Michael Duross v. Home Depot U.S.A, Inc., et al

Filing 17

STIPULATED PROTECTIVE ORDER by Magistrate Judge Jean P. Rosenbluth re Stipulation for Protective Order 16 . (See Order for details) [ Note Changes Made By the Court]. (bem)

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STEPHEN M. HARBER, STATE BAR #119830
DAVID M. GILLEN, STATE BAR #155452
AMY ARSENEAUX, STATE BAR #305828
McCUNE & HARBER, LLP
515 South Figueroa Street, Suite 1100
NOTE: CHANGES MADE BY THE COURT
Los Angeles, California 90071
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant, HOME DEPOT U.S.A., INC.

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

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MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
[phone]
Fax [phone]

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MICHAEL DUROSS, an Individual,

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Plaintiff,
v.
HOME DEPOT U.S.A., INC., and
DOES 1-25, Inclusive.
Defendants.

Case No: 2:17-cv-07006 SJO (JPRx)
Hon. S. James Otero, United States District
Judge & Hon. Jean P. Rosenbluth, United
States Magistrate Judge
STIPULATED PROTECTIVE ORDER
Trial Date: None Set

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1.

PURPOSES AND LIMITATIONS

Discovery in this action is likely to involve production of confidential,
proprietary, or private information for which special protection from public disclosure
and from use for any purpose other than prosecuting this litigation may be warranted.
Accordingly, the parties hereby stipulate to and petition the Court to enter the following
Stipulated Protective Order. The parties acknowledge that this Order does not confer
blanket protections on all disclosures or responses to discovery and that the protection it
affords from public disclosure and use extends only to the limited information or items
that are entitled to confidential treatment under the applicable legal principles. The
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parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated

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

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

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will be applied when a party seeks permission from the court to file material under seal.

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GOOD CAUSE STATEMENT

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Defendant HOME DEPOT U.S.A., INC. (“Home Depot”) considers its

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procedures, operations and training materials confidential, proprietary, commercial

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information pertaining to the internal operations of Home Depot. Home Depot maintains

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MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
[phone]
Fax [phone]

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that dissemination of any information learned throughout the pendency of this action

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could have the same negative effect on the company as dissemination of the above-

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referenced materials. Home Depot believes that to allow the dissemination of

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confidential and/or proprietary information would compromise Home Depot’s market

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position and business interests by exposing its confidential business information to

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competitors and individuals outside the Home Depot corporation. Dissemination of these

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materials to outside parties exposes the Company’s methodologies and could subject

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Home Depot to unwarranted criticism from competitors or other third parties. Such

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unwarranted criticism could have potentially damaging effects on the company’s public

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image and affect its relationship with consumers. Further, allowing distribution of

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Home Depot’s policies, procedures and training materials could provide potential

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plaintiffs and attorneys with unfair and unwarranted insight into the company’s internal

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practices which, in turn, could hinder the company in subsequent litigation.

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As such, this action is likely to involve trade secrets, customer and pricing lists

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and other valuable research, development, commercial, financial, technical and/or

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proprietary information for which special protection from public disclosure and from use

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for any purpose other than prosecution of this action is warranted. Such confidential and

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proprietary materials and information consist of, among other things, confidential

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business or financial information, information regarding confidential business practices,
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or other confidential research, development, or commercial information (including

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information implicating privacy rights of third parties), information otherwise generally

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unavailable to the public, or which may be privileged or otherwise protected from

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disclosure under state or federal statutes, court rules, case decisions, or common law.
Accordingly, to expedite the flow of information, to facilitate the prompt

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resolution 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 are

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permitted reasonable necessary uses of such material in preparation for and in the

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conduct of trial, to address their handling at the end of the litigation, and serve the ends

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MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
[phone]
Fax [phone]

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of justice, a protective order for such information is justified in this matter. It is the

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intent of the parties that information will not be designated as confidential for tactical

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reasons and that nothing be so designated without a good faith belief that it has been

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maintained in a confidential, non-public manner, and there is good cause why it should

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not be part of the public record of this case.

