Richard Payne et al v. City of Los Angeles et al
Filing
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PROTECTIVE ORDER by Magistrate Judge Karen L. Stevenson re Stipulation for Protective Order 57 . (see document for details) (hr)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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RICHARD PAYNE, an individual;
12 JANCHAI PAYNE, an individual; K.P.,
a minor, by and through her guardian ad
13 litem,
CASE NO. CV 17-09044 CAS (KSx)
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[PROPOSED]
PROTECTIVE ORDER
Plaintiffs,
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[Hon. Judge Christina A. Snyder, 1st CH, Ctrm. 8D]
[Mag. Karen L. Stevenson , Roybal CH, Ctrm. 580]
16 CITY OF LOS ANGELES; Police Chief
CHARLIE BECK, in his individual
17 capacity; Does 1-100, inclusive,
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Defendants.
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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1.
INTRODUCTION
1.1
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 parties further acknowledge, as set forth
in Section 12.3, below, that this Stipulated Protective Order does not entitle them
to file confidential information under seal; Civil Local Rule 79-5 sets forth the
procedures that must be followed and the standards that will be applied when a
party seeks permission from the court to file material under seal.
1.2
GOOD CAUSE STATEMENT
In this case, Plaintiffs claim excessive use of force by law enforcement officers
who acted while in the course of their employment. In connection with these claims,
plaintiffs intend to seek discovery related to the officers’ personal and personnel
information and background.
Plaintiffs are seeking materials and information that Defendant City of Los
Angeles (“City”) maintain as confidential. These records may contain confidential
files such as personnel files of the police officers involved in this incident, Internal
Affairs materials and information, video recordings, audio recordings, and
information and other administrative materials and information currently in the
possession of the City and which City believes need special protection from public
disclosure and from use for any purpose other than prosecuting this litigation.
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Plaintiffs are also likely to seek official information contained in the personnel files
of the police officers involved in the subject incident, which the City maintains as
strictly confidential and which City believes need special protection from public
disclosure and from use for any purpose other than prosecuting this litigation.
City asserts that the confidentiality of the materials and information sought by
Plaintiff is recognized by California and federal law, as evidenced inter alia by
California Penal Code section 832.7 and Kerr v. United States Dist. Ct. for N.D.
Cal., 511 F.2d 192, 198 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976). The City has not
publicly released the materials and information referenced above except under
protective order or pursuant to a court order, if at all. These materials and
information are of the type that has been used to initiate disciplinary action against
Los Angeles Police Department (“LAPD”) officers, and has been used as evidence in
disciplinary proceedings, where the officers’ conduct was considered to be contrary
to LAPD policy.
The City contends that absent a protective order delineating the responsibilities
of nondisclosure on the part of the parties hereto, there is a specific risk of
unnecessary and undue disclosure by one or more of the many attorneys, secretaries,
law clerks, paralegals and expert witnesses involved in this case, as well as the
corollary risk of embarrassment, harassment and professional and legal harm on the
part of the LAPD officers referenced in the materials and information.
The City also contends that the unfettered disclosure of the materials and
information, absent a protective order, would allow the media to share this
information with potential jurors in the area, impacting the rights of the City herein
to receive a fair trial.
Thus, good cause exists for the entry of this pretrial protective order in that the
action involves claims of excessive force by law enforcement officers who acted
while in the course of their employment. Accordingly, to expedite the flow of
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information, to facilitate the prompt resolution of disputes over confidentiality of
discovery materials, to adequately protect information the parties are entitled to keep
confidential, to ensure that the parties are permitted reasonable necessary uses of such
material in preparation for and in the conduct of trial, to address their handling at the
end of the litigation, and serve the ends of justice, a protective order for such
information is justified in this matter. It is the intent of the parties that information
will not be designated as confidential for tactical reasons and that nothing be so
designated without a good faith belief that it has been maintained in a confidential,
non-public manner, and there is good cause why it should not be part of the public
record of this case. In order to enable the parties and the Court to more efficiently
work through concerns raised regarding the propriety of disclosing any such
information, the parties wish the Court to enter the following proposed order into the
record.
1.3
ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER
SEAL
The parties further acknowledge, as set forth in Section 12.3, below, that this
Stipulated Protective Order does not entitle them to file confidential information
under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and
the standards that will be applied when a party seeks permission from the court to file
material under seal.
