civil 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.
FINAL DISPOSITION
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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 submit a written certification to the Producing Party (and, if
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not the same person or entity, to the Designating Party) by the 60 day deadline that
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(1) identifies (by category, where appropriate) all the Protected Material that was
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returned or destroyed and (2) affirms that the Receiving Party has not retained any
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copies, abstracts, compilations, summaries or any other format reproducing or
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capturing any of the Protected Material. Notwithstanding this provision, Counsel
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are entitled to retain an archival copy of all pleadings, motion papers, trial,
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deposition, and hearing transcripts, legal memoranda, correspondence, deposition
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and trial exhibits, expert reports, attorney work product, and consultant and expert
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work product, even if such materials contain Protected Material. Any such archival
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copies that contain or constitute Protected Material remain subject to this Protective
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Order as set forth in Section 4 (DURATION).
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14. VIOLATION
Any violation of this Order may be punished by appropriate measures
including, without limitation, contempt proceedings and/or monetary sanctions.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD
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TROJAN LAW OFFICES
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DATED:
October 13, 2016
By:
/s/ R. Joseph Trojan
R. Joseph Trojan
Attorneys for Plaintiffs
CAPBRAN HOLDINGS, LLC, and
NUTRIBULLET, LLC
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COHEN IP LAW GROUP
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DATED:
October 13, 2016
By:
/s/ Michael N. Cohen
Michael N. Cohen
Attorneys for Defendant,
FIREMALL, LLC
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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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DATED:
10/18/2016
ALEXANDER F. MacKINNON
United States Magistrate Judge
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EXHIBIT A
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ACKNOWLEDGEMENT 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 have read
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in its entirety and understand the Stipulated Protective Order that was issued by the
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United States District Court for the Central District of California on [date] in the
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case of Capbran Holdings, LLC v. Firemall, LLC, Case No. 2:16-cv-02980-
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DSF(AFMx).
I agree to comply with and to be bound by all terms of this
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Stipulated Protective Order and I understand and acknowledge that failure to so
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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
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that is subject to this Stipulated Protective Order to any person or entity except in
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strict compliance with the provisions of this Order. I further agree to submit to the
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jurisdiction of the United States District Court for the Central District of California
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for enforcing the terms of this Stipulated Protective Order, even if such
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enforcement 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 number] as my California agent for
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service of process in connection with this action or any proceedings related to
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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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