Adel F. Samaan v. United HealthCare Services, Inc., et al

Filing 23

STIPULATED PROTECTIVE ORDER by Magistrate Judge Alicia G. Rosenberg. re Stipulation for Protective Order 22 . (See Order for Further Details) (kl)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ADEL F. SAMAAN, M.D., an individual

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Plaintiff,
v.
UNITED HEALTHCARE SERVICES,
INC.; UNITED HEALTHCARE
INSURANCE COMPANY; and DOES
1 through 100;

Case No. 2:17-cv-01693-DSF (AGRx)
STIPULATED PROTECTIVE
ORDER
Complaint Filed: March 2, 2017

Defendants.

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2:17-CV-01693-DSF (AGRx)
STIPULATED PROTECTIVE ORDER

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1.

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Disclosure and discovery activity in this action are likely to involve

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production of confidential, proprietary, or private information for which special

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protection from public disclosure and from use for any purpose other than

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prosecuting this litigation may be warranted. Accordingly, the parties hereby

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stipulate to and petition the court to enter the following Stipulated Protective

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Order. The parties acknowledge that this Order does not confer blanket protections

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on all disclosures or responses to discovery and that the protection it affords from

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public disclosure and use extends only to the limited information or items that are

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entitled to confidential treatment under the applicable legal principles. The parties

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further acknowledge, as set forth in Section 12.3, below, that this Proposed

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Protective Order does not entitle them to file confidential information under seal;

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Local Rule 79-5 sets forth the procedures that must be followed and the standards

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that will be applied when a party seeks permission from the court to file material

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under seal.

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PURPOSES AND LIMITATIONS

Based upon the Stipulation of the parties and pursuant to Rule 26(c) of the
Federal Rules of Civil Procedure, IT IS HEREBY ORDERED that:

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2.

DEFINITIONS

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2.1

Challenging Party: a Party or Non-Party that challenges the

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designation of information or items under this Order.
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“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), including but not limited to

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patient records and data, claim files, non-public financial records and data,

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employee or personnel files, customer or client lists, confidential contracts, other

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healthcare-related information protected by The Health Insurance Portability and

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Accountability Act of 1996, and all other information that the party in good faith

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believes will, if disclosed, cause harm to the Producing Party’s competitive

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position.

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2.3

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

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Items: subset of information (regardless of how it is generated, stored or

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maintained) or tangible things that qualify for protection under Federal Rule of

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Civil Procedure 26(c) subject to limited disclosure as set forth in Paragraph 7.3,

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that will, if disclosed, cause substantial competitive and economic harm to the

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Producing Party. This includes, but is not limited to, trade secrets, United’s

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proprietary claims-review and audit processes, and all other non-public, proprietary

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financial, regulatory, or strategic information and data, to the extent that any of

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these categories of information or tangible things will, if disclosed, cause

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substantial competitive and economic harm to the Producing Party.

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2.4

Counsel (without qualifier): 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” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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2.5

Disclosure or Discovery Material: all items or information, regardless

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of the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are provided,

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produced or generated in relation to the claims and disputes in this matter or in

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disclosures or responses to discovery in this matter.

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2.6

Expert: a person with specialized knowledge or experience in a

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matter pertinent to the litigation who has been retained by a Party or its counsel to

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serve as an expert witness or as a consultant in this action.

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2.7

House Counsel: attorneys who are employees of a party to this

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action. House Counsel does not include Outside Counsel of Record or any other

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outside counsel.
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2.8

Non-Party: any natural person, partnership, corporation, association,

or other legal entity not named as a Party to this action.
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Outside Counsel of Record: attorneys who are not employees of a

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party to this action but are retained to represent or advise a party to this action and

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have appeared in this action on behalf of that party or are affiliated with a law firm

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which has appeared on behalf of that party.

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2.10 Party: any party to this action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.

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2.12 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium)

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and their employees and subcontractors.

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2.13

Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL” or CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.”

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2.14 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.
2.15 United: Collectively, United Healthcare Services, Inc. and United
Healthcare Insurance Company, Inc.

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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 any and all copies, excerpts, or

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compilations of Protected Material. However, the protections conferred by this

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Stipulation and Order do not cover the following information: (a) any information

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that is in the public domain at the time of disclosure to a Receiving Party or
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STIPULATED PROTECTIVE ORDER

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becomes part of the public domain after its disclosure to a Receiving Party as a

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result of publication not involving a violation of this Order, including becoming

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part of the public record through trial or otherwise; and (b) any information known

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to the Receiving Party prior to the disclosure or obtained by the Receiving Party

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after the disclosure from a source who obtained the information lawfully and under

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no obligation of confidentiality to the Designating Party. Any use of Protected

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Material at trial shall be governed by a separate agreement or order.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this action,

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with or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

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including the time limits for filing any motions or applications for extension of

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time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL

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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

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under this Order must take care to limit any such designation to specific material

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that qualifies under the appropriate standards.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection, that Designating Party must

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promptly notify all other Parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations.