There is a strong presumption that the public has a right of access to judicial
proceedings and records in civil cases. In connection with non-dispositive motions,
good cause must be shown to support a filing under seal. See Kamakana v. City and
County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
require good cause showing), and a specific showing of good cause or compelling
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STIPULATED PROTECTIVE ORDER
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reasons with proper evidentiary support and legal justification, must be made with
respect to Protected Material that a party seeks to file under seal. The parties’ mere
designation of Disclosure or Discovery Material as CONFIDENTIAL does not—
without the submission of competent evidence by declaration, establishing that the
material sought to be filed under seal qualifies as confidential, privileged, or
otherwise protectable—constitute good cause.
Further, if a party requests sealing related to a dispositive motion or trial, then
compelling reasons, not only good cause, for the sealing must be shown, and the
relief sought shall be narrowly tailored to serve the specific interest to be protected.
See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For
each item or type of information, document, or thing sought to be filed or introduced
under seal in connection with a dispositive motion or trial, the party seeking
protection must articulate compelling reasons, supported by specific facts and legal
justification, for the requested sealing order. Again, competent evidence supporting
the application to file documents under seal must be provided by declaration.
Any document that is not confidential, privileged, or otherwise protectable in
its entirety will not be filed under seal if the confidential portions can be redacted. If
documents can be redacted, then a redacted version for public viewing, omitting only
the confidential, privileged, or otherwise protectable portions of the document, shall
be filed. Any application that seeks to file documents under seal in their entirety
should include an explanation of why redaction is not feasible.
2.
DEFINITIONS
2.1
Action: Richard Payne et al. vs. City of Los Angeles, Case No. CV 17-
09044 CAS (KSx).
2.2
Challenging Party: a Party or Non-Party that challenges the designation
of information or items under this Order.
2.3
“CONFIDENTIAL” Information or Items: information (regardless of
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how it is generated, stored or maintained) or tangible things that qualify for protection
under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
Cause Statement. This also includes (1) any information copied or extracted from the
Confidential information; (2) all copies, excerpts, summaries or compilations of
Confidential information; and (3) any testimony, conversations, or presentations that
might reveal Confidential information.
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.”
2.6
Disclosure or Discovery Material: all items or information, regardless of
the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced or
generated in disclosures or responses to discovery in this matter.
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Expert: a person with specialized knowledge or experience in a matter
pertinent to the litigation who has been retained by a Party or its counsel to serve as
an expert witness or as a consultant in this Action.
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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.
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Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a party
to this Action but are retained to represent or advise a party to this Action and have
appeared in this Action on behalf of that party or are affiliated with a law 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,
employees, consultants, retained experts, and Outside Counsel of Record (and their
support staffs).
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
services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium)
and their employees and subcontractors.
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.
3.
SCOPE
The protections conferred by this Stipulation and Order cover not only
Protected Material (as defined above), but also (1) any information copied or
extracted from Protected Material; (2) all copies, excerpts, summaries, or
compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial will be governed by the orders of the trial
judge. This Order does not govern the use of Protected Material at trial.
4.
DURATION
Once a case proceeds to trial, all of the information that was designated as
confidential or maintained pursuant to this protective order becomes public and will
be presumptively available to all members of the public, including the press, unless
compelling reasons supported by specific factual findings to proceed otherwise are
made to the trial judge in advance of the trial. See Kamakana v. City and County of
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Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause”
showing for sealing documents produced in discovery from “compelling reasons”
standard when merits-related documents are part of court record). Accordingly, the
terms of this protective order do not extend beyond the commencement of the trial.
5.
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection.
Each Party or Non-Party that designates information or items for protection under this
Order must take care to limit any such designation to specific material that qualifies
under the appropriate standards. The Designating Party must designate for protection
only those parts of material, documents, items, or oral or written communications that
qualify so that other portions of the material, documents, items, or communications
for which protection is not warranted are not swept unjustifiably within the ambit of
this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber the case development process or to impose
unnecessary expenses and burdens on other parties) may expose the Designating
Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection, that Designating Party must
promptly notify all other Parties that it is withdrawing the inapplicable designation.
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 ordered, Disclosure or Discovery Material that qualifies for protection
under this Order must be clearly so designated before the material is disclosed or
produced.
Designation in conformity with this Order requires:
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(a)
for information in documentary form (e.g., paper or
electronic documents, but excluding transcripts of depositions or other
pretrial or trial proceedings), that the Producing Party affix at a
minimum, the legend “CONFIDENTIAL” (hereinafter
“CONFIDENTIAL legend”), to each page that contains protected
material. If only a portion or portions of the material on a page qualifies
for protection, the Producing Party also must clearly identify the
protected portion(s) (e.g., by making appropriate markings in the
margins).
