Semiconductor Energy Laboratory Co., Ltd. v. TCL China Star Optoelectronics Technology Co., Ltd. et al
Filing
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PROTECTIVE ORDER by Magistrate Judge Autumn D. Spaeth re Stipulation for Protective Order, 40 . (see document for details) (hr)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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SEMICONDUCTOR ENERGY
LABORATORY CO., LTD.,
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Plaintiff,
vs.
TCL CHINA STAR
OPTOELECTRONICS
TECHNOLOGY CO., LTD.; TCL
TECHNOLOGY GROUP
CORPORATION; TTE
TECHNOLOGY, INC.; TCL
COMMUNICATION TECHNOLOGY
HOLDINGS LIMITED; TCT MOBILE,
INC.; AND TCT MOBILE (US) INC.
Case No. 8:21 cv 00554 JAK ADS
(MODIFIED) PROTECTIVE
ORDER FOR PATENT CASES
ASSIGNED TO JUDGE JOHN A.
KRONSTADT
[Discovery Document: Referred to
Magistrate Judge Autumn D. Spaeth]
Defendants.
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(MODIFIED) PROTECTIVE ORDER
8:21-CV-00554-JAK-ADS
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1.
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Discovery in this action is likely to involve confidential, proprietary or
PURPOSE AND LIMITS OF THIS ORDER
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private information requiring special protection from public disclosure and from
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use for any purpose other than this litigation. Thus, the Court enters this Protective
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Order. This Order does not confer blanket protections on all disclosures or
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responses to discovery, and the protection it gives from public disclosure and use
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extends only to the specific material entitled to confidential treatment under the
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applicable legal principles. This Order does not automatically authorize the filing
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under seal of material designated under this Order. Instead, the parties must comply
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with Local Rule 79-5.1 and this Order if they seek to file anything under seal. This
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Order does not govern the use at trial of material designated under this Order.
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2.
DESIGNATING PROTECTED MATERIAL
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2.1.
Over-Designation Prohibited. Any party or non-party who
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designates information or items for protection under this Order as
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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,”
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or “HIGHLY CONFIDENTIAL – SOURCE CODE” (a “designator”) must only
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designate specific material that qualifies under the appropriate standards. To the
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extent practicable, only those parts of documents, items or oral or written
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communications that require protection shall be designated. Designations with a
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higher confidentiality level when a lower level would suffice are prohibited. Mass,
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indiscriminate, or routinized designations are prohibited. Unjustified designations
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expose the designator to sanctions, including the Court’s striking all confidentiality
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designations made by that designator. Designation under this Order is allowed only
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if the designation is necessary to protect material that, if disclosed to persons not
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authorized to view it, would cause competitive or other recognized harm. Material
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may not be designated if it has been made public, or if designation is otherwise
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unnecessary to protect a secrecy interest. If a designator learns that information or
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(MODIFIED) PROTECTIVE ORDER
8:21-CV-00554-JAK-ADS
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items that it designated for protection do not qualify for protection at all or do not
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qualify for the level of protection initially asserted, that designator must promptly
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notify all parties that it is withdrawing the mistaken designation.
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2.2.
Manner and Timing of Designations. Designation under this
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Order requires the designator to affix the applicable legend (“CONFIDENTIAL,”
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“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,” or “HIGHLY
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CONFIDENTIAL – SOURCE CODE”) to each page that contains protected
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material. For testimony given in deposition or other proceeding, the designator shall
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specify all protected testimony and the level of protection being asserted. It may
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make that designation during the deposition or proceeding, or may invoke, on the
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record or by written notice to all parties on or before the next business day, a right
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to have up to 21 days from the deposition or proceeding to make its designation.
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2.2.1.
A party or non-party that makes original documents or materials
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available for inspection need not designate them for protection until after the
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inspecting party has identified which material it would like copied and produced.
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During the inspection and before the designation, all material shall be treated as
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HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY. After the inspecting
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party has identified the documents it wants copied and produced, the producing
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party must designate the documents, or portions thereof, that qualify for protection
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under this Order.
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2.2.2.
