Hueman LLC v. Alaska Airlines, Inc.
Filing
29
Stipulated PROTECTIVE ORDER by Magistrate Judge Charles F. Eick re Joint APPLICATION for Protective Order(Stipulated) 28 . (sp)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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HUEMAN LLC, A CALIFORNIA
LIMITED LIABILITY COMPANY,
Plaintiff,
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vs.
ALASKA AIRLINES, INC., AN
ALASKA CORPORATION,
Defendant.
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) Case No. 2:20-cv-06539-DSF-E
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) STIPULATED PROTECTIVE
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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
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disclosure and from use for any purpose other than prosecuting this litigation may
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be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
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enter the following Stipulated Protective Order. The parties acknowledge that this
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Order does not confer blanket protections on all disclosures or responses to
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discovery and that the protection it affords from public disclosure and use extends
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only to the limited information or items that are entitled to confidential treatment
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under the applicable legal principles. The parties further acknowledge, as set forth
STIPULATED PROTECTIVE ORDER
CASE NO.: 2:20-cv-06539-DSF-E
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in Section 12.3, below, that this Stipulated Protective Order does not entitle them
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to file confidential information under seal; Local Rule 79-5 sets forth the
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procedures that must be followed and the standards that will be applied when a
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party seeks permission from the Court to file material under seal.
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B. GOOD CAUSE STATEMENT
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This action is likely to involve trade secrets, customer and pricing lists and
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other valuable research, development, commercial, financial, technical and/or
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proprietary information for which warrants special protection from public
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disclosure or use for any purpose other than prosecution of this action. Such
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confidential and proprietary materials and information consist of, among other
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things, confidential business or financial information, information regarding
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confidential business practices, or other confidential research, development, or
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commercial information (including information implicating privacy rights of third
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parties), information otherwise generally unavailable to the public, or which may
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be privileged or otherwise protected from disclosure under state or federal statutes,
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court rules, case decisions, or common law. Accordingly, to expedite the flow of
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information, facilitate the prompt resolution of disputes over confidentiality of
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discovery materials, adequately protect information the parties are entitled to keep
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confidential, ensure that the parties are permitted reasonably necessary uses of
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such material in preparation for and in the conduct of trial, address the handling of
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such material at the end of the litigation, and serve the ends of justice, a protective
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order for such information is justified in this matter. It is the intent of the parties
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that information will not be designated as confidential for tactical reasons and that
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nothing be so designated without a good faith belief that it has been maintained in
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a confidential, non-public manner, and there is good cause why it should not be
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part of the public record of this case.
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/ /
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/ /
STIPULATED PROTECTIVE ORDER
CASE NO.: 2:20-cv-06539-DSF-E
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2.
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DEFINITIONS
2.1
Action: The lawsuit entitled Hueman LLC v. Alaska Airlines, Inc.,
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pending in the United States District Court for the Central District of California
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and bearing Index Number 2:20-cv-06539-DSF-E.
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2.2
Challenging Party:
a Party or Non-Party that challenges the
designation of information or items under this Order.
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2.3
“CONFIDENTIAL” Information or Items: information (regardless of
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how it is generated, stored or maintained) or tangible things that qualify for
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protection under Federal Rule of Civil Procedure 26(c), and as specified above in
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the Good Cause Statement.
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2.4
Counsel: Outside Counsel of Record and House Counsel (as well as
their support staff).
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2.5
Designating Party: a Party or Non-Party that designates information
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or items
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“CONFIDENTIAL.”
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2.6
that it produces in disclosures or in responses to discovery as
Disclosure or Discovery Material: all items or information, regardless
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of the medium or manner in which it is generated, stored, or maintained (including,
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among other things, testimony, transcripts, and tangible things), that are produced
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or generated in disclosures or responses to discovery requests in this matter.
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2.7
Expert:
a person with specialized knowledge or experience in a
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matter pertinent to the litigation who has been retained by a Party or its counsel to
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serve as an expert witness or as a consultant in this Action.
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2.8
House Counsel:
attorneys who are employees of a party to this
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Action. House Counsel does not include Outside Counsel of Record or any other
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outside counsel.
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2.9
Non-Party: any natural person, partnership, corporation, association,
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or other legal entity not named as a Party to this action.
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STIPULATED PROTECTIVE ORDER
CASE NO.: 2:20-cv-06539-DSF-E
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2.10 Outside Counsel of Record: attorneys who are not employees of a
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party to this Action but are retained to represent or advise a party to this Action
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and have appeared in this Action on behalf of that party or are affiliated with a law
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firm which has appeared on behalf of that party, and includes support staff.
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2.11 Party: any party to this Action, including all of its officers, directors,
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employees, consultants, retained experts, and Outside Counsel of Record (and their
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support staffs).
