Juan Tovar v. Daimler Trucks North America, LLC et al
Filing
52
PROTECTIVE ORDER by Magistrate Judge Steve Kim re Stipulation for Protective Order 51 . (see document for details) (hr)
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WALTER M. YOKA (SB# 94536)
wyoka@yokasmith.com
ANTHONY F. LATIOLAIT (SB# 132378)
alatiolait@yokasmith.com
YOKA & SMITH, LLP
445 S. Figueroa Street, 38th Floor
Los Angeles, CA 90071
Tel.: (213) 427-2300 – Fax: (213) 427-2330
CHRISTOPHER S. SHANK (admitted Pro Hac Vice)
chris@shanklawfirm.com
SHANK & HEINEMANN, LLC
1968 Shawnee Mission Parkway, Suite 100
Mission Woods, KS 66205
Tel.: (816) 482-0562 – Fax: (816) 471-3888
Attorneys for Defendant, THE GOODYEAR TIRE & RUBBER COMPANY
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UNITED STATES DISTRICT COURT FOR
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THE CENTRAL DISTRICT OF CALIFORNIA
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) Case No.: 2:19-cv-10754-ODW-SK
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Plaintiff,
) STIPULATED PROTECTIVE ORDER
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vs.
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THE GOODYEAR TIRE & RUBBER )
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COMPANY, et al.,
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Defendants.
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JUAN TOBAR,
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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,
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proprietary, or private information for which special protection from public disclosure
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and from use for any purpose other than prosecuting this litigation may be warranted.
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Accordingly, the parties hereby stipulate to and petition the Court to enter the
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following Stipulated Protective Order. The parties acknowledge that this Order does
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not confer blanket protections on all disclosures or responses to discovery and that the
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protection it affords from public disclosure and use extends only to the limited
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information or items that are entitled to confidential treatment under the applicable
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legal principles. The parties further acknowledge, as set forth in Section 12.3, below,
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that this Stipulated Protective Order does not entitle them to file confidential
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information under seal; Civil Local Rule 79-5 sets forth the procedures that must be
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followed and the standards that will be applied when a party seeks permission from
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the court to file material under seal.
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B. GOOD CAUSE STATEMENT
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This action is likely to involve private information and communications
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extracted from Plaintiff’s personal cellular phone, as well as trade secrets, 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
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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
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practices, or other confidential research, development, or commercial information
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(including information implicating privacy rights of third parties), information
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otherwise generally unavailable to the public, or which may be privileged or otherwise
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protected from disclosure under state or federal statutes, court rules, case decisions, or
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PROTECTIVE ORDER
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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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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.
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DEFINITIONS
2.1
Action: this pending federal law suit entitled Juan Tobar v. The Goodyear
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Tire & Rubber Company, et al. in The United States District Court for the Central
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District of California, Case No. 2:19-cv-10754-ODW-SK.
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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
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under 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
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items that it produces in disclosures or in responses to discovery as
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“CONFIDENTIAL.”
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2.6
Disclosure or Discovery Material: all items or information, regardless of
the medium or manner in which it is generated, stored, or maintained (including,
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PROTECTIVE ORDER
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among other things, testimony, transcripts, and tangible things), that are produced or
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generated in disclosures or responses to discovery in this matter.
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2.7
Expert: a person with specialized knowledge or experience in a 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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2.8
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
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counsel.
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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
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to 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
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has appeared on behalf of that party, and includes support staff.
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2.11 Party: any party to this Action, including all of its officers, directors,
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employees, consultants, retained experts, and Outside Counsel of Record (and their
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support staffs).
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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
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2.13 Professional Vendors: persons or entities that provide litigation 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.
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2.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.
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PROTECTIVE ORDER
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3.
SCOPE
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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. Any use of Protected Material at trial
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shall be governed by the orders of the trial judge. This Order does not govern the use
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of Protected Material at trial.
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4.
DURATION
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Even after final disposition of this litigation, the confidentiality obligations imposed
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by this Order shall remain in effect until a Designating Party agrees otherwise in
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writing or a court order otherwise directs. Final disposition shall be deemed to be the
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later of (1) dismissal of all claims and defenses in this Action, with or without
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prejudice; and (2) final judgment herein after the completion and exhaustion of all
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appeals, rehearings, remands, trials, or reviews of this Action, including the time limits
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for filing any motions or applications for extension of time pursuant to applicable law.
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5.
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection.
