Cacique, Inc. et al v. Pedro J. Tortosa-Sanchis, et al
Filing
49
STIPULATED PROTECTIVE ORDER by Magistrate Judge John E. McDermott re Stipulation for Protective Order. 48 (es)
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GRODSKY, OLECKI & PURITSKY LLP
Allen B. Grodsky (SBN 111064)
allen@thegolawfirm.com
John J. Metzidis (SBN 259464)
john@thegolawfirm.com
11111 Santa Monica Boulevard, Suite 1070
Los Angeles, California 90025
Telephone: (310) 315-3009
Facsimile: (310) 315-1557
Attorneys for Plaintiffs and
Counter-Defendants
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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CACIQUE, INC. et al.,
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Plaintiffs,
vs.
PEDRO J. TORTOSA-SANCHIS
et al.,
Defendants.
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PEDRO J. TORTOSA-SANCHIS
et al.,
Counter-Claimants,
vs.
CACIQUE, INC. et al.,
Counter-Defendants.
Case No. 2:20-cv-06910-JWH (JEMx)
Before the Hon. John W. Holcomb,
U.S. District Judge
STIPULATED PROTECTIVE
ORDER
Action filed:
Trial:
July 22, 2020
January 31, 2022
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PURPOSES AND LIMITATIONS
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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Stipulated Protective Order does not confer blanket protections on all disclosures or
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responses to discovery and that the protection it affords from public disclosure and
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use extends only to the limited information or items that are entitled to confidential
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treatment under the applicable legal principles. The parties further acknowledge, as
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set forth in Section 13.3 below, that this Stipulated Protective Order does not entitle
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them 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. Discovery in this
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action is likely to involve production of confidential, proprietary, or private
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information for which special protection from public disclosure and from use for
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any purpose other than prosecuting this litigation may be warranted.
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2.
GOOD CAUSE STATEMENT
This action is likely to involve trade secrets and other valuable research,
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development, commercial, financial, technical and/or proprietary information for
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which special protection from public disclosure and from use for any purpose other
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than prosecution of this action is warranted. 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, information regarding confidential business practices, or
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other confidential research, development, or commercial information (including
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information implicating privacy rights of third parties), information otherwise
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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,
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or common law. Accordingly, to expedite the flow of information, to facilitate the
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prompt resolution of disputes over confidentiality of discovery materials, to
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adequately protect information the parties are entitled to keep confidential, to
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ensure that the parties are permitted reasonable necessary uses of such material in
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preparation for and in the conduct of trial, to address their handling at the end of the
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litigation, and to 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
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without a good faith belief that it has been maintained in a confidential, non-public
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manner, and there is good cause why it should not be part of the public record of
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this case.
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3.
DEFINITIONS
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3.1.
Action: This pending federal lawsuit.
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3.2.
Challenging Party: A Party or Nonparty that challenges the
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designation of information or items under this Stipulated Protective
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Order.
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3.3.
“CONFIDENTIAL” Information or Items: Information (regardless of
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how it is generated, stored or maintained) or tangible things that
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qualify for protection under Federal Rule of Civil Procedure 26(c), and
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as specified above in the Good Cause Statement.
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3.4.
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Counsel: Outside Counsel of Record and In-House Counsel (as well
as their support staff).
3.5.
Designating Party: A Party or Nonparty 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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3.6.
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
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maintained (including, among other things, testimony, transcripts, and
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tangible things), that is produced or generated in disclosures or
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responses to discovery in this matter.
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3.7.
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
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counsel to serve as an expert witness or as a consultant in this Action.
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3.8.
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Action. In-House Counsel does not include Outside Counsel of
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In-House Counsel: Attorneys who are employees of a party to this
Record or any other outside counsel.
3.9.
Nonparty: Any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.
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3.10. 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
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this Action and have appeared in this Action on behalf of that party or
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are affiliated with a law firm which has appeared on behalf of that
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party, and includes support staff.
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3.11. Party: Any party to this Action, including all of its officers, directors,
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employees, consultants, retained experts, In-House Counsel, and
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Outside Counsel of Record (and their support staffs).
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3.12. Producing Party: A Party or Nonparty that produces Disclosure or
Discovery Material in this Action.