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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
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2.13 Professional Vendors:
persons or entities that provide litigation
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support services (e.g., photocopying, videotaping, translating, preparing exhibits or
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demonstrations, and organizing, storing, or retrieving data in any form or medium)
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and their employees and subcontractors.
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2.14 Protected Material:
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any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
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2.15 Receiving Party:
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Material from a Producing Party.
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3.
a Party that receives Disclosure or Discovery
SCOPE
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The protections conferred by this Stipulation and Order cover not only
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Protected Material (as defined above), but also (1) any information copied or
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extracted from Protected Material; (2) all copies, excerpts, summaries, or
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compilations of Protected Material; and (3) any testimony, conversations, or
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presentations by Parties or their Counsel that might reveal Protected Material.
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Any use of Protected Material at trial shall be governed by the orders of the
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trial judge. This Order does not govern the use of Protected Material at trial.
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4.
DURATION
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Even after final disposition of this litigation, the confidentiality obligations
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imposed by this Order shall remain in effect until a Designating Party agrees
STIPULATED PROTECTIVE ORDER
CASE NO.: 2:20-cv-06539-DSF-E
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otherwise in writing or a court order otherwise directs. Final disposition shall be
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deemed to be the later of (1) dismissal of all claims and defenses in this Action,
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with or without prejudice; and (2) final judgment herein after the completion and
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exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
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including the time limits for filing any motions or applications for extension of
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time pursuant to applicable law.
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5.
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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
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this Order must take care to limit any such designation to specific material that
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qualifies under the appropriate standards. The Designating Party must designate
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for protection only those parts of material, documents, items, or oral or written
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communications that qualify so that other portions of the material, documents,
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items, or communications for which protection is not warranted are not swept
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unjustifiably within the ambit of this Order.
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Mass,
indiscriminate,
or
routinized
designations
are
prohibited.
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Designations that are shown to be clearly unjustified or that have been made for an
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improper purpose (e.g., to unnecessarily encumber the case development process
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or to impose unnecessary expenses and burdens on other parties) may expose the
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Designating Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it
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designated for protection do not qualify for protection, that Designating Party must
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promptly notify all other Parties that it is withdrawing the inapplicable designation.
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5.2
Manner and Timing of Designations. Except as otherwise provided in
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this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
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under this Order must be clearly so designated before the material is disclosed or
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produced.
STIPULATED PROTECTIVE ORDER
CASE NO.: 2:20-cv-06539-DSF-E
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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
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documents, but excluding transcripts of depositions or other pretrial or trial
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proceedings), that the Producing Party affix at a minimum, the legend
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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
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contains protected material. If only a portion or portions of the material on a page
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qualifies for protection, the Producing Party also must clearly identify the
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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
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before the designation, all of the material made available for inspection shall be
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deemed “CONFIDENTIAL.”
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documents it wants copied and produced, the Producing Party must determine
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which documents, or portions thereof, qualify for protection under this Order.
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Then, before producing the specified documents, the Producing Party must affix
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the “CONFIDENTIAL legend” to each page that contains Protected Material. If
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only a portion or portions of the material on a page qualifies for protection, the
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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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(b)
After the inspecting Party has identified the
for testimony given in depositions that the Designating Party identify
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the Disclosure or Discovery Material on the record, before the close of the
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deposition all protected testimony.
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(c)
for information produced in some form other than documentary and
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for any other tangible items, that the Producing Party affix in a prominent place on
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the exterior of the container or containers in which the information is stored the
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legend “CONFIDENTIAL.”
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warrants protection, the Producing Party, to the extent practicable, shall identify
STIPULATED PROTECTIVE ORDER
CASE NO.: 2:20-cv-06539-DSF-E
If only a portion or portions of the information
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the protected portion(s).
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5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent
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failure to designate qualified information or items does not, standing alone, waive
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the Designating Party’s right to secure protection under this Order for such
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material. Upon timely correction of a designation, the Receiving Party must make
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reasonable efforts to assure that the material is treated in accordance with the
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provisions of this Order.
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6.
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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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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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6.3
The burden of persuasion in any such challenge proceeding shall be
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on the Designating Party. Frivolous challenges, and those made for an improper
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purpose (e.g., to harass or impose unnecessary expenses and burdens on other
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parties) may expose the Challenging Party to sanctions. Unless the Designating
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Party has waived or withdrawn the confidentiality designation, all parties shall
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continue to afford the material in question the level of protection to which it is
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entitled under the Producing Party’s designation until the Court rules on the
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challenge.
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7.
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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles: A Receiving Party may use Protected Material that
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is disclosed or produced by another Party or by a Non-Party in connection with this
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Action only for prosecuting, defending, or attempting to settle this Action. Such
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Protected Material may be disclosed only to the categories of persons and under
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the conditions described in this Order. When the Action has been terminated, a
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Receiving Party must comply with the provisions of section 13 below (FINAL
STIPULATED PROTECTIVE ORDER
CASE NO.: 2:20-cv-06539-DSF-E
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DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a
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location and in a secure manner that ensures that access is limited to the persons
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authorized under this Order.
