Guru Denim Inc v. AJ Brands LTD et al

Filing 81

PROTECTIVE ORDER by Magistrate Judge Robert N. Block re Stipulation for Protective Order, 79 . (twdb)

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LATHROP & GAGE LLP
Lincoln D. Bandlow (SBN 170449)
Emily Birdwhistell (SBN 248602)
1888 Century Park East, Suite 1000
Los Angeles, CA 90067-2627
Telephone: [phone]
Fax: [phone]
[e-mail]
Attorneys for Defendants
AJ Brands, Ltd., HDT Holdings Corporation,
Sears, Roebuck and Co., Kmart Corporation,
The Wet Seal, Inc. and
World of Jeans & Tops, Inc. dba Tilly's

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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) CASE NO. SA CV 10-1072 JVS (RNBx)
)
) [PROPOSED] PROTECTIVE ORDER
)
)
Plaintiff,
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vs.
)
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AJ BRANDS, LTD, a New York
[DISCOVERY MATTER]
Corporation formerly known as ZANA- )
)
DI, INC.; HDT HOLDINGS
)
CORPORATION, a New York
)
Corporation; SEARS, ROEBUCK AND )
CO., a New York Corporation; K MART )
CORPORATION, a Michigan
)
Corporation; THE WET SEAL, INC., a )
)
Delaware Corporation; WORLD OF
)
JEANS & TOPS, INC., a California
Corporation dba TILLY’S; and DOES 1- )
)
10, inclusive,
)
)
)
Defendants.
)
GURU DENIM, INC., a California
Corporation dba TRUE RELIGION
BRAND JEANS,

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[PROPOSED] PROTECTIVE ORDER

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DEFINITIONS

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1.

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a.

b.

“Discovering Counsel” means counsel of record for a Discovering

c.

“Discovering Party” means the Party to whom Material is being

Party.

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“Designating Party” means any Person who designates Material as

Confidential Material.

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As used in this Protective Order,

Provided by a Producing Party.

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d.

“Confidential Material” refers to those materials designated as

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“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” as defined in Paragraph 2

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below.

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e.

“Material” means any document, testimony or information in any

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form or medium whatsoever, including, without limitation, any written or printed

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matter, Provided in this action by a Party before or after the date of this Protective

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Order.

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f.

“Party” means the Parties to this action, their attorneys of record

and their agents.

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g.

“Person” means any individual, corporation, partnership,

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unincorporated association, governmental agency, or other business or governmental

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entity whether a Party or not.

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h.

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the course of this action.

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i.

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“Provide” means to produce any Material, whether voluntarily or

involuntarily, whether pursuant to request or process.

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“Producing Party” means any Person who Provides Material during

CONFIDENTIAL DESIGNATION
2.

A Producing Party may designate as “CONFIDENTIAL” any material

provided to a Party which contains or discloses any of the following:

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[PROPOSED] PROTECTIVE ORDER

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a.

Non-public insider information, personnel files, financial

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information, trade secrets, confidential commercial information, proprietary

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information, or other confidential or sensitive information which the Producing Party

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determines in good faith should be kept confidential; and

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b.

Information that the Party is under a duty to preserve as

confidential under an agreement with or other obligation to another Person.

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c.

The Producing Party may designate as “ATTORNEYS’ EYES

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ONLY,” documents Parties contend contain or disclose materials which they in good

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faith believe to be of an extremely high degree of current commercial sensitivity and/or

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would provide a competitive advantage to its competitors if disclosed.
3.

A Producing Party shall stamp as CONFIDENTIAL or ATTORNEYS’

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EYES ONLY Materials which the Producing Party in good faith believes are entitled

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to protection pursuant to the standards set forth in Paragraph 2 of this Order. A

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Producing Party may designate Confidential Material for Protection under this order by

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either of the following methods:

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a.

By physically marking it with the following inscription prior to

Providing it to a Party:

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CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER

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or

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ATTORNEYS’ EYES ONLY SUBJECT TO PROTECTIVE ORDER

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b.