A Party or Non-Party that makes original documents available for
inspection need not designate them for protection until after the
inspecting Party has indicated which documents it would like copied and
produced. During the inspection and before the designation, all of the
material made available for inspection will be deemed
“CONFIDENTIAL.” After the inspecting Party has identified the
documents it wants copied and produced, the Producing Party must
determine which documents, or portions thereof, qualify for protection
under this Order. Then, before producing the specified documents, the
Producing Party must affix the “CONFIDENTIAL legend” to each page
that contains Protected Material. If only a portion or portions of the
material on a page qualifies for protection, the Producing Party also must
clearly identify the protected portion(s) (e.g., by making appropriate
markings in the margins).
(b)
for testimony given in depositions that the Designating
Party identify the Disclosure or Discovery Material on the record, before
the close of the deposition all protected testimony.
(c)
for information produced in some form other than
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documentary and for any other tangible items, that the Producing Party
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affix in a prominent place on the exterior of the container or containers
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in which the information is stored the legend “CONFIDENTIAL.” If
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only a portion or portions of the information warrants protection, the
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Producing Party, to the extent practicable, will identify the protected
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portion(s).
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5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent
failure to designate qualified information or items does not, standing alone, waive the
Designating Party’s right to secure protection under this Order for such material.
Upon timely correction of a designation, the Receiving Party must make reasonable
efforts to assure that the material is treated in accordance with the provisions of this
Order.
6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a
designation of confidentiality at any time that is consistent with the Court’s
Scheduling Order.
6.2
Meet and Confer. The Challenging Party will initiate the dispute
resolution process (and, if necessary, file a discovery motion) under Local Rule 37.1
et seq.
6.3
Joint Stipulation. Any challenge submitted to the Court shall be via a
joint stipulation pursuant to Local Rule 37-2.
6.4
The burden of persuasion in any such challenge proceeding will be on
the Designating Party. Frivolous challenges, and those made for an improper purpose
(e.g., to harass or impose unnecessary expenses and burdens on other parties) may
expose the Challenging Party to sanctions. Unless the Designating Party has waived
or withdrawn the confidentiality designation, all parties will continue to afford the
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.
7.
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is
disclosed or produced by another Party or by a Non-Party in connection with this
Action only for prosecuting, defending, or attempting to settle this Action. Such
Protected Material may be disclosed only to the categories of persons and under the
conditions described in this Order. When the Action has been terminated, a Receiving
Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless
otherwise ordered by the court or permitted in writing by the Designating Party, a
Receiving Party may disclose any information or item designated
“CONFIDENTIAL” only to:
(a)
the Receiving Party’s Outside Counsel of Record in this
Action, as well as employees of said Outside Counsel of Record to
whom it is reasonably necessary to disclose the information for this
Action;
(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 disclosure is reasonably necessary for this Action and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d)
the Court and its personnel;
(e)
court reporters and their staff;
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(f)
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Professional Vendors to whom disclosure is reasonably necessary for
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this Action and who have signed the “Acknowledgment and Agreement
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to Be Bound” (Exhibit A);
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(g)
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knew the information;
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(h)
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provided: (1) the deposing party requests that the witness sign the form
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attached as Exhibit A hereto; and (2) they will not be permitted to keep
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any confidential information unless they sign the “Acknowledgment and
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Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the
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Designating Party or ordered by the court. Pages of transcribed
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deposition testimony or exhibits to depositions that reveal Protected
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Material may be separately bound by the court reporter and may not be
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disclosed to anyone except as permitted under this Stipulated Protective
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Order; and
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(i)
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any mediator or settlement officer, and their supporting
personnel, mutually agreed upon by any of the parties engaged in
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during their depositions, witnesses, and attorneys for
witnesses, in the Action to whom disclosure is reasonably necessary
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the author or recipient of a document containing the
information or a custodian or other person who otherwise possessed or
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professional jury or trial consultants, mock jurors, and
settlement discussions.
8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation
that compels disclosure of any information or items designated in this Action as
“CONFIDENTIAL,” that Party must:
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promptly notify in writing the Designating Party. Such
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notification will include a copy of the subpoena or court order;
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(b)
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subpoena or order to issue in the other litigation that some or all of the
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material covered by the subpoena or order is subject to this Protective
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Order. Such notification will include a copy of this Stipulated Protective
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Order; and
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(c)
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cooperate with respect to all reasonable procedures sought
to be pursued by the Designating Party whose Protected Material may be
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promptly notify in writing the party who caused the
If the Designating Party timely seeks a protective order, the Party served with
the subpoena or court order will not produce any information designated in this action
as “CONFIDENTIAL” before a determination by the court from which the subpoena
or order issued, unless the Party has obtained the Designating Party’s permission. The
Designating Party will bear the burden and expense of seeking protection in that court
of its confidential material and nothing in these provisions should be construed as
authorizing or encouraging a Receiving Party in this Action to disobey a lawful
directive from another court.
