Richard Wannemacher v. Carrington Mortgage Services LLC
Filing
43
CONFIDENTIALITY ORDER by Magistrate Judge Arthur Nakazato re Stipulation for Order 42 . (twdb)
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FILED- SOUTHERN DIVISION
C~CTCOURT
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[ JtL
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~-~_;013 J
CENTRAL DISTRICT OF CALrFOFlNIA
BY
DEPUTY
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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v.
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CASE NO. SACV 12-02016 FMO
(ANx)
RICHARD WANNEMACHER,
individually and on behalf of all others
similarly situated,
Plaintiff,
CARRINGTON MORTGAGE
SERVICES, LLC,
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[PROPOSED]
CONFIDENTIALITY ORDER
Defendant.
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For good cause shown, pursuant to stipulation of the parties,
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IT IS HEREBY ORDERED THAT:
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1.
PURPOSES AND LIMITATIONS
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Disclosure and discovery activity in this action are likely to involve
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production of confidential, proprietary, sensitive, or private information for which
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special protection from public disclosure and from use for any purpose other than
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prosecuting this litigation may be warranted. Accordingly, the parties hereby
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stipulate to and petition the court to enter the following Confidentiality Order. The
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parties acknowledge that this Order does not confer blanket protections on all
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disclosures or responses to discovery and that the protection it affords from public
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disclosure and use extends only to the limited information or items that are entitled
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to confidential treatment under the applicable legal principles. The parties further
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acknowledge, as set forth in Section 12.3, below, that this Confidentiality Order
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does not entitle them to file confidential information under seal; Civil Local Rule
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79-5 sets forth the procedures that must be followed and the standards that will be
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applied when a party seeks permission from the court to file material under seal.
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2.
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2.1
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DEFINITIONS
Challenging Party: a Party or Non-Party that challenges the
designation of information or items under this Order.
2.2
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"CONFIDENTIAL" Information or Items: information (regardless of
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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).
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2.3
Counsel (without qualifier): Outside Counsel of Record and House
Counsel (as well as their support staff).
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2.4
Designating Party: a Party or Non-Party that designates information or
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items that it produces in disclosures or in responses to discovery as
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"CONFIDENTIAL."
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2.5
Disclosure or Discovery Material: all items or information, regardless
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of the medium or manner in which it is generated, stored, or maintained (including,
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among other things, testimony, transcripts, and tangible things), that are produced
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or generated in disclosures or responses to discovery in this matter.
2.6
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Expert: a person with specialized knowledge or experience in a matter
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pertinent to the litigation who has been retained by a Party or its counsel to serve as
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an expert witness or as a consultant in this action.
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2. 7
House Counsel does not include Outside Counsel of Record or any other outside
counsel.
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House Counsel: attorneys who are employees of a party to this action.
2.8
Non-Party: any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.
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2.9
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 and
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have appeared in this action on behalf of that party or are affiliated with a law firm
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which has appeared on behalf of that party.
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2.10 Party: any party to this action, including all of its officers, directors,
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employees, consultants, retained experts, and Outside Counsel of Record (and their
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support staffs).
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2.11 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
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2.12 Professional Vendors: persons or entities that provide litigation
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support services (e.g., photocopying, videotaping, translating, preparing exhibits or
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demonstrations, and organizing, storing, or retrieving data in any form or medium)
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and their employees and subcontractors.
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2.13 Protected Material: any Disclosure or Discovery Material that is
designated as "CONFIDENTIAL."
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2.14 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.
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However, the protections conferred by this Stipulation and Order do not cover the
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following information: (a) any information that is in the public domain at the time
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of disclosure to a Receiving Party or becomes part of the public domain after its
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disclosure to a Receiving Party as a result of publication not involving a violation
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of this Order, including becoming part of the public record through trial or
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otherwise; and (b) any information known to the Receiving Party prior to the
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disclosure or obtained by the Receiving Party after the disclosure from a source
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who obtained the information lawfully and under no obligation of confidentiality to
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the Designating Party. Any use of Protected Material at trial shall be governed by a
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separate agreement or order.
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4.
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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, with
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or without prejudice; and (2) final judgment herein after the completion and
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exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
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including the time limits for filing any motions or applications for extension of time
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pursuant to applicable law.
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5.
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DESIGNATING PROTECTED MATERIAL
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5.1
Exercise of Restraint and Care in Designating Material for Protection.
