TMI Products Inc v. Rosen Entertainment Systems LP

Filing 47

STIPULATED PROTECTIVE ORDER by Magistrate Judge Sheri Pym (SEE ORDER FOR DETAILS). (kca)

1 BARCELÓ, HARRISON & WALKER, LLP
2 Reynaldo C. Barceló, CA State Bar No. 199741
E-mail: [e-mail]
Hwy, Suite 200
3 2901 West CoastCalifornia 92663
Newport Beach,
4 Telephone: [phone]
Facsimile: [phone]
5 Attorneys for Plaintiff and Counterclaim Defendant,
6 TMI Products, Inc.
7 KOLISCH HARTWELL, P.C.Bar No. 196265
Owen W. Dukelow, CA State
E-mail: [e-mail]
8 260 Sheridan Avenue, Suite 200
9 Palo Alto, California 94306
Telephone: [phone]
Facsimile: [phone]
10
Attorneys for Defendant and
11 Rosen Electronics L.P., f/k/a Counterclaim Plaintiff,
Rosen Entertainment Systems, L.P.
12
UNITED STATES DISTRICT COURT
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FOR THE CENTRAL DISTRICT OF CALIFORNIA
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Case No. 5:12-cv-02263-RGK-SP

TMI PRODUCTS, INC.,

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Plaintiff,

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18

STIPULATED PROTECTIVE
ORDER

v.

19 ROSEN ELECTRONICS, L.P., f/k/a
20 ROSEN ENTERTAINMENT
SYSTEMS, L.P.
21

Defendant and
Counterclaim
Plaintiff,

22
23
24

v.

25 TMI PRODUCTS, INC.,
26
27

Counterclaim
Defendant.

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STIPULATED PROTECTIVE ORDER

1 I.

PURPOSES AND LIMITATIONS

2

The parties, through their respective counsel, hereby stipulate to and petition

3 the Court to enter the following Stipulated Protective Order. The parties
4 acknowledge and understand that this Order does not confer blanket protection on
5 all disclosures or responses to discovery, the protection it affords from public
6 disclosure and use extends only to the limited information or items that are entitled
7 to confidential treatment under the applicable legal principles, and it does not
8 presumptively entitle parties to file confidential information under seal.
9

Nevertheless, the parties agree that good cause exists for this Order and that

10 such an order is in the best interest of both parties.
11 II.

GOOD CAUSE STATEMENT

12

Discovery in this action is likely to involve production of confidential,

13 proprietary, or private information for which special protection may be warranted.
14

The parties have contractual obligations to third parties to keep certain

15 information confidential. The parties are obliged by the Federal Rules to produce
16 certain information, which is subject to contractual confidentiality obligations to
17 third parties. Failure to sufficiently protect such information will create potential
18 liability to the parties. The parties are also obliged to produce documents containing
19 confidential sales information, including without limitation pricing, discount
20 strategies and supply chain information. Public disclosure of such information will
21 result in competitive disadvantages to the parties from competitors who learn the
22 parties' confidential business strategies.
23 III.

USE AT TRIAL

24

This Order governs the use of confidential materials at trial. All documents

25 designated as trial exhibits shall not be covered by the terms of this Order at the time
26 of trial, even if they are appropriately designated Confidential or Attorneys’
27 Eyes Only, unless the party seeking to maintain the confidentiality of documents
28 makes a showing to the Court of good cause as to why the material should remain
-2STIPULATED PROTECTIVE ORDER

1 confidential, in advance of trial.

Notwithstanding the above, the Parties will

2 maintain as confidential, in accordance with this Order, all Confidential material
3 exchanged pursuant to this Order before and after trial.
4 IV.

CONFIDENTIAL MATERIAL

5

Confidential material shall include the following documents and tangible

6 things produced, disclosed, or otherwise exchanged: documents subject to
7 confidentiality agreements with third parties, documents containing sales
8 information, pricing and discount strategies, documents containing or evincing
9 proprietary business methods and strategies and documents evidencing proprietary
10 design techniques.
11

A.

