Harry Allen v. Hartford Casualty Insurance Company

Filing 23

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

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ANN K. JOHNSTON (SBN 145022)
[e-mail]
TED A. SMITH (SBN 159986)
[e-mail]
BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925
Tel: [phone] • Fax: [phone]
Attorneys for Defendant
HARTFORD CASUALTY INSURANCE COMPANY

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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HARRY ALLEN, an individual,

)
)
Plaintiff,
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vs.
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HARTFORD CASUALTY
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INSURANCE COMPANY, a
)
Connecticut corporation, and DOES )
1 through 100,
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Defendants.
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HARTFORD CASUALTY
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INSURANCE COMPANY,
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Counterclaim Plaintiff,
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vs.
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HARRY ALLEN, ROES 1 – 30,
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inclusive
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Counterclaim Defendants.
)
)

CASE NO. 5:17-cv-02395-JGB-SPx
[PROPOSED] STIPULATED
PROTECTIVE ORDER
DATE ACTION FILED: 10/10/2017
TRIAL DATE:
None

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[Proposed) Stipulated Protective Order

Case No. 5:17-cv-02395-JGB-SPx

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1.

A.

PURPOSES AND LIMITATIONS

Discovery in this action is likely to involve production of confidential,
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 stipulated to and petitioned the

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Court to enter the following Stipulated Protective Order. The parties

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acknowledged that this Order does not confer blanket protections on all disclosures

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or responses to discovery and that the protection it affords from public disclosure

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and use extends only to the limited information or items that are entitled to

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confidential treatment under the applicable legal principles. The parties further

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BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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acknowledged, as set forth in Section 12.3, b elow, that this Stipulated Protective

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Order does not entitle them to file confidential information under seal; Civil

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Local Rule 79-5 sets forth the procedures that must be followed and the standards

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that will be applied when a party seeks permission from the court to file material

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under seal.

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B.

GOOD CAUSE STATEMENT

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This action is likely to involve trade secrets, commercial, financial, and/or

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proprietary information for which special protection from public disclosure

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and from use for any purpose other than prosecution of this action is warranted.

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Discovery has already been propounded which seeks trade secret, confidential and

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proprietary information from Defendant.

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Specifically, the scope of the discovery requested by plaintiff encompasses

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defendant’s claim guidelines pertaining to defendant’s internal guidelines for

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handling claims, underwriting file materials regarding defendant’s evaluation and

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rating of potential risks, and documents regarding training of Defendant’s

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personnel. These documents contain confidential and proprietary information

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regarding defendant’s practices and procedures for the investigation and handling

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[Proposed) Stipulated Protective Order

Case No. 5:17-cv-02395-JGB-SPx

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of claims, and rating and risk evaluation information which could be misused by a

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business competitor.
Accordingly, to expedite the flow of information, to facilitate the prompt

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resolution of disputes over confidentiality of discovery materials, to adequately

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protect information the parties are entitled to keep confidential, to ensure that the

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parties are permitted reasonable necessary uses of such material in preparation

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for and in the conduct of trial, to address their handling at the end of the

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

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justified in this matter. Nothing herein shall be construed as agreement to produce
the documents requested without court order. It is the intent of the parties that

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BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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information will not be designated as confidential for tactical reasons and that

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nothing be so designated without a good faith belief that it has been maintained

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in a confidential, non-public manner, and there is good cause why it should not

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be part of the public record of this case.

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2.

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DEFINITIONS
2.1

Action: Harry Allen v. Hartford Casualty Insurance Company, US

District Court, Central District of California, Case No. 5:17-cv-02395-JGB-SPx.
2.2

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

designation of information or items under this Order.
2.3

“CONFIDENTIAL” Information or Items: information (regardless

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of how it is generated, stored or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c), and as specified above

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in the Good Cause 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

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

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“CONFIDENTIAL.”
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[Proposed) Stipulated Protective Order

Case No. 5:17-cv-02395-JGB-SPx

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2.6

Disclosure or Discovery Material: all items or information,

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regardless of the medium or manner in which it is generated, stored, or

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maintained (including, among other things, testimony, transcripts, and tangible

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things), that are produced or generated in disclosures or responses to discovery in

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this matter.