3.13. Professional Vendors: Persons or entities that provide litigation
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support services (e.g., photocopying, videotaping, translating,
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preparing exhibits or demonstrations, and organizing, storing, or
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retrieving data in any form or medium) and their employees and
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subcontractors.
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3.14. Protected Material: Any Disclosure or Discovery Material that is
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designated as “CONFIDENTIAL.”
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3.15. Receiving Party: A Party that receives Disclosure or Discovery
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Material from a Producing Party.
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4.
SCOPE
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The protections conferred by this Stipulated Protective Order cover not only
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Protected Material, but also (1) any information copied or extracted from Protected
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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material;
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and (3) any testimony, conversations, or presentations by Parties or their Counsel
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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 Stipulated Protective Order does not govern the use of Protected
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Material at trial.
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5.
DURATION
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Even after final disposition of this litigation, the confidentiality obligations
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imposed by this Stipulated Protective Order shall remain in effect until a
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Designating Party agrees otherwise in writing or a court order otherwise directs.
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Final disposition shall be deemed to be the later of (1) dismissal of all claims and
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defenses in this Action, with or without prejudice; and (2) final judgment herein
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after the completion and exhaustion of all appeals, rehearings, remands, trials, or
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reviews of this Action, including the time limits for filing any motions or
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applications for extension of time pursuant to applicable law.
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6.
DESIGNATING PROTECTED MATERIAL
6.1.
Exercise of Restraint and Care in Designating Material for Protection.
Each Party or Nonparty that designates information or items for
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protection under this Stipulated Protective Order must take care to
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limit any such designation to specific material that qualifies under the
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appropriate standards. The Designating Party must designate for
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protection only those parts of material, documents, items, or oral or
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written communications that qualify so that other portions of the
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material, documents, items, or communications for which protection is
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not warranted are not swept unjustifiably within the ambit of this
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Stipulated Protective Order.
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Mass, indiscriminate, or routinized designations are
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prohibited. Designations that are shown to be clearly unjustified or that
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have been made for an improper purpose (e.g., to unnecessarily
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encumber the case development process or to impose unnecessary
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expenses and burdens on other parties) may expose the Designating
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Party to sanctions.
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6.2.
Manner and Timing of Designations.
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Except as otherwise provided in this Stipulated Protective Order
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(see, e.g., Section 6.2(a)), or as otherwise stipulated or ordered,
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Disclosure or Discovery Material that qualifies for protection under
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this Stipulated Protective Order must be clearly so designated before
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the material is disclosed or produced.
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Designation in conformity with this Stipulated Protective Order
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requires the following:
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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
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pretrial or trial proceedings), that the Producing Party affix at a
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minimum, the legend “CONFIDENTIAL” to each page that
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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
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also must clearly identify the protected portion(s) (e.g., by
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making appropriate markings in the margins).
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A Party or Nonparty that makes original documents
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available for inspection need not designate them for protection
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until after the inspecting Party has indicated which documents it
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would like copied and produced. During the inspection and
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before the designation, all of the material made available for
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inspection shall be deemed “CONFIDENTIAL.” After the
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inspecting Party has identified the documents it wants copied
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and produced, the Producing Party must determine which
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documents, or portions thereof, qualify for protection under this
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Stipulated Protective Order. Then, before producing the
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specified documents, the Producing Party must affix the legend
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“CONFIDENTIAL” to each page that contains Protected
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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
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identify the protected portion(s) (e.g., by making appropriate
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markings in the margins).
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(b)
For testimony given in depositions, that the Designating Party
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identify the Disclosure or Discovery Material on the record,
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before the close of the deposition, all protected testimony.
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(c)
For information produced in nondocumentary form, and for any
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other tangible items, that the Producing Party affix in a
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prominent place on the exterior of the container or containers in
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which the information is stored the legend “CONFIDENTIAL.”
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If only a portion or portions of the information warrants
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protection, the Producing Party, to the extent practicable, shall
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identify the protected portion(s).
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6.3.
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Inadvertent Failure to Designate.
If timely corrected, an inadvertent failure to designate qualified
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information or items does not, standing alone, waive the Designating
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Party’s right to secure protection under this Stipulated Protective Order
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for such material. Upon timely correction of a designation, the
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Receiving Party must make reasonable efforts to assure that the
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material is treated in accordance with the provisions of this Stipulated
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Protective Order.
