Michael Kelley v. Penske Media Corporation et al
Filing
32
STIPULATED PROTECTIVE ORDER by Magistrate Judge Autumn D. Spaeth granting Stipulation for Protective Order 28 . (kh)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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MICHAEL KELLEY
Plaintiff(s),
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v.
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Case No. 2:23-cv-01718-JAK-ADS
STIPULATED PROTECTIVE ORDER
PENSKE MEDIA CORPORATION, et
al.,
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Defendant(s).
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I.
PURPOSES AND LIMITATIONS
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A.
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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
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may be warranted. Accordingly, the parties hereby stipulate to and petition the
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Court to enter the following Stipulated Protective Order. The parties
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acknowledge that this Order does not confer blanket protections on all
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disclosures or responses to discovery and that the protection it affords from
Discovery in this action is likely to involve production of confidential,
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public disclosure and use extends only to the limited information or items that
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are entitled to confidential treatment under the applicable legal principles. The
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parties further acknowledge, as set forth in Section XIII(C), below, that this
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Stipulated Protective Order does not entitle them to file confidential information
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under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed
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and the standards that will be applied when a party seeks permission from the
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Court to file material under seal.
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II.
GOOD CAUSE STATEMENT
A.
This action is likely to involve customer and pricing lists and other
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valuable and competitively sensitive commercial, financial, and/or proprietary
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information for which special protection from public disclosure and from use for
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any purpose other than prosecution of this action is warranted. Such
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confidential and proprietary materials and information consist of, among other
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things, confidential business or financial information and license terms,
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information regarding confidential business practices and pricing, or other
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sensitive and confidential commercial information (including information
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implicating privacy rights of third parties), information otherwise generally
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unavailable to the public or to the parties’ business competitors, or which may
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be privileged or otherwise protected from disclosure under state or federal
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statutes, court rules, case decisions, or common law. Accordingly, to expedite
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the flow of information, to facilitate the prompt resolution of disputes over
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confidentiality of discovery materials, to adequately protect information the
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parties are entitled to keep confidential, to ensure that the parties are permitted
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reasonable necessary uses of such material in preparation for and in the conduct
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of trial, to address their handling at the end of the litigation, and serve the ends
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of justice, a protective order for such information is justified in this matter. It is
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the intent of the parties that information will not be designated as confidential
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for tactical reasons and that nothing be so designated without a good faith belief
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that it has been maintained in a confidential, non-public manner, and there is
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good cause why it should not be part of the public record of this case.
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III.
DEFINITIONS
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A.
Action: This pending federal law suit.
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B.
Challenging Party: A Party or Non-Party that challenges the designation
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of information or items under this Order.
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C.
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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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D.
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Items: extremely sensitive “CONFIDENTIAL” Information or Items, the
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disclosure of which to another Party or Non-Party would create a substantial risk
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of serious harm that could not be avoided by less restrictive means.
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E.
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support staff).
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F.
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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.”
“CONFIDENTIAL” Information or Items: Information (regardless of how
“HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” Information or
Counsel: Outside Counsel of Record and House Counsel (as well as their
Designating Party: A Party or Non-Party that designates information or
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G.
Disclosure or Discovery Material: All items or information, regardless of
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the medium or manner in which it is generated, stored, or maintained
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(including, among other things, testimony, transcripts, and tangible things), that
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are produced or generated in disclosures or responses to discovery in this
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matter.
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H.
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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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I.
Expert: A person with specialized knowledge or experience in a matter
House Counsel: Attorneys who are employees of a party to this Action.
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House Counsel does not include Outside Counsel of Record or any other outside
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counsel.
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J.
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other legal entity not named as a Party to this action.
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K.
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to this Action but are retained to represent or advise a party to this Action and
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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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L.
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employees, consultants, retained experts, and Outside Counsel of Record (and
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their support staffs).
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M.
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Discovery Material in this Action.
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N.
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services (e.g., photocopying, videotaping, translating, preparing exhibits or
Non-Party: Any natural person, partnership, corporation, association, or
Outside Counsel of Record: Attorneys who are not employees of a party
Party: Any party to this Action, including all of its officers, directors,
Producing Party: A Party or Non-Party that produces Disclosure or
Professional Vendors: Persons or entities that provide litigation support
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demonstrations, and organizing, storing, or retrieving data in any form or
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medium) and their employees and subcontractors.
