Craig Cunningham v. Performance SLC LLC et al
Filing
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STIPULATED PROTECTIVE ORDER by Magistrate Judge Alicia G. Rosenberg re Corrected Stipulation for Protective Order 31 . (see document for details) (hr)
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Jon B. Fougner (State Bar No. 314097)
jon@fougnerlaw.com
600 California Street, 11th F1.
San Francisco, CA 94108
Telephone:(415)577-5829
Facsimile:(206)338-0783
Attorneyfor PlaintiffCraig Cunningham
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[Additional counsel appear on the
signature page]
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
SOUTHERN DIVISION
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CRAIG CUNNINGHAM,
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Case No. 8:18-cv-01093-AG-AGR
Plaintiff,
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PERFORMANCE SLC LLC,
PERFORMANCE SETTLEMENT
LLC, DANIEL J. CRENSHAW, and
DOES 1-10,
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Defendants.
STIPULATED PROTECTIVE
ORDER
JURY TRIAL DEMAND
Action Filed: June 20, 2018
Trial Date: August 20, 2019
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All parties, through their undersigned counsel, hereby stipulate as follows:
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1.
PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production
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of confidential, proprietary, or private information for which special protection from
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public disclosure and from use for any purpose other than prosecuting this litigation
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may be warranted. Accordingly, the parties hereby stipulate to and petition the Court
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to enter the following Stipulated Protective Order. Without waiving any objections to
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disclosure of or conceding the relevance of the following information, the parties
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anticipate that information that may be deemed confidential may include, without
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limitation, financial, legal, familial, medical, political, religious or other private and
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personal information.
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2.
DEFINITIONS
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2.1
Challenging Party: a Party or Non-Party that challenges the designation of
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information or items under this Order.
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2.2
"CONFIDENTIAL" Information or Items: information (regardless of
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how it is generated, stored or maintained) or tangible things that qualify for protection
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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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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 of
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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 or
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generated in disclosures or responses to discovery in this matter.
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2.6
Expert: a person with specialized knowledge or experience in a matter
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pertinent to the litigation who has been retained by a Party or its counsel to serve as an
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expert witness or as a consultant in this action.
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2.7
House Counsel: attorneys who are employees of a party to this action.
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House Counsel does not include Outside Counsel of Record or any other outside
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counsel.
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STIPULATED PROTECTIVE ORDER
Cunningham v. Performance SLC LLC, Case No. 8:18-cv-01093-AG-AGR
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2.8
Non-Pa
: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
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Outside Counsel of Record: attorneys who are not employees of a party
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to this action but are retained to represent or advise a party to this action and have
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appeared in this action on behalf of that party or are affiliated with a law firm which
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has appeared on behalf of that party.
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2.10 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 support
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services (e.g., photocopying, videotaping, translating, preparing exhibits or
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demonstrations, and organizing, storing, or retrieving data in any form or medium)
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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."
2.14 Receiving Party: a Party that receives Disclosure or Discovery Material
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from a Producing Party.
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3.
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SCOPE
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 extracted
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from Protected Material;(2) all copies, excerpts, summaries, or compilations of
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Protected Material; and (3)any testimony, conversations, or presentations by Parties
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or their Counsel that might reveal Protected Material. However, the protections
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conferred by this Stipulation and Order do not cover the following information:(a)
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any information that is in the public domain at the time of disclosure to a Receiving
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STIPULATED PROTECTIVE ORDER
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Party or becomes part of the public domain after its disclosure to a Receiving Party as
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a result of publication not involving a violation of this Order, including becoming part
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of the public record through trial or otherwise; and (b) any information known to the
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Receiving Party prior to the disclosure or obtained by the Receiving Party after the
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disclosure from a source who obtained the information lawfully and under no
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obligation of confidentiality to the Designating Party. Any use of Protected Material at
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trial shall be governed by a 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 or
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without prejudice; and (2)final judgment herein after the completion and exhaustion
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of all appeals, rehearings, remands, trials, or reviews of this action, including the time
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limits for filing any motions or applications for extension of time pursuant to
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applicable law.
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5.
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DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Desimating Material for Protection.
