Andy Hoang v. Berkshire Life Insurance Company of America
Filing
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STIPULATED PROTECTIVE ORDER by Magistrate Judge Sheri Pym (SEE ORDER FOR DETAILS). (kca)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ANDY HOANG,
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Plaintiff,
vs.
BERKSHIRE LIFE INSURANCE
COMPANY OF AMERICA,
Defendant.
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) Case No. 5:17-cv-00175 SJO (SPx)
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) STIPULATED PROTECTIVE
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{04000778.1}
STIPULATED PROTECTIVE ORDER
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1.
A. PURPOSES AND LIMITATIONS
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Disclosure and discovery activity in this action are likely to involve production
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of confidential, proprietary, or private information for which special protection from
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public 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 court to
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enter the following Stipulated Protective Order. The parties acknowledge that this Order
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does not confer blanket protections on all disclosures or responses to discovery and that
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the protection it affords from public disclosure and use extends only to the limited
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information or items that are entitled to confidential treatment under the applicable legal
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principles. The parties further acknowledge, as set forth in Section 12.3, below, that this
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Stipulated Protective Order does not entitle them to file confidential information under
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seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the
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standards that will be applied when a party seeks permission from the court to file
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material under seal.
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B. GOOD CAUSE STATEMENT
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This action is likely to involve trade secrets, customer and pricing lists, and other
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valuable research, development, commercial, financial, technical and/or proprietary
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information for which special protection from public disclosure and from use for any
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purpose other than prosecution of this action is warranted. Such confidential and
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proprietary materials and information consist of, among other things, confidential
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business or financial information, information regarding confidential business practices,
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or other confidential research, development, or commercial information (including
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information implicating privacy rights of third parties), information otherwise generally
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unavailable to the public, or which may be privileged or otherwise protected from
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disclosure under state or federal statutes, court rules, case decisions, or common law.
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Accordingly, to expedite the flow of information, to facilitate the prompt resolution of
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disputes over confidentiality of discovery material, to adequately protect information
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the parties are entitled to keep confidential, to ensure that the parties are permitted
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STIPULATED PROTECTIVE ORDER
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reasonable necessary uses of such material in preparation for and in the conduct of trial,
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to address their handling at the end of the litigation, and serve the ends of justice, a
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protective order for such information is justified in this matter. It is the intent of the
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parties that information will not be designated without a good faith belief that it has
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been maintained in a confidential, non-public manner, and there is good cause why it
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should not be part of the public record of this case.
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2.
DEFINITIONS
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2.1
Action: the above captioned pending federal lawsuit.
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2.2
Challenging Party: a Party or Non-Party that challenges the designation
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of information or items under this Order.
2.3
“CONFIDENTIAL” Information or Items: information (regardless of how
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it is generated, stored or maintained) or tangible things that qualify for protection under
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Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
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Statement.
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2.4
Counsel: Outside Counsel of Record and House Counsel (as well as their
support staff).
2.5
Designating Party: a Party or Non-Party that designates information or
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items that it produces in disclosures or in responses to discovery as
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“CONFIDENTIAL.”
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2.6
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 (including, among
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other things, testimony, transcripts, and tangible things), that are produced or generated
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in disclosures or responses to discovery in this matter.
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2.7
Expert: a person with specialized knowledge or experience in a matter
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pertinent to the litigation who has been retained by a Party or its counsel to serve as an
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expert witness or as a consultant in this Action.
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2.8
House Counsel: attorneys who are employees of a party to this Action.
House Counsel does not include Outside Counsel of Record or any other outside
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STIPULATED PROTECTIVE ORDER
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counsel.
2.9
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Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this Action.
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2.10 Outside Counsel of Record: attorneys who are not employees of a party to
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this Action but are retained to represent or advise a party to this Action and have
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appeared in this Action on behalf of that party or are affiliated with a law firm which
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has appeared on behalf of that party.
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2.11 Party: any party to this Action, including all of its officers, directors,
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employees, consultants, retained experts, and Outside Counsel of Record (and their
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support staffs).
2.12 Producing Party:
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a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
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2.13 Professional Vendors: persons or entities that provide litigation support
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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) and
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their employees and subcontractors.