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2.

DEFINITIONS

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2.1

Action: Michael Duross v. Home Depot U.S.A., Inc., Case No. 2:17-CV-

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07006 SJO (JPRX) (Los Angeles County Superior Court Case No. BC670877)
2.2

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

designation of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information (regardless of how it

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is generated, stored or maintained) or tangible things that qualify for protection under

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Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause

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Statement.

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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 or

items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
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2.6

Disclosure or Discovery Material: all items or information, regardless of the

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

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other things, testimony, transcripts, and tangible things), that are produced or generated

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in disclosures or responses to discovery in this matter.

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2.7

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as an

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expert witness or as a consultant in this Action.

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MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
[phone]
Fax [phone]

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2.8

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

House Counsel does not include Outside Counsel of Record or any other outside
counsel.
2.9

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 party to

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this Action but are retained to represent or advise a party to this Action and have

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appeared in this Action on behalf of that party or are affiliated with a law firm which has

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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.
2.13 Professional Vendors: persons or entities that provide litigation support

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services

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

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their employees and subcontractors.

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(e.g.,

photocopying,

videotaping,

translating,

preparing

exhibits

or

2.14 Protected Material: any Disclosure or Discovery Material that is designated
as “CONFIDENTIAL.”

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2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.

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3.

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The protections conferred by this Stipulation and Order cover not only Protected

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Material (as defined above), but also (1) any information copied or extracted from

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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material.

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MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
[phone]
Fax [phone]

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SCOPE

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.
4.

DURATION

Except as provided in Section 13, below, even after final disposition of this
litigation, the confidentiality obligations imposed by this Order shall remain in effect
until a Designating Party agrees otherwise in writing or a court order otherwise directs.
Final disposition shall be deemed to be the later of (1) dismissal of all claims and
defenses in this Action, with or without prejudice; and (2) final judgment herein after
the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of
this Action, including the time limits for filing any motions or applications for
extension of 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. Each

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Party or Non-Party that designates information or items for protection under this Order

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must take care to limit any such designation to specific material that qualifies under the

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appropriate standards. The Designating Party must designate for protection only those

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parts of material, documents, items, or oral or written communications that qualify so

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that other portions of the material, documents, items, or communications for which

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protection is not warranted are not swept unjustifiably within the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that

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are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,

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to unnecessarily encumber the case development process or to impose unnecessary

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expenses and burdens on other parties) may expose the 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 this

Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or

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MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
[phone]
Fax [phone]

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ordered, Disclosure or Discovery Material that qualifies for protection under this Order

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must be clearly so designated before the material is disclosed or 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

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proceedings),

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that contains

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protected material. If only a portion or portions of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s) (e.g.,

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by making appropriate markings in the margins).

that

the

Producing

Party

affix

at

a

minimum,

the

legend

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A Party or Non-Party that makes original documents available for inspection need

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not designate them for protection until after the inspecting Party has indicated which

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documents it would like copied and produced. During the inspection and before the

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designation, all of the material made available for inspection shall be deemed

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions

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thereof, qualify for protection under this Order. Then, before producing the specified

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documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page

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that contains Protected Material. If only a portion or portions of the material on a page
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qualifies for protection, the Producing Party also must clearly identify the protected

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portion(s) (e.g., by making appropriate markings in the margins).

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(b) for testimony given in depositions that the Designating Party identify the

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Disclosure or Discovery Material on the record, before the close of the deposition all

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protected testimony.

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(c) for information produced in some form other than documentary and for

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any other tangible items, that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information is stored the legend

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“CONFIDENTIAL.” If only a portion or portions of the information warrants protection,

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MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
[phone]
Fax [phone]

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the Producing Party, to the extent practicable, shall identify the protected portion(s).
5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

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to designate qualified information or items does not, standing alone, waive the

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Designating Party’s right to secure protection under this Order for such material. Upon

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timely correction of a designation, the Receiving Party must make reasonable efforts to

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assure that the material is treated in accordance with the 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 Scheduling

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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 on the

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Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,

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to harass or impose unnecessary expenses and burdens on other parties) may expose

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the Challenging Party to sanctions. Unless the Designating Party has waived or

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withdrawn the confidentiality designation, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the Producing

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Party’s designation until the Court rules on the 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 the

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conditions described in this Order. When the Action has been terminated, a Receiving

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Party must comply with the provisions of section 13 below (FINAL DISPOSITION).

MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
[phone]
Fax [phone]

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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 “CONFIDENTIAL”

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only to:

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

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

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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;

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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 Action and who have signed the

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

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(d) the court and its personnel;

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(e) court reporters and their staff;

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(f)

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professional jury or trial consultants, mock jurors, and Professional

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);
(g) the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the information;
(h) during their depositions, witnesses, and attorneys for witnesses, in the

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Action to whom disclosure is reasonably necessary provided: (1) the deposing party

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requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not

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be

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed

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by the Designating Party or ordered by the court. Pages of transcribed deposition

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MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
[phone]
Fax [phone]

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testimony or exhibits to depositions that reveal Protected Material may be separately

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bound by the court reporter and may not be disclosed to anyone except as permitted

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under this Stipulated Protective Order; and

permitted

(i)

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to

keep

any

confidential

information

unless

they

sign

the

any mediator or settlement officer, and their supporting personnel,

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mutually agreed upon by any of the parties engaged in settlement discussions or

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appointed by the Court.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

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

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compels disclosure of any information or items designated in this Action as

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“CONFIDENTIAL,” that Party must:

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(a)

promptly notify in writing the Designating Party. Such notification shall

include a copy of the subpoena or court order unless prohibited by law;
(b)

promptly notify in writing the party who caused the subpoena or order to

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

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order is subject to this Protective Order. Such notification shall include a copy of this

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Stipulated Protective Order; and

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(c)

cooperate with respect to all reasonable procedures sought to be pursued
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by the Designating Party whose Protected Material may be affected.

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If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” before a determination by the court from which the subpoena or

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order issued, unless the Party has obtained the Designating Party’s permission. The

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Designating Party shall bear the burden and expense of seeking protection in that court

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of its confidential material and nothing in these provisions should be construed as

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authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive

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from another court.

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MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
[phone]
Fax [phone]

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION

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The terms of this Order are applicable to information produced by a Non-Party in

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this Action and designated as “CONFIDENTIAL.” Such information produced by Non-

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Parties in connection with this litigation is protected by the remedies and relief provided

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by this Order. Nothing in these provisions should be construed as prohibiting a Non-

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Party from seeking additional protections.

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

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

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to an agreement with the Non-Party not to produce the Non-Party’s confidential

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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 agreement

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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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Party, if requested.
(b) If the Non-Party fails to seek a protective order from this court within 14

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days of receiving the notice and accompanying information, the Receiving Party may

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produce the Non-Party’s confidential information responsive to the discovery request. If

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the Non-Party timely seeks a protective order, the Receiving Party shall not produce any

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information in its possession or control that is subject to the confidentiality agreement

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with the Non-Party before a determination by the court. Absent a court order to the

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contrary, the Non-Party shall bear the burden and expense of seeking protection in this

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court of its Protected Material.

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MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
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[phone]
Fax [phone]

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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Protected Material to any person or in any circumstance not authorized under this

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Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing

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the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

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all unauthorized copies of the Protected Material, (c) inform the person or persons to

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whom unauthorized disclosures were made of all the terms of this Order, and (d) request

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such person or persons to execute the “Acknowledgment and Agreement to Be Bound”

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that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other protection, the

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obligations of the Receiving Parties are those set forth in Federal Rule of Civil

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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

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may be established in an e-discovery order that provides for production without prior

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privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
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parties reach an agreement on the effect of disclosure of a communication or information

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covered by the attorney-client privilege or work product protection, the parties may

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incorporate their agreement in the stipulated protective order submitted to the court

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provided the Court so allows.