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2.7

Expert: a person with specialized knowledge or experience in a

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matter pertinent to the litigation who has been retained by a Party or its counsel to

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serve as an 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

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BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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other outside counsel.

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2.9

Non-Party: any natural person, partnership, corporation, association,

or other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a

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party to this Action but are retained to represent or advise a party to this Action

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and have appeared in this Action on behalf of that party or are affiliated with a

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law firm which has appeared on behalf of that party, and includes support staff.

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

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directors, employees, consultants, retained experts, and Outside Counsel of

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Record (and their support staffs).

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2.12 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
2.13 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits

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or 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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2.14 Protected Material: any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
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[Proposed) Stipulated Protective Order

Case No. 5:17-cv-02395-JGB-SPx

2.15 Receiving Party: a Party that receives Disclosure or Discovery

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Material 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

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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.
Any use of Protected Material at trial shall be governed by the orders of

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the trial judge. This Order does not govern the use of Protected Material at trial.

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BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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4.

DURATION
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

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this Action,

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with or without prejudice; and (2) final judgment herein after the completion

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and exhaustion of all appeals, rehearings, remands, trials, or reviews of this

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Action, including the time limits for filing any motions or applications for

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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

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Protection. E ach 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 to

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specific material that qualifies under the appropriate standards. The Designating

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Party must designate for protection only those parts of material, documents,

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items, or oral or written communications that qualify so that other portions of the

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material, documents, items, or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this Order.
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[Proposed) Stipulated Protective Order

Case No. 5:17-cv-02395-JGB-SPx

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Mass, indiscriminate, or routinized designations are prohibited.

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Designations that are shown to be clearly unjustified or that have been made

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for an improper purpose (e.g., to unnecessarily encumber the case development

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process or to impose unnecessary expenses and burdens on other parties) may

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expose the Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that

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it designated for protection do not qualify for protection, that Designating Party

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must promptly notify all other Parties that it is withdrawing the inapplicable

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designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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this Order (see, e.g., second paragraph of section 5.2(a) below), or as

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otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies

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for protection under this Order must be clearly so designated before the material

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is disclosed or produced.

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Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix at a minimum, the legend

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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

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contains protected material. If only a portion or portions of the material on a

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page qualifies for protection, the Producing Party also must clearly identify the

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protected portion(s) (e.g., by making appropriate markings in the margins).

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A Party or Non-Party that makes original documents available for

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inspection n eed not designate them for protection until after the inspecting Party

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has indicated which documents it would like copied and produced. During the

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inspection and before the designation, all of the material made available for

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inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party

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has identified the documents it wants copied and produced, the Producing Party
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[Proposed) Stipulated Protective Order

Case No. 5:17-cv-02395-JGB-SPx

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must determine which documents, or portions thereof, qualify for protection under

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this Order. Then, before producing the specified documents, the Producing Party

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must affix the “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 qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings in the margins).
(b)

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for testimony given in depositions such designation shall be

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made on the record whenever possible, but a Designating Party may designate

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portions of depositions as containing “CONFIDENTIAL” information after
transcription of the proceedings; the Designating Party shall have until fifteen (15)

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BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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days after receipt of the deposition transcript to inform the Receiving Party or

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parties to the action of the portions of the transcript designated

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“CONFIDENTIAL”.
(c)

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for information produced in some form other than

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documentary and 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 which the

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information is stored the legend “CONFIDENTIAL.” If only a portion or

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portions of the information warrants protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s).
5.3

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Inadvertent Failures to Designate. If timely corrected, an

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inadvertent failure to designate qualified information or items does not, standing

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alone, waive the Designating Party’s right to secure protection under this Order for

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such material. Upon timely correction of a designation, the Receiving Party must

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make reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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[Proposed) Stipulated Protective Order

Case No. 5:17-cv-02395-JGB-SPx

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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

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Scheduling Order.
6.2

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Meet and Confer. The Challenging Party shall initiate the dispute

resolution process under Local Rule 37-1 et seq.
6.3

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The burden of persuasion in any such challenge proceeding shall be

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on the Designating Party. Frivolous challenges, and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other
parties) may expose the Challenging Party to sanctions. Unless the