2.14 Protected Material:
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any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
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from a Producing Party.
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3.
SCOPE
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The protections conferred by this Stipulation and Order cover not only Protected
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Material (as defined above), but also (1) any information copied or extracted from
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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
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Material; and (3) any testimony, conversations, or presentations by Parties or their
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Counsel that might reveal Protected Material.
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Any use of Protected Material at trial shall be governed by the orders of the trial
judge. This Order does not govern the use of Protected Material at trial.
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STIPULATED PROTECTIVE ORDER
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4.
DURATION
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Even after final disposition of this litigation, the confidentiality obligations
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imposed by this Order shall remain in effect until a Designating Party agrees otherwise
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in writing or a court order otherwise directs. Final disposition shall be deemed to be the
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later of (1) dismissal of all claims and defenses in this Action, with or without prejudice;
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and (2) final judgment herein after the completion and exhaustion of all appeals,
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rehearings, remands, trials, or reviews of this Action, including the time limits for filing
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any motions or applications for extension of time pursuant to applicable law.
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5.
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DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection.
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Each Party or Non-Party that designates information or items for protection under this
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Order must take care to limit any such designation to specific material that qualifies
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under the appropriate standards. The Designating Party must designate for protection
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only those parts of material, documents, items, or oral or written communications that
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qualify so that other portions of the material, documents, items, or communications for
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which protection is not warranted are not swept unjustifiably within the ambit of this
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Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that
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are shown to be clearly unjustified or that have been made for an improper purpose
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(e.g., to unnecessarily encumber or retard the case development process or to impose
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unnecessary expenses and burdens on other parties) expose the Designating Party to
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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 this
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Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
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or ordered, Disclosure or Discovery Material that qualifies for protection under this
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STIPULATED PROTECTIVE ORDER
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Order must be clearly so designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
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(a) for information in documentary form (e.g., paper or electronic documents,
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but excluding transcripts of depositions or other pretrial or trial proceedings), that the
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Producing Party affix the legend “CONFIDENTIAL” to each page that contains
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protected material. If only a portion or portions of the material on a page qualifies for
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protection, the Producing Party also must clearly identify the protected portion(s) (e.g.,
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by making appropriate markings in the margins).
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A Party or Non-Party that makes original documents or materials available for
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inspection need not designate them for protection until after the inspecting Party has
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indicated which material 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 deemed
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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
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copied and produced, the Producing Party must determine which documents, or portions
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thereof, qualify for protection under this Order. Then, before producing the specified
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documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page
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that contains Protected Material. If only a portion or portions of the material on a page
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qualifies for protection, the Producing Party also must clearly identify the protected
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portion(s) (e.g., by making appropriate markings in the margins).
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(b) for testimony given in deposition or in other pretrial or trial proceedings,
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that the Designating Party identify on the record, before the close of the deposition,
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hearing, or other proceeding, all protected testimony.
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(c) for information produced in some form other than documentary and for
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any other tangible items, that the Producing Party affix in a prominent place on the
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exterior of the container or containers in which the information or item is stored the
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legend “CONFIDENTIAL.” If only a portion or portions of the information or item
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warrant protection, the Producing Party, to the extent practicable, shall identify the
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protected portion(s).
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STIPULATED PROTECTIVE ORDER
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 the
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Designating Party’s right to secure protection under this Order for such material. Upon
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timely correction of a designation, the Receiving Party must make reasonable efforts to
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assure that the material is treated in accordance with the provisions of this Order.
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6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
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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 Scheduling
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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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Judicial Intervention. The burden of persuasion in any such challenge
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proceeding shall be on the Designating Party. Frivolous challenges, and those made for
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an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
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other 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 continue
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to afford the material in question the level of protection to which it is entitled under the
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Producing Party’s designation until the Court rules on the challenge.
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7.
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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is
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disclosed or produced by another Party or by a Non-Party in connection with this case
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only for prosecuting, defending, or attempting to settle this Action. Such Protected
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Material may be disclosed only to the categories of persons and under the conditions
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described in this Order. When the Action has been terminated, a Receiving Party must
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comply with the provisions of section 13 below (FINAL DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a
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location and in a secure manner that ensures that access is limited to the persons
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authorized under this Order.