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Except as otherwise provided in this Order (see, e.g., second paragraph of

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Section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or

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Discovery Material that qualifies for protection under this Order must be clearly so
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designated before the material is disclosed or produced. Designation in conformity

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with this Order requires:
(a) for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or

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“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that contains

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protected material. If only a portion or portions 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).
(b) for testimony given in a deposition, confidentiality designations

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shall be made either on the record or by written notice to the other party within 14

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days of receipt of the transcript. Unless otherwise agreed, depositions shall be

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treated as “Confidential” during the 14-day period following receipt of the

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transcript. The deposition of any witness (or any portion of such deposition) that

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encompasses Confidential information shall be taken only in the presence of

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persons who are qualified to have access to such information.
(c) 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

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place on the exterior of the container or containers in which the information or

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item is stored the legend “CONFIDENTIAL” or CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” If only a portion or portions of the information or

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item warrant protection, the Producing Party, to the extent practicable, shall

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identify the protected portion(s).

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5.3

Inadvertent Failures to Designate.

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If timely corrected, an inadvertent failure to designate qualified information

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or items does not, standing alone, waive the Designating Party’s right to secure

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protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the

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material is treated in accordance with the provisions of this Order.

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6.

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All challenges to confidentiality designations shall proceed under Local Rule

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

37-1 through Local Rule 37-4.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

Basic Principles.

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A Receiving Party may use Protected Material that is disclosed or produced

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by another Party or by a Non-Party in connection with this case only for

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prosecuting, defending, or attempting to settle this litigation or related litigation

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involving some or all of the parties hereto. Such Protected Material may be

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disclosed only to the categories of persons and under the conditions described in

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this Order. When the litigation has been terminated, a Receiving Party must

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comply with the provisions of Section 13 below.

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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

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Unless otherwise ordered by the court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item

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designated “CONFIDENTIAL” only to:

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Disclosure of “CONFIDENTIAL” Information or Items.

(a) the Receiving Party’s Outside Counsel of Record in this action, as well

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as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation;

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(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation;

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(c) Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, mock

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jurors, licensed private investigators retained by Counsel, and Professional

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Vendors to whom disclosure is reasonably necessary for this litigation and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(f) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or

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ordered by the court. Pages of transcribed deposition testimony or exhibits to

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depositions that reveal Protected Material must be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order.

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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.
7.3

Disclosure of “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
Information or Items.

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Unless otherwise ordered by the court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item

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designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action;

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(b) United’s House Counsel in this action;

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(c) Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;
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(e) court reporters and their staff, professional jury or trial consultants, mock

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jurors, licensed private investigators retained by Counsel, and Professional

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Vendors to whom disclosure is reasonably necessary for this litigation and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(f) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or

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ordered by the court. Pages of transcribed deposition testimony or exhibits to

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depositions that reveal Protected Material must be separately bound by the court

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reporter and may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order.

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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

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PRODUCED

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If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information designated by an opposing or third

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party in this Action as “CONFIDENTIAL” or “CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY,” that Party must:

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(a) unless prohibited by a Court Order, or specifically prohibited by a statute

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or regulation cited to the producing party by the requesting party, promptly notify

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in writing the Designating Party. Such notification shall include a copy of the

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subpoena or court order, unless prohibited by law;

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(b) promptly notify in writing the party who caused the request, or subpoena,

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or order to issue in the other litigation that some or all of the material covered by

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the 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) when applicable, as set forth in ¶ (a), cooperate with respect to all

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reasonable procedures sought to be pursued by the Designating Party whose

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Protected Material may be affected. However, the parties must follow the

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procedures set forth in Federal Rule of Civil Procedure 45(d)(2) when asserting

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that subpoenaed or requested information is subject to a privilege. The filing of a

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motion for a protective order does not, by itself, stay compliance with a subpoena.

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If the Designating Party timely seeks a protective order from a court of

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competent jurisdiction, the Party served with the subpoena or court order shall not

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produce any information designated in this action as “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 or as otherwise required by

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law or court order. The Designating Party shall bear the burden and expense of

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seeking protection in that court of its confidential material and nothing in these

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provisions should be construed as authorizing or encouraging a Receiving Party in

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this Action to disobey a lawful directive from another court.

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED

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9.1

The terms of this Order are applicable to information, documents

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and/or tangible things produced by a Non-Party in this action, and designated as

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“CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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Such information produced by Non-Parties, when so designated by the Non-Party

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upon production or by any other Party pursuant to Section 9.2 below, is protected

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by the remedies and relief provided by this Order. Nothing in these provisions

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should be construed as prohibiting a Non-Party from seeking additional

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protections.