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Each Party or Non-Party that designates information or items for protection under this
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Order must take care to limit any such designation to specific material that qualifies
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under the appropriate standards. The Designating Party must designate for protection
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only those parts of material, documents, items, or oral or written communications that
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qualify — so that other portions of the material, documents, items, or communications
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for which protection is not warranted are not swept unjustifiably within the ambit of
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this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations
that are shown to be clearly unjustified or that have been made for an improper
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STIPULATED PROTECTIVE ORDER
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purpose (e.g., to unnecessarily encumber or retard the case development process or to
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impose unnecessary expenses and burdens on other parties) expose the Designating
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Party to sanctions.
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If it comes to a Designating Party's attention that information or items that it
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designated for protection do not qualify for protection, that Designating Party must
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promptly notify all other Parties that it is withdrawing the mistaken 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 material on a
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page qualifies for protection, the Producing Party also must clearly identify the
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protected portions)(e.g., by making appropriate markings in the margins).
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A Party or Non-Party that makes original documents or materials available for
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inspection need not designate them for protection until after the inspecting Party has
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indicated which material it would like copied and produced. During the inspection and
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before the designation, all of the material made available for inspection shall be
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deemed "CONFIDENTIAL." After the inspecting Party has identified the documents
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it wants copied and produced, the Producing Party must determine which documents,
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or portions thereof, qualify for protection under this Order. Then, before producing the
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specified documents, the Producing Party must affix the "CONFIDENTIAL" legend
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to each page that contains Protected Material. If only a portion or portions of the
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STIPULATED PROTECTIVE ORDER
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material on a page qualifies for protection, the Producing Party also must clearly
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identify the protected portions)(e.g., by making appropriate markings in the
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margins).
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(b) for testimony given in
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deposition proceedings, the Designating
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Party may either (i) identify on the record, before the close of the deposition, all
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protected testimony or (ii) identify the protected testimony by page and line number
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within 15 days of receiving a certified copy of the transcript.
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(c) for information produced in some form other than documentary and for
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any other tangible items, that the Producing Party affix in a prominent place on the
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exterior of the container or containers in which the information or item is stored the
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legend "CONFIDENTIAL." If only a portion or portions of the information or item
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warrant protection, the Producing Party, to the extent practicable, shall identify the
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protected portion(s).
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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 the
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Designating Party's right to secure protection under this Order for such material.
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Upon timely correction of a designation, the Receiving Party must make reasonable
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efforts to assure that the material is treated in accordance with the provisions of this
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Order.
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6.
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
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Timing of Challenges. Any Party or Non-Party may challenge a
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designation of confidentiality at any tim~. Unless a prompt challenge to a Designating
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Party's confidentiality designation is necessary to avoid foreseeable, substantial
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unfairness, unnecessary economic burdens, or a significant disruption or delay of the
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litigation, a Party does not waive its right to challenge a confidentiality designation by
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STIPULATED PROTECTIVE ORDER
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electing not to mount a challenge promptly after the original designation is disclosed.
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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Protective Order. The parties shall attempt to resolve each challenge in good faith and
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must begin the process by conferring directly (in voice to voice dialogue; other forms
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of communication are not sufficient) within 14 days of the date of service of notice. In
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conferring, the Challenging Party must explain the basis for its belief that the
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confidentiality designation was not proper and must give the Designating Party an
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opportunity to review the designated material, to reconsider the circumstances, and, if
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no change in designation is offered, to explain the basis for the chosen designation. A
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Challenging Party may proceed to the next stage of the challenge process only if it has
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engaged in this meet and confer process first or establishes that the Designating Party
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is unwilling to participate in the meet and 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 Designating Party shall file and serve a motion to retain
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confidentiality under the local rules within 21 days of the initial notice of challenge or
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within 14 days of the parties agreeing that the meet and confer process will not resolve
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their dispute, whichever is earlier. Each such motion must be accompanied by a
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competent declaration affirming that the movant has complied with the meet and
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confer requirements imposed in the preceding paragraph. Failure by the Designating
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Party to make such a motion including the required declaration within 21 days (or 14
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days, if applicable) shall automatically waive the confidentiality designation for each
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challenged designation. In addition the Challenging Party may file a motion
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challenging a confidentiality designation at any time~if there is good cause for doing
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STIPULATED PROTECTIVE ORDER
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so, including a challenge to the designation of a deposition transcript or any portions
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thereof. Any motion brought pursuant to this provision must be accompanied by a
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competent declaration affirming that the movant has complied with the meet and
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confer requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the
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Designating Party. Frivolous challenges, and those made for an improper purpose
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e.g., to harass or impose unnecessary expenses and burdens on other parties) may
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expose the Challenging Party to sanctions. Unless the Designating Party has waived
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the confidentiality designation by failing to file a motion to retain confidentiality as
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described above, all parties shall continue to afford the material in question the level
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of protection to which it is entitled under the Producing Party's designation until the
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court rules on the challenge.