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STIPULATED PROTECTIVE ORDER
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7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
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ordered by the court or permitted in writing by the Designating Party, a Receiving Party
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may disclose any information or item designated “CONFIDENTIAL” only to:
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(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 necessary to
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disclose the information for this Action;
(b) the officers, directors, and employees (including House Counsel) of the
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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
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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(d) the court and its personnel;
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(e) court reporters and their staff;
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(f) professional jury or trial consultants, mock jurors, and 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;
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(h) during their depositions, witnesses, and attorneys for witnesses, in the
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Action to whom disclosure is reasonably necessary provided: (1) the deposing party
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requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will
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not be permitted to keep any confidential information unless they sign the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
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by the Designating Party or ordered by the court. Pages of transcribed deposition
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testimony or exhibits to depositions that reveal Protected Material may be separately
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bound by the court reporter and may not be disclosed to anyone except as permitted
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under this Stipulated Protective Order; and
(i)
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any mediator or settlement officer, and their supporting personnel,
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STIPULATED PROTECTIVE ORDER
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mutually agreed upon by any of the parties engaged in settlement discussions.
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8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
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OTHER LITIGATION
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If a Party is served with a subpoena or a court order issued in other litigation that
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compels disclosure of any information or items designated in this Action as
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“CONFIDENTIAL,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall
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include a copy of the subpoena or court order;
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(b) promptly notify in writing the party who caused the subpoena or order to
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issue in the other litigation that some or all of the material covered by the subpoena or
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order is subject to this Protective Order. Such notification shall include a copy of this
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Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued
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by the Designating Party whose Protected Material may be affected.
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If the Designating Party timely seeks a protective order, the Party served with the
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subpoena or court order shall not produce any information designated in this Action as
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“CONFIDENTIAL” before a determination by the court from which the subpoena or
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order issued, unless the Party has obtained the Designating Party’s permission. The
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Designating Party shall bear the burden and expense of seeking protection in that court
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of its confidential material and nothing in these provisions should be construed as
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authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive
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from another court.
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9.
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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION
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(a) The terms of this Order are applicable to information produced by a Non-
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Party in this Action and designated as “CONFIDENTIAL.” Such information produced
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by Non-Parties in connection with this litigation is protected by the remedies and relief
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provided by this Order. Nothing in these provisions should be construed as prohibiting
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STIPULATED PROTECTIVE ORDER
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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 confidential
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information, then the Party shall:
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(1) promptly notify in writing the Requesting Party and the Non-Party that
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some or all of the information requested is subject to a confidentiality agreement with
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a Non-Party;
(2)
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promptly provide the Non-Party with a copy of the Stipulated
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Protective Order in this Action, the relevant discovery request(s), and a reasonably
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specific description of the information requested; and
(3) make the information requested available for inspection by the Non-
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Party; if requested.
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(c) If the Non-Party fails to object or seek a protective order from this court
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within 14 days of receiving the notice and accompanying information, the Receiving
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Party 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 not
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produce any information in its possession or control that is subject to the confidentiality
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agreement with the Non-Party before a determination by the court. Absent a court order
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to the contrary, the Non-Party shall bear the burden and expense of seeking protection
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in this court of its Protected Material.
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10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
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Protected Material to any person or in any circumstance not authorized under this
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Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
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the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
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all unauthorized copies of the Protected Material, (c) inform the person or persons to
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whom unauthorized disclosures were made of all the terms of this Order, and (d) request
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STIPULATED PROTECTIVE ORDER
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such person or persons to execute the “Acknowledgment and Agreement to Be Bound”
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that is attached hereto as Exhibit A.
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11.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
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PROTECTED MATERIAL
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When a Producing Party gives notice to Receiving Parties that certain
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inadvertently produced material is subject to a claim of privilege or other protection,
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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
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may be 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), insofar as the
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parties reach an agreement on the effect of disclosure of a communication or
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information covered by the attorney-client privilege or work product protection, the
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parties may incorporate their agreement in the stipulated protective order submitted to
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the court.
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12.
