McCracken v. KSF Acquisition Corporation

Filing 37

PROTECTIVE ORDER by Magistrate Judge Shashi H. Kewalramani re Stipulation for Protective Order 33 . (see document for details) (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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12 SARAH MCCRACKEN, individually and CASE NO. 5:22-cv-01666-SB-SHK
13 on behalf of all others similarly situated,
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Plaintiff,
v.
KSF ACQUISITION CORPORATION,
Defendant.

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[PROPOSED] STIPULATED
PROTECTIVE ORDER
Date Filed: September 21, 2022
Trial Date: None

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[PROPOSED] STIPULATED PROTECTIVE ORDER
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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PURPOSES AND LIMITATIONS

2 1.

A.

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

4 or private information for which special protection from public disclosure and from use for
5 any purpose other than prosecuting this litigation may be warranted. Accordingly, the
6 parties hereby stipulate to and petition the Court to enter the following Stipulated
7 Protective Order.

The parties acknowledge that this Order does not confer blanket

8 protections on all disclosures or responses to discovery and that the protection it affords
9 from public disclosure and use extends only to the limited information or items that are
10 entitled to confidential treatment under the applicable legal principles. The parties further
11 acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does
12 not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth
13 the procedures that must be followed and the standards that will be applied when a party
14 seeks permission from the court to file material under seal.

GOOD CAUSE STATEMENT

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B.

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This action is likely to involve trade secrets, customer and pricing lists and other

17 valuable research, development, commercial, financial, technical and/or proprietary
18 information for which special protection from public disclosure and from use for any
19 purpose other than prosecution of this action is warranted.

Such confidential and

20 proprietary materials and information consist of, among other things, confidential business
21 or financial information, confidential consumer information, information regarding
22 confidential business practices, or other confidential research, development, or commercial
23 information (including information implicating privacy rights of third parties), information
24 otherwise generally unavailable to the public, or which may be privileged or otherwise
25 protected from disclosure under state or federal statutes, court rules, case decisions, or
26 common law. Accordingly, to expedite the flow of information, to facilitate the prompt
27 resolution of disputes over confidentiality of discovery materials, to adequately protect
28 information the parties are entitled to keep confidential, to ensure that the parties are
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1 permitted reasonable necessary uses of such material in preparation for and in the conduct
2 of trial, to address their handling at the end of the litigation, and serve the ends of justice,
3 a protective order for such information is justified in this matter. It is the intent of the
4 parties that information will not be designated as confidential for tactical reasons and that
5 nothing be so designated without a good faith belief that it has been maintained in a
6 confidential, non-public manner, and there is good cause why it should not be part of the
7 public record of this case.
8 2.

DEFINITIONS

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2.1

Action: The above-entitled action, Sarah McCracken v. KSF Acquisition

10 Corporation, Case No. 5:22-cv-01666-SB-SHK (C.D. Cal. Compl. filed Sept. 21, 2022).
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2.2

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

12 information or items under this Order.
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2.3

“CONFIDENTIAL” Information or Items: information (regardless of how it

14 is generated, stored or maintained) or tangible things that qualify for protection under
15 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause Statement.
16 The term includes information and documents that are in good faith designated as
17 confidential by the person or party producing the information or documents. The term
18 includes documents, materials, items, and/or information involving negotiations or
19 agreements and drafts surrounding agreements that the parties thereto intended to be kept
20 confidential and not disclosed. The term also includes other types of documents, materials,
21 items, and/or information containing trade secrets as defined by California Civil Code §
22 3426.1, proprietary processes and competitively sensitive information, including financial
23 information (such as Social Security numbers and financial information), health
24 information and information which, if disclosed, would violate privacy laws. To the extent
25 that additional categories of documents, information, items, or materials that qualify for
26 such a designation under the standards developed under Federal Rule of Civil Procedure
27 26(c) are requested, parties shall propose an amendment identifying the additional
28 documents, information, items, or materials subject to this Protective Order.
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2.4

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

2 support staff).
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2.5

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

4 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
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2.6

Disclosure or Discovery Material: all items or information, regardless of the

6 medium or manner in which it is generated, stored, or maintained (including, among other
7 things, testimony, transcripts, and tangible things), that are produced or generated in
8 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

10 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
11 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

13 Counsel does not include Outside Counsel of Record or any other outside counsel.
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2.9

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

15 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

17 this Action but are retained to represent or advise a party to this Action and have appeared
18 in this Action on behalf of that party or are affiliated with a law firm that has appeared on
19 behalf of that party, including support staff.
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2.11 Party:

any party to this Action, including all of its officers, directors,

21 employees, consultants, retained experts, and Outside Counsel of Record (and their support
22 staffs).
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2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery

24 Material in this Action.
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2.13 Professional Vendors: persons or entities that provide litigation support

26 services

(e.g.,

photocopying,

videotaping,

translating,

preparing

exhibits

or

27 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
28 their employees and subcontractors.