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9.2

In the event that a Party is required, by a valid discovery request, to

produce a Non-Party’s confidential information in its possession, and the Party is

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STIPULATED PROTECTIVE ORDER

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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:
(a) promptly notify in writing the Requesting Party and the Non-Party

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that some or all of the information requested is subject to a confidentiality

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agreement with a Non-Party;
(b) promptly provide the Non-Party with a copy of the Stipulated

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Protective Order in this litigation, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and
(c) make the information requested available for inspection by the

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Non-Party.
If the Non-Party fails to object or seek a protective order from this Court

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within fourteen (14) days of receiving the notice and accompanying information,

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the Receiving Party may produce the Non-Party’s confidential information

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responsive to the discovery request. If the Non-Party timely seeks a protective

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order, the Receiving Party shall not produce any information in its possession or

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control that 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

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Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED

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MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately (a)

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notify in writing the Designating Party of the unauthorized disclosures, (b) use its

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best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform

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the person or persons to whom unauthorized disclosures were made of all the terms

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of this Order, and (d) request such person or persons to execute the
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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR

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OTHERWISE PROTECTED MATERIAL

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In accordance with Federal Rule of Civil Procedure 26(b)(5)(B) and Federal

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Rule of Evidence 502, any Party who inadvertently produces Discovery Material

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that is privileged or otherwise immune from discovery shall, promptly upon

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discovery of such inadvertent production, so advise the Producing Party and

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request that the Discovery Materials be returned. The Receiving Party shall return,

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sequester, or destroy such inadvertently produced Discovery Materials, including

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all copies, within five (5) business days of receiving such a written request. The

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Party returning such inadvertently produced Discovery Materials may thereafter

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seek re-production of any such Discovery Materials pursuant to applicable law.

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12.

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12.1 Right to Further Relief.

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Nothing in this Order abridges the right of any person to seek its

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MISCELLANEOUS

modification by the court in the future.

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12.2 Right to Assert Other Objections.

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By stipulating to the entry of this Protective Order no Party waives any right

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it otherwise would have to object to disclosing or producing any information or

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item on any ground not addressed in this Stipulated Protective Order. Similarly, no

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Party waives any right to object on any ground to use in evidence of any of the

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material covered by this Protective Order.

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12.3 Filing Protected Material.

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Without written permission from the Designating Party or a court order

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secured after appropriate notice to all interested persons, a Party may not file in the

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public record in this action any Protected Material. A Party that seeks to file under

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seal any Protected Material must comply with 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. Pursuant to Local Rule 79-5, a sealing order

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will issue only upon a request establishing that the Protected Material at issue is

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privileged, protectable as a trade secret, or otherwise entitled to protection under

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the law. If a Receiving Party's request to file Protected Material under seal

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pursuant to Local Rule 79-5 is denied by the court, then the Receiving Party may

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file the information in the public record unless otherwise instructed by the court.

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13.

FINAL DISPOSITION

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Within 60 days after the final disposition of this action, as defined in

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paragraph 4, each Receiving Party must return all Protected Material to the

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Producing Party or destroy such material. As used in this subdivision, “all

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Protected Material” includes all copies, abstracts, compilations, summaries, and

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any other format reproducing or capturing any of the Protected Material. Whether

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the Protected Material is returned or destroyed, the Receiving Party must submit a

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written certification to the Producing Party (and, if not the same person or entity, to

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the Designating Party) by the 60 day deadline that (1) identifies (by category,

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where appropriate) all the Protected Material that was returned or destroyed and

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(2) affirms that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries or any other format reproducing or capturing any of the

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Protected Material. Notwithstanding this provision, Counsel are entitled to retain

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an archival copy of all pleadings, motion papers, trial, deposition, and hearing

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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

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reports, attorney work product, and consultant and expert work product, even if

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such materials contain Protected Material. Any such archival copies that contain

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or constitute Protected Material remain subject to this Protective Order as set forth

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in Section 4 (DURATION).

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///

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///
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IT IS SO ORDERED.

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Dated: July 12, 2017

Hon. Alicia G. Rosenberg
United States Magistrate Judge

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

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________________

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[print or type full address], declare under penalty of perjury that I have read in its

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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 [________] in

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the case of Adel F. Samaan, M.D. v. United Healthcare Services, Inc., et al. Case

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No. 2:17-CV-01693-DSF (AGRx).
I agree to comply with and to be bound by all the terms of this Stipulated

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Protective Order and I understand and acknowledge that failure to so comply could

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expose me to sanctions and punishment in the nature of contempt. I solemnly

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promise that I will not disclose in any manner any information or item that is

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subject to this Stipulated Protective Order to any person or entity except in strict

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compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District

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Court for the Central District of California for the purpose of enforcing the terms

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of this Stipulated Protective Order, even if such enforcement proceedings occur

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after termination of this action.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________

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[printed name]

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Signature: __________________________________

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[signature]

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2:17-CV-01693-DSF (AGRx)
PROOF OF SERVICE

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