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Each Party or Non-Party that designates information or items for protection under
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this Order must take care to limit any such designation to specific material that
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qualifies under the appropriate standards. The Designating Party must designate for
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protection only those parts of material, documents, items, or oral or written
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communications that qualify- so that other portions of the material, documents,
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items, or communications for which protection is not warranted are not swept
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unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized
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designations are prohibited.
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If it comes to a Designating Party's attention that information or items
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that 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 mistaken
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designation.
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5.2
Manner and Timing of Designations. Except as otherwise provided in
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this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
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under this Order must be clearly so designated before the material is disclosed or
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produced.
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Designation in conformity with this Order requires:
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(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 the legend "CONFIDENTIAL" to each
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page that contains protected material. If only a portion or portions of the document
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qualifies for protection, the Producing Party also must clearly identify the protected
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portion(s).
A Party or Non-Party that makes original documents or
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materials available for inspection need not designate them for protection until after
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the inspecting Party has indicated which material it would like copied and
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produced. During the inspection and before the designation, all of the material
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made available for inspection shall be deemed "CONFIDENTIAL." After the
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inspecting Party has identified the documents it wants copied and produced, the
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Producing Party must determine which documents, or portions thereof, qualify for
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protection under this Order. Then, before producing the specified documents, the
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Producing Party must affix the "CONFIDENTIAL" legend to each page that
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contains Protected Material. If only a portion or portions of the document qualifies
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for protection, the Producing Party also must clearly identify the protected
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portion(s).
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(b)
for testimony given in deposition or in other pretrial or trial
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proceedings, that the Designating Party identify on the record, before the close of
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the deposition, hearing, or other proceeding, all protected testimony.
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(c)
for information produced in some form other than documentary
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and for any other tangible items, that the Producing Party affix in a prominent place
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on the exterior of the container or containers in which the information or item is
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stored the legend "CONFIDENTIAL." If only a portion or portions of the
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information or item warrant protection, the Producing Party, to the extent
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practicable, shall identify the protected portion(s).
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5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent
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failure to designate qualified information or items does not, standing alone, waive
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the Designating Party's right to secure protection under this Order for such
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material. Upon timely correction of a designation, the Receiving Party must make
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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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6.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a
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designation of confidentiality at any time. Unless a prompt challenge to a
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Designating Party's confidentiality designation is necessary to avoid foreseeable,
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substantial unfairness, unnecessary economic burdens, or a significant disruption or
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delay of the litigation, a Party does not waive its right to challenge a confidentiality
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designation by electing not to mount a challenge promptly after the original
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designation is disclosed.
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6.2
Meet and Confer. The Challenging Party shall initiate the dispute
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resolution process by providing written notice of each designation it is challenging
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and describing the basis for each challenge. To avoid ambiguity as to whether a
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challenge has been made, the written notice must recite that the challenge to
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confidentiality is being made in accordance with this specific paragraph of the
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Confidentiality Order. The parties shall attempt to resolve each challenge in good
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faith and must begin the process by conferring directly (in voice to voice dialogue;
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other forms of communication are not sufficient) within 14 days of the date of
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service of notice. In conferring, the Challenging Party must explain the basis for its
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belief that the confidentiality designation was not proper and must give the
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Designating Party an opportunity to review the designated material, to reconsider
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the circumstances, and, if no change in designation is offered, to explain the basis
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for the chosen designation. A Challenging Party may proceed to the next stage of
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the challenge process only if it has engaged in this meet and confer process first or
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establishes that the Designating Party is unwilling to participate in the meet and
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confer process in a timely manner.
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6.3
Judicial Intervention. If the Parties cannot resolve a challenge without
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court intervention, the Challenging Party may file a motion to challenge the
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confidentiality designation under Civil Local Rule 37 (and in compliance with Civil
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Local Rule 79-5, if applicable) at any time. Each such motion must be
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accompanied by a competent declaration affirming that the movant has complied
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with the meet and confer requirements imposed in the preceding paragraph.
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The burden of persuasion in any such challenge proceeding shall be on
the Designating Party. All parties shall continue to afford the material in question
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the level of protection to which it is entitled under the Producing Party's
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designation until the court rules on the challenge.
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7.
