NS Intl Textiles v. Vanila Monkey Ltd
Filing
42
STIPULATED PROTECTIVE ORDER by Magistrate Judge Gail J. Standish re Stipulation for Protective Order 29 . (ec)
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IN THE UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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NS INT’L TEXTILES, a South Korea
corporation;
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[PROPOSED] STIPULATED
PROTECTIVE ORDER
Plaintiff,
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Case No.: 2:18-cv-00289-ODW-GJS
vs.
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VANILLA MONKEY LTD, a
California corporation; SEOK EUN
KANG, an Individual; ROWIE
APPAREL, INC. d/b/a TYCHE, a
California Corporation; PETER SUK
LEE, an Individual; NAMO TEXTILE,
INC., a California Corporation; HEE
KYUNG CHUNG, an individual; and
DOES 1-10, inclusive,
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Defendants.
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-1[PROPOSED] PROTECTIVE ORDER
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1.
A. PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidential, proprietary,
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or private information for which special protection from public disclosure and from use
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for any purpose other than prosecuting this litigation may be warranted. Accordingly,
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the parties hereby stipulate to and petition the Court to enter the following Stipulated
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Protective Order. The parties acknowledge that this Order does not confer blanket
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protections on all disclosures or responses to discovery and that the protection it affords
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from public disclosure and use extends only to the limited information or items that are
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entitled to confidential treatment under the applicable legal principles.
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B. GOOD CAUSE STATEMENT
This action is likely to involve trade secrets, customer and pricing lists and other
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valuable research, development, commercial, financial, technical and/or proprietary
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information for which special protection from public disclosure and from use for any
purpose other than prosecution of this action may be warranted, especially because the
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parties are engaged in the same or similar business. Such confidential and proprietary
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materials and information consist of, among other things, confidential business or
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financial information, trade secrets, and matters protected under other intellectual
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property rights, confidential business practices, or other confidential research,
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development, or commercial information (including information implicating privacy
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rights of third parties), information otherwise generally unavailable to the public, or
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which may be privileged or otherwise protected from disclosure under state or federal
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statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow
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of information, to facilitate the prompt resolution of disputes over confidentiality of
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discovery materials, to adequately protect information the parties are entitled to keep
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confidential, to ensure that the parties are permitted reasonable necessary uses of such
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-2[PROPOSED] PROTECTIVE ORDER
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material in preparation for and in the conduct of trial, to address their handling at the end
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of the litigation, and serve the ends of justice, a protective order for such information is
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justified in this matter. It is the intent of the parties that information will not be
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designated as confidential for tactical reasons and that nothing be so designated without
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a good 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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C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
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The parties further acknowledge, as set forth in Section 12.3, below, that this
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Stipulated Protective Order does not entitle them to file confidential information under
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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
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material under seal.
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There is a strong presumption that the public has a right of access to judicial
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proceedings and records in civil cases. In connection with non-dispositive motions, good
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cause must be shown to support a filing under seal. See Kamakana v. City and County
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of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp., 307
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F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D.
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576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good cause
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showing), and a specific showing of good cause or compelling reasons with proper
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evidentiary support and legal justification, must be made with respect to Protected
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Material that a party seeks to file under seal. The parties’ mere designation of Disclosure
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or Discovery Material as CONFIDENTIAL does not—without the submission of
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competent evidence by declaration, establishing that the material sought to be filed under
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seal qualifies as confidential, privileged, or otherwise protectable—constitute good
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cause.
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-3[PROPOSED] PROTECTIVE ORDER
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Further, if a party requests sealing related to a dispositive motion or trial, then
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compelling reasons, not only good cause, for the sealing must be shown, and the relief
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sought shall be narrowly tailored to serve the specific interest to be protected. See Pintos
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v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type
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of information, document, or thing sought to be filed or introduced under seal in
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connection with a dispositive motion or trial, the party seeking protection must articulate
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compelling reasons, supported by specific facts and legal justification, for the requested
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sealing order. Again, competent evidence supporting the application to file documents
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under seal must be provided by declaration.
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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
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the confidential, privileged, or otherwise protectable portions of the document, shall be
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filed. Any application that seeks to file documents under seal in their entirety should
include an explanation of why redaction is not feasible.
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2.
DEFINITIONS
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2.1
Action: this pending federal law suit entitled above.
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2.2
Challenging Party: a Party or Non-Party that challenges the designation of
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information or items under this Order.