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O.
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designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL --
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ATTORNEYS’ EYES ONLY.”
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P.
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from a Producing Party.
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IV.
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Protected Material: Any Disclosure or Discovery Material that is
Receiving Party: A Party that receives Disclosure or Discovery Material
SCOPE
A.
The protections conferred by this Stipulation and Order cover not only
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Protected Material (as defined above), but also (1) any information copied or
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extracted from Protected Material; (2) all copies, excerpts, summaries, or
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compilations of Protected Material; and (3) any testimony, conversations, or
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presentations by Parties or their Counsel that might reveal Protected Material.
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B.
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the trial judge. This Order does not govern the use of Protected Material at trial.
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V.
Any use of Protected Material at trial shall be governed by the orders of
DURATION
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A.
Even after final disposition of this litigation, the confidentiality
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obligations imposed by this Order shall remain in effect until a Designating
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Party agrees otherwise in writing or a court order otherwise directs. Final
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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,
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or 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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VI.
DESIGNATING PROTECTED MATERIAL
A.
Exercise of Restraint and Care in Designating Material for Protection
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1.
Each Party or Non-Party that designates information or items for
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protection under this Order must take care to limit any such designation
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to specific material that qualifies under the appropriate standards. The
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Designating Party must designate for protection only those parts of
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material, documents, items, or oral or written communications that
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qualify so that other portions of the material, documents, items, or
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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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2.
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Designations that are shown to be clearly unjustified or that have been
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made for an improper purpose (e.g., to unnecessarily encumber the case
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development process or to impose unnecessary expenses and burdens on
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other parties) may expose the Designating Party to sanctions.
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3.
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items that it designated for protection do not qualify for protection, that
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Designating Party must promptly notify all other Parties that it is
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withdrawing the inapplicable designation.
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B.
Mass, indiscriminate, or routinized designations are prohibited.
If it comes to a Designating Party’s attention that information or
Manner and Timing of Designations
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1.
Except as otherwise provided in this Order (see, e.g., Section
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B(2)(b) below), or as otherwise stipulated or ordered, Disclosure or
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Discovery Material that qualifies for protection under this Order must be
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clearly so designated before the material is disclosed or produced.
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2.
Designation in conformity with this Order requires the following:
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a.
For information in documentary form (e.g., paper or
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electronic documents, but excluding transcripts of depositions or
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other pretrial or trial proceedings), that the Producing Party affix
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at a minimum, the legend “CONFIDENTIAL” (hereinafter
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“CONFIDENTIAL legend”) or “HIGHLY CONFIDENTIAL --
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ATTORNEYS’ EYES ONLY” (hereinafter “HIGHLY
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CONFIDENTIAL legend”), 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.
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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 before
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the designation, all of the material made available for inspection
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shall be deemed “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
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-- ATTORNEYS’ EYES ONLY.” After the inspecting Party has
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identified the documents it wants copied and produced, the
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Producing Party must determine which documents, or portions
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thereof, qualify for protection under this Order. Then, before
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producing the specified documents, the Producing Party must affix
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the “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
A Party or Non-Party that makes original documents
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ATTORNEYS’ EYES ONLY” legend to each page that contains
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Protected Material. If only a portion or portions of the material on
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a page qualifies for protection, the Producing Party also must
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clearly identify the protected portion(s) (e.g., by making
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appropriate markings in the margins).
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c.