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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is
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disclosed or produced by another Party or by a Non-Party in connection with this case
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only for prosecuting, defending, or attempting to settle this litigation. Such Protected
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Material may be disclosed only to the categories of persons and under the conditions
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described in this Order. When the litigation has been terminated, a Receiving Party
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must comply with the provisions of section 13 below(FINAL DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a
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location and in a secure manner that ensures that access is limited to the persons
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authorized under this Order.
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.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 "CONFIDENTIAL"
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only to:
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(a) the Receiving Party's Outside Counsel of Record in this action, as well
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STIPULATED PROTECTIVE ORDER
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as employees of said Outside Counsel of Record to whom it is reasonably necessary to
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disclose the information for this litigation and who have signed the "Acknowledgment
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and Agreement to Be Bound" that is attached hereto as Exhibit A;
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(b) the officers, directors, and employees (including House Counsel) of the
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Receiving Party to whom disclosure is reasonably necessary for this litigation and
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who have signed the "Acknowledgment and Agreement to Be Bound"(Exhibit A);
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(c) Experts(as defined in this Order) of the Receiving Party to whom
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disclosure is reasonably necessary for this 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 consultants,
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mock jurors, and Professional Vendors to whom disclosure is reasonably necessary
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for this litigation and who have signed the "Acknowledgment and Agreement to Be
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Bound"(Exhibit A);
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(~ during their depositions, witnesses in the action to whom disclosure is
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reasonably necessary and who have signed the "Acknowledgment and Agreement to
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Be Bound"(Exhibit A), unless otherwise agreed by the Designating Party or ordered
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by the court. Pages of transcribed deposition testimony or exhibits to depositions that
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reveal Protected Material must be separately bound by the court reporter and may not
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be disclosed to anyone except as permitted under this Stipulated Protective Order.
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(g) the author or recipient of a document containing the information or a
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custodian or other person who otherwise possessed or knew the information.
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8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
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OTHER LITIGATION
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If a Party is served with a subpoena or a court order issued in other litigation
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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:
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STIPULATED PROTECTIVE ORDER
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( promptly notify in writing the Designating Party. Such notification shall
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include a copy of the subpoena or court order;
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( promptly notify in writing the party who caused the subpoena or order to
b)
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issue in the other litigation that some or all of the material covered by the subpoena or
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order is subject to this Protective Order. Such notification shall include a copy of this
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Stipulated Protective Order; and
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( cooperate with respect to all reasonable procedures sought to be pursued
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by the Designating Party whose Protected Material may be affected.
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If the Designating Party timely seeks a protective order, the Party served with
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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 to
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disobey a lawful directive from another court.
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ANON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
IN THIS LITIGATION
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( The terms of this Order are applicable to information produced by a
a)
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Non-Party in this action and designated as "CONFIDENTIAL." Such information
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produced by Non-Parties in connection with this litigation is protected by the
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remedies and relief provided by this Order. Nothing in these provisions should be
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construed as prohibiting allon-Party from seeking additional protections.
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( In the event that a Party is required, by a valid discovery request, to
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produce allon-Party's confidential information in its possession, and the Party is
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subject to an agreement with the Non-Party not to produce the Non-Party's
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confidential information, then the Party shall:
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STIPULATED PROTECTIVE ORDER
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(1) promptly notify in writing the Requesting Party and the Non-Party
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that some or all of the information requested is subject to a confidentiality agreement
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with allon-Party;
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( promptly provide the Non-Party with a copy of the Stipulated
2)
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Protective Order in this litigation, the relevant discovery request(s), and a reasonably
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specific description of the information requested; and
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( make the information requested available for inspection by the Non3)
Party.
