Seriously Awesome Stuff, LLC v. Taylor James, LLC

Filing 34

PROTECTIVE ORDER by Magistrate Judge Jacqueline Chooljian re Stipulation for Protective Order 33 . (see document for details) (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SERIOUSLY AWESOME STUFF, LLC,

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Plaintiff,

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v.

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DISCOVERY MATTER

Defendant.

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TAYLOR JAMES, LLC dba
SUPERGOOP!,

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Counterclaimant,

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v.

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PROTECTIVE ORDER

TAYLOR JAMES, LLC dba
SUPERGOOP!,

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Case No. 2:21-cv-07399 SB (JCx)

SERIOUSLY AWESOME STUFF, LLC,

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Counter-Defendant.

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5348888.1

Hon. Jacqueline Chooljian

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A. PURPOSES AND LIMITATIONS
As the parties have represented that discovery in this action is likely to

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involve production of confidential, proprietary, or private information for which

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special protection from public disclosure and from use for any purpose other than

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prosecuting this litigation may be warranted, this Court enters the following

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Protective Order. This Order does not confer blanket protections on all disclosures

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or responses to discovery. The protection it affords from public disclosure and use

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extends only to the limited information or items that are entitled to confidential

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treatment under the applicable legal principles. Further, as set forth in Section

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12.3, below, this Protective Order does not entitle the parties to file confidential

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information under seal. Rather, when the parties seek permission from the court to

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file material under seal, the parties must comply with Civil Local Rule 79-5 and

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with any pertinent orders of the assigned District Judge and Magistrate Judge.

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B. GOOD CAUSE STATEMENT

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In light of the nature of the claims and allegations in this case and the

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parties’ representations that discovery in this case will involve the production of

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confidential records, and in order to expedite the flow of information, to facilitate

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the 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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connection with this action, to address their handling of such material at the end of

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the litigation, and to serve the ends of justice, a protective order for such

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information is justified in this matter. The parties shall not designate any

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information/documents as confidential without a good faith belief that such

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information/documents have been maintained in a confidential, non-public manner,

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and that there is good cause or a compelling reason why it should not be part of the

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public record of this case.

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5348888.1

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2.

DEFINITIONS

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2.1

Action: The instant action: Seriously Awesome Stuff, LLC v. Taylor

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James, LLC dba Supergoop!; USDC, CD Case No. 2:21-cv-07399 SB (JCx).
2.2

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Challenging Party: a Party or Non-Party that challenges the

designation of information or items under this Order.
2.3

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“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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“HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES ONLY”

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Information or Items: extremely sensitive “CONFIDENTIAL” Information or

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Items, the disclosure of which to another Party or Non-Party would create a

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substantial risk of serious harm that could not be avoided by less restrictive means.
2.5

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Counsel: Outside Counsel of Record and House Counsel (as well as

their support staff).
2.6

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Designating Party: a Party or Non-Party that designates information

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or items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES

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ONLY.”
2.7

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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 in this matter.
2.8

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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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5348888.1

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2.9

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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2.10 Non-Party: any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.

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2.11 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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2.12 Party: any party to this Action, including all of its officers, directors,

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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2.13 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.

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2.14 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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2.15 Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL --

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ATTORNEYS’ EYES ONLY.”

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2.16 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.

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3.

SCOPE

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The protections conferred by this Order cover not only Protected Material

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(as defined above), but also (1) any information copied or extracted from Protected

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Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any deposition testimony, conversations, or presentations by

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Parties or their Counsel that might reveal Protected Material, other than during a

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court hearing or at trial.

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Any use of Protected Material during a court hearing or at trial shall be

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governed by the orders of the presiding judge. This Order does not govern the use

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of Protected Material during a court hearing or at trial.

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4.

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Even after final disposition of this litigation, the confidentiality obligations

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DURATION

imposed by this Order shall remain in effect until a Designating Party agrees

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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.

DESIGNATING PROTECTED MATERIAL

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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 for

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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. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber the case development process or to

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5348888.1

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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.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions), that the Producing Party affix

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at a minimum, the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL --

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ATTORNEYS’ EYES ONLY” 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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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.” After the inspecting Party has identified the

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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”, or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES

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ONLY” legend to each page that contains Protected Material. If only a portion or

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portions of the material on a page qualifies for protection, the Producing Party also

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must clearly 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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identifies on the record, before the close of the deposition as protected testimony or

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which is designated by the Party who defended the deposition and/or who

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otherwise controls the confidentiality of the testimony within ten (10) days

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following the deposition. During the pendency of the 10-day period after any

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deposition, the transcripts and recordings thereof shall be treated as Highly

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Confidential – Attorneys’ Eyes Only.
(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” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’

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EYES ONLY.” If only a portion or portions of the information warrants

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protection, the Producing Party, to the extent practicable, shall identify the

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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

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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

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efforts to assure that the material is treated in accordance with the provisions of

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this Order.

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5348888.1

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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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.
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

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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.