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Party identify the Disclosure or Discovery Material on the record,
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before the close of the deposition all protected testimony. When it
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is impractical to identify separately each portion of testimony that
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is entitled to protection and it appears that substantial portions of
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the testimony may qualify for protection, the Designating Party
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may invoke on the record (before the deposition, hearing, or other
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proceeding is concluded) a right to have up to 21 days to identify
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the specific portions of the testimony as to which protection is
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sought and to specify the level of protection being asserted. Only
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those portions of the testimony that are appropriately designated
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for protection within the 21 days shall be covered by the provisions
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of this Stipulated Protective Order. Alternatively, a Designating
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Party may specify, at the deposition or up to 21 days afterwards if
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that period is properly invoked, that the entire transcript shall be
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treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
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ATTORNEYS’ EYES ONLY.” Any transcript that is prepared
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before the expiration of a 21-day period for designation shall be
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treated during that period as if it had been designated “HIGHLY
For testimony given in depositions, that the Designating
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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety
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unless otherwise agreed. After the expiration of that period, the
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transcript shall be treated only as actually designated.
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d.
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for any 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” or
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“HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES ONLY.” If only
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a portion or portions of the information warrants protection, the
For information produced in form other than document and
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Producing Party, to the extent practicable, shall identify the
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protected portion(s).
C.
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Inadvertent Failure to Designate
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1.
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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 Order for such material.
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Upon timely correction of a designation, the Receiving Party must make
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reasonable efforts to assure that the material is treated in accordance with
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the provisions of this Order.
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VII.
If timely corrected, an inadvertent failure to designate qualified
CHALLENGING CONFIDENTIALITY DESIGNATIONS
A.
Timing of Challenges
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confidentiality at any time that is consistent with the Court’s Scheduling
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Order.
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B.
Any party or Non-Party may challenge a designation of
Meet and Confer
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The Challenging Party shall initiate the dispute resolution process
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under Local Rule 37.1 et seq.
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C.
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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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The burden of persuasion in any such challenge proceeding shall be on
challenge.
VIII. ACCESS TO AND USE OF PROTECTED MATERIAL
A.
Basic Principles
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1.
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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.
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Such Protected Material may be disclosed only to the categories of
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persons and under the conditions described in this Order. When the
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Action has been terminated, a Receiving Party must comply with the
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provisions of Section XIV below.
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2.
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Party at a location and in a secure manner that ensures that access is
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limited to the persons authorized under this Order.
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B.
A Receiving Party may use Protected Material that is disclosed or
Protected Material must be stored and maintained by a Receiving
Disclosure of “CONFIDENTIAL” Information or Items
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Unless otherwise ordered by the Court or permitted in writing by
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the Designating Party, a Receiving Party may disclose any information or
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item designated “CONFIDENTIAL” only to:
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a.
The Receiving Party’s Outside Counsel of Record in this
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Action, as well as employees of said Outside Counsel of Record to
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whom it is reasonably necessary to disclose the information for this
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Action;
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b.
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Counsel) of the Receiving Party to whom disclosure is reasonably
The officers, directors, and employees (including House
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necessary for this Action;
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c.
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whom disclosure is reasonably necessary for this Action and who
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have signed the “Acknowledgment and Agreement to Be Bound”
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(Exhibit A);
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d.
The Court and its personnel;
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e.
Court reporters and their staff;
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f.
Professional jury or trial consultants, mock jurors, and
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Professional Vendors to whom disclosure is reasonably necessary
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for this Action and who have signed the “Acknowledgment and
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Agreement to be Bound” attached as Exhibit A hereto;
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g.
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information or a custodian or other person who otherwise
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possessed or knew the information;
Experts (as defined in this Order) of the Receiving Party to
The author or recipient of a document containing the
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h.
During their depositions, witnesses, and attorneys for
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witnesses, in the Action to whom disclosure is reasonably
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necessary provided: (i) the deposing party requests that the
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witness sign the “Acknowledgment and Agreement to Be Bound;”
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and (ii) they will not be permitted to keep any confidential
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information unless they sign the “Acknowledgment and Agreement
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to Be Bound,” unless otherwise agreed by the Designating Party or
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ordered by the Court. Pages of transcribed deposition testimony or
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exhibits to depositions that reveal Protected Material may be
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separately bound by the court reporter and may not be disclosed to
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anyone except as permitted under this Stipulated Protective Order;
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and
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i.
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personnel, mutually agreed upon by any of the parties engaged in
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settlement discussions.
Any mediator or settlement officer, and their supporting
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2.