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

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2 as “CONFIDENTIAL.”

2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from

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4 a Producing Party.
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SCOPE

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The protections conferred by this Stipulation and Order cover not only Protected

7 Material (as defined above), but also (1) any information copied or extracted from
8 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
9 Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel
10 that might reveal Protected Material.

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

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

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Once a case proceeds to trial, all of the court-filed information to be introduced that

15 was previously designated as confidential or maintained pursuant to this protective order
16 becomes public and will be presumptively available to all members of the public, including
17 the press, unless compelling reasons supported by specific factual findings to proceed
18 otherwise are made to the trial judge in advance of the trial. See Kamakana v. City and
19 County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good cause”
20 showing for sealing documents produced in discovery from “compelling reasons” standard
21 when merits-related documents are part of court record). Accordingly, the terms of this
22 protective order do not extend beyond the commencement of the trial.
23 5.

DESIGNATING PROTECTED MATERIAL

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5.1

Exercise of Restraint and Care in Designating Material for Protection. Each

25 Party or Non-Party that designates information or items for protection under this Order
26 must take care to limit any such designation to specific material that qualifies under the
27 appropriate standards. The Designating Party must designate for protection only those
28 parts of material, documents, items, or oral or written communications that qualify so that
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1 other portions of the material, documents, items, or communications for which protection
2 is not warranted are not swept unjustifiably within the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that

4 are shown to be clearly unjustified or that have been made for an improper purpose (e.g.,
5 to unnecessarily encumber the case development process or to impose unnecessary
6 expenses and burdens on other parties) may expose the Designating Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it

8 designated for protection do not qualify for protection, that Designating Party must
9 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

11 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
12 ordered, Disclosure or Discovery Material that qualifies for protection under this Order
13 must be clearly so designated before the material 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

16 documents, but excluding transcripts of depositions or other pretrial or trial proceedings),
17 that the Producing Party affix, at a minimum, the legend “CONFIDENTIAL” (hereinafter
18 “CONFIDENTIAL legend”), to each page that contains protected material. If only a
19 portion or portions of the material on a page qualifies for protection, the Producing Party
20 also must clearly identify the protected portion(s) (e.g., by making appropriate markings
21 in the margins).
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A Party or Non-Party that makes original documents available for inspection need

23 not designate them for protection until after the inspecting Party has indicated which
24 documents it would like copied and produced. During the inspection and before the
25 designation, all of the material made available for inspection shall be deemed
26 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
27 copied and produced, the Producing Party must determine which documents, or portions
28 thereof, qualify for protection under this Order. Then, before producing the specified
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1 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page
2 that contains Protected Material. If only a portion or portions of the material on a page
3 qualifies for protection, the Producing Party also must clearly identify the protected
4 portion(s) (e.g., by making appropriate markings in the margins).
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(b)

or Discovery Material on the record, before the close of the deposition.

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(c)

for information produced in some form other than documentary and for

7 any other tangible items, that the Producing Party affix in a prominent place on the exterior
8 of the container or containers in which the information is stored the legend
9 “CONFIDENTIAL.” If only a portion or portions of the information warrants protection,
10 the Producing Party, to the extent practicable, shall identify the protected portion(s).

5.3

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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure

12 to designate qualified information or items does not, standing alone, waive the Designating
13 Party’s right to secure protection under this Order for such material.

Upon timely

14 correction of a designation, the Receiving Party must make reasonable efforts to assure
15 that the material is treated in accordance with the provisions of this Order.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation

18 of confidentiality at any time that is consistent with the Court’s Scheduling Order.
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6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

20 process under Local Rule 37-1, et seq. Any discovery motion must strictly comply with
21 the procedures set forth in Local Rules 37-1, 37-2, and 37-3.
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6.3

Burden. The burden of persuasion in any such challenge proceeding shall be

23 on the Designating Party. Frivolous challenges, and those made for an improper purpose
24 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose
25 the Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn
26 the confidentiality designation, all parties shall continue to afford the material in question
27 the level of protection to which it is entitled under the Producing Party’s designation until
28 the Court rules on the challenge.