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Each Party or Non-Party that designates information or items for protection under this
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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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qualify so that other portions of the material, documents, items, or communications for
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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
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that are shown to be clearly unjustified or that have been made for an improper purpose
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PROTECTIVE ORDER
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(e.g., to unnecessarily encumber the case development process or to impose
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unnecessary expenses and burdens on other parties) may expose the Designating Party
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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(a) below), or as otherwise stipulated
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or ordered, Disclosure or Discovery Material that qualifies for protection under this
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Order 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,
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but excluding transcripts of depositions or other pretrial or trial proceedings), that the
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Producing Party affix, the legend:
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“CONFIDENTIAL – produced under court order in Juan Tobar v. The
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Goodyear Tire & Rubber Company, et al. in The United States District
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Court for the Central District of California, Case No. 2:19-cv-10754-
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ODW-SK, and shall not be used for any other purpose whatsoever.”
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to each page that contains protected material. If only a portion or portions of the
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material on a page qualifies for protection, the Producing Party also must clearly
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identify the protected portion(s) (e.g., by making appropriate markings in the margins).
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A Party or Non-Party that makes original documents available for inspection
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need not designate them for protection until after the inspecting Party has indicated
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which documents it would like copied and produced. During the inspection and before
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the 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
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portions thereof, qualify for protection under this Order. Then, before producing the
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PROTECTIVE ORDER
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specified documents, the Producing Party must affix the “CONFIDENTIAL legend”
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to each page that contains Protected Material. If only a portion or portions of the
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material on a page qualifies for protection, the Producing Party also must clearly
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identify the protected portion(s) (e.g., by making appropriate markings in the margins).
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(b) for testimony given in depositions designation of the portion(s) of the
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transcript that contain Confidential Information shall be made (i) by a statement to
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such effect on the record during the proceeding in which the testimony is received, or
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(ii) by written notice served on counsel of record in this Litigation within thirty (30)
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business days after the receipt of the transcript of such proceeding. .
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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 – produced under court order in Juan Tobar v. The
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Goodyear Tire & Rubber Company, et al. in The United States District
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Court for the Central District of California, Case No. 2:19-cv-10754-
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ODW-SK, and shall not be used for any other purpose whatsoever.”
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If only a portion or portions of the information warrants protection, the
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Producing Party, to the extent practicable, shall identify the protected portion(s).
5.3
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Inadvertent Failures to Designate. If timely corrected, an inadvertent
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failure to designate qualified information or items does not, standing alone, waive 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
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to assure that the material is treated in accordance with the provisions of this Order.
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6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a
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designation of confidentiality at any time that is consistent with the Court’s
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Scheduling Order.
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PROTECTIVE ORDER
6.2
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Meet and Confer. The Challenging Party shall initiate the dispute
resolution process under Local Rule 37.1 et seq.
6.3
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The burden of persuasion in any such challenge proceeding shall be on
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the Designating Party. Frivolous challenges, and those made for an improper purpose
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(e.g., to harass or impose unnecessary expenses and burdens on other parties) may
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expose the Challenging Party to sanctions. Unless the Designating Party has waived
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or 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
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).
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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
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well as employees of said Outside Counsel of Record to whom it is reasonably
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necessary to disclose the information for this Action;
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PROTECTIVE ORDER
(b) the officers, directors, and employees (including House Counsel) of
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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) professional jury or trial consultants, mock jurors, and Professional
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Vendors to whom disclosure is reasonably necessary for this Action and who have
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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(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;
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(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 A hereto; and (2) they will
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not be permitted to keep any confidential information unless they sign the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
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by the Designating Party or ordered by the court. Pages of transcribed deposition
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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
(i) 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.
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8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
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IN OTHER LITIGATION
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PROTECTIVE ORDER
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If a Party is served with a subpoena or a court order issued in other litigation
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that compels disclosure of any information or items designated in this Action as
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“CONFIDENTIAL,” that Party must:
(a)
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promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
(b)
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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
(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 affected.
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If the Designating Party timely seeks a protective order, the Party served with
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the subpoena or court order shall not produce any information designated in this action
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as “CONFIDENTIAL” before a determination by the court from which the subpoena
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or 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
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directive from another court.
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9.
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PRODUCED IN THIS LITIGATION
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A
(a)
NON-PARTY’S
PROTECTED
MATERIAL
SOUGHT
TO
BE
The terms of this Order are applicable to information produced by a Non-
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Party in this Action and designated as “CONFIDENTIAL.” Such information
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produced by Non-Parties in connection with this litigation is protected by the remedies
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and relief provided by this Order. Nothing in these provisions should be construed as
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prohibiting a Non-Party from seeking additional protections.