By identifying with specificity in writing to the Discovering Party

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any previously Provided Material which was not designated as Confidential Material

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prior to its having been Provided. For purposes of this method of designation, it will be

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a sufficiently specific identification to refer to the bates numbers or deposition page

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numbers of previously Provided Material. Where a Producing Party designates

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previously Provided Material as Confidential Material pursuant to this subparagraph,

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the Producing Party will follow the procedures set forth in the previous subparagraph

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for designating Confidential Material, and Provide to the Discovering Party additional
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[PROPOSED] PROTECTIVE ORDER

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copies of the previously Provided Material marked with the inscription described in the

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previous subparagraph. Upon receipt of the additional copies which comply with the

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procedures set forth in the previous subparagraph, the Discovering Party will

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immediately return to the Producing Party the previously Provided Material, or

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alternatively, will destroy all the previously Provided Material, at the option of the

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Producing Party. For previously Provided Material which was not designated as

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Confidential Material at the time of its being Provided, this Protective Order shall

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apply to such materials beginning on the date that the Producing Party makes such

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designation.

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All costs associated with the designations of materials as “Confidential” or

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“Attorneys’ Eyes Only” involving, for example, the cost of binding confidential

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portions of deposition transcripts, shall be initially borne by the Party making the

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designation with no prejudice regarding the Designating Party’s ability to recover its

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costs upon completion of the litigation.

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The designation of documents as “Confidential” or “Attorneys’ Eyes Only” does

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not entitle the parties to have those documents filed under seal. An application,

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including a stipulated application to filed documents under seal must comply with

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Local Rule 79-5.

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RESTRICTION ON USE OF CONFIDENTIAL MATERIAL
4.

Confidential Material designated as CONFIDENTIAL shall not be

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disclosed, nor shall its contents be disclosed, to any person other than those described

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in Paragraph 7 of this Protective Order and other than in accordance with the terms,

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conditions and restrictions of this Protective Order. Confidential Material designated as

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ATTORNEYS’ EYES ONLY shall not be disclosed, nor shall its contents be disclosed

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to any person other than those described in Paragraph 8 of this Protective Order.

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5.

Confidential Material Provided by a Producing Party to a Discovering

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Party shall not be used by the Discovering Party or anyone other than the Producing

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Party, specifically including the persons identified in Paragraphs 7 or 8 as appropriate,
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[PROPOSED] PROTECTIVE ORDER

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for any purpose, including, without limitation any personal, business, governmental,

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commercial, publicity, public-relations, or litigation (administrative or judicial)

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purpose, other than the prosecution or defense of this action.

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6.

All Confidential Material shall be kept secure by Discovering Counsel

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and access to Confidential Material shall be limited to persons authorized pursuant to

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Paragraphs 7 or 8 of this Protective Order.

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7.

For purposes of the preparation of this action, and subject to the terms,

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conditions, and restrictions of this Protective Order, Discovering Counsel may disclose

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Material designated as CONFIDENTIAL and the contents of Material designated as

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CONFIDENTIAL only to the following persons:
a.

Counsel of record working on this action on behalf of any party and

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counsel’s employees who are directly participating in this action, including counsel’s

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partners, associates, paralegals, assistants, secretaries, and clerical staff.

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b.

In-house counsel and such in-house counsel’s employees who are

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directly participating in this action, including counsel’s paralegals, assistants,

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secretaries, and clerical staff.

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c.

Court and deposition reporters and their staff.

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d.

The Court and any Person employed by the Court whose duties

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require access to Material designated as CONFIDENTIAL.
e.

Witnesses at depositions or pre-trial proceedings, in accordance

with procedures set forth in Paragraphs 11-13.
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Non-party experts and consultants assisting counsel with respect to

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this action and their secretarial, technical and clerical employees who are actively

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assisting in the preparation of this action, in accordance with the procedures set forth in

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Paragraphs 11-13.

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g.

Officers, directors and employees of the Parties hereto who have a

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need to review Material designated as CONFIDENTIAL to assist in connection with

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this litigation, subject to the limitations set forth herein;
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[PROPOSED] PROTECTIVE ORDER

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h.

photocopying or delivering of documents in this litigation;

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Photocopy service personnel who photocopied or assisted in the

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Any Person identified on the face of any such Material designated

as CONFIDENTIAL as an author or recipient thereof;

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j.

Any Person who is determined to have been an author and/or

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previous recipient of the Material designated as CONFIDENTIAL, but is not identified

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on the face thereof, provided there is prior testimony of actual authorship or receipt of

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the Material designated as CONFIDENTIAL by such Person; and

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k.