Parties shall give advance notice if they expect a deposition or
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other proceeding to include designated material so that the other parties can ensure
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that only authorized individuals are present at those proceedings when such
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material is disclosed or used. The use of a document as an exhibit at a deposition
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shall not in any way affect its designation. Transcripts containing designated
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material shall have a legend on the title page noting the presence of designated
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material, and the title page shall be followed by a list of all pages (including line
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(MODIFIED) PROTECTIVE ORDER
8:21-CV-00554-JAK-ADS
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numbers as appropriate) that have been designated, and the level of protection being
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asserted. The designator shall inform the court reporter of these requirements. Any
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transcript that is prepared before the expiration of the 21-day period for designation
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shall be treated during that period as if it had been designated HIGHLY
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CONFIDENTIAL – ATTORNEY EYES ONLY unless otherwise agreed. After the
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expiration of the 21-day period, the transcript shall be treated only as actually
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designated.
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2.3.
Inadvertent Failures to Designate. An inadvertent failure to
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designate does not, standing alone, waive protection under this Order. Upon timely
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assertion or correction of a designation, all recipients must make reasonable efforts
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to ensure that the material is treated according to this Order.
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3.
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All challenges to confidentiality designations shall proceed under Local Rule
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
37-1 through Local Rule 37-4.
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4.
ACCESS TO DESIGNATED MATERIAL
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4.1.
Basic Principles. A receiving party may use designated material
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only for this litigation. Designated material may be disclosed only to the categories
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of persons and under the conditions described in this Order.
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4.2.
Disclosure of CONFIDENTIAL Material Without Further
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Approval. Unless otherwise ordered by the Court or permitted in writing by the
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designator, a receiving party may disclose any material designated
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CONFIDENTIAL only to:
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4.2.1.
The receiving party’s outside counsel of record in this action
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and employees of outside counsel of record to whom disclosure is reasonably
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necessary;
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(MODIFIED) PROTECTIVE ORDER
8:21-CV-00554-JAK-ADS
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4.2.2.
The officers, directors, and employees of the receiving party to
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whom disclosure is reasonably necessary, and who have signed the Agreement to
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Be Bound (Exhibit E-1);
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4.2.3.
Experts and their staff retained by the receiving party’s outside
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counsel of record to whom disclosure is reasonably necessary, provided the experts
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have signed the Agreement to Be Bound (Exhibit E-1);
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4.2.4.
The Court and its personnel, and any mediator(s) selected by the
parties;
4.2.5.
Outside court reporters and their staff, professional jury or trial
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consultants, and professional vendors to whom disclosure is reasonably necessary,
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and who have signed the Agreement to Be Bound (Exhibit E-1);
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4.2.6.
During their depositions, witnesses in the action to whom
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disclosure is reasonably necessary and who have signed the Agreement to Be
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Bound (Exhibit E-1); and
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4.2.7.
The author or recipient of a document containing the material, or
a custodian or other person who otherwise possessed or knew the information.
4.2.8.
To the extent reasonably necessary to conduct mock trials or
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focus group exercises, material designated CONFIDENTIAL may be shown to
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mock trial or focus group participants provided: (a) the participants are required to
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sign a confidentiality agreement to participate in the study; (b) the
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CONFIDENTIAL material is only displayed in presentation materials by counsel
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and not provided in any material given to the participants as a handout; (c) the
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participants are not permitted to retain any materials from the exercise, other than a
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copy of their confidentiality agreement and documents related to payment for their
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participation in the exercise.
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4.3.
Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY
EYES ONLY and HIGHLY CONFIDENTIAL – SOURCE CODE Material
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(MODIFIED) PROTECTIVE ORDER
8:21-CV-00554-JAK-ADS
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Without Further Approval. Unless permitted in writing by the designator, a
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receiving party may disclose material designated HIGHLY CONFIDENTIAL –
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ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE
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without further approval only to:
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4.3.1.
The receiving party’s outside counsel of record in this action
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and employees of outside counsel of record to whom it is reasonably necessary to
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disclose the information;
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4.3.2.
The Court and its personnel, and any mediator(s) selected by the
parties;
4.3.3.
Outside court reporters and their staff, professional jury or trial
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consultants, and professional vendors to whom disclosure is reasonably necessary,
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and who have signed the Agreement to Be Bound (Exhibit E-1); and
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4.3.4.
