Greg Young Publishing, Inc. v. Zazzle, Inc.
Filing
35
PROTECTIVE ORDER by Magistrate Judge Karen L. Stevenson re Stipulation for Protective Order 27 (See Order for details) (rh)
1 JEFFREY S. YOUNG, SBN 172016
jeff@jeffreyyounglaw.com
2 LAW OFFICES OF JEFFREY S. YOUNG
1307 State Street, First Floor
3 Santa Barbara, CA 93101
Tel: (805) 884-0338
4 Fax: (805) 884-0799
5
6
.
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11 GREG YOUNG PUBLISHING, INC.,
Plaintiff,
12
v.
Case No. 2:16-cv-04587-SVW-KS
[PROPOSED] STIPULATED
PROTECTIVE ORDER
13
ZAZZLE INC.,
14
Defendant.
15
16
17
18
19
20
21
22
23
24
STIPULATED PROTECTIVE ORDER
Case No. 2:16-cv-04587-SVW-KS
1
1.
PURPOSES AND LIMITATIONS
2
1.1.
Discovery in this action is likely to involve production of confidential,
3 proprietary, or private information for which special protection from public
4 disclosure and from use for any purpose other than prosecuting this litigation may
5 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
6 enter the following Stipulated Protective Order. The parties acknowledge that this
7 Order does not confer blanket protections on all disclosures or responses to
8 discovery and that the protection it affords from public disclosure and use extends
9 only to the limited information or items that are entitled to confidential treatment
10 under the applicable legal principles. The parties further acknowledge, as set forth
11 in Section 12.3, below, that this Stipulated Protective Order does not entitle them
12 to file confidential information under seal; Civil Local Rule 79-5 sets forth the
13 procedures that must be followed and the standards that will be applied when a
14 party seeks permission from the court to file material under seal.
15
1.2.
This action is likely to involve trade secrets, customer and pricing lists
16 and other valuable research, development, commercial, financial, technical and/or
17 proprietary information for which special protection from public disclosure and
18 from use for any purpose other than prosecution of this action is warranted. Such
19 confidential and proprietary materials and information consist of, among other
20 things, confidential business or financial information, information regarding
21 confidential business practices, or other confidential research, development, or
22 commercial information (including information implicating privacy rights of third
23 parties), information otherwise generally unavailable to the public, or which may
24 be privileged or otherwise protected from disclosure under state or federal statutes,
STIPULATED PROTECTIVE ORDER
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1 court rules, case decisions, or common law. Accordingly, to expedite the flow of
2 information, to facilitate the prompt resolution of disputes over confidentiality of
3 discovery materials, to adequately protect information the parties are entitled to
4 keep confidential, to ensure that the parties are permitted reasonable necessary uses
5 of such material in preparation for and in the conduct of trial, to address their
6 handling at the end of the litigation, and serve the ends of justice, a protective order
7 for such information is justified in this matter. It is the intent of the parties that
8 information will not be designated as confidential for tactical reasons and that
9 nothing be so designated without a good faith belief that it has been maintained in
10 a confidential, non-public manner, and there is good cause why it should not be
11 part of the public record of this case.
12
2.
DEFINITIONS
13
2.1.
Action: this pending federal lawsuit.
14
2.2.
Challenging Party: a Party or Non-Party that challenges the
15 designation of information or items under this Order.
16
2.3.
“CONFIDENTIAL” Information or Items: information (regardless of
17 how it is generated, stored or maintained) or tangible things that qualify for
18 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
19 the Good Cause Statement.
20
2.4.
Counsel: Outside Counsel of Record and House Counsel (as well as
21 their support staff).
22
2.5.
Designating Party: a Party or Non-Party that designates information or
23 items that it produces in disclosures or in responses to discovery as
24 “CONFIDENTIAL.”
STIPULATED PROTECTIVE ORDER
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1
2.6.
Disclosure or Discovery Material: all items or information, regardless
2 of the medium or manner in which it is generated, stored, or maintained (including,
3 among other things, testimony, transcripts, and tangible things), that are produced
4 or generated in disclosures or responses to discovery in this matter.
5
2.7.
Expert: a person with specialized knowledge or experience in a matter
6 pertinent to the litigation who has been retained by a Party or its counsel to serve
7 as an expert witness or as a consultant in this Action.
8
2.8.
House Counsel: attorneys who are employees of a party to this Action.
9 House Counsel does not include Outside Counsel of Record or any other outside
10 counsel.
11
2.9.