12

The protections conferred by this agreement cover not only confidential

SCOPE

13 material (as defined above), but also (1) any information copied or extracted from
14 confidential material; (2) all copies, excerpts, summaries, or compilations of
15 confidential material; and (3) any testimony, conversations, or presentations by
16 parties or their counsel that might reveal confidential material.
17

However, the restrictions set forth in this Order will not apply to information

18 which is known to the receiving party or the public before the date of its
19 transmission to the receiving party, or which becomes known to the public after the
20 date of its transmission to the receiving party, provided that such information does
21 not become publicly known by any act or omission of the receiving party, its
22 employees or agents, which would be in violation of this Order; provided, further,
23 that the provisions of this paragraph are not self-executing and may not be invoked
24 on a self-help basis. A party who contends that material designated as confidential
25 (at either level defined herein) under this Order should remain confidential shall
26 have the burden of proving that contention in any proceeding where a confidentiality
27 designation is at issue.
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-3STIPULATED PROTECTIVE ORDER

1 V.

ACCESS TO AND USE OF CONFIDENTIAL MATERIAL

2

A.

3

A receiving party may use confidential material that is disclosed or produced

Basic Principles.

4 by another party or by a non-party in connection with this case only for prosecuting,
5 defending, or attempting to settle this litigation. Confidential material may be
6 disclosed only to the categories of persons and under the conditions described in this
7 agreement. Confidential material must be stored and maintained by a receiving
8 party at a location and in a secure manner that ensures that access is limited to the
9 persons authorized under this agreement.
10

B.

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Unless otherwise ordered by the Court or permitted in writing by the

Disclosure of Confidential Information or Items.

12 designating party, any material designated “Confidential,” including copies or
13 excerpts thereof, or analyses or reports which pertain thereto, may be made available
14 only to:
15

(a)

Attorneys of record for the receiving party and their immediate staff

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and outside vendors, including e-discovery, graphics, animation,

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translation, and jury consultant vendors, assigned to and necessary to

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assist such attorneys in the preparation and trial of these actions,

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provided such outside vendors agree to maintain the confidentiality of

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documents pursuant to this Protective Order by signing the Agreement

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attached hereto as Exhibit A. A receiving party’s outside counsel shall

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retain any such executed confidentiality agreements, and they need not

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be disclosed to the producing party;

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(b)

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Judges, Magistrates, law clerks and other clerical personnel of the
Court before which this action is pending;

(c)

Independent experts whom the receiving party identifies to the

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producing party. If the producing party has any objection to the

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proposed independent expert, it shall notify the receiving party in
-4STIPULATED PROTECTIVE ORDER

1

writing within ten (10) days of such identification. The parties will

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attempt to resolve any difference concerning such independent experts,

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but if they are unable to do so, the receiving party may seek relief from

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the Court according to the procedure established in LCR 37.

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disclosure of the information shall be made to the proposed

6

independent expert until after the Court has ruled upon the issue; and

No

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(d)

Officers and directors of the parties;

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(e)

An author or recipient, including receipt by copy, of any document,

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information therein, or tangible medium, and solely with respect to the

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specific document, information therein, or tangible medium; and
(f)

Any designated Rule 30(b)(6) witnesses of a party producing the

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document, who is not a current employee of the party, but is identified

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as an author or recipient, including receipt by copy, of a document,

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information therein or tangible medium, and who is being examined on

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the subject of the document. Parties reserve the right to object and

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move for protective order to prevent the disclosure of a document to a

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witness, should such disclosure violate a corporate policy precluding

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the witness from gaining access to the document.

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Materials designated “Attorneys’ Eyes Only” as well as any copies or

20 excerpts thereof, or analyses or reports which pertain thereto, may be made available
21 only to persons identified in Section V.B(a) through (c) of this Order.
22

C.

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Each person permitted by the parties or their counsel to have access to

Agreement To Be Bound.

