Chester Steele v. General Motors LLC
Filing
42
STIPULATED PROTECTIVE ORDER 41 by Magistrate Judge Steve Kim. (clee)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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Case No. 2:17-cv-4323-TJH (SKx)
4 CHESTER STEELE, individually and on
5 behalf a class of similarly situated
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7
8
STIPULATED PROTECTIVE
ORDER
individual,
Plaintiff,
vs.
GENERAL MOTORS LLC, a Delaware
9 limited liability company,
10
Defendant.
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A. PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidential,
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proprietary, or private information for which special protection from public
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disclosure and from use for any purpose other than prosecuting this litigation may
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be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
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enter the following Stipulated Protective Order. The parties acknowledge that this
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Order does not confer blanket protections on all disclosures or responses to
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discovery and that the protection it affords from public disclosure and use extends
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only to the limited information or items that are entitled to confidential treatment
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under the applicable legal principles. The parties further acknowledge, as set forth
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in Section 12.3, below, that this Stipulated Protective Order does not entitle them
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to file confidential information under seal; Civil Local Rule 79-5 sets forth the
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procedures that must be followed and the standards that will be applied when a
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party seeks permission from the court to file material under seal.
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B. GOOD CAUSE STATEMENT
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This action is likely to involve trade secrets, customer lists and other
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valuable research, development, commercial, financial, technical and/or
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proprietary information for which special protection from public disclosure and
5
from use for any purpose other than prosecution of this action is warranted. Such
6
confidential and proprietary materials and information consist of, among other
7
things, confidential business or financial information, information regarding
8
confidential business practices, or other confidential research, development, or
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commercial information (including information implicating privacy rights of
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customers and other third parties), information otherwise generally unavailable to
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the public, or which may be privileged or otherwise protected from disclosure
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under state or federal statutes, court rules, case decisions, or common law.
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Accordingly, to expedite the flow of information, to facilitate the prompt resolution
14
of disputes over confidentiality of discovery materials, to adequately protect
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information the parties are entitled to keep confidential, to ensure that the parties
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are permitted reasonable necessary uses of such material in preparation for and in
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the conduct of trial, to address their handling at the end of the litigation, and serve
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the ends of justice, a protective order for such information is justified in this
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matter. It is the intent of the parties that information will not be designated as
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confidential for tactical reasons and that nothing be so designated without a good
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faith belief that it has been maintained in a confidential, non-public manner, and
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there is good cause why it should not be part of the public record of this case.
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2.
DEFINITIONS
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2.1
Action: This pending federal law suit and related actions, including
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without limitation Davis v. General Motors LLC, No. 8:17-cv-02431-EAK-AAS,
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pending in the United States District Court for the Middle District of Florida.
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2.2
Challenging Party: a Party or Non-Party that challenges the
designation of information or items under this Order.
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2.3
CONFIDENTIAL and HIGHLY CONFIDENTIAL INFORMATION
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(a)
“CONFIDENTIAL” Information or Items: information (regardless of
3
how it is generated, stored or maintained) or tangible things that qualify for
4
protection under Federal Rule of Civil Procedure 26(c), and as specified above in
5
the Good Cause Statement. Confidential Information may include, but is not
6
limited to (1) engineering documents, including design drawings and other
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technical engineering related specifications, (2) test documents, analysis and
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testing procedures; (3) manufacturing specifications and procedures, including
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communications with and process documents pertaining to Defendant General
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Motors LLC’s (“GM”) suppliers and supplier relationships; (4) internal business or
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financial information; (5) confidential personal information and personal
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identifying information; and (6) any other similar proprietary, confidential, private
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information, commercially sensitive business information, or competitive
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intelligence, including but not limited to trade secrets.
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(b)
“HIGHLY CONFIDENTIAL” Information or Items: Confidential
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Information that a Designating Party reasonably and in good faith believes contains
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or reflects information that constitutes highly sensitive financial or competitive
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information of an individual or entity, highly sensitive personal information (e.g.
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social security numbers), or trade secrets.
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2.4
Counsel: Outside Counsel of Record and House Counsel (as well as
their support staff).