The author or recipient of a document containing the material, or
a custodian or other person who otherwise possessed or knew the information.
4.3.5.
To the extent reasonably necessary to conduct mock trials or
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focus group exercises, material designated HIGHLY CONFIDENTIAL –
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ATTORNEY EYES ONLY and HIGHLY CONFIDENTIAL – SOURCE CODE
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may be shown to mock trial or focus group participants provided: (a) the
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participants are required to sign a confidentiality agreement to participate in the
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study; (b) the HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY and
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HIGHLY CONFIDENTIAL – SOURCE CODE material is only displayed in
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presentation materials by counsel and not provided in any material given to the
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participants as a handout; (c) the participants are not permitted to retain any
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materials from the exercise, other than a copy of their confidentiality agreement and
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documents related to payment for their participation in the exercise.
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4.4.
Procedures for Approving or Objecting to Disclosure of
HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY
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(MODIFIED) PROTECTIVE ORDER
8:21-CV-00554-JAK-ADS
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CONFIDENTIAL – SOURCE CODE Material to Experts. Unless agreed to in
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writing by the designator:
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4.4.1.
A party seeking to disclose to an expert retained by outside
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counsel of record any information or item that has been designated HIGHLY
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CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL –
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SOURCE CODE must first make a written request to the designator that (1) sets
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forth the full name of the expert and the city and state of his or her primary
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residence, (2) attaches a copy of the expert’s current resume, (3) identifies the
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expert’s current employer(s), (4) identifies each person or entity from whom the
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expert has received compensation or funding for work in his or her areas of
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expertise (including in connection with litigation) in the past five years, and (5)
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identifies (by name and number of the case, filing date, and location of court) any
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litigation where the expert has offered expert testimony, including by declaration,
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report or testimony at deposition or trial, in the past five years. If the expert believes
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any of this information at (3) - (5) is subject to a confidentiality obligation to a third
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party, then the expert should provide whatever information the expert believes can
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be disclosed without violating any confidentiality agreements, and the party seeking
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to disclose the information to the expert shall be available to meet and confer with
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the designator regarding any such confidentiality obligations.
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4.4.2.
A party that makes a request and provides the information
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specified in paragraphs 4.4.1 may disclose the designated material to the identified
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expert unless, within seven days of delivering the request, the party receives a
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written objection from the designator providing detailed grounds for the objection.
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4.4.3.
All challenges to objections from the designator shall proceed
under Local Rule 37-1 through Local Rule 37-4.
4.4.4.
Experts disclosed under paragraphs 4.4.1-4.4.2 may have staff
assist them in this matter that may receive any information or item that has been
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(MODIFIED) PROTECTIVE ORDER
8:21-CV-00554-JAK-ADS
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designated CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEY EYES
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ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE. The staff need not be
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identified to the designator, but must comply with and be bound by all the terms of
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this Protective Order.
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5.
SOURCE CODE
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5.1.
Designation of Source Code. If production of source code is
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necessary, a party may designate it as HIGHLY CONFIDENTIAL – SOURCE
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CODE if it is, or includes, confidential, proprietary, or trade secret source code.
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5.2.
Location and Supervision of Inspection. Any HIGHLY
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CONFIDENTIAL – SOURCE CODE produced in discovery shall be made
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available for inspection, in a format allowing it to be reasonably reviewed and
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searched, during normal business hours or at other mutually agreeable times, at an
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office of the designating party’s counsel in California or another mutually agreeable
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location. The parties agree that source code will be hosted in the United States.