24 designated information under the terms of this Order shall, prior to being given such
25 access, be provided with a copy of this Order for review. Upon receiving this Order,
26 each person shall sign an “Agreement To Be Bound” (Exhibit A to this Order)
27 indicating that he has read the Order and agrees to comply with its terms, provided,
28 however, that partners and employees of counsel of record as well as officers and
-5STIPULATED PROTECTIVE ORDER

1 personnel of the Court shall be exempt from the requirement to sign the Exhibit A
2 statement.
3

D.

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Before filing confidential material or discussing or referencing such material

Filing Confidential Material.

5 in court filings, the filing party shall confer with the designating party to determine
6 whether the designating party will remove the confidential designation, whether the
7 document can be redacted, or whether a motion to seal or stipulation and proposed
8 order is warranted.

Local Civil Rule 79-5 and Judge Klausner’s instructions

9 pursuant to the Court’s pilot program (Dkt. No. 37) sets forth the procedures that
10 must be followed and the standards that will be applied in this action when a party
11 seeks permission from the court to file material under seal (e.g., “all proposed sealed
12 documents must be submitted via e-mail to the Judge's Chambers email at
13 [e-mail]”).
14 VI.

DESIGNATING PROTECTED MATERIAL

15

A.

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Any information produced by any party or nonparty as part of discovery in

Governing Standards.

17 this action may be designated by the producing party(ies) as “Confidential” or
18 “Attorneys’ Eyes Only.” A document should be designated “Confidential” when it
19 contains confidential information (as listed above) that may be reviewed by a
20 designated manager of the receiving party but must be protected against disclosure
21 to unauthorized third parties. A document should be designated “Attorneys' Eyes
22 Only” when it contains trade secrets of a technical nature, such as information
23 relating to product formulas, manufacturing methods, product development plans, or
24 confidential business information such as marketing plans, customer lists, pricing
25 plans, financial statements, supplier identifiers or other information which would put
26 the producing person or entity at a competitive disadvantage if the information
27 become known to the receiving party.
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-6STIPULATED PROTECTIVE ORDER

1

B.

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3

Exercise of Restraint and Care in Designating Material for
Protection.

Each party or non-party that designates information or items for protection

4 under this Order must take care to limit any such designation to specific material
5 that qualifies under the appropriate standards. The designating party must designate
6 for protection only those parts of material, documents, items, or oral or written
7 communications that qualify, so that other portions of the material, documents,
8 items, or communications for which protection is not warranted are not swept
9 unjustifiably within the ambit of this Order.
10

Mass, indiscriminate, or routinized designations are prohibited. Designations

11 that are shown to be clearly unjustified or that have been made for an improper
12 purpose (e.g., to unnecessarily encumber or delay the case development process or
13 to impose unnecessary expenses and burdens on other parties) expose the
14 designating party to sanctions.
15

Any document containing only information which is publicly available,

16 including any information which can be ascertained from examination of a product
17 sold by any party, should not be designated as “Confidential” or “Attorneys’ Eyes
18 Only.”
19

If it comes to a designating party’s attention that information or items that it

20 designated for protection do not qualify for protection, the designating party must
21 promptly notify all other parties that it is withdrawing the mistaken designation.
22

C.

Manner and Timing of Designations.

23

Any party or non-party wishing to invoke the confidentiality provisions of

24 this Order as to produced things and documents may designate, in writing, the things
25 and documents (as defined in Rule 34 Fed. R. Civ. P. and Rule 1001 Fed. R. Evid.)
26 or portions thereof which it considers confidential at the time the things and
27 documents are produced. Such designation must be clear and unambiguous.
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-7STIPULATED PROTECTIVE ORDER

1

(a) Information in documentary form:

2

In designating documents (as defined in Rule 34 Fed. R. Civ. P. and Rule

3 1001

Fed.

R.

Evid.),

the

designating

party

must

affix

the

word(s)

4 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” to each page that contains
5 confidential material.