2.5
Designating Party: a Party or Non-Party that designates information
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or items that it produces in disclosures or in responses to discovery as
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“CONFIDENTIAL.”
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2.6
Disclosure or Discovery Material: all items or information, regardless
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of the medium or manner in which it is generated, stored, or maintained (including,
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among other things, testimony, transcripts, and tangible things), that are produced
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or generated in disclosures or responses to discovery in this matter.
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2.7
Expert: a person with specialized knowledge or experience in a
2
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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2.8
House Counsel: attorneys who are employees of a party to this
5
Action. House Counsel does not include Outside Counsel of Record or any other
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outside counsel.
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2.9
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Non-Party: any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.
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2.10 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
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and have appeared in this Action on behalf of that party or are affiliated with a law
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firm which has appeared on behalf of that party, and includes support staff.
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2.11 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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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
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2.13 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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2.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
2.15 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
4
1
extracted from Protected Material; (2) all copies, excerpts, summaries, or
2
compilations of Protected Material; and (3) any testimony, conversations, or
3
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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Even after final disposition of this litigation, the confidentiality obligations
8
imposed by this Order shall remain in effect until a Designating Party agrees
9
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 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:
(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
12
proceedings), that the Producing Party affix at a minimum, the legends
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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” 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).
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A Party or Non-Party that makes original documents available for
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inspection need not designate them for protection until after the inspecting Party
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has indicated which documents it would like copied and produced. During the
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inspection and before the designation, all of the material made available for
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inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has
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identified the documents it wants copied and produced, the Producing Party must
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determine which documents, or portions thereof, qualify for protection under this
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Order. Then, before producing the specified documents, the Producing Party must
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affix the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” legend to each
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page that contains Protected Material. If only a portion or portions of the material
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on a page qualifies for protection, the Producing Party also must clearly identify
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the protected portion(s) (e.g., by making appropriate markings in the margins).
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(b)
for testimony given in depositions that the Designating Party identify
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the Disclosure or Discovery Material on the record, or within ten business days
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after receipt of the transcript or a copy thereof by its Outside Counsel of record,
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during which period the entire transcript will be treated as CONFIDENTIAL
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except as otherwise agreed among the Parties;
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(c)
for information produced in some form other than documentary and
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for any other tangible items, that the Producing Party affix in a prominent place on
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the exterior of the container or containers in which the information is stored the
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legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” If only a portion or
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portions 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
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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.
6.3
The burden of persuasion in any such challenge proceeding shall be
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on 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
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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
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the conditions described in this Order. When the Action has been terminated, a
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Receiving Party must comply with the provisions of section 13 below (FINAL
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DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a
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location and in a secure manner that ensures that access is limited to the persons
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authorized under this Order.
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7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless
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otherwise ordered by the court or permitted in writing by the Designating Party, a
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Receiving Party may disclose any information or item designated
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“CONFIDENTIAL” only to:
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(a)
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 (including House Counsel) of
the Receiving Party to whom disclosure is reasonably necessary for this Action;
(c)
Experts (as defined in this Order) of the Receiving Party to whom
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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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(d)
the court and its personnel;
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(e)
court reporters and their staff;
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1
(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);
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(g)
the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
(h)
during their depositions, witnesses ,and attorneys for witnesses, in the
7
Action to whom disclosure is reasonably necessary provided: (1) the deposing
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party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)
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they 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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(i)
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 persons described in paragraphs 7.2(a), (c),
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(d), (e), (f), (g) and (i).
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7.4
Maintenance of Agreements to Be Bound. Each Party’s counsel shall
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retain each executed Agreement to Be Bound and shall keep a list identifying (a)
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all persons referenced in Paragraphs 7.2(c), (f) and (h) to whom Protected Material
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has been disclosed, and (b) all Protected Material disclosed to such persons. Each
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executed Agreement to Be Bound shall not be made available to the Designating
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Party during the pendency of the litigation but shall be available for an in camera
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inspection by the Court if good cause for review is demonstrated by the
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Designating Party. During the pendency of the litigation or after the termination of
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the litigation, subject to the attorney work product doctrine/attorney-client
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privilege and for good cause shown, the Court may order any party to provide to
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the Designating Party the list referenced above and any executed Agreement to Be
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Bound. However, each such Agreement to Be Bound and list shall be submitted to
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counsel for the Designating Party at the termination of this litigation.