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7.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
7.1.
Timing of Challenges.
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Any Party or Nonparty may challenge a designation of
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confidentiality at any time that is consistent with the Court’s
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Scheduling Order.
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7.2.
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The Challenging Party shall initiate the dispute resolution
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Meet and Confer.
process, which shall comply with Local Rule 37.1 et seq.,
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Burden of Persuasion.
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The burden of persuasion in any such challenge proceeding shall
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be on the Designating Party. Frivolous challenges, and those made for
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an improper purpose (e.g., to harass or impose unnecessary expenses
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and burdens on other parties) may expose the Challenging Party to
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sanctions. Unless the Designating Party has waived or withdrawn the
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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
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the Producing Party’s designation until the Court rules on the
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challenge.
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8.
ACCESS TO AND USE OF PROTECTED MATERIALS
8.1.
Basic Principles.
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A Receiving Party may use Protected Material that is disclosed
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or produced by another Party or by a Nonparty in connection with this
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Action only for prosecuting, defending, or attempting to settle this
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Action. Such Protected Material may be disclosed only to the
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categories of persons and under the conditions described in this
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Stipulated Protective Order. When the Action reaches a final
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disposition, a Receiving Party must comply with the provisions of
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Section 14 below.
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Protected Material must be stored and maintained by a
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Receiving Party at a location and in a secure manner that ensures that
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access is limited to the persons authorized under this Stipulated
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Protective Order.
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8.2.
Disclosure of “CONFIDENTIAL” Information or Items.
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Unless otherwise ordered by the Court or permitted in writing
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by the Designating Party, a Receiving Party may disclose any
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information or item designated “CONFIDENTIAL” only to:
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(a)
The Receiving Party’s Outside Counsel of Record, as well as
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employees of said Outside Counsel of Record to whom it is
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reasonably necessary to disclose the information for this Action;
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(b)
The officers, directors, and employees (including In-House
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Counsel) of the Receiving Party to whom disclosure is
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reasonably necessary for this Action;
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(c)
Experts of the Receiving Party to whom disclosure is reasonably
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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
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necessary or 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
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information or a custodian or other person who otherwise
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possessed or knew the information;
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(h)
During their depositions, witnesses, and attorneys for witnesses,
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in the Action to whom disclosure is reasonably necessary
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provided: (i) the deposing party requests that the witness sign
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the “Acknowledgment and Agreement to Be Bound” (Exhibit
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A); and (ii) the witness will not be permitted to keep any
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confidential information unless they sign the “Acknowledgment
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and Agreement to Be Bound,” unless otherwise agreed by the
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Designating Party or ordered by the Court. Pages of transcribed
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deposition testimony or exhibits to depositions that reveal
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Protected Material may be separately bound by the court
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reporter and may not be disclosed to anyone except as permitted
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under this Stipulated Protective Order; and
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(i)
Any mediator or settlement officer, and their supporting
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personnel, mutually agreed upon by any of the parties engaged
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in settlement discussions.
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9.
PROTECTED MATERIAL SUBPOENAED OR ORDERED
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PRODUCED 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)
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Promptly notify in writing the Designating Party. Such notification
shall 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
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to issue in the other litigation that some or all of the material covered
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by the subpoena or order is subject to this Stipulated Protective Order.
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Such notification shall include a copy of this Stipulated Protective
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Order; and
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(c)
Cooperate with respect to all reasonable procedures sought to be
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pursued by the Designating Party whose Protected Material may be
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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
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action as “CONFIDENTIAL” before a determination by the Court from which the
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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
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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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10.
A NONPARTY’S PROTECTED MATERIAL SOUGHT TO BE
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PRODUCED IN THIS LITIGATION
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10.1. Application.
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The terms of this Stipulated Protective Order are applicable to
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information produced by a Nonparty in this Action and designated as
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“CONFIDENTIAL.” Such information produced by Nonparties in
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connection with this litigation is protected by the remedies and relief
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provided by this Stipulated Protective Order. Nothing in these
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provisions should be construed as prohibiting a Nonparty from seeking
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additional protections.
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10.2. Notification.