If only a portion or portions of the material on a page

6 qualifies for protection, the producing party also must clearly identify the protected
7 portions) (e.g., by making appropriate markings in the margins).
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(b) Testimony given in deposition or in other pretrial proceedings:

9

The witness or his or her counsel may invoke the provisions of this Order by

10 claiming confidentiality in a timely manner and designating the level of restriction.
11 During the deposition, parties shall be excluded only from testimony designated
12 “Attorneys’ Eyes Only.” The witness under deposition or his or her counsel may,
13 within ten (10) days of receiving a deposition transcript, designate portions of the
14 transcript, or exhibits thereto, as confidential, or change the level of restriction of the
15 transcript or any portion thereof. During the ten-day (10-day) period, counsel for
16 the parties shall treat the entire transcript as if it had been designated “Attorneys’
17 Eyes Only.” Testimony that has been designated “Confidential” or “Attorneys’
18 Eyes Only” on the record of the deposition shall be transcribed in a separate booklet
19 marked accordingly on each page.
20

(c) Other tangible items:

21

The producing party must affix in a prominent place on the exterior of the

22 container or containers in which the information or item is stored the word(s)
23 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY.”

If only a portion or

24 portions of the information or item warrant protection, the producing party, to the
25 extent practicable, shall identify the protected portions.
26

D.

27

If timely corrected, an inadvertent failure to designate qualified information

Inadvertent Failures to Designate.

28 or items does not, standing alone, waive the designating party’s right to secure
-8STIPULATED PROTECTIVE ORDER

1 protection under this agreement for such material. Upon timely correction of a
2 designation, the receiving party must make reasonable efforts to ensure that the
3 material is treated in accordance with the provisions of this agreement.
4 VII. CHALLENGING CONFIDENTIALITY DESIGNATIONS
5

If, at any time during preparation for trial, any party believes that any other

6 party or non-party has unreasonably designated certain material as “Confidential” or
7 “Attorneys’ Eyes Only,” or believes that it is necessary to disclose designated
8 material to persons other than those permitted by this Order, and the producing party
9 does not agree to change the designation or to further disclosure, the objecting party
10 may make an appropriate application to this Court in accordance with the
11 procedures established in LCR 37 and upon notice to all parties and to any non-party
12 who designated the material.
13 VIII. PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
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15

If a party is served with a subpoena or a court order issued in other litigation

16 that compels disclosure of any information or items designated in this action as
17 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY,” that party must:
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(a)

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Promptly notify the designating party in writing and include a copy of
the subpoena or court order;

(b)

Promptly notify in writing the party who caused the subpoena or order

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

22

by the subpoena or order is subject to this agreement. Such notification

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shall include a copy of this agreement; and

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(c)

Cooperate with respect to all reasonable procedures sought to be

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pursued by the designating party whose confidential material may be

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affected.

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-9STIPULATED PROTECTIVE ORDER

1 IX.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

2

If a receiving party learns that, by inadvertence or otherwise, it has disclosed

3 confidential material to any person or in any circumstance not authorized under this
4 agreement, the receiving party must immediately: (a) notify in writing the
5 designating party of the unauthorized disclosures, (b) use its best efforts to retrieve
6 all unauthorized copies of the protected material, (c) inform the person or persons to
7 whom unauthorized disclosures were made of all the terms of this agreement, and
8 (d) request that such person or persons execute the “Agreement to Be Bound” that is
9 attached hereto as Exhibit A.
10 X.

NON-TERMINATION AND RETURN OF DOCUMENTS

11

Within 30 days after the termination of this action, including all appeals, each

12 receiving party must return all confidential material, including material designated
13 “Attorneys’ Eyes Only,” to the producing party, including all copies, extracts and
14 summaries thereof. Alternatively, the parties may agree upon appropriate methods
15 of destruction.
16

Notwithstanding this provision, the attorney of record may retain one (1) copy

17 of any designated documents attached to any pleading filed with the Court.
18

The confidentiality obligations imposed by this Order shall remain in effect in

19 perpetuity, to the extent permitted by the Court, or until the Court orders otherwise.
20 Pursuant to Section III above, no confidentiality obligations will apply to materials
21 made public during the trial of this action. The parties agree to maintain as
22 confidential any designated materials exchanged during preparation for trial but not
23 made public.
24 XI.