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BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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Designating Party has waived or withdrawn the confidentiality designation, all

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parties shall continue to afford the material in question the level of protection

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to which it is entitled under the Producing Party’s designation until the Court

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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

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is disclosed or produced by another Party or by a Non-Party in connection with

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this 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 persons and

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under the conditions described in this Order. When the Action has been

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terminated, a Receiving Party must comply with the provisions of section 13

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below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at

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a location and in a secure manner that ensures that access is limited to the

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persons authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

otherwise ordered by the court or permitted in writing by the Designating Party,

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[Proposed) Stipulated Protective Order

Case No. 5:17-cv-02395-JGB-SPx

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a Receiving Party may disclose any information or item designated

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“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 whom it

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is reasonably necessary to disclose the information for this Action;
(b)

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the officers, directors, and employees (including House

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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for

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this Action;
(c)

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Experts (as defined in this Order) of the Receiving Party to

whom disclosure is reasonably necessary for this Action and who have signed

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BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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

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(d)

the court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and

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Professional Vendors to whom disclosure is reasonably necessary for this Action

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and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A);
(g)

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the author or recipient of a document containing the

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information or a custodian or other person who otherwise possessed or knew the

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information;

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(h)

during their depositions, witnesses, and attorneys for witnesses

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

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deposing party requests that the witness sign the form attached as Exhibit A

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hereto; and (2) they will not be permitted to keep any confidential information

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

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A), unless otherwise agreed by the Designating Party or ordered by the court.

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Pages of transcribed deposition testimony or exhibits to depositions that reveal

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[Proposed) Stipulated Protective Order

Case No. 5:17-cv-02395-JGB-SPx

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Protected Material may be separately bound by the court reporter and may not be

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disclosed to anyone except as permitted under this Stipulated Protective Order; and
(i)

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any mediator or settlement officer, and their supporting

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personnel, mutually agreed upon by any of the parties engaged in settlement

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discussions.

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8.

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PRODUCED IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other

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litigation that compels disclosure of any information or items designated in
this Action as “CONFIDENTIAL,” that Party must:
(a)

BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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PROTECTED MATERIAL SUBPOENAED OR ORDERED

promptly notify in writing the Designating Party. Such

notification shall include a copy of the subpoena or court order;
(b)

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promptly notify in writing the party who caused the subpoena

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or 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
(c)

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cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served

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with the subpoena or court order shall not produce any information designated

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in this action as “CONFIDENTIAL” before a determination by the court from

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which the subpoena or order issued, unless the Party has obtained the

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Designating Party’s permission. The Designating Party shall bear the burden

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and expense of seeking protection in that court of its confidential material and

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nothing in these provisions should be construed as authorizing or encouraging a

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Receiving Party in this Action to disobey a lawful directive from another court.

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[Proposed) Stipulated Protective Order

Case No. 5:17-cv-02395-JGB-SPx

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

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PRODUCED IN THIS LITIGATION
(a)

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The terms of this Order are applicable to information

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produced by a Non-Party in this Action and designated as “CONFIDENTIAL.”

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Such information produced by Non-Parties in connection with this litigation is

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protected by the remedies and relief provided by this Order. Nothing in these

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provisions should be construed as prohibiting a Non-Party from seeking additional

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protections.

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(b)

In the event that a Party is required, by a valid discovery

request, to produce a Non-Party’s confidential information in its possession, and

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BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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the Party is subject to an agreement with the Non-Party not to produce the Non-

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Party’s confidential information, then the Party shall:
(1)

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promptly notify in writing the Requesting Party and the

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

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confidentiality agreement with a Non-Party;
(2)

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promptly provide the Non-Party with a copy of the

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Stipulated Protective Order in this Action, the relevant discovery request(s), and

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a reasonably specific description of the information requested; and

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(3)

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inspection by the Non-Party, if requested.