Disclosure of “HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES
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ONLY” Information or Items. Unless otherwise ordered by the court or
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permitted in writing by the Designating Party, a Receiving Party may
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disclose any information or item designated “HIGHLY CONFIDENTIAL”
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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 Receiving Party’s House Counsel, to whom disclosure is
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reasonably necessary in this Action;
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c.
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whom disclosure is reasonably necessary for this Action and who
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have signed the “Acknowledgment and Agreement to Be Bound”
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(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
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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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f.
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Professional Vendors to whom disclosure is reasonably necessary
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for this Action and who have signed the “Acknowledgment and
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Agreement to Be Bound” (Exhibit A);
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g.
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information or a custodian or other person who otherwise
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possessed or knew the information; and
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h.
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the Designating Party. Pages of transcribed deposition testimony
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or exhibits to depositions that reveal Protected Material may be
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separately bound by the court reporter and may not be disclosed to
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anyone except as permitted under this Stipulated Protective Order;
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and
Experts (as defined in this Order) of the Receiving Party to
professional jury or trial consultants, mock jurors, and
the author or recipient of a document containing the
During their deposition(s), the Rule 30(b)(6) witness(es) for
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i.
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personnel, mutually agreed upon by any of the parties engaged in
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settlement discussions.
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IX.
any mediator or settlement officer, and their supporting
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
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IN OTHER LITIGATION
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A.
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litigation that compels disclosure of any information or items designated in this
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Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL -- ATTORNEYS’
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EYES ONLY,” that Party must:
If a Party is served with a subpoena or a court order issued in other
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1.
Promptly notify in writing the Designating Party. Such notification
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shall include a copy of the subpoena or court order;
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2.
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order to issue in the other litigation that some or all of the material
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covered by the subpoena or order is subject to this Protective Order. Such
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notification shall include a copy of this Stipulated Protective Order; and
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3.
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pursued by the Designating Party whose Protected Material may be
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affected.
Promptly notify in writing the party who caused the subpoena or
Cooperate with respect to all reasonable procedures sought to be
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B.
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
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in 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. 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
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provisions should be construed as authorizing or encouraging a Receiving Party
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in this Action to disobey a lawful directive from another court.
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X.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
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PRODUCED IN THIS LITIGATION
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A.
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Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY
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CONFIDENTIAL -- ATTORNEYS’ EYES ONLY.” Such information produced by
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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
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as prohibiting a Non-Party from seeking additional protections.
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B.
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produce a Non-Party’s confidential information in its possession, and the Party
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is 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:
The terms of this Order are applicable to information produced by a Non-
In the event that a Party is required, by a valid discovery request, to
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1.
Promptly notify in writing the Requesting Party and the Non-Party
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that some or all of the information requested is subject to a
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confidentiality agreement with a Non-Party;
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2.
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Protective Order in this Action, the relevant discovery request(s), and a
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reasonably specific description of the information requested; and
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3.
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Non-Party, if requested.
Promptly provide the Non-Party with a copy of the Stipulated
Make the information requested available for inspection by the
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C.
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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
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discovery request. If the Non-Party timely seeks a protective order, the
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Receiving Party shall not produce any information in its possession or control
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that is subject to the confidentiality agreement with the Non-Party before a
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determination by the court. Absent a court order to the contrary, the Non-Party
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shall bear the burden and expense of seeking protection in this court of its
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Protected Material.
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XI.
If the Non-Party fails to seek a protective order from this court within 14
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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A.
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disclosed Protected Material to any person or in any circumstance not
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authorized under this Stipulated Protective Order, the Receiving Party must
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immediately (1) notify in writing the Designating Party of the unauthorized
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disclosures, (2) use its best efforts to retrieve all unauthorized copies of the
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Protected Material, (3) inform the person or persons to whom unauthorized
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disclosures were made of all the terms of this Order, and (4) request such person
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or persons to execute the “Acknowledgment and Agreement to be Bound” that is
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attached hereto as Exhibit A.
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If a Receiving Party learns that, by inadvertence or otherwise, it has
XII. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
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PROTECTED MATERIAL
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A.
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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
When a Producing Party gives notice to Receiving Parties that certain
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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
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disclosure of a communication or information covered by the attorney-client
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privilege or work product protection, the parties may incorporate their
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agreement in the Stipulated Protective Order submitted to the Court.