Any Person who the Parties agree in writing may receive Material

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designated as CONFIDENTIAL.

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The Parties shall make a good faith effort to limit dissemination of Material designated

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as CONFIDENTIAL within these categories to Persons who have a reasonable need

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for access thereto.

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8.

For purposes of the preparation of this action, and subject to the terms,

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conditions, and restrictions of this Protective Order, the Discovering Counsel may

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disclose confidential financial Material designated as ATTORNEYS’ EYES ONLY,

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and the contents of Material so designated, only to the following persons:

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a.

Counsel of record for the Parties to this action and counsel’s

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employees who are directly participating in this action, including counsel’s partners,

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associates, paralegals, assistants, secretarial, and clerical staff.

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b.

Court and deposition reporters and their staff.

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c.

The Court and any person employed by the Court whose duties

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require access to Material designated as ATTORNEYS’ EYES ONLY.
d.

Witnesses at depositions or pre-trial proceedings, in accordance

with procedures set forth in paragraphs 11-13.
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Experts and consultants assisting counsel with respect to this action

and their secretarial, technical and clerical employees who are actively assisting in the

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[PROPOSED] PROTECTIVE ORDER

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preparation of this action, in accordance with the procedures set forth in paragraphs

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11-13.

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f.

Any Person identified on the face of any such Material designated

as ATTORNEYS’ EYES ONLY as an author or recipient thereof; and

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g.

Any Person who is determined to have been an author and/or

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previous recipient of the Material designated as ATTORNEYS’ EYES ONLY, but is

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not identified on the face thereof, provided there is prior testimony of actual authorship

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or receipt of the Material designated as ATTORNEYS’ EYES ONLY by such Person;

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and

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h.

Any Person who the Parties agree in writing may receive Material

designated as ATTORNEYS’ EYES ONLY.

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UNDERTAKING TO BE BOUND BY PROTECTIVE ORDER

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9.

Before Discovering Counsel may disclose Confidential Material to any

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Person described in subparagraphs 7(f), 7(g), or 8(f) above, the Person to whom

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disclosure is to be made shall receive a copy of this Protective Order, shall read

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Paragraphs 1, 4, 5, 6, 7, 8, 9 and 10 (including the subparagraphs where applicable) of

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the Protective Order, shall evidence his or her agreement to be bound by the terms,

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conditions, and restrictions of the Protective Order by signing an undertaking in the

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form attached hereto as Exhibit A (the “Undertaking”), and shall retain the copy of

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this Protective Order, with a copy of his or her signed Undertaking attached.

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Discovering Counsel shall keep a copy of the signed Undertaking for each person

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described in subparagraphs 7(f), 7(g), or 8(f) to whom Discovering Counsel discloses

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Confidential Material.

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10.

The individuals designated in subparagraph 8(a) above, are specifically

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prohibited from publishing, releasing, or otherwise disclosing Material designated as

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ATTORNEYS’ EYES ONLY, or the contents thereof, to any directors, officers, or

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employees of the company for which the individual is employed, or to any other

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persons not authorized under this Protective Order to receive such information. The
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[PROPOSED] PROTECTIVE ORDER

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designated individuals in subparagraph 8(a) shall retain all ATTORNEYS’ EYES

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ONLY material in a secure manner under separate and confidential file, so as to avoid

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inadvertent access by, or disclosure to, unauthorized persons.

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DEPOSITIONS
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Those portions of depositions taken by any Party at which any Material

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designated as CONFIDENTIAL is used or inquired into, may not be conducted in the

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presence of any Person(s) other than (a) the deposition witness, (b) his or her counsel,

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and (c) Persons authorized under Paragraph 7 of this Protective Order to view such

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Confidential Material. During those portions of depositions in which Material

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designated ATTORNEYS’ EYES ONLY is used or inquired into, only those persons

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authorized under Paragraph 8 to view such Materials may be present.

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12.