9.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a)
The terms of this Order are applicable to information
produced by a Non-Party in this Action and designated as
“CONFIDENTIAL.” Such information produced by Non-Parties in
connection with this litigation is protected by the remedies and relief
provided by this Order. Nothing in these provisions should be construed
as prohibiting a Non-Party from seeking additional protections.
(b)
In the event that a Party is required, by a valid discovery
request, to produce a Non-Party’s confidential information in its
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possession, and the Party is subject to an agreement with the Non-Party
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not to produce the Non-Party’s confidential information, then the Party
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will:
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(1)
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the Non-Party that some or all of the information requested is
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subject to a confidentiality agreement with a Non-Party;
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(2)
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request(s), and a reasonably specific description of the information
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requested; and
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(3)
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(c)
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information, the Receiving Party may produce the Non-Party’s
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confidential information responsive to the discovery request. If the Non-
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Party timely seeks a protective order, the Receiving Party will not
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produce any information in its possession or control that is subject to the
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confidentiality agreement with the Non-Party before a determination by
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the court. Absent a court order to the contrary, the Non-Party will bear
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the burden and expense of seeking protection in this court of its
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If the Non-Party fails to seek a protective order from this
court within 14 days of receiving the notice and accompanying
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make the information requested available for
inspection by the Non-Party, if requested.
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promptly provide the Non-Party with a copy of the
Stipulated Protective Order in this Action, the relevant discovery
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promptly notify in writing the Requesting Party and
Protected Material.
10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Protected Material to any person or in any circumstance not authorized under this
Stipulated Protective Order, the Receiving Party must immediately (a) notify in
writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
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to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
persons to whom unauthorized disclosures were made of all the terms of this Order,
and (d) request such person or persons to execute the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A.
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PROTECTED MATERIAL
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
When a Producing Party gives notice to Receiving Parties that certain
inadvertently produced material is subject to a claim of privilege or other protection,
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
may be established in an e-discovery order that provides for production without prior
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
parties reach an agreement on the effect of disclosure of a communication or
information covered by the attorney-client privilege or work product protection, the
parties may incorporate their agreement in the stipulated protective order submitted to
the court.
12.
MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this
Protective Order no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in this
Stipulated Protective Order. Similarly, no Party waives any right to object on any
ground to use in evidence of any of the material covered by this Protective Order.
12.3 Filing Protected Material. A Party that seeks to file under seal any
Protected Material must comply with Civil Local Rule 79-5. Protected Material 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
under seal is denied by the court, then the Receiving Party may file the information in
the public record unless otherwise instructed by the court.
13.
FINAL DISPOSITION
After the final disposition of this Action, as defined in paragraph 4, within 60
days of a written request by the Designating Party, each Receiving Party must return
all Protected Material to the Producing Party. As used in this subdivision, “all
Protected Material” includes all copies, abstracts, compilations, summaries, and any
other format reproducing or capturing any of the Protected Material. The Receiving
Party must submit a written certification to the Producing Party (and, if not the same
person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
(by category, where appropriate) all the Protected Material that was returned and (2)
affirms that the Receiving Party has not retained any copies, abstracts, compilations,
summaries or any other format reproducing or capturing any of the Protected
Material. Notwithstanding this provision, Counsel are entitled to retain an archival
copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal
memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
work product, and consultant and expert work product, even if such materials contain
Protected Material. Any such archival copies that contain or constitute Protected
Material remain subject to this Protective Order as set forth in Section 4
(DURATION).
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STIPULATED PROTECTIVE ORDER
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, _____________________________ [full name], of _________________
[full address], declare under penalty of perjury that I have read in its entirety and
understand the Stipulated Protective Order that was issued by the United States
District Court for the Central District of California on [date] in the case of
___________ [insert case name and number]. I agree to comply with and to be
bound by all the terms of this Stipulated Protective Order and I understand and
acknowledge that failure to so comply could expose me to sanctions and punishment
in the nature of contempt. I solemnly promise that I will not disclose in any manner
any information or item that is subject to this Stipulated Protective Order to any
person or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court
for the Central District of California for the purpose of enforcing the terms of this
Stipulated Protective Order, even if such enforcement proceedings occur after
termination of this action. I hereby appoint __________________________ [full
name] of _______________________________________ [full address and
telephone number] as my California agent for service of process in connection with
this action or any proceedings related to enforcement of this Stipulated Protective
Order.
Date: ______________________________________
City and State where signed: _________________________________
Printed name: _______________________________
Signature: __________________________________
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STIPULATED PROTECTIVE ORDER
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