CONTINUATION OF OTHER PRIVILEGES AND PROTECTIONS

25

This Order shall not prejudice the right of any party or non-party to oppose

26 production of any material on the ground of attorney-client privilege, work product
27 immunity, or any other protection provided under the law.
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- 10 STIPULATED PROTECTIVE ORDER

1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
2 Dated: September 23, 2013
3
4

By:

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_____/s/_______________
Reynaldo C. Barceló

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BARCELÓ, HARRISON & WALKER, LLP
Reynaldo C. Barceló (199741)
2901 West Coast Hwy, Suite 200
Newport Beach, CA 92663
[phone]

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Attorneys for TMI Products, Inc.

7

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By:

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/s/___
Owen W. Dukelow
KOLISCH HARTWELL, P.C.
260 Sheridan Avenue, Suite 200
Palo Alto, California 94306
[phone]

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Attorneys for Rosen Electronics L.P.,
f/k/a Rosen Entertainment Systems, L.P.

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ATTESTATION REGARDING CONCURRENCE AND AUTHORIZATION
BY ALL SIGNATORIES, PURSUANT TO LOCAL RULE 5-4.4.4(a)(2)

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I hereby attest that all other signatories listed above, and on whose behalf the

21 filing is submitted, concur in the content of the foregoing document and have
22 authorized the filing of the same.
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Dated: September 23, 2013

By: _____/s/_________
Reynaldo C. Barceló

25

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BARCELÓ, HARRISON & WALKER, LLP
2901 West Coast Hwy, Suite 200
Newport Beach, CA 92663
[phone]

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Attorneys for TMI Products, Inc.

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- 11 STIPULATED PROTECTIVE ORDER

1

PURSUANT TO STIPULATION, IT IS SO ORDERED.

2

DATED: September 25, 2013.

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________________/s/______________

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The Honorable Sheri Pym

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- 12 STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

AGREEMENT TO BE BOUND

3
4

I, __________________________________________ [print or type full

5 name], of __________________________________________ [print or type full
6 address], declare under penalty of perjury that I have read in its entirety and
7 understand the Stipulated Protective Order that was issued by the United States
8 District Court for the Central District of California on September __, 2013, in the
9 case of TMI Products, Inc. v. Rosen Electronics, L.P., No. 5:12-cv-02263-RGK-SP.
10 I agree to comply with and to be bound by all the terms of this Stipulated Protective
11 Order, and I understand and acknowledge that failure to so comply could expose me
12 to sanctions and punishment in the nature of contempt. I solemnly promise that I
13 will not disclose in any manner any information or item that is subject to this
14 Stipulated Protective Order to any person or entity except in strict compliance with
15 the provisions of this Order.
16

I further agree to submit to the jurisdiction of the United States District Court

17 for the Central District of California for the purpose of enforcing the terms of this
18 Stipulated Protective Order, even if such enforcement proceedings occur after
19 termination of this action.
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Date:

______________________

City and State where sworn and signed:

______________________

Printed name:

______________________

Signature:

______________________

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- 13 STIPULATED PROTECTIVE ORDER

1
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CERTIFICATE OF SERVICE
The undersigned certifies that all counsel of record who are deemed to have

3 consented to electronic service are being served with a copy of this document via the
4 Court’s CM/ECF system and that counsel for each party currently in this litigation
5 have consented to electronic service via the Court’s CM/ECF system.
6 Dated: September 23, 2013
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By: _____/s/____________________
Reynaldo C. Barceló
BARCELÓ, HARRISON & WALKER, LLP
Reynaldo C. Barceló (199741)
2901 West Coast Hwy, Suite 200
Newport Beach, CA 92663
[phone]
Attorneys for TMI Products, Inc.

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- 14 STIPULATED PROTECTIVE ORDER