Counsel for any deponent may designate testimony or exhibits as

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Confidential Material by indicating on the record at the deposition that the testimony

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of the deponent or any exhibits to his or her testimony are to be treated as Confidential

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Material. Counsel for any Party may designate exhibits in which that Party has a

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cognizable interest as Confidential Material by indicating on the record at the

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deposition that such exhibit(s) are to be treated as Confidential Material. Failure of

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counsel to designate testimony or exhibits as confidential at deposition, however, shall

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not constitute a waiver of the protected status of the testimony or exhibits. Within

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thirty calendar days of receipt of the transcript of the deposition, or thirty days of the

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date on which this Protective Order becomes effective, whichever occurs last, counsel

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shall be entitled to designate specific testimony or exhibits as Confidential Material. If

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counsel for the deponent or Party fails to designate the transcript or exhibits as

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Confidential within the above-described thirty day period, any other Party shall be

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entitled to treat the transcript or exhibits as non-confidential material. For purposes of

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this Paragraph 12, this Protective Order shall be deemed “effective” on the date on

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which it has been executed by all counsel for the Parties.

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[PROPOSED] PROTECTIVE ORDER

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13.

When Material disclosed during a deposition is designated Confidential

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Material at the time testimony is given, the reporter shall separately transcribe those

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portions of the testimony so designated, shall mark the face of the transcript in

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accordance with Paragraph 3 above, and shall maintain that portion of the transcript or

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exhibits in separate files marked to designate the confidentiality of their contents. The

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reporter shall not file or lodge with the Court any Confidential Material without

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obtaining written consent from the Party who designated the Material as Confidential

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Material. For convenience, if a deposition transcript or exhibit contains repeated

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references to Confidential Material which cannot conveniently be segregated from

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non-confidential material, any Party may request that the entire transcript or exhibit be

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maintained by the reporter as Confidential Material.

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USE OF CONFIDENTIAL MATERIAL IN PLEADINGS AND OTHER COURT

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PAPERS

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14.

In accordance with Local Rule 79-5.1, if any papers to be filed with the

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Court contain information and/or documents that have been designated as

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“Confidential” or “Attorneys’ Eyes Only,” the proposed filing shall be accompanied

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by an application to file the papers or the portion thereof containing the designated

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information or documents (if such portion is segregable) under seal; and the

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application shall be directed to the judge to whom the papers are directed. For

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motions, the parties shall publicly file a redacted version of the motion and supporting

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papers.

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OBJECTIONS TO DESIGNATION
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Any Party may at any time notify the Designating Party in writing of its

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contention that specified Material designated as Confidential Material is not properly

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so designated because such Material does not warrant protection under applicable law.

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The Designating Party shall within five court days, meet and confer in good faith with

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the Party challenging the designation in an attempt to resolve such dispute. The

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Designating Party shall have ten (10) calendar days from the initial meet and confer to
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[PROPOSED] PROTECTIVE ORDER

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file a motion to uphold the designation of the material in question. Any such motion

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shall be set for hearing on the first available calendar date. If no motion is filed within

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10 days, or any mutually agreed to extension of time, all Parties may treat the Material

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as non-confidential. To maintain the designation as Confidential Material and to

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prevail on such a motion, the Designating Party must show by a preponderance of the

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evidence that there is good cause for the designation as Confidential Material. Pending

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resolution of any motion filed pursuant to this Paragraph, all Persons bound by this

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Protective Order shall continue to treat the Material which is the subject of the motion

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as Confidential Material.

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16.

Any discovery disputes concerning the designation of materials or

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disclosure of documents or information under this Protective Order shall be brought in

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compliance with Local Rule 37 and a proposed stipulated protective order should so

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provide.

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RETURN OF MATERIAL
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Within ninety (90) calendar days after the final settlement or termination

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of this action, Discovering Counsel shall return or destroy (at the option and expense

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of Discovering Counsel) all Materials provided by a Producing Party and all copies

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thereof except to the extent that any of the foregoing includes or reflects Discovering

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Counsel’s work product, and except to the extent that such Material has been filed with

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a court in which proceedings related to this action are being conducted. In addition,

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with respect to any such retained work product and unless otherwise agreed to, at the

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conclusion of this action, counsel for each Party shall store in a secure area all work

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product which embodies Confidential Material together with all of the signed

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undertakings they are required to preserve pursuant to Paragraph 9 above, and shall not

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make use of such Material except in connection with any action arising directly out of

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these actions, or pursuant to a court order for good cause shown. The obligation of this

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Protective Order shall survive the termination of this action. To the extent that

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Confidential Materials are or become known to the public through no fault of the
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[PROPOSED] PROTECTIVE ORDER

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Discovering Party, such Confidential Materials shall no longer be subject to the terms

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of this Protective Order. Upon request, counsel for each Party shall verify in writing

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that they have complied with the provisions of this paragraph.