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The source code shall be made available for inspection on a secured computer in a
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secured room, and the inspecting party shall not copy, remove or otherwise transfer
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any portion of the source code onto any recordable media or recordable device. An
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extra monitor, keyboard, and a mouse will be provided by the designator. At the
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inspecting party’s request, the designator will accommodate reasonable requests to
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install additional review programs on the secure computer to facilitate review of the
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source code, but such programs may not be used to copy, remove, or otherwise
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transfer any portion of the source code onto any recordable media or recordable
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device. The inspecting party will be responsible for obtaining the any software
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licenses required for installing the additional software. The designator may visually
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monitor the activities of the inspecting party’s representatives during any source
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code review, but only to ensure that there is no unauthorized recording, copying or
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transmission of the source code. The designator shall not monitor in a manner that
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(MODIFIED) PROTECTIVE ORDER
8:21-CV-00554-JAK-ADS
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reveals the inspecting party’s inspection process and work product, including
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conversations between representatives of the inspecting party and the inspecting
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party’s decisions regarding which files to inspect, how long they were inspected, or
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which files were viewed when notes were taken. Upon request by the inspecting
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party reasonably in advance of a deposition, the designator will make the source
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code available on a secured computer for use at the deposition.
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5.3.
Paper Copies of Source Code Excerpts. The inspecting party
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may request paper copies of limited portions of source code that are reasonably
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necessary for the preparation of court filings, pleadings, expert reports, other papers
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or for deposition or trial. The designator shall provide three (3) copies of all such
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source code in paper form promptly after the request is made, including Bates
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numbers and the label “HIGHLY CONFIDENTIAL – SOURCE CODE.”
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5.4.
Access Record. The inspecting party shall maintain a record of
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any individual who has inspected any portion of the source code in electronic or
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paper form, and shall maintain all paper copies of any printed portions of the source
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code in a secured, locked area. The inspecting party shall not convert any of the
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information contained in the paper copies into any electronic format other than for
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the preparation of a pleading, exhibit, expert report, discovery document, deposition
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transcript, or other Court document. Any paper copies used during a deposition
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shall be retrieved at the end of each day and must not be left with a court reporter or
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any other unauthorized individual.
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6.
PROTECTED MATERIAL SUBPOENAED OR
ORDERED PRODUCED IN OTHER LITIGATION
6.1.
Subpoenas and Court Orders. This Order in no way excuses
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noncompliance with a lawful subpoena or court order. The purpose of the duties
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described in this section is to alert the interested parties to the existence of this
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(MODIFIED) PROTECTIVE ORDER
8:21-CV-00554-JAK-ADS
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Order and to give the designator an opportunity to protect its confidentiality
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interests in the court where the subpoena or order issued.
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6.2.
Notification Requirement. If a party is served with a subpoena
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or a court order issued in other litigation that compels disclosure of any information
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or items received by that party in this action and designated in this action as
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CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY, or
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HIGHLY CONFIDENTIAL – SOURCE CODE, that party must do the following.
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6.2.1.
Promptly notify the designator in writing. Such notification shall
include a copy of the subpoena or court order.
6.2.2.
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 Order. Such notification shall include a copy of
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this Order.
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6.2.3.
Cooperate with all reasonable procedures sought by the
designator whose material may be affected.
6.3.
Wait For Resolution of Protective Order. If the designator
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promptly seeks a protective order, the party served with the subpoena or court order
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shall not produce any information designated in this action as CONFIDENTIAL,
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HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY
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CONFIDENTIAL – SOURCE CODE before a determination by the court where
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the subpoena or order issued, unless the party has obtained the designator’s
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permission. The designator shall bear the burden and expense of seeking protection
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of its confidential material in that court.
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7.
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MATERIAL
UNAUTHORIZED DISCLOSURE OF DESIGNATED
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If a receiving party learns that, by inadvertence or otherwise, it has disclosed
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designated material to any person or in any circumstance not authorized under this
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(MODIFIED) PROTECTIVE ORDER
8:21-CV-00554-JAK-ADS
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Order, it must immediately (1) notify in writing the designator of the unauthorized
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disclosures, (2) use its best efforts to retrieve all unauthorized copies of the
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designated material, (3) inform the person or persons to whom unauthorized
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disclosures were made of all the terms of this Order, and (4) use reasonable efforts
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to have such person or persons execute the Agreement to Be Bound (Exhibit E-1).
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8.
INADVERTENT PRODUCTION OF PRIVILEGED OR
OTHERWISE PROTECTED MATERIAL
When a producing party gives notice that certain inadvertently produced
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material is subject to a claim of privilege or other protection, the obligations of the
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receiving parties are those set forth in Fed. R. Civ. P. 26(b)(5)(B). This provision is
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not intended to modify whatever procedure may be established in an e-discovery
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order that provides for production without prior privilege review pursuant to Fed.