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In the event that a Party is required, by a valid discovery
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request, to produce a Nonparty’s confidential information in its
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possession, and the Party is subject to an agreement with the Nonparty
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not to produce the Nonparty’s confidential information, then the Party
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shall:
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(a)
Promptly notify in writing the Requesting Party and the
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Nonparty that some or all of the information requested is subject
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to a confidentiality agreement with a Nonparty;
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(b)
Promptly provide the Nonparty with a copy of the Stipulated
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Protective Order in this Action, the relevant discovery
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request(s), and a reasonably specific description of the
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information requested; and
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(c)
Make the information requested available for inspection by the
Nonparty, if requested.
10.3. Conditions of Production.
If the Nonparty fails to seek a protective order from this Court
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within fourteen (14) days after receiving the notice and accompanying
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information, the Receiving Party may produce the Nonparty’s
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confidential information responsive to the discovery request. If the
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Nonparty 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
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the confidentiality agreement with the Nonparty before a
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determination by the Court. Absent a court order to the contrary, the
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Nonparty shall bear the burden and expense of seeking protection in
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this Court of its Protected Material.
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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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 immediately must (1) notify in
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writing the Designating Party of the unauthorized disclosures, (2) use its best
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efforts to retrieve all unauthorized copies of the Protected Material, (3) inform the
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person or persons to whom unauthorized disclosures were made of all the terms of
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this Stipulated Protective Order, and (4) request such person or persons to execute
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the “Acknowledgment and Agreement to be Bound” (Exhibit A).
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12.
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 work
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product protection, the parties may incorporate their agreement in the Stipulated
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Protective Order submitted to the Court.
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13.
MISCELLANEOUS
13.1. Right to Further Relief.
Nothing in this Stipulated Protective Order abridges the right of
any person to seek its modification by the Court in the future.
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13.2. Right to Assert Other Objections.
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By stipulating to the entry of this Stipulated Protective Order, no
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Party waives any right it otherwise would have to object to disclosing
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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
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to object on any ground to use in evidence of any of the material
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covered by this Stipulated Protective Order.
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13.3. Filing Protected Material.
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A Party that seeks to file under seal any Protected Material must
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comply with 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
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specific Protected Material at issue. If a Party's request to file
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Protected Material under seal is denied by the Court, then the
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Receiving Party may file the information in the public record unless
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otherwise instructed by the Court.
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14.
FINAL DISPOSITION
After the final disposition of this Action, within sixty (60) days of a written
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request by the Designating Party, each Receiving Party must return all Protected
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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
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Party must submit a written certification to the Producing Party (and, if not the
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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 is
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entitled to retain an archival copy of all pleadings; motion papers; trial, deposition,
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and hearing transcripts; legal memoranda; correspondence; deposition and trial
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exhibits; expert reports; attorney work product; and consultant and expert work
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product, even if such materials contain Protected Material. Any such archival
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copies that contain or constitute Protected Material remain subject to this Stipulated
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Protective Order as set forth in Section 5.
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15.
VIOLATION
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Any violation of this Stipulated Order may be punished by any and all
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appropriate measures including, without limitation, contempt proceedings and/or
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monetary sanctions.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated:
7/15/21
/Allen B. Grodsky/
Attorney for Plaintiffs and
Counterdefendants
Dated:
7/15/21_____
/Michael Schwartz/
Attorney for Defendants and
Counterclaimants
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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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Dated:7/15/21
John E. McDermott
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,
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[full name], of
[address], declare under penalty of perjury that I have read in its
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entirety and understand the Stipulated Protective Order that was issued by the
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United States District Court for the Central District of California on
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[date] in the case of
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[case name and number]. I agree to comply with and to be bound by all the terms
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of this Stipulated Protective Order, and I understand and acknowledge that failure
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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 Stipulated Protective
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Order.
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I further agree to submit to the jurisdiction of the United States District Court
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for the Central District of California for the purpose of enforcing the terms of this
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Stipulated Protective Order, even if such enforcement proceedings occur after
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termination of this action. I hereby appoint
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of
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as my California agent for service of process in connection with this action or any
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proceedings related to enforcement of this Stipulated Protective Order.
[full name]
[address and telephone number]
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Signature:
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Printed Name:
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Date:
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City and State Where Sworn and Signed:
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