Non-Party: any natural person, partnership, corporation, association,
12 or other legal entity not named as a Party to this action.
13
2.10. Outside Counsel of Record: attorneys who are not employees of a
14 party to this Action but are retained to represent or advise a party to this Action
15 and have appeared in this Action on behalf of that party or are affiliated with a law
16 firm which has appeared on behalf of that party, and includes support staff.
17
2.11. Party: any party to this Action, including all of its officers, directors,
18 employees, consultants, retained experts, and Outside Counsel of Record (and their
19 support staffs).
20
2.12. Producing Party: a Party or Non-Party that produces Disclosure or
21 Discovery Material in this Action.
22
2.13. Professional Vendors: persons or entities that provide litigation
23 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
24
STIPULATED PROTECTIVE ORDER
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1 demonstrations, and organizing, storing, or retrieving data in any form or medium)
2 and their employees and subcontractors.
3
2.14. Protected Material: any Disclosure or Discovery Material that is
4 designated as “CONFIDENTIAL.”
5
2.15. Receiving Party: a Party that receives Disclosure or Discovery
6 Material from a Producing Party.
7
3.
SCOPE
8
3.1.
The protections conferred by this Stipulation and Order cover not only
9 Protected Material (as defined above), but also; (1) any information copied or
10 extracted from Protected Material, (2) all copies, excerpts, summaries, or
11 compilations of Protected Material, and (3) any testimony, conversations, or
12 presentations by Parties or their Counsel that might reveal Protected Material.
13
3.2.
Any use of Protected Material at trial shall be governed by the orders
14 of the trial judge. This Order does not govern the use of Protected Material at trial.
15
4.
DURATION
16
Even after final disposition of this litigation, the confidentiality obligations
17 imposed by this Order shall remain in effect until a Designating Party agrees
18 otherwise in writing or a court order otherwise directs. Final disposition shall be
19 deemed to be the later of (1) dismissal of all claims and defenses in this Action,
20 with or without prejudice; and (2) final judgment herein after the completion and
21 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
22 including the time limits for filing any motions or applications for extension of
23 time pursuant to applicable law.
24
STIPULATED PROTECTIVE ORDER
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1
5.
DESIGNATING PROTECTED MATERIAL
2
5.1.
Exercise of Restraint and Care in Designating Material for Protection.
3 Each Party or Non-Party that designates information or items for protection under
4 this Order must take care to limit any such designation to specific material that
5 qualifies under the appropriate standards. The Designating Party must designate for
6 protection only those parts of material, documents, items, or oral or written
7 communications that qualify so that other portions of the material, documents,
8 items, or communications for which protection is not warranted are not swept
9 unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized
10 designations are prohibited. Designations that are shown to be clearly unjustified
11 or that have been made for an improper purpose (e.g., to unnecessarily encumber
12 the case development process or to impose unnecessary expenses and burdens on
13 other parties) may expose the Designating Party to sanctions. If it comes to a
14 Designating Party’s attention that information or items that it designated for
15 protection do not qualify for protection, that Designating Party must promptly
16 notify all other Parties that it is withdrawing the inapplicable designation.
17
5.2.
Manner and Timing of Designations. Except as otherwise provided in
18 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
19 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
20 under this Order must be clearly so designated before the material is disclosed or
21 produced. Designation in conformity with this Order requires:
22
5.2.1.
for information in documentary form (e.g., paper or
23
electronic documents, but excluding transcripts of depositions or other
24
pretrial or trial proceedings), that the Producing Party affix at a minimum,
STIPULATED PROTECTIVE ORDER
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1
the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to
2
each page that contains protected material. If only a portion or portions of
3
the material on a page qualifies for protection, the Producing Party also must
4
clearly identify the protected portion(s) (e.g., by making appropriate
5
markings in the margins). A Party or Non-Party that makes original
6
documents available for inspection need not designate them for protection
7
until after the inspecting Party has indicated which documents it would like
8
copied and produced. During the inspection and before the designation, all
9
of the material made available for inspection shall be deemed
10
“CONFIDENTIAL.” After the inspecting Party has identified the documents
11
it wants copied and produced, the Producing Party must determine which
12
documents, or portions thereof, qualify for protection under this Order.
13
Then, before producing the specified documents, the Producing Party must
14
affix the “CONFIDENTIAL legend” to each page that contains Protected
15
Material. If only a portion or portions of the material on a page qualifies for
16
protection, the Producing Party also must clearly identify the protected
17
portion(s) (e.g., by making appropriate markings in the margins).