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8.
PRODUCED IN OTHER LITIGATION
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PROTECTED MATERIAL SUBPOENAED OR ORDERED
If a Party is served with a subpoena or a court order issued in other litigation
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that compels disclosure of any information or items designated in this Action as
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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” that Party must:
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(a)
promptly notify in writing the Designating Party. Such notification
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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
15
to issue in the other litigation that some or all of the material covered by the
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subpoena or order is subject to this Protective Order. Such notification shall
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include a copy of this Stipulated Protective Order; and
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(c)
cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served
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with the subpoena or court order shall not produce any information designated in
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this 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.
PRODUCED IN THIS LITIGATION
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3
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
(a)
The terms of this Order are applicable to information produced by a
4
Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
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produced by Non-Parties in connection with this litigation is protected by the
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remedies and relief provided by this Order. Nothing in these provisions should be
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construed as prohibiting a Non-Party from seeking additional protections.
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(b)
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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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-Party
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that some or all of the information requested is subject to a confidentiality
14
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 Non-
Party, if requested.
(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
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Party may produce the Non-Party’s confidential information responsive to the
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discovery request. If the Non-Party timely seeks a protective order, the Receiving
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Party shall not produce any information in its possession or control that is subject
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to the confidentiality agreement with the Non-Party before a determination by the
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court. Absent a court order to the contrary, the Non-Party shall bear the burden
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and expense of seeking protection in this court of its Protected Material.
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10.
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If a Receiving Party learns that, by inadvertence or otherwise, it has
3
disclosed Protected Material to any person or in any circumstance not authorized
4
under this Stipulated Protective Order, the Receiving Party must immediately (a)
5
notify in writing the Designating Party of the unauthorized disclosures, (b) use its
6
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.
11.
INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL
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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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
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work product protection, the parties may incorporate their agreement in the
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stipulated protective order submitted to the court.
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12.
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12.1 Right to Further Relief. Nothing in this Order abridges the right of any
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MISCELLANEOUS
person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this
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Protective Order no Party waives any right it otherwise would have to object to
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disclosing or producing any information or item on any ground not addressed in
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1
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
3
Order.
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12.3 Filing Protected Material. A Party that seeks to file under seal any
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Protected Material must comply with Civil Local Rule 79-5. Protected Material
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may only be filed under seal pursuant to a court order authorizing the sealing of the
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specific Protected Material at issue. If a Party's request to file Protected Material
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under seal is denied by the court, then the Receiving Party may file the
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information 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
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60 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
22
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
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Protective Order as set forth in Section 4 (DURATION).
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1
UNITED STATES DISTRICT COURT
2
CENTRAL DISTRICT OF CALIFORNIA
3
4 CHESTER STEELE, individually and on
Case No. 2:17-cv-4323-TJH (SKx)
5
ACKNOWLEDGMENT AND
AGREEMENT TO BE BOUND
behalf a class of similarly situated
individual,
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(EXHIBIT A)
Plaintiff,
vs.
8
GENERAL MOTORS LLC, a Delaware
9 limited liability company,
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Defendant.
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I,
_____________________________ [print or
type full name],
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of _____________________________________________________________
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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
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_______________ [date] in the case of Steele v. General Motors LLC, Case No.
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2:17-cv-4323-TJH (SKx).
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I agree to comply with and to be bound by all the terms of this Stipulated
22
Protective Order and I understand and acknowledge that failure to so comply could
23
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
26
compliance with the provisions of this Order. I further agree to submit to the
27
jurisdiction of the United States District Court for the Central District of California
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for the purpose of enforcing the terms of this Stipulated Protective Order, even if
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such enforcement proceedings occur after termination of this action. I hereby
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appoint _________________________________________ [print or type full
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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: ______________________________________
City and State where sworn and signed: _________________________________
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Printed name: _______________________________
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Signature: __________________________________
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