2.3
“CONFIDENTIAL” Information or Items: information (regardless of how
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it 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
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” Information or Items:
“CONFIDENTIAL” information that is highly confidential or proprietary in nature that
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-4[PROPOSED] PROTECTIVE ORDER
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qualifies for protection under Federal Rule of Civil Procedure 26(c), as specified above
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in the Good Cause Statement.
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2.5
Counsel: Outside Counsel of Record and House Counsel, if applicable, (as
well as their support staff).
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Designating Party: a Party or Non-Party that designates information or
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items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL”
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or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY.”
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2.7
Disclosure or Discovery Material: all items or information, regardless of
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the 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.
2.8
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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House Counsel: attorneys who are employees of a party to this Action.
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House Counsel does not include Outside Counsel of Record or any other outside counsel.
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2.10 Non-Party: any natural person, partnership, corporation, association, or
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other legal entity not named as a Party to this action.
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2.11 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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2.12 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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2.13 Producing Party: a Party or Non-Party that produces Disclosure or
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Discovery Material in this Action.
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2.14 Professional Vendors: persons or entities that provide litigation support
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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) and
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their employees and subcontractors.
2.15 Protected Material: any Disclosure or Discovery Material that is designated
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as “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY.”
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2.16 Receiving Party: a Party that receives Disclosure or Discovery Material
from a Producing Party.
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3.
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SCOPE
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
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 shall be governed by the orders of the trial
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judge. This Order does not govern the use of Protected Material at trial.
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4.
DURATION
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Once a case proceeds to trial, information that was designated as
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CONFIDENTIAL or maintained pursuant to this protective order used or introduced as
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an exhibit at trial becomes public and will be presumptively available to all members of
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the public, including the press, unless compelling reasons supported by specific factual
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findings to proceed otherwise are made to the trial judge in advance of the trial. See
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Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing
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documents produced in discovery from “compelling reasons” standard when merits-
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related documents are part of court record). Accordingly, the terms of this protective
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order do not extend beyond the commencement of the trial.
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5.
DESIGNATING PROTECTED MATERIAL
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5.1
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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 qualifies
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under the appropriate standards. The Designating Party must designate for protection
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only those parts of material, documents, items, or oral or written communications that
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Exercise of Restraint and Care in Designating Material for Protection.
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
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Order.
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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.,
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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
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Order (see, e.g., second paragraph of section 5.2(b) below), or as otherwise stipulated or
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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:
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(a) for information in documentary form (e.g., paper or electronic documents, but
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excluding transcripts of depositions or other pretrial or trial proceedings), that the
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Producing Party affix at a minimum, the legend “CONFIDENTIAL” or
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“CONFIDENTIAL—ATTORNEYS EYES ONLY” to each page that contains protected
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material. If only a portion or portions of the material on a page qualifies for protection,
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the Producing Party also must clearly identify the protected portion(s) (e.g., by making
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appropriate markings in the margins).
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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
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
that contains Protected Material. If only a portion 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).
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(b) for testimony given in depositions, that the Designating Party identifies 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 any
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other tangible items, that the Producing Party affix in a prominent place on the exterior
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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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the Producing Party, to the extent practicable, shall identify the protected portion(s).
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5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure
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-8[PROPOSED] PROTECTIVE ORDER
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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.
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6.1
6.2
Meet and Confer. The Challenging Party shall initiate the dispute resolution
process under Local Rule 37.1 et seq.
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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.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.3
The burden of persuasion in any such challenge proceeding shall be on the
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 the
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Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn
the confidentiality designation, all parties shall continue to afford the material in
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question the level of protection to which it is entitled under the Producing Party’s
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designation until the Court rules on the challenge.
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7.
ACCESS TO AND USE OF PROTECTED MATERIAL
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 Action
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only for prosecuting, defending, or attempting to settle this Action. Such Protected
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Material may be disclosed only to the categories of persons and under the conditions
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described in this Order. When the Action has been terminated, a Receiving Party must
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comply with the provisions of section 13 below (FINAL DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a
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-9[PROPOSED] PROTECTIVE ORDER
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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 otherwise
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ordered by the court or permitted in writing by the Designating Party, a Receiving Party
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may disclose any information or item designated “CONFIDENTIAL” 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;
(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
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Agreement to Be Bound” (Exhibit A);
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(d) the court and its personnel;
(e) court reporters and their staff;
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(f) professional jury or trial consultants, mock jurors, and Professional Vendors
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to whom 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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(g) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information;
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(h) during their depositions, witnesses, and attorneys for witnesses, in the Action
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to whom disclosure is reasonably necessary provided: (1) the deposing party requests
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that the witness sign the form attached as Exhibit A hereto; and (2) they will not be
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permitted to keep any confidential information unless they sign the “Acknowledgment
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and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating
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Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to
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depositions that reveal Protected Material may be separately bound by the court reporter
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and may not be disclosed to anyone except as permitted under this Stipulated Protective
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Order; and
(i) any mediator or settlement officer, and their supporting personnel, mutually
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agreed upon by any of the parties engaged in settlement discussions.