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7.2
Disclosure of “CONFIDENTIAL” Information or Items: Unless
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otherwise ordered by the Court or permitted in writing by the Designating Party, a
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Receiving
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“CONFIDENTIAL” only to:
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(a)
Party
may
disclose
any
information
or
item
designated
the Receiving Party’s Outside Counsel of Record in this Action,
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as well as employees of said Outside Counsel of Record to whom it is reasonably
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necessary to disclose the information for this Action;
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(b)
the officers, directors, and employees (including House
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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for
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this Action;
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(c)
Experts (as defined in this Order) of the Receiving Party to
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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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(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
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Professional Vendors to whom disclosure is reasonably necessary for this Action
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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
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A);
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(g)
the author or recipient of a document containing the
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information or a custodian or other person who otherwise possessed or knew the
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information;
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(h)
during their depositions, witnesses, and attorneys for witnesses,
in the Action to whom disclosure is reasonably necessary, provided:
STIPULATED PROTECTIVE ORDER
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(1) the
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deposing party requests that the witness sign the form attached hereto as Exhibit A
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hereto; and (2) they will not be permitted to keep any confidential information
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unless they sign the form attached hereto as Exhibit A, unless otherwise agreed by
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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 maybe
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separately bound by the court reporter and may not be disclosed to anyone except
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as permitted under this Stipulated Protective Order; and
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(i)
any mediator or settlement officer, and their supporting
personnel, mutually agreed upon by any of the parties engaged in settlement
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discussions.
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8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
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IN OTHER LITIGATION
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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:
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(a)
promptly notify in writing the Designating Party. Such
notification shall include a copy of the subpoena or court order;
(b)
promptly notify in writing the party who caused the subpoena
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or order to issue in the other litigation that some or all of the material covered by
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the subpoena or order is subject to this Protective Order. Such notification shall
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include a copy of this Stipulated Protective Order; and
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(c)
cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.
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If the Designating Party timely seeks a protective order, the Party served
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with the subpoena or court order shall not produce any information designated in
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this action as “CONFIDENTIAL” before a determination by the court from which
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the subpoena or order issued, unless the Party has obtained the Designating Party’s
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permission. The Designating Party shall bear the burden and expense of seeking
STIPULATED PROTECTIVE ORDER
CASE NO.: 2:20-cv-06539-DSF-E
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protection in that court of its confidential material and nothing in these provisions
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should be construed as authorizing or encouraging a Receiving Party in this Action
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to disobey a lawful directive from another court.
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9.
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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
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(a)
The terms of this Order are applicable to information produced
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by a Non-Party in this Action and designated as “CONFIDENTIAL.”
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information produced by Non-Parties in connection with this litigation is protected
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by the remedies and relief provided by this Order. Nothing in these provisions
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should be construed as prohibiting a Non-Party from seeking additional
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protections.
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(b)
Such
In the event that a Party is required, by a valid discovery
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request, to produce a Non-Party’s confidential information in its possession, and
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the Party is subject to an agreement with the Non-Party not to produce the Non-
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Party’s confidential information, then the Party shall:
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(1)
promptly notify in writing the Requesting Party and the
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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)
promptly provide the Non-Party with a copy of the
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Stipulated Protective Order in this Action, the relevant
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discovery
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description of the information requested; and
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(3)
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request(s),
and
a
reasonably
specific
make the information requested available for inspection
by the Non-Party, if requested.
(c)
If the Non-Party fails to seek a protective order from this Court
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within 14 days of receiving the notice and accompanying information, the
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Receiving Party may produce the Non-Party’s confidential information responsive
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to the discovery request. If the Non-Party timely seeks a protective order, the
STIPULATED PROTECTIVE ORDER
CASE NO.: 2:20-cv-06539-DSF-E
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Receiving Party shall not produce any information in its possession or control that
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is subject to the confidentiality agreement with the Non-Party before a
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determination by the Court. Absent a court order to the contrary, the Non-Party
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shall bear the burden and expense of seeking protection in this Court of its
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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
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disclosed Protected Material to any person or in any circumstance not authorized
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under this Stipulated Protective Order, the Receiving Party must immediately (a)
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notify in writing the Designating Party of the unauthorized disclosures, (b) use its
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best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
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the person or persons to whom unauthorized disclosures were made of all the terms
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of this Order, and (d) request such person or persons to execute the
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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
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A.