18
5.2.2.
for testimony given in depositions that the Designating Party
19
identify the Disclosure or Discovery Material on the record, before the close
20
of the deposition all protected testimony.
21
5.2.3.
for information produced in some form other than
22
documentary and for any other tangible items, that the Producing Party affix
23
in a prominent place on the exterior of the container or containers in which
24
the information is stored the legend “CONFIDENTIAL.” If only a portion
STIPULATED PROTECTIVE ORDER
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Case No. 2:16-cv-04587-SVW-KS
1
or portions of the information warrants protection, the Producing Party, to
2
the extent practicable, shall identify the protected portion(s).
3
5.3.
Inadvertent Failures to Designate. If timely corrected, an inadvertent
4 failure to designate qualified information or items does not, standing alone, waive
5 the Designating Party’s right to secure protection under this Order for such
6 material. Upon timely correction of a designation, the Receiving Party must make
7 reasonable efforts to assure that the material is treated in accordance with the
8 provisions of this Order.
9
10
6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1.
Timing of Challenges. Any Party or Non-Party may challenge a
11 designation of confidentiality at any time that is consistent with the Court’s
12 Scheduling Order.
13
6.2.
Meet and Confer. The Challenging Party shall initiate the dispute
14 resolution process under Local Rule 37.1 et seq.
15
6.3.
The burden of persuasion in any such challenge proceeding shall be
16 on the Designating Party. Frivolous challenges, and those made for an improper
17 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
18 parties) may expose the Challenging Party to sanctions. Unless the Designating
19 Party has waived or withdrawn the confidentiality designation, all parties shall
20 continue to afford the material in question the level of protection to which it is
21 entitled under the Producing Party’s designation until the Court rules on the
22 challenge.
23
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STIPULATED PROTECTIVE ORDER
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Case No. 2:16-cv-04587-SVW-KS
1
7.
ACCESS TO AND USE OF PROTECTED MATERIAL
2
7.1.
Basic Principles. A Receiving Party may use Protected Material that is
3 disclosed or produced by another Party or by a Non-Party in connection with this
4 Action only for prosecuting, defending, or attempting to settle this Action. Such
5 Protected Material may be disclosed only to the categories of persons and under
6 the conditions described in this Order. When the Action has been terminated, a
7 Receiving Party must comply with the provisions of section 13 below (FINAL
8 DISPOSITION). Protected Material must be stored and maintained by a Receiving
9 Party at a location and in a secure manner that ensures that access is limited to the
10 persons authorized under this Order.
11
7.2.
Disclosure of “CONFIDENTIAL” Information or Items. Unless
12 otherwise ordered by the court or permitted in writing by the Designating Party, a
13 Receiving Party may disclose any information or item designated
14 “CONFIDENTIAL” only to:
15
7.2.1.
the Receiving Party’s Outside Counsel of Record in this
16
Action, as well as employees of said Outside Counsel of Record to whom it
17
is reasonably necessary to disclose the information for this Action;
18
7.2.2.
the officers, directors, and employees (including House
19
Counsel) of the Receiving Party to whom disclosure is reasonably necessary
20
for this Action;
21
7.2.3.
Experts (as defined in this Order) of the Receiving Party to
22
whom disclosure is reasonably necessary for this Action and who have
23
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
24
7.2.4.
the court and its personnel;
STIPULATED PROTECTIVE ORDER
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1
7.2.5.
court reporters and their staff;
2
7.2.6.
professional jury or trial consultants, mock jurors, and
3
Professional Vendors to whom disclosure is reasonably necessary for this
4
Action and who have signed the “Acknowledgment and Agreement to Be
5
Bound” (Exhibit A);
6
7.2.7.
the author or recipient of a document containing the
7
information or a custodian or other person who otherwise possessed or knew
8
the information;
9
7.2.8.
during their depositions, witnesses ,and attorneys for
10
witnesses, in the Action to whom disclosure is reasonably necessary
11
provided: (1) the deposing party requests that the witness sign the form
12
attached as Exhibit 1 hereto; and (2) they will not be permitted to keep any
13
confidential information unless they sign the “Acknowledgment and
14
Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the
15
Designating Party or ordered by the court. Pages of transcribed deposition
16
testimony or exhibits to depositions that reveal Protected Material may be
17
separately bound by the court reporter and may not be disclosed to anyone
18
except as permitted under this Stipulated Protective Order; and
19
7.2.9.
any mediator or settlement officer, and their supporting
20
personnel, mutually agreed upon by any of the parties engaged in settlement
21
discussions.