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SCOPE OF THIS ORDER

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18.

Except for the provisions regarding post-trial or post-settlement return and

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destruction of Material, or segregation of work product which embodies Confidential

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Material, this order is strictly a pretrial order; it does not govern the trial in this action.

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19.

Not later than seven days before trial in the action, Counsel agree to meet

and confer concerning the use at trial of Confidential Material.

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20.

Nothing in this Protective Order shall be deemed to limit, prejudice, or

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waive any right of any Party or Person (a) to resist or compel discovery with respect to,

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or to seek to obtain additional or different protection for, Material claimed to be

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protected work product or privileged under California or federal law, Material as to

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which the Producing Party claims a legal obligation not to disclose, or Material not

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required to be provided pursuant to California law; (b) to seek to modify or obtain

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relief from any aspect of this Protective Order; (c) to object to the use, relevance, or

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admissibility at trial or otherwise of any Material, whether or not designated in whole

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or in part as Confidential Material governed by this Protective Order; or (d) otherwise

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to require that discovery be conducted according to governing laws and rules.

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21.

Designation of Material as Confidential Material on the face of such

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Material shall have no effect on the authenticity or admissibility of such Material at

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trial.

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22.

This Protective Order shall not preclude any Person from waiving the

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applicability of this Protective Order with respect to any Confidential Material

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Provided by that Person or using any Confidential Material Provided by that Person or

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using any Confidential Material owned by that Person in any manner that Person

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deems appropriate.

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[PROPOSED] PROTECTIVE ORDER

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23.

This Protective Order shall not affect any contractual, statutory or other

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legal obligation or the rights of any Party or Person with respect to Confidential

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Material designated by that Party.

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24.

The restrictions set out in the Protective Order shall not apply to any

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Material which:

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a.

At the time it is Provided is available to the public;

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b.

After it is Provided, becomes available to the public through no act,

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or failure to act, of the Discovering Party; or

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c.

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The Discovering Party can show
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Was already known to the Discovering Party independently

of receipt of the Confidential Material in this or prior litigation; or

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ii.

Was received by the Discovering Party, after the time it was

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designated as Confidential Material hereunder, from a third party having the right to

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make such disclosure.

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25.

If at any time any Material protected by this Protective Order is

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subpoenaed from the Discovering Party by any Court, administrative or legislative

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body, or is requested by any other Person or entity purporting to have authority to

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require the production of such material, the Party to whom the subpoena or other

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request is directed shall immediately give written notice thereof to the Producing Party

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with respect to Confidential Material sought and shall afford the Producing Party

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reasonable opportunity to pursue formal objections to such disclosures. However,

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nothing in this Protective Order is intended or should be construed as authorizing a

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party to disobey a lawful subpoena in another action.

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//

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//

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[PROPOSED] PROTECTIVE ORDER

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SUBMISSION TO COURT
26.

The Parties agree to submit this Protective Order to the Court for adoption

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as an order of the Court. The Parties reserve the right to seek, upon good cause,

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modification of this Protective Order by the Court.

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IT IS SO ORDERED.

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Date: December 21, 2011

_________________________
Honorable Robert N. Block
United States Magistrate Judge

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[PROPOSED] PROTECTIVE ORDER

EXHIBIT A

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UNDERTAKING TO BE BOUND BY THE PRETRIAL PROTECTIVE ORDER

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REGARDING CONFIDENTIALITY OF DOCUMENTS

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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 have read in its

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entirety and understand the Protective Order that was issued by the United States

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District Court for the Central District of California in the case of Guru Denim, Inc. v.

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AJ Brands, Ltd., No. SA CV 10-1072 JVS (RNBx). I agree to comply with and to be

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bound by all the terms of this Protective Order and I understand and acknowledge that

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failure to so comply could expose me to sanctions and punishment in the nature of

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contempt. I solemnly promise that I will not disclose in any manner any information

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

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compliance with the provisions of this Order.

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

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the Central District of California for the purpose of enforcing the terms of this

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action.

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Date:

________________, 2011

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City and State where sworn and signed:

_______________________

Signed:

_______________________
[Signature]

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_________________
[Print Name]

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[PROPOSED] PROTECTIVE ORDER