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(c) If the Non-Party fails to object or seek a protective order from this court
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within 14 days of receiving the notice and accompanying information, the Receiving
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Party may produce the Non-Party's confidential information responsive to the
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discovery request. If the Non-Party timely seeks a protective order, the Receiving
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Party shall not produce any information in its possession or control that is subject to
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the confidentiality agreement with the Non-Party before a determination by the court.
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Absent a court order to the contrary, the Non-Party shall bear the burden and expense
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of seeking protection in this court of its Protected Material.
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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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Stipulated Protective Order, the Receiving Party must immediately (a) notify in
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writing the Designating Party of the unauthorized disclosures,(b) use its best efforts
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to 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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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
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STIPULATED PROTECTIVE ORDER
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When a Producing Party gives notice to Receiving Parties that certain
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inadvertently produced material is subject to a claim of privilege or other protection,
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the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
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Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
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may be established in an e-discovery order that provides for production without prior
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privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
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parties reach an agreement on the effect of disclosure of a communication or
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information covered by the attorney-client privilege or work product protection, the
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parties may incorporate their agreement in the stipulated protective order submitted to
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the court.
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12.
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MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right of any
person to seek its modification by the court in the future.
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12.2 Right to Assert Other Objections. By stipulating to the entry of this
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Protective Order no Party waives any right it otherwise would have to object to
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disclosing or producing any information or item on any ground not addressed in this
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Stipulated Protective Order. Similarly, no Party waives any right to object on any
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ground to use in evidence of any of the material covered by this Protective Order.
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12.3 Filing Protected Material. A party that seeks to file any Protected
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Material must comply with the local rules.
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13.
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FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph
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4, each Receiving Party must return all Protected Material to the Producing Party or
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destroy such material. As used in this subdivision, "all Protected Material" includes
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all copies, abstracts, compilations, summaries, and any other format reproducing or
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capturing any of the Protected Material. Whether the Protected Material is returned or
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destroyed, the Receiving Party must submit a written certification to the Producing
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STIPULATED PROTECTIVE ORDER
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Party (and, if not the same person or entity, to the Designating Party) by the 60 day
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deadline that(1)identifies (by category, where appropriate) all the Protected Material
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that was returned or destroyed and (2)affirms that the Receiving Party has not
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retained any copies, abstracts, compilations, summaries or any other format
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reproducing or capturing any of the Protected Material. Notwithstanding this
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provision, Counsel are entitled to retain an archival copy of all pleadings, motion
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papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence,
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deposition and trial exhibits, expert reports, attorney work product, and consultant and
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expert work product, even if such materials contain Protected Material. Any such
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archival copies that contain or constitute Protected Material remain subject to this
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Protective Order as set forth in Section 4(DURATION).
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IT IS SO STIPULATED,THROUGH COUNSEL OF RECORD.
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The CM/ECF user filing this paper attests that concurrence in its filing has been
obtained from its other signatory.
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DATED: February 25, 2019
/s/ Jon B. Fougner
Email:jon@fougnerlaw.com
Attorney for Plaintiff
DATED: February 25, 2019
/s/ Jeremy Branch
Email:jeremyb@jlohman.com
Attorneys for Defendant
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STIPULATED PROTECTIVE ORDER
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~vurnT~r n
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I,
[print or type full name], of
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[print or type full address], declare under penalty of perjury that
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I have read in its entirety and understand the Stipulated Protective Order that was
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issued by the United States District Court for the Central District of California on
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[
date] in the case of Cunningham v. Performance SLC,LLC,Case No.8:18-cv-
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01093-AG-AGR. Iagree to comply with and to be bound by all the terms of this
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Stipulated Protective Order and I understand and acknowledge that failure to so
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comply could expose me to sanctions and punishment in the nature of contempt. I
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solemnly promise that I will not disclose in any manner any information or item that is
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subject to this Stipulated 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
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f the Central District of California for the purpose of enforcing the terms of this
or
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Stipulated Protective Order, even if such enforcement proceedings occur after
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termination of this action. I hereby appoint
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type full name] of
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address and telephone number] as my California agent for service of process in
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connection with this action or any proceedings related to enforcement of this
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Stipulated Protective Order.
[print or
[print or type full
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Date:
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City and State where sworn and signed:
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Printed name:
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Signature:
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STIPULATED PROTECTIVE ORDER
Cunningham v. Performance SLC LLC, Case No. 8:18-cv-01093-AG-AGR
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