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
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Basic Principles. A Receiving Party may use Protected Material that is
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disclosed or produced by another Party or by a Non-Party in connection with this
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case only for prosecuting, defending, or attempting to settle this litigation. Such
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Protected Material may be disclosed only to the categories of persons and under the
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conditions described in this Order. When the litigation has been terminated, a
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Receiving Party must comply with the provisions of section 13 below (FINAL
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DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party
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at 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
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otherwise ordered by the court or permitted in writing by the Designating Party, a
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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 ofRecord in this action,
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as well as employees of said Outside Counsel of Record to whom it is reasonably
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necessary to disclose the information for this litigation and who have signed the
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"Acknowledgment and Agreement to Be Bound" that is attached hereto as
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Exhibit A;
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(b)
the officers, directors, and employees (including House
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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this
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litigation and who have signed the "Acknowledgment and Agreement to Be
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Bound" (Exhibit A);
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(c)
Experts (as defined in this Order) of the Receiving Party to
whom disclosure is reasonably necessary for this litigation and who have signed the
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"Acknowledgment and Agreement to Be Bound" (Exhibit A);
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(d)
the court and its personnel;
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(e)
court reporters and their staff, professional jury or trial
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consultants, mock jurors, and Professional Vendors to whom disclosure is
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reasonably necessary for this litigation and who have signed the "Acknowledgment
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and Agreement to Be Bound" (Exhibit A);
(f)
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during their depositions, witnesses in the action to whom
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disclosure is reasonably necessary and who have signed the "Acknowledgment and
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Agreement to Be Bound" (Exhibit A), unless otherwise agreed by the Designating
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Party or ordered by the court. Pages of transcribed deposition testimony or exhibits
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to depositions that reveal Protected Material must be separately bound by the court
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reporter and may not be disclosed to anyone except as permitted under this
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Confidentiality Order.
(g)
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the author or recipient of a document containing the information
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or a custodian or other person who otherwise possessed or knew the information.
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8.
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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation
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that compels disclosure of any information or items designated in this action as
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"CONFIDENTIAL," that Party must:
(a)
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promptly notify in writing the Designating Party. Such
notification 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
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order to issue in the other litigation that some or all of the material covered by the
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subpoena or order is subject to this Confidentiality Order. Such notification shall
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include a copy of this Confidentiality Order; and
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(c)
cooperate with respect to all reasonable procedures sought to be
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
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the subpoena or court order shall not produce any information designated in this
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action as "CONFIDENTIAL" before a determination by the court from which the
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subpoena or order issued, unless the Party has obtained the Designating Party's
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permission. The Designating Party shall bear the burden and expense of seeking
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protection in that court of its confidential material - and nothing in these provisions
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should be construed as authorizing or encouraging a Receiving Party in this action
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to disobey a lawful directive from another court.
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9.
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A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
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(a)
The terms of this Order are applicable to information produced
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by a Non-Party in this action and designated as "CONFIDENTIAL." Such
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information produced by Non-Parties in connection with this litigation is protected
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by the remedies and relief provided by this Order. Nothing in these provisions
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should be construed as 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
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request, to produce a Non-Party's confidential information in its possession
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(excluding a Non-Party who may be an unnamed member of the putative class), and
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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:
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(1)
promptly notify in writing the Requesting Party and the Non-Party that
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some or all of the information requested is subject to the confidentiality agreement
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with a Non-Party;
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(2)
promptly provide the Non-Party with a copy of the Confidentiality
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Order in this litigation, the relevant discovery request(s), and a reasonably specific
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description of the information requested; and
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(3)
make the information requested available for inspection by the Non-
Party.
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(c)
If the Non-Party fails to object or seek a protective order from
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this court 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 responsive
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to the discovery request. If the Non-Party timely objects or 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 a
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determination by the court. 1 Absent a court order to the contrary, the Non-Party
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shall bear the burden and expense of seeking protection in this court of its Protected
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Material.
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(d)
The Parties agree that the provisions of sections 9(b) and 9(c)
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above are in addition to, and are not intended to supersede, whatever other
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confidentiality protections, if any, may be afforded under state or federal law to a
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Non-Party's confidential information in the possession of a Party. Nothing in this
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Confidentiality Order purports to alter in any respect such protections, if any,
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afforded under state or federal law, regardless of whether those protections are
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supplemental to or inconsistent with the protections and procedures set forth herein.