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R. Evid. 502(d) and (e).
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9.
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Without written permission from the designator or a Court order, a party may
FILING UNDER SEAL
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not file in the public record in this action any designated material. A party seeking
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to file under seal any designated material must comply with Local Rule 79-5.
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Filings may be made under seal only pursuant to a court order authorizing the
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sealing of the specific material at issue. The fact that a document has been
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designated under this Order is insufficient to justify filing under seal. Instead,
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parties must explain the basis for confidentiality of each document sought to be
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filed under seal. Because a party other than the designator will often be seeking to
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file designated material, cooperation between the parties in preparing, and in
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reducing the number and extent of, requests for under seal filing is essential.
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Accordingly, counsel are ordered to meet and confer in person or by telephone at
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least three (3) calendar days prior to the filing of an application wherein the basis
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for the sealing is that it has been deemed confidential by the other party. Not later
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(MODIFIED) PROTECTIVE ORDER
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than two (2) calendar days after the meet and confer process, the opposing party
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shall confirm whether such information shall be designated as confidential or
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whether it can be made available to the public. Such an application shall contain the
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dates and method by which the parties met and conferred otherwise it will be
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denied without prejudice to an amended application being filed after counsel have
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completed this process. If a receiving party’s request to file designated material
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under seal pursuant to Local Rule 79-5.1 is denied by the Court, then the receiving
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party may file the material in the public record unless (1) the designator seeks
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reconsideration within four (4) days of the denial, or (2) as otherwise instructed by
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the Court. See Dkt. No. 10, sec. 11.
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10.
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Within 60 days after the final disposition of this action, each party and
FINAL DISPOSITION
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recipients of designated material shall return all designated material to the
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designator or destroy such material, including all copies, abstracts, compilations,
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summaries and any other format reproducing or capturing any designated material.
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The receiving party must submit a written certification to the designator by the 60-
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day deadline that (1) identifies (by category, where appropriate) all the designated
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material that was returned or destroyed, and (2) affirms that the receiving party has
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not retained any copies, abstracts, compilations, summaries or any other format
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reproducing or capturing any of the designated material. This provision shall not
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prevent counsel from retaining an archival copy of all pleadings, motion papers,
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trial, deposition and hearing transcripts, legal memoranda, correspondence,
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deposition and trial exhibits, expert reports, attorney work product, and consultant
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and expert work product, even if such materials contain designated material. Any
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such archival copies remain subject to this Order.
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(MODIFIED) PROTECTIVE ORDER
8:21-CV-00554-JAK-ADS
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IT IS SO ORDERED.
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DATED: November 18, 2021
________________________________
/s/ Autumn D. Spaeth
HONORABLE AUTUMN D. SPAETH
United States Magistrate Judge
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(MODIFIED) PROTECTIVE ORDER
8:21-CV-00554-JAK-ADS
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EXHIBIT E-1
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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 Protective Order that was issued
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by the United States District Court for the Central District of California on _______
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[date] in the case of SEMICONDUCTOR ENERGY LABORATORY CO., LTD.
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v. TCL CHINA STAR OPTOELECTRONICS TECHNOLOGY CO., LTD., ET
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AL. Case No. 8:21 cv 00554 JAK ADS. I agree to comply with and to be bound
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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 for contempt. I
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solemnly promise that I will not disclose in any manner any information or item
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that is subject to this Protective Order to any person or entity except in strict
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compliance with this Order.
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I further agree to submit to the jurisdiction of the United States District Court
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for the Central District of California for the purpose of enforcing this Order, even if
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such enforcement proceedings occur after termination of this action.
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I hereby appoint __________________________ [print or type full name] of
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_______________________________________ [print or type full address and
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telephone number] as my California agent for service of process in connection with
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this action or any proceedings related to enforcement of this Order.
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Date: ___________________________
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City and State where sworn and signed: _____________________________
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Printed name: ___________________________________ [printed name]
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Signature: __________________________________________ [signature]
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(MODIFIED) PROTECTIVE ORDER
8:21-CV-00554-JAK-ADS
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