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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
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protection, the obligations of the Receiving Parties are those set forth in Federal
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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
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whatever procedure may be established in an e-discovery order that provides for
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production without prior privilege review. Pursuant to Federal Rule of Evidence
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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
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of a communication or information covered by the attorney-client privilege or
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work product protection, the parties may incorporate their agreement in the
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stipulated protective order submitted to the Court.
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STIPULATED PROTECTIVE ORDER
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12.
MISCELLANEOUS
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12.1 Right to Further Relief: Nothing in this Order abridges the right of
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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
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this Stipulated Protective Order. Similarly, no Party waives any right to object on
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any ground to use in evidence of any of the material covered by this Protective
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Order.
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12.3 Filing Protected Material: A Party that seeks to file under seal any
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Protected Material must comply with Civil Local Rule 79-5. Protected Material
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may only be filed under seal pursuant to a court order authorizing the sealing of the
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specific Protected Material at issue. If a party's request to file Protected Material
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under seal is denied by the Court, then the Receiving Party may file the
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information in the public record unless otherwise instructed by the Court.
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13.
FINAL DISPOSITION
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After the final disposition of this Action, as defined in paragraph 4, within
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60 days of a written request by the Designating Party, each Receiving Party must
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return all Protected Material to the Producing Party or destroy such material. As
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used in this subdivision, “all Protected Material” includes all copies, abstracts,
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compilations, summaries, and any other format reproducing or capturing any of the
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Protected Material. Whether the Protected Material is returned or destroyed, the
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Receiving Party must submit a written certification to the Producing Party (and, if
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not the same person or entity, to the Designating Party) by the 60 day deadline that
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(1) identifies (by category, where appropriate) all the Protected Material that was
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returned or destroyed and (2) affirms that the Receiving Party has not retained any
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copies, abstracts, compilations, summaries or any other format reproducing or
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capturing any of the Protected Material. Notwithstanding this provision, Counsel
STIPULATED PROTECTIVE ORDER
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are entitled to retain an archival copy of all pleadings, motion papers, trial,
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deposition, and hearing transcripts, legal memoranda, correspondence, deposition
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and trial exhibits, expert reports, attorney work product, and consultant and expert
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work product, even if such materials contain Protected Material.
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archival copies that contain or constitute Protected Material remain subject to this
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Protective Order as set forth in Section 4 (DURATION).
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14.
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measures including, without limitation, contempt proceedings and/or monetary
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sanctions.
Any such
Any violation of this Order may be punished by any and all appropriate
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IT IS SO STIPULATED THROUGH COUNSEL OF RECORD:
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Dated: November 18, 2020
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JORDAN RAPHAEL (SBN# 252344)
BRYON RAPHAEL LLP
1055 West 7th Street, Suite 330
Los Angeles, California 90017
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ANDREW GERBER (admitted Pro Hac Vice)
KUSHNIRSKY GERBER PLLC
27 Union Square West, Suite 301
New York, New York 10003
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By: /s/ Andrew Gerber
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Attorneys for Plaintiff
HUEMAN LLC
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ATTESTED that all other signatories listed, and on whose behalf this document is
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submitted, concur in its content and have authorized its filing:
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Dated: November 18, 2020
CONDON & FORSYTH LLP
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By: /s/ Scott D. Cunningham
SCOTT D. CUNNINGHAM
Attorneys for Defendant
ALASKA AIRLINES, INC.
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STIPULATED PROTECTIVE ORDER
CASE NO.: 2:20-cv-06539-DSF-E
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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
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of perjury that I have read in its entirety and understand the Stipulated Protective
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Order that was issued by the United States District Court for the Central District of
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California on [________] in the case of HUEMAN LLC, A California Limited
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Liability Company v, ALASKA AIRLINES, INC., an Alaska corporation, Case
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No. 2:20-cv-06539-DSF-E. I agree to comply with and to be bound by all the
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terms of this Stipulated Protective Order and I understand and acknowledge that
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failure to so comply could expose me to sanctions and punishment in the nature of
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contempt. I solemnly promise that I will not disclose in any manner any
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information or item that is subject to this Stipulated Protective Order to any person
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or entity except in strict compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District
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Court for the Central District of California for the purpose of enforcing the terms
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of this Stipulated Protective Order, even if such enforcement proceedings occur
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after termination of this action. I hereby appoint
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[print or type full name] of _________________________________________
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[print or type full address and telephone number] as my California agent for
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service of process in connection with this action or any proceedings related to
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enforcement of this Stipulated Protective Order.
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Date: ___________________________________
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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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STIPULATED PROTECTIVE ORDER
CASE NO.: 2:20-cv-06539-DSF-E
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________________________
______________________________
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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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DATED:
__________________
11/18/20
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/S/ CHARLES F. EICK
________________________________
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The Hon. Charles F. Eick
United States Magistrate Judge
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STIPULATED PROTECTIVE ORDER
CASE NO.: 2:20-cv-06539-DSF-E
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