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XIII. MISCELLANEOUS
A.
Right to Further Relief
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1.
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modification by the Court in the future.
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B.
Nothing in this Order abridges the right of any person to seek its
Right to Assert Other Objections
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1.
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any right it otherwise would have to object to disclosing or producing any
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information or item on any ground not addressed in this Stipulated
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Protective Order. Similarly, no Party waives any right to object on any
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ground to use in evidence of any of the material covered by this Protective
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Order.
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C.
By stipulating to the entry of this Protective Order, no Party waives
Filing Protected Material
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1.
A Party that seeks to file under seal any Protected Material must
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comply with Civil Local Rule 79-5. Protected Material may only be filed
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under seal pursuant to a court order authorizing the sealing of the specific
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Protected Material at issue. If a Party's request to file Protected Material
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under seal is denied by the Court, then the Receiving Party may file the
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information in the public record unless otherwise instructed by the Court.
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XIV. FINAL DISPOSITION
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A.
After the final disposition of this Action, as defined in Section V, within
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sixty (60) days of a written request by the Designating Party, each Receiving
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Party must return all Protected Material to the Producing Party or destroy such
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material. As used in this subdivision, “all Protected Material” includes all copies,
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abstracts, compilations, summaries, and any other format reproducing or
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capturing any of the Protected Material. Whether the Protected Material is
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returned or destroyed, the Receiving Party must submit a written certification to
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the Producing Party (and, if not the same person or entity, to the Designating
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Party) by the 60 day deadline that (1) identifies (by category, where appropriate)
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all the Protected Material that was returned or destroyed and (2) affirms that the
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Receiving Party has not retained any copies, abstracts, compilations, summaries
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or any other format reproducing or capturing any of the Protected Material.
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Notwithstanding this provision, Counsel are entitled to retain an archival copy of
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all pleadings, motion papers, trial, deposition, and hearing transcripts, legal
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memoranda, correspondence, deposition and trial exhibits, expert reports,
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attorney work product, and consultant and expert work product, even if such
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materials contain Protected Material. Any such archival copies that contain or
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constitute Protected Material remain subject to this Protective Order as set forth
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in Section V.
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B.
Any violation of this Order may be punished by any and all appropriate
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measures including, without limitation, contempt proceedings and/or monetary
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sanctions.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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Dated: February 6, 2024
/s/ Benjamin F. Tookey
Stephen M. Doniger
stephen@donigerlawfirm.com
Benjamin F. Tookey
btookey@donigerlawfirm.com
DONIGER / BURROUGHS APC
603 Rose Avenue
Venice, California 90291
Telephone: (310) 590-1820
Attorneys for Plaintiff
Dated: February 6, 2024
/s/ Kevin Vick
Kevin Vick
kvick@jassyvick.com
JASSY VICK CAROLAN LLP
355 S. Grand Ave, Suite 2450
Los Angeles, CA 90071
Tel: 310-870-7048
Fax: 310-870-7010
Attorney for Defendants
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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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Dated:
02/07/2024
/s/ Autumn D. Spaeth
HONORABLE AUTUMN D. SPAETH
United States Magistrate Judge
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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I,
[print or type full name], of
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[print or type full address], declare under penalty of perjury that I
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have read in its entirety and understand the Stipulated Protective Order that was issue
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by the United States District Court for the Central District of California on [DATE] in
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the case of Michael Kelley v. Penske Media Corporation, et al., Case No. 2:23-cv-
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01718-JAK-ADS. I agree to comply with and to be bound by all the terms of this
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Stipulated Protective Order and I understand and acknowledge that failure to so
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comply could expose me to sanctions and punishment in the nature of contempt. I
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solemnly promise that I will not disclose in any manner any information or item that is
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subject to this Stipulated Protective Order to any person or entity except in strict
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compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court
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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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type full name] of
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telephone number] as my California agent for service of process in connection with this
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action or any proceedings related to enforcement of this Stipulated Protective Order.
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Date:
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City and State where sworn and signed:
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Printed Name:
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Signature:
[print or
[print or type full address and
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