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///

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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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MCCUNE & HARBER, LLP
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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 this

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Stipulated Protective Order. Similarly, no Party waives any right to object on any ground

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to use in evidence of any of the material covered by this Protective Order.

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12.3 Filing Protected Material. A Party that seeks to file under seal any Protected

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Material must comply with Civil Local Rule 79-5. Protected Material may only be filed

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under seal pursuant to a court order authorizing the sealing of the specific Protected

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Material at issue. If a Party's request to file Protected Material under seal is denied by

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the court, then the Receiving Party may file the information in the public record unless

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otherwise instructed by the court.

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13.

FINAL DISPOSITION

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After the final disposition of this Action, as defined in paragraph 4, within 60

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days of a written request by the Designating Party, each Receiving Party must return all

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Protected Material to the Producing Party or destroy such material. As used in this

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subdivision, “all Protected Material” includes all copies, abstracts, compilations,

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summaries, and any other format reproducing or capturing any of the Protected Material.

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Whether the Protected Material is returned or destroyed, the Receiving Party must

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submit a written certification to the Producing Party (and, if not the same person or
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entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category,

2

where appropriate) all the Protected Material that was returned or destroyed and (2)

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affirms that the Receiving Party has not retained any copies, abstracts, compilations,

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

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Notwithstanding the aforementioned, in the event that the Designating Party fails to

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make the required written request, the Duration set forth in Section 4 shall terminate and

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all obligations hereunder shall cease.

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entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and

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

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MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
[phone]
Fax [phone]

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expert 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 or

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

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Section 4 (DURATION).

Notwithstanding this provision, Counsel are

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14.

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Any violation of this Order may be punished by any and all available legal

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measures.

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BREACH

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Stipulated Protective Order

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: December 21, 2017

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MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
[phone]
Fax [phone]

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/S/ NICHOLAS SICILIANO
Nicholas A. Siciliano, Esq.
Law Offices of Nicholas A. Siciliano
Attorney for Plaintiff, MICHAEL DUROSS

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DATED: December 21, 2017
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/S/ AMY ARSENEAUX
Stephen M. Harber
David M. Gillen
Amy Arseneaux
McCune & Harber, LLP
Attorneys for Defendant, HOME DEPOT U.S.A., INC.

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SIGNATURE CERTIFICATION
Pursuant to Section 2(f)(4) of the Electronic Case Filing Administrative Policies
and Procedures Manual, I hereby certify that the content of this document is acceptable
to Nicholas Siciliano, counsel for Plaintiff MICHAEL DUROSS, and that I have
obtained his authorization to affix his electronic signatures to this document.
/S/ AMY ARSENEAUX

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AMY ARSENEAUX

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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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DATED: January 3, 2018

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__________________________________
Hon. Jean P. Rosenbluth
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
[phone]
Fax [phone]

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____________________ [print or type full address], declare under penalty of perjury

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that I have read in its entirety and understand the Stipulated Protective Order that was

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issued by the United States District Court for the Central District of California on [date]

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in the case of _______________________ [Michael Duross v. Home Depot U.S.A., Inc.,

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Case No. 2:17-CV-07006 SJO (JPRX)]

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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 promise

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that I will not disclose in any manner any information or item that is subject to this

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Stipulated Protective Order to any person or entity except in strict compliance with the

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provisions of this Order.

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

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the Central District of California for the purpose of enforcing the terms of this Stipulated

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Protective Order, even if such enforcement proceedings occur after termination of this

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action. I hereby appoint ________________________________ [print or type full name]

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of ________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or

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any proceedings related to enforcement of this Stipulated Protective Order.
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Stipulated Protective Order

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Date: __________________________________

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City and State where sworn and signed: ____________________________________

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Printed name: _______________________________________

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Signature:

_________________________________________

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MCCUNE & HARBER, LLP
515 SOUTH FIGUEROA ST.
LOS ANGELES, CA 90071
[phone]
Fax [phone]

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