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MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
person to seek its modification by the court in the future.
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12.2 Right to Assert Other Objections. By stipulating to the entry of this
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Protective Order no Party waives any right it otherwise would have to object to
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disclosing or producing any information or item on any ground not addressed in this
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Stipulated 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 Order.
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12.3 Filing Protected Material. A Party that seeks to file under seal any
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Protected Material must comply with Civil Local Rule 79-5. Protected Material may
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only be filed 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 under seal is
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denied by the court, then the Receiving Party may file the information in the public
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record unless otherwise instructed by the court.
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STIPULATED PROTECTIVE ORDER
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13.
FINAL DISPOSITION
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After a final disposition of this Action, as defined in Paragraph 4, within 60 days
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of a written request by the Designating Party, each Receiving Party must return all
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Protected Material to the Producing Party or destroy such material. As used in this
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subdivision, “all Protected Material” includes all copies, abstracts, compilations,
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summaries, and any other format reproducing or capturing any of the Protected
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Material. Whether the Protected Material is returned or destroyed, the Receiving Party
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must submit a written certification to the Producing Party (and, if not the same person
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or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
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category, where appropriate) all the Protected Material that was returned or destroyed
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and (2) affirms that the Receiving Party has not retained any copies, abstracts,
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compilations, summaries or any other format reproducing or capturing any of the
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Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
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archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
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legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
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work product, and consultant and expert work product, even if such materials contain
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Protected Material. Any such archival copies that contain or constitute Protected
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Material remain subject to this Protective Order as set forth in Section 4 (DURATION).
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14.
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:
April 20, 2017
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/s/ Glenn Kantor
Attorney for Plaintiff
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DATED:
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April 20, 2017
/s/ Alexandra Drury
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STIPULATED PROTECTIVE ORDER
Attorney for Defendant
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Filer’s Attestation: Pursuant to Local Rule 5-4.3.4(a)(2)(i), Alexandra Drury hereby
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attests that concurrence in the filing of this document and its contents was obtained
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from all signatories listed.
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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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DATED: April 25, 2017
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____________________________________
United States Magistrate Judge
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STIPULATED PROTECTIVE ORDER
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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 that I
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have read in its entirety and understand the Stipulated Protective Order that was issued
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by the United States District Court for the Central District of California on [date] in the
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case of Andy Hoang v. Berkshire Life Insurance Company of America, case number
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5:17-cv-00175. I agree to comply with and to be bound by all the terms of this Stipulated
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Protective Order and I understand and acknowledge that failure to so comply could
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expose me to sanctions and punishment in the nature of contempt. I solemnly promise
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that I will not disclose in any manner any information or item that is subject to this
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Stipulated Protective Order to any person or entity except in strict compliance with the
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provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court for
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the Central District of California for the purpose of enforcing the terms of this Stipulated
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Protective Order, even if such enforcement proceedings occur after termination of this
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Action. I hereby appoint __________________________ [print or type full name] of
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_______________________________________ [print or type full address and
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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: __________________________________
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STIPULATED PROTECTIVE ORDER
PROOF OF SERVICE
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STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
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I am employed in the County of San Francisco, State of California. I am over
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the age of 21 and am not a party to the action. My business address is Maynard,
Cooper & Gale, LLP, 600 Montgomery Street, Suite 2600, San Francisco, CA
94111. On the date indicated below I served the foregoing documents described as:
STIPULATED PROTECTIVE ORDER
[x]
By CM/ECF ELECTRONIC SERVICE: The following are registered
CM/ECF users with the Court, and have consented to service through the
Court’s automatic transmission of notice of electronic filing.
Glenn R. Kantor (SBN 122643) gkantor@kantorlaw.net
Alan E. Kassan (SBN 113864) akassan@kantorlaw.net
Mitchell Owen Hefter (SBN 291985) mhefter@kantorlaw.net
KANTOR & KANTOR, LLP
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Attorneys for Plaintiff Andy Hoang
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I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct to the best of my knowledge.
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Executed on April 20, 2017, at San Francisco, CA
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_____________________________
Claudia Wu
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STIPULATED PROTECTIVE ORDER
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