ACCESS TO AND USE OF PROTECTED MATERIAL

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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.
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.
7.2

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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

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“CONFIDENTIAL” only to:
(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;
(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
“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) private court reporters and their staff to whom disclosure is

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reasonably necessary for this Action and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);
(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;
(h) during their depositions, witnesses, and attorneys for witnesses, in

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the Action to whom disclosure is reasonably necessary provided: (1) the deposing

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party requests that the witness sign the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A); and (2) they will not be permitted to keep any confidential

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information unless they sign the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the

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court. Pages of transcribed deposition testimony or exhibits to depositions that

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reveal Protected Material may be separately bound by the court reporter and may

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not be disclosed to anyone except as permitted under this Protective Order; and

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(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.
7.3

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Disclosure of “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES

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ONLY” Information or Items. Unless otherwise ordered by the court or permitted

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in writing by the Designating Party, a Receiving Party may disclose any

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information or item designated “HIGHLY CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this Action, as well

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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;
(b) 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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(c) the court and its personnel;

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(d) private court reporters and their staff to whom disclosure is reasonably

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necessary for this Action and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A);
(e) 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);
(f) 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; and
(g) 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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5348888.1

8.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED
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” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES

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ONLY,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification

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shall include a copy of the subpoena or court order unless prohibited by law;
(b) promptly notify in writing the party who caused the subpoena or

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order to issue in the other litigation that some or all of the material covered by the

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subpoena or order is subject to this Protective Order. Such notification shall

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include a copy of this Protective Order; and
(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 affected.
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” or “HIGHLY CONFIDENTIAL --

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ATTORNEYS’ EYES ONLY” 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, or unless otherwise required by the law or court order. The

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Designating Party shall bear the burden and expense of seeking protection in that

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court of its confidential material and nothing in these provisions should be

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construed as authorizing or encouraging a Receiving Party in this Action to

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disobey a lawful directive from another court.

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5348888.1

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9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS LITIGATION

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(a) The terms of this Order are applicable to information produced by a

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Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL -- ATTORNEYS’ EYES ONLY.” Such information produced

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by Non-Parties in connection with this litigation is protected by the remedies and

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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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(b) 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:
(1) promptly notify in writing the Requesting Party and the Non-

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Party that some or all of the information requested is subject to a confidentiality

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agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Protective

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Order in this Action, the relevant discovery request(s), and a reasonably specific

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description of the information requested; and
(3) make the information requested available for inspection by the

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Non-Party, if requested.
(c) If a Non-Party represented by counsel fails to commence the process

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called for by Local Rules 45-1 and 37-1, et seq. within 14 days of receiving the

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notice and accompanying information or fails contemporaneously to notify the

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Receiving Party that it has done so, the Receiving Party may produce the Non-

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Party’s confidential information responsive to the discovery request. If an

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unrepresented 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

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may produce the Non-Party’s confidential information responsive to the discovery

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request. If the Non-Party timely seeks a protective order, the Receiving Party shall

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not produce any information in its possession or control that is subject to the

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confidentiality agreement with the Non-Party before a determination by the court

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unless otherwise required by the law or court order. Absent a court order to the

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contrary, the Non-Party shall bear the burden and expense of seeking protection in

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this court of its Protected Material.

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10.

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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 Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best

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efforts to retrieve all unauthorized copies of the Protected Material, (c) 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 Order, and (d) request such person or persons to execute the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A).

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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). If a Producing Party makes a claim of

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inadvertent disclosure, the Receiving Party shall, within five (5) business days,

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return or destroy all copies of the inadvertently disclosed information, and provide

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a certification of counsel that all such information has been returned or destroyed.

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The Disclosing Party retains the burden of establishing the privileged or protected

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nature of the inadvertently disclosed information.

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This provision is not intended to modify whatever procedure may be

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established in an e-discovery order that provides for production without prior

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privilege review.
Pursuant to Federal Rule of Evidence 502(d) and (e), the production or

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disclosure of any privileged or otherwise protected documents and accompanying

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metadata, shall not result in any waiver, including subject matter waiver, of any

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kind (including, without limitation, the attorney-client privilege, the work-product

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doctrine, the joint defense privilege, or any other applicable privilege), in this or

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any other state or federal proceeding regardless of the circumstances of disclosure.

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This Paragraph shall be interpreted to provide the maximum protection allowed by

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Federal Rule of Evidence 502(d).

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12.

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12.1 Right to Further Relief. Nothing in this Order abridges the right of

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MISCELLANEOUS

any person to seek its modification by the Court in the future.

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12.2 Right to Assert Other Objections. No Party waives any right it

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otherwise would have to object to disclosing or producing any information or item

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on any ground not addressed in this Protective Order. Similarly, no Party waives

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any right to object on any ground to use in evidence of any of the material covered

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by this Protective Order.
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 and with any pertinent

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orders of the assigned District Judge and Magistrate Judge. 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 information

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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 Section 4, within 60

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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

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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. Any such

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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.

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14.

Any violation of this 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 ORDERED.
DATED: November 19, 2021

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__________/s/_______________
Honorable Jacqueline Chooljian
United States Magistrate Judge

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

_____________________________

[print

or

type

full

name],

of

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_________________ [print or type full address], declare under penalty of perjury

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that I have read in its entirety and understand the Protective Order that was issued

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by the United States District Court for the Central District of California on

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November 19, 2021 in the case of Seriously Awesome Stuff, LLC v. Taylor James,

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LLC dba Supergoop!; USDC, CD Case No. 2:21-cv-07399 SB (JCx). I agree to

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comply with and to be bound by all the terms of this Protective Order and I

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understand and acknowledge that failure to so comply could expose me to sanctions

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and punishment in the nature of contempt. I solemnly promise that I will not disclose

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in any manner any information or item that is subject to this Protective Order to any

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person 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 Court

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for the Central District of California for the purpose of enforcing the terms of this

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Protective Order, even if such enforcement proceedings occur after termination of

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this action. I hereby appoint __________________________ [print or type full

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name] of _______________________________________ [print or type full address

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and telephone number] as my California agent for service of process in connection

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with this action or any proceedings related to enforcement of this 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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