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1 7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

Basic Principles. A Receiving Party may use Protected Material that is

3 disclosed or produced by another Party or by a Non-Party in connection with this Action
4 only for prosecuting, defending, or attempting to settle this Action, and not for any
5 unrelated business commercial or other purpose. Such Protected Material may be disclosed
6 only to the categories of persons and under the conditions described in this Order. When
7 the Action has been terminated, a Receiving Party must comply with the provisions of
8 section 13 below (FINAL DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a location

10 and in a secure manner that ensures that access is limited to the persons authorized under
11 this Order.
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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

13 ordered by the Court or permitted in writing by the Designating Party, a Receiving Party
14 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

16 as employees of said Outside Counsel of Record to whom it is reasonably necessary to
17 disclose the information for this Action;
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(b)

the officers, directors, and employees (including House Counsel) of the

19 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

21 disclosure is reasonably necessary for this Action and who have signed the
22 “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

26 Vendors to whom disclosure is reasonably necessary for this Action and who have signed
27 the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(g)

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the author or recipient of a document containing the information or a

2 custodian or other person who otherwise possessed or knew the information;

(h)

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during their depositions, witnesses, and attorneys for witnesses, in the

4 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
5 requests that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not
6 be permitted to keep any confidential information unless they sign the “Acknowledgment
7 and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating
8 Party or ordered by the Court. Pages of transcribed deposition testimony or exhibits to
9 depositions that reveal Protected Material may be separately bound by the court reporter
10 and may not be disclosed to anyone except as permitted under this Stipulated Protective
11 Order; and

(i)

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any mediator or settlement officer, and their supporting personnel,

13 mutually agreed upon by any of the parties engaged in settlement discussions.
14 8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

15 OTHER LITIGATION
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If a Party is served with a subpoena or a court order issued in other litigation that

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

promptly notify in writing the Designating Party. Such notification

20 shall 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

22 to issue in the other litigation that some or all of the material covered by the subpoena or
23 order is subject to this Protective Order. Such notification shall include a copy of this
24 Stipulated Protective Order; and
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(c)

cooperate with respect to all reasonable procedures sought to be

26 pursued 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

28 subpoena or court order shall not produce any information designated in this action as
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1 “CONFIDENTIAL” before a determination by the court from which the subpoena or order
2 issued, unless the Party has obtained the Designating Party’s permission. The Designating
3 Party shall bear the burden and expense of seeking protection in that court of its
4 confidential material and nothing in these provisions should be construed as authorizing or
5 encouraging a Receiving Party in this Action to disobey a lawful directive from another
6 court.
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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED

8 IN THIS LITIGATION
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(a)

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

10 Non-Party in this Action and designated as “CONFIDENTIAL.”

Such information

11 produced by Non-Parties in connection with this litigation is protected by the remedies and
12 relief provided by this Order.

Nothing in these provisions should be construed as

13 prohibiting a Non-Party from seeking additional protections.
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(b)

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

15 produce a Non-Party’s confidential information in its possession, and the Party is subject
16 to an agreement with the Non-Party not to produce the Non-Party’s confidential
17 information, then the Party shall:

(1)

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promptly notify in writing the Requesting Party and the Non-

19 Party that some or all of the information requested is subject to a confidentiality agreement
20 with a Non-Party;

(2)

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promptly provide the Non-Party with a copy of the Stipulated

22 Protective Order in this Action, the relevant discovery request(s), and a reasonably specific
23 description of the information requested; and

(3)

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make the information requested available for inspection by the

25 Non-Party, if requested.
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(c)

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

27 14 days of receiving the notice and accompanying information, the Receiving Party may
28 produce the Non-Party’s confidential information responsive to the discovery request. If
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1 the Non-Party timely seeks a protective order, the Receiving Party shall not produce any
2 information in its possession or control that is subject to the confidentiality agreement with
3 the Non-Party before a determination by the Court. Absent a court order to the contrary,
4 the Non-Party shall bear the burden and expense of seeking protection in this Court of its
5 Protected Material.
6 10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

8 Protected Material to any person or in any circumstance not authorized under this
9 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the
10 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all
11 unauthorized copies of the Protected Material, (c) inform the person or persons to whom
12 unauthorized disclosures were made of all the terms of this Order, and (d) request such
13 person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is
14 attached hereto as Exhibit A.
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

16 PROTECTED MATERIAL

When a Producing Party gives notice to Receiving Parties that certain inadvertently

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18 produced material is subject to a claim of privilege or other protection, the obligations of
19 the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).
20 This provision is not intended to modify whatever procedure may be established in an e21 discovery order that provides for production without prior privilege review. Pursuant to
22 Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the
23 effect of disclosure of a communication or information covered by the attorney-client
24 privilege or work product protection, the parties may incorporate their agreement in the
25 stipulated protective order submitted to the Court.
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MISCELLANEOUS

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

28 to seek its modification by the Court in the future.
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12.2

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Right to Assert Other Objections.