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Defendant maintains that the notice and consent procedures set forth in Pioneer
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Electronics (USA), Inc. v. Superior Court, 150 P.3d 198 (Cal. 2007) and other cases
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apply to unnamed members of the purported class. Plaintiff disagrees. If the
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parties cannot resolve this dispute through the meet and confer process, they will
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submit it to the Court as soon as practicable.
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10.
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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
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Protected Material to any person or in any circumstance not authorized under this
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Confidentiality Order, the Receiving Party must immediately (a) notify in writing
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The purpose of this provision is to alert the interested parties to the existence of confidentiality
rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality
interests in this court.
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the Designating Party of the unauthorized disclosures, (b) use its best efforts to
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retrieve all unauthorized copies of the Protected Material, (c) inform the person or
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persons to whom unauthorized disclosures were made of all the terms of this Order,
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and (d) request such person or persons to execute the "Acknowledgment and
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Agreement to Be Bound" that is attached hereto as Exhibit A.
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11.
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
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 for
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production without prior privilege review. Pursuant to Federal Rules 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 in
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the confidentiality order submitted to the court.
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12.
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MISCELLANOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
person to seek its modification by the court in the future.
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12.2 Right to Assert Other Objections. By stipulating to the entry of this
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Confidentiality Order no Party waives any right it otherwise would have to object
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to disclosing or producing any information or item on any ground not addressed in ยท
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this Confidentiality Order. Similarly, no Party waives any right to object on any
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ground to use in evidence of any of the material covered by this Confidentiality
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Order.
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12.3 Filing Protected Material. Without written permission from the
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Designating Party or a court order secured after appropriate notice to all interested
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persons, a Party may not file in the public record in this action any Protected
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Material. A Party that seeks to file under seal any Protected Material must comply
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with Civil Local Rule 79-5. Protected Material may be filed under seal only
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pursuant to a court order authorizing the sealing of the specific Protected Material
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at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a
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request establishing that the Protected Material at issue is privileged, protectable as
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a trade secret, or otherwise entitled to protection under the law. If a Receiving
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Party's request to file Protected Material under seal pursuant to Civil Local
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Rule 79-5.1 is denied by the court, then the Receiving Party may file the
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information in the public record pursuant to Civil Local Rule 79-5.3 unless
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otherwise instructed by the court.
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13.
FINAL DISPOSITION
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Within 60 days after the final disposition of this action, as defined in
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paragraph 4, each Receiving Party must return all Protected Material to the
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Producing Party or destroy such material. As used in this subdivision, "all
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Protected Material" includes all copies, abstracts, compilations, summaries, and any
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other format reproducing or capturing any of the Protected Material. Whether the
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Protected Material is returned or destroyed, the Receiving Party must submit a
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written certification to the Producing Party (and, if not the same person or entity, to
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the Designating Party) by the 60 day deadline that (1) identifies (by category, where
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appropriate) all the Protected Material that was returned or destroyed and
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(2) affirms that the Receiving Party has not retained any copies, abstracts,
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compilations, summaries or any other format reproducing or capturing any of the
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Protected Material. Notwithstanding this provision, Counsel are entitled to retain
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an archival copy of all pleadings, motion papers, trial, deposition, and hearing
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transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
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reports, attorney work product, and consultant and expert work product, even if
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such materials contain Protected Material. Any such archival copies that contain or
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constitute Protected Material remain subject to this Confidentiality Order as set
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forth in Section 4 (DURATION).
IT IS SO ORDERED.
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DATED: July 15, 2013
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, _ _ _ _ _ _ _ _ _ _ _ _ [print or type full name], of
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_ _ _ _ _ _ _ [print or type full address], declare under penalty of perjury
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that I have read in its entirety and understand the Stipulated Protective Order that
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was issued by the United States District Court for the Central District of California
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on [date] in the case of Wannemacher v. Carrington Mortgage Services, LLC, Case
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No. SA CV 12-02016 FMO (ANx). I agree to comply with and to be bound by all
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the terms of this Stipulated 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
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information or item that is subject to this Stipulated Protective Order to any person
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or entity except in strict compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction ofthe United States District Court
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for 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:
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City and State where sworn and signed: _ _ _ _ _ _ _ _ _ _ _ _ __
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--------------
Printed name:
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------------[printed name]
Signature:
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------------------[signature]
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