22
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STIPULATED PROTECTIVE ORDER
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Case No. 2:16-cv-04587-SVW-KS
8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
8.1.
1
If a Party is served with a subpoena or a court order issued in other
2
3
litigation that compels disclosure of any information or items designated in this
4
Action as “CONFIDENTIAL,” that Party must:
5
8.1.1.
promptly notify in writing the Designating Party. Such
6
notification shall include a copy of the subpoena or court order;
7
8.1.2.
promptly notify in writing the party who caused the
8
subpoena or order to issue in the other litigation that some or all of the
9
material covered by the subpoena or order is subject to this Protective Order.
10
Such notification shall include a copy of this Stipulated Protective Order;
11
and
12
8.1.3.
cooperate with respect to all reasonable procedures sought to
13
be pursued by the Designating Party whose Protected Material may be
14
affected.
15
8.2.
If the Designating Party timely seeks a protective order, the Party
16
served with the subpoena or court order shall not produce any information
17
designated in this action as “CONFIDENTIAL” before a determination by the
18
court from which the subpoena or order issued, unless the Party has obtained the
19
Designating Party’s permission. The Designating Party shall bear the burden and
20
expense of seeking protection in that court of its confidential material and nothing
21
in these provisions should be construed as authorizing or encouraging a Receiving
22
Party in this Action to disobey a lawful directive from another court.
23
24
STIPULATED PROTECTIVE ORDER
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9.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
9.1.
1
The terms of this Order are applicable to information produced by a
2
3
Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
4
produced by Non-Parties in connection with this litigation is protected by the
5
remedies and relief provided by this Order. Nothing in these provisions should be
6
construed as prohibiting a Non-Party from seeking additional protections.
7
9.2.
In the event that a Party is required, by a valid discovery request, to
8
produce a Non-Party’s confidential information in its possession, and the Party is
9
subject to an agreement with the Non-Party not to produce the Non-Party’s
10
confidential information, then the Party shall:
11
9.2.1.
promptly notify in writing the Requesting Party and the
12
Non-Party that some or all of the information requested is subject to a
13
confidentiality agreement with a Non-Party;
14
9.2.2.
promptly provide the Non-Party with a copy of the
15
Stipulated Protective Order in this Action, the relevant discovery request(s),
16
and a reasonably specific description of the information requested; and
17
9.2.3.
make the information requested available for inspection by
18
the Non-Party, if requested.
19
9.3.
If the Non-Party fails to seek a protective order from this court within
20
14 days of receiving the notice and accompanying information, the Receiving
21
Party may produce the Non-Party’s confidential information responsive to the
22
discovery request. If the Non-Party timely seeks a protective order, the Receiving
23
Party shall not produce any information in its possession or control that is subject
24
STIPULATED PROTECTIVE ORDER
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Case No. 2:16-cv-04587-SVW-KS
1 to the confidentiality agreement with the Non-Party before a determination by the
2 court. Absent a court order to the contrary, the Non-Party shall bear the burden and
3 expense of seeking protection in this court of its Protected Material.
10.
4
UNAUTHORIZED DISCLOSURE OF PROTECTED
MATERIAL
5
If a Receiving Party learns that, by inadvertence or otherwise, it has
6
disclosed Protected Material to any person or in any circumstance not authorized
7
under this Stipulated Protective Order, the Receiving Party must immediately (a)
8
notify in writing the Designating Party of the unauthorized disclosures, (b) use its
9
best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
10
the person or persons to whom unauthorized disclosures were made of all the terms
11
of this Order, and (d) request such person or persons to execute the
12
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
13
A.
14
11.
15
16
INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL
11.1. When a Producing Party gives notice to Receiving Parties that certain
17 inadvertently produced material is subject to a claim of privilege or other
18 protection, the obligations of the Receiving Parties are those set forth in Federal
19 Rule of Civil Procedure 26(b)(5)(B).
20
21
11.2. Pursuant to Fed. R. Evid. 502(d) and Fed. R. Evid. 502(e):
11.2.1.
Disclosures among counsel for different parties and
22
nonparties relating to issues of common interest shall not affect or be
23
deemed a waiver of any applicable privilege or protection from disclosure.
24
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11.2.2.
1
The mere production to a Receiving Party of a privileged or
2
work-product-protected document is not a waiver of privilege or protection
3
from discovery in this case or in any other federal or state proceeding. For
4
example, the mere production of privileged or work-product-protected
5
documents in this case as part of a mass production is not itself a waiver in
6
this case or any other federal or state proceeding.