By stipulating to the entry of this

2 Protective Order, no Party waives any right it otherwise would have to object to disclosing
3 or producing any information or item on any ground not addressed in this Stipulated
4 Protective Order. Similarly, no Party waives any right to object on any ground to use in
5 evidence of any of the material covered by this Protective Order.

12.3 Filing Protected Material. A Party that seeks to file under seal any Protected

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7 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed
8 under seal pursuant to a court order authorizing the sealing of the specific Protected
9 Material at issue; good cause must be shown in the request to file under seal. If a Party’s
10 request to file Protected Material under seal is denied by the Court, then the Receiving
11 Party may file the information in the public record unless otherwise instructed by the Court.
12 13.

FINAL DISPOSITION

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After the final disposition of this Action, within 60 days of a written request by the

14 Designating Party, each Receiving Party must return all Protected Material to the
15 Producing Party or destroy such material. As used in this subdivision, “all Protected
16 Material” includes all copies, abstracts, compilations, summaries, and any other format
17 reproducing or capturing any of the Protected Material. Whether the Protected Material is
18 returned or destroyed, the Receiving Party must submit a written certification to the
19 Producing Party (and, if not the same person or entity, to the Designating Party) by the 60
20 day deadline that (1) identifies (by category, where appropriate) all the Protected Material
21 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any
22 copies, abstracts, compilations, summaries or any other format reproducing or capturing
23 any of the Protected Material. Notwithstanding this provision, counsel are entitled to retain
24 an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
25 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
26 work product, and consultant and expert work product, even if such materials contain
27 Protected Material. Any such archival copies that contain or constitute Protected Material
28 remain subject to this Protective Order as set forth in Section 4 (DURATION).
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1 14.

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

2 including, without limitation, contempt proceedings and/or monetary sanctions.
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4 IT IS SO STIPULATED.
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GREENBERG TRAURIG, LLP

DATED: January 10, 2023

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By

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/s/ Rick L. Shackelford
RICK L. SHACKELFORD
Attorneys for Defendant KSF
Acquisition Corporation

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11 DATED: January 10, 2023

SCHUBERT JONCKHEER & KOLBE LLP

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By

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/s/ Amber L. Schubert
AMBER L. SCHUBERT
Attorneys for Plaintiff Sarah McCracken

16 IT IS SO ORDERED.

January 18, 2023
17 DATED: ________________
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_____________________________________
HON. SHASHI H. KEWALRAMANI
United States Magistrate Judge

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ECF CERTIFICATION

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Pursuant to Local Civil Rule 5-4.3.4(a)(2)(i), I hereby attest that Amber L.

3 Schubert, on whose behalf this filing is jointly submitted, has concurred in this filing’s
4 content and has authorized me to file this document.
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By: /s/Rick L. Shackelford
Rick L. Shackelford

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EXHIBIT A

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AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

4 _____________________________________________ [print or type full address],
5 declare under penalty of perjury that I have read in its entirety and understand the
6 Protective Order that was issued by the United States District Court for the Central
7 District of California on __________ [date] in the case of Sarah McCracken v. KSF
8 Acquisition Corporation, Case No. 5:22-cv-01666-SB-SHK (C.D. Cal. Compl. filed Sept.
9 21, 2022). I agree to comply with and to be bound by all the terms of this Protective
10 Order, and I understand and acknowledge that failure to so comply could expose me to
11 sanctions and punishment for contempt. I solemnly promise that I will not disclose in any
12 manner any information or item that is subject to this Protective Order to any person or
13 entity except in strict compliance with this Order.
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I further agree to submit to the jurisdiction of the United States District Court for

15 the Central District of California for the purpose of enforcing this Order, even if such
16 enforcement proceedings occur after termination of this action.
17
18 Date: ___________________________
19 City and State where sworn and signed: _________________________________
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21 Printed name: ____________________
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23 Signature: _______________________
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