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(c)

make the information requested available for

If the Non-Party fails to seek a protective order from this court

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within 14 days of receiving the notice and accompanying information, the

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Receiving Party may produce the Non-Party’s confidential information

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responsive to the discovery request. If the Non-Party timely seeks a protective

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order, the Receiving Party shall not produce any information in its possession or

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control that is subject to the confidentiality agreement with the Non-Party before

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a determination by the court. Absent a court order to the contrary, the Non-

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[Proposed) Stipulated Protective Order

Case No. 5:17-cv-02395-JGB-SPx

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Party shall bear the burden and expense of seeking protection in this court of its

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Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has

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disclosed Protected Material to any person or in any circumstance not authorized

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under this Stipulated Protective Order, the Receiving Party must immediately

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(a) notify in writing the Designating Party of the unauthorized disclosures, (b) use

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its best efforts to retrieve all unauthorized copies of the Protected Material, (c)

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inform the person or persons to whom unauthorized disclosures were made of all
the terms of this Order, and (d) request such person or persons to execute the

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BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

10

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

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A.

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11.

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OTHERWISE PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR
When a Producing Party gives notice to Receiving Parties that certain

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inadvertently produced material is subject to a claim of privilege or other

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protection, the obligations of the Receiving Parties are those set forth in Federal

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Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

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whatever procedure may be established in an e-discovery order that provides

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for production without prior privilege review. Pursuant to Federal Rule of

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Evidence 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 agreement

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in the stipulated protective order submitted to 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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[Proposed) Stipulated Protective Order

Case No. 5:17-cv-02395-JGB-SPx

12.2 Right to Assert Other Objections. By stipulating to the entry of

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this Protective Order no Party waives any right it otherwise would have to

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object to disclosing or producing any information or item on any ground not

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addressed in this Stipulated Protective Order. Similarly, no Party waives any

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

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this Protective Order.
12.3 Filing Protected Material. A Party that seeks to file under seal

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any Protected Material must comply with Civil Local Rule 79-5. Protected

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Material may only be filed under seal pursuant to a court order authorizing

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the sealing of the specific Protected Material at issue. If a Party's request to

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BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

8

file Protected Material under seal is denied by the court, then the Receiving Party

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may file the information in the public record unless otherwise instructed by the

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court.

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13.

FINAL DISPOSITION

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After the final disposition of this Action, as defined in paragraph 4, within

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60 days of a written request by the Designating Party, each Receiving Party must

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return all Protected Material to the Producing Party or destroy such material. As

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used in this subdivision, “all Protected Material” includes all copies, abstracts,

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compilations, summaries, and any other format reproducing or capturing any

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of the Protected Material. Whether the Protected Material is returned or

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destroyed, the Receiving Party must submit a written certification to the

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Producing Party (and, if not the same person or entity, to the Designating Party)

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by the 60 day deadline that (1) identifies (by category, where appropriate) all

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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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[Proposed) Stipulated Protective Order

Case No. 5:17-cv-02395-JGB-SPx

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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 4 (DURATION).

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Any violation of this Order may be punished by any and all

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appropriate measures including, without limitation, contempt proceedings and/or

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monetary sanctions.

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IT IS SO ORDERED.

BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

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DATED:

March 26, 2018

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Honorable Sheri Pym
United States District Magistrate Judge

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[Proposed) Stipulated Protective Order

Case No. 5:17-cv-02395-JGB-SPx

EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

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

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perjury that I have read in its entirety and understand the Stipulated Protective

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Order that was issued by the United States District Court for the Central District of

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California on [date] in the case of Harry Allen v. Hartford Casualty Insurance

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Company, US District Court, Central District of California, Case No. 5:17-cv-

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02395-JGB-SPx. 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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BERGER KAHN
A Law Corporation
300 Tamal Plaza, Suite 215
Corte Madera, CA 94925

4

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

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that is subject to this Stipulated Protective Order to any person or entity except in

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strict compliance with the provisions of this Order. I further agree to submit to

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the jurisdiction of the United States District Court for the Central District of

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California for the purpose of enforcing the terms of this Stipulated Protective

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Order, even if such enforcement proceedings occur after termination of this action.

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I hereby appoint

[print or type full name] of
[print or type full address and telephone number] as my

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California agent for service of process in connection with this action or any

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proceedings related to enforcement of this Stipulated Protective Order.

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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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[Proposed) Stipulated Protective Order

Case No. 5:17-cv-02395-JGB-SPx