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PROTECTIVE ORDER
(b)
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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
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subject to an agreement with the Non-Party not to produce the Non-Party’s
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confidential information, then the Party shall:
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(1) promptly notify in writing the Requesting Party and the Non-Party
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that some or all of the information requested is subject to a confidentiality 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
(3) make the information requested available for inspection by the Non-
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Party, if requested.
(c)
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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.
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If the Non-Party timely seeks a protective order, the Receiving Party shall not produce
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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
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order to the contrary, the Non-Party shall bear the burden and expense of seeking
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protection 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)
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PROTECTIVE ORDER
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request such person or persons to execute the “Acknowledgment and Agreement to Be
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Bound” 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,
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the 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
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information covered by the attorney-client privilege or work product protection, the
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parties may incorporate their agreement in the stipulated protective order submitted to
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the court.
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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.
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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
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ground 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
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filed under seal pursuant to a court order authorizing the sealing of the specific
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Protected Material at issue. If a Party's request to file Protected Material under seal is
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PROTECTIVE ORDER
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denied by the court, then the Receiving Party may file the information in the public
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record unless otherwise instructed by the court.
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13.
FINAL DISPOSITION
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After the final disposition of this Action, as defined in paragraph 4, within 60
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days of a written request by the Designating Party, each Receiving Party must return
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all 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
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Material. Whether the Protected Material is returned or destroyed, the Receiving Party
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must submit a written certification to the Producing Party (and, if not the same person
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or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
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category, where appropriate) all the Protected Material that was returned or destroyed
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and (2) affirms that the Receiving Party has not retained any copies, abstracts,
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compilations, summaries or any other format reproducing or capturing any of the
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Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
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archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
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legal memoranda, correspondence, deposition and trial exhibits, expert reports,
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attorney work product, and consultant and expert work product, even if such materials
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contain Protected Material. Any such archival copies that contain or constitute
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Protected Material remain subject to this Protective Order as set forth in Section 4
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(DURATION).
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14.
Any violation of this Order may be punished by any and all appropriate
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measures including, without limitation, contempt proceedings and/or monetary
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sanctions.
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PROTECTIVE ORDER
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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DATED: April 27, 2021
BY:
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/s/ Spencer R. Lucas, Esq.
Michael R. Rhames, Esq.
MICHAEL R. RHAMES & ASSOCIATES, PC
Adam Shea, Esq.
Brian Panish, Esq.
Spencer R. Lucas, Esq.
Marguerite Sisney Sanvictores, Esq.
PANISH SHEA & BOYLE, LLC
Attorneys for Plaintiff, JUAN TOVAR
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DATED: April 27, 2021
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BOWMAN AND BROOKE LLP
BY:
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DATED: April 28, 2021
/s/ Jordan S. Tabak
Lawrence R. Ramsey, Esq.
Jordan S. Tabak, Esq.
Attorneys for Defendant, MAXION
WHEELS USA, LLC
YOKA & SMITH, LLP
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BY:
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/s/ Anthony F. Latiolait
Walter M. Yoka
Anthony F. Latiolait
Christopher S. Shank
SHANK & HEINEMANN, LLC
Attorneys for Defendant, THE GOODYEAR
TIRE & RUBBER COMPANY
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IT IS SO ORDERED.
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DATED: April 28, 2021
_____________________________
Honorable Steve Kim
United States Magistrate Judge
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PROTECTIVE ORDER
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I,
_____________________________
[print
or
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_________________ [print or type full address], declare under penalty of perjury that
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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
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________ in the case of Juan Tobar v. The Goodyear Tire & Rubber Company, et al.
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in The United States District Court for the Central District of California, Case No.
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2:19-cv-10754-ODW-SK . I agree to comply with and to be bound by all the terms of
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this Stipulated Protective Order and I understand and acknowledge that failure to so
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comply could expose me to sanctions and punishment in the nature of contempt. I
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solemnly promise that I will not disclose in any manner any information or item that
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is subject to this Stipulated Protective Order to any person or entity except in strict
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compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court for the
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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] of
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_______________________________________ [print or type full address and
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telephone number] as my California agent for service of process in connection with
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this action or any proceedings related to enforcement of this Stipulated Protective
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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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PROTECTIVE ORDER
type
full
name],
of
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