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8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
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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:
(a) promptly notify in writing the Designating Party. Such notification shall
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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 to issue
in the other litigation that some or all of the material covered by the subpoena or order
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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 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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9.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
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IN THIS LITIGATION
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(a) The terms of this Order are applicable to information produced by a Non-Party
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in this Action and designated as “CONFIDENTIAL.” Such information produced by
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Non-Parties in connection with this litigation is protected by the remedies and relief
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provided by this Order. Nothing in these provisions should be construed as prohibiting
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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 subject to an
agreement with the Non-Party not to produce the Non-Party’s confidential information,
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then the Party shall:
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(1) promptly notify in writing the Requesting Party and the Non-Party that
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some or all of the information requested is subject to a confidentiality agreement with a
Non-Party;
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(2) promptly provide the Non-Party with a copy of the Stipulated Protective
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Order in this Action, the relevant discovery request(s), and a reasonably specific
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description of the information requested; and
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(3) make the information requested available for inspection by the NonParty, if requested.
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(c) If the Non-Party fails to seek a protective order from this court within fourteen
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(14) days of receiving the notice and accompanying information, the Receiving Party
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may produce the Non-Party’s confidential information responsive to the discovery
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request. If the Non-Party timely seeks a protective order, the Receiving Party shall not
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produce any information in its possession or control that is subject to the confidentiality
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agreement with the Non-Party before a determination by the court. Absent a court order
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to the contrary, the Non-Party shall bear the burden and expense of seeking protection
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in this court of its Protected Material.
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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
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
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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 Procedure
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26(b)(5)(B). This provision is not intended to modify whatever procedure may be
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established in an e-discovery order that provides for production without prior privilege
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review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach
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an agreement on the effect of disclosure of a communication or information covered by
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the attorney-client privilege or work product protection, the parties may incorporate their
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agreement in the stipulated protective order submitted to the court.
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12.
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.
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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 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
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 section 4, within 60 days
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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,
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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 this provision, Counsel are entitled to retain an archival copy of all
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pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
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correspondence, deposition and trial exhibits, expert reports, attorney work product, and
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consultant and expert work product, even if such materials contain Protected Material.
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Any such archival copies that contain or constitute Protected Material remain subject to
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this Protective Order as set forth in Section 4 (DURATION).
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14.
VIOLATION
Any violation of this Order may be punished by any and all appropriate measures
including, without limitation, contempt proceedings and/or monetary sanctions.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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DATED: July 11, 2018
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JEONG & LIKENS, L.C.
LUM LAW GROUP
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By: /s/ C. Yong Jeong____
By: /s/ A. Justin Lum____
C. Yong Jeong
jeong@jeonglikens.com
JEONG & LIKENS, L.C.
222 South Oxford Avenue
Los Angeles, CA 90004
Tel: 213-688-2001
Fax: 213-315-5035
Attorney for Plaintiff
NS INT’L TEXTILES
A. Justin Lum
ajlum@lumlawgroup.com
LUM LAW GROUP
1005 E. Colorado Blvd., Suite 207
Pasadena, CA 91106
Phone: 626.795.8886
Facsimile: 626.795.8836
Attorney for Defendants
VANILLA MONKEY LTD.
SEOK EUN KANG
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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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DATED: July 12, 2018
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_____________________________________
GAIL J. STANDISH
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
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_________________ [print or type full address], declare under penalty of perjury that I
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have read in its entirety and understand the Stipulated Protective Order that was issued
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by the United States District Court for the Central District of California on [date] in the
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case of NS Intl Textiles v. Vanila Monkey Ltd., Case No. Case No.: 2:18-cv-00289-ODW-
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GJS. I agree to comply with and to be bound by all the terms of this Stipulation for
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Protective Order and I understand and acknowledge that failure to so comply could expose
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me to sanctions and punishment in the nature of contempt. I solemnly promise that I will
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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
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of this Order.
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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
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Protective Order, even if such enforcement proceedings occur after termination of this
18
action. I hereby appoint __________________________ [print or type full name] of
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_______________________________________ [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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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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-17[PROPOSED] PROTECTIVE ORDER
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