11.2.3.
7
A Producing Party may assert privilege or protection over
8
produced documents at any time by notifying the Receiving Party in writing
9
of the assertion of privilege or protection.
10
12.
MISCELLANEOUS
11
12.1. Right to Further Relief. Nothing in this Order abridges the right of any
12 person to seek its modification by the Court in the future.
13
12.2. Right to Assert Other Objections. By stipulating to the entry of this
14 Protective Order no Party waives any right it otherwise would have to object to
15 disclosing or producing any information or item on any ground not addressed in
16 this Stipulated Protective Order. Similarly, no Party waives any right to object on
17 any ground to use in evidence of any of the material covered by this Protective
18 Order.
19
12.3. Filing Protected Material. A Party that seeks to file under seal any
20 Protected Material must comply with Civil Local Rule 79-5. Protected Material
21 may only be filed under seal pursuant to a court order authorizing the sealing of the
22 specific Protected Material at issue. If a Party's request to file Protected Material
23 under seal is denied by the court, then the Receiving Party may file the information
24 in the public record unless otherwise instructed by the court.
STIPULATED PROTECTIVE ORDER
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1
13.
FINAL DISPOSITION
2
After the final disposition of this Action, as defined in paragraph 4, within
3 60 days of a written request by the Designating Party, each Receiving Party must
4 return all Protected Material to the Producing Party or destroy such material. As
5 used in this subdivision, “all Protected Material” includes all copies, abstracts,
6 compilations, summaries, and any other format reproducing or capturing any of the
7 Protected Material. Whether the Protected Material is returned or destroyed, the
8 Receiving Party must submit a written certification to the Producing Party (and, if
9 not the same person or entity, to the Designating Party) by the 60 day deadline that
10 (1) identifies (by category, where appropriate) all the Protected Material that was
11 returned or destroyed and (2) affirms that the Receiving Party has not retained any
12 copies, abstracts, compilations, summaries or any other format reproducing or
13 capturing any of the Protected Material. Notwithstanding this provision, Counsel
14 are entitled to retain an archival copy of all pleadings, motion papers, trial,
15 deposition, and hearing transcripts, legal memoranda, correspondence, deposition
16 and trial exhibits, expert reports, attorney work product, and consultant and expert
17 work product, even if such materials contain Protected Material. Any such archival
18 copies that contain or constitute Protected Material remain subject to this
19 Protective Order as set forth in Section 4 (DURATION).
20 \\
21 \\
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STIPULATED PROTECTIVE ORDER
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1
14.
VIOLATIONS
2
Any violation of this Order may be punished by any and all appropriate
3 measures including, without limitation, contempt proceedings and/or monetary
4 sanctions.
5
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
6
7 DATED: January 31, 2017
______________________________
8
KAREN L. STEVENSON
UNITED STATES MAGISTRATE JUDGE
9
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STIPULATED PROTECTIVE ORDER
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Case No. 2:16-cv-04587-SVW-KS
EXHIBIT A
1
2
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
I, ______________ [print or type full name], of ______________________
4 [print or type full address], declare under penalty of perjury that I have read in its
5 entirety and understand the Stipulated Protective Order that was issued by the
6 United States District Court for the Central District of California on January 31,
7 2017 in the case of Greg Young Publishing, Inc. v. Zazzle, Inc., No. 2:16-cv8 04587-SVW-KS. I agree to comply with and to be bound by all the terms of this
9 Stipulated Protective Order and I understand and acknowledge that failure to so
10 comply could expose me to sanctions and punishment in the nature of contempt. I
11 solemnly promise that I will not disclose in any manner any information or item
12 that is subject to this Stipulated Protective Order to any person or entity except in
13 strict compliance with the provisions of this Order.
14
I further agree to submit to the jurisdiction of the United States District
15 Court for the Central District of California for the purpose of enforcing the terms
16 of this Stipulated Protective Order, even if such enforcement proceedings occur
17 after termination of this action. I hereby appoint ________________ [print or type
18 full name] of ________________ [print or type full address and telephone number]
19 as my California agent for service of process in connection with this action or any
20 proceedings related to enforcement of this Stipulated Protective Order.
21
Date: __________________
22
City and State where sworn and signed: ___________________________
23
Printed name: _______________________________
24
Signature: __________________________________
EXHIBIT A TO STIPULATED PROTECTIVE
ORDER—AGREEMENT TO BE BOUND
Case No. 2:16-cv-04587-SVW-KS
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