Paul Sapan v. Lendingtree, LLC
Filing
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STIPULATED PROTECTIVE ORDER by Magistrate Judge Douglas F. McCormick re Stipulation for Protective Order 37 . See document for details. (es)
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Lauren A. Deeb (SBN 234143)
Nelson Mullins Riley & Scarborough LLP
19191 S. Vermont Ave., Suite 900
Torrance, CA 90502
Telephone: 424.221.7413
Facsimile: 424.221.7499
lauren.deeb@nelsonmullins.com
Kevin P. Polansky (Admitted Pro Hac Vice)
Nelson Mullins Riley & Scarborough LLP
One Financial Center, Suite 3500
Boston, MA 02111
Telephone: 617.217.4700
Facsimile: 617.217.4710
kevin.polansky@nelsonmullins.com
Attorneys for Defendant
LendingTree, LLC
Justin Prato SBN 246968
Christopher J. Reichman SBN 250485
PRATO & REICHMAN, APC
3675 Ruffin Road, Suite 220
San Diego, CA 92123
Telephone: 619-886-0252
Email: justinp@prato-reichman.com
Attorneys for Plaintiff
and the Proposed Class
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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PAUL SAPAN, individually and on
Behalf of All Others Similarly Situated,
Plaintiff,
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v.
Case No.: 8:23-cv-00071-JWH-DFM
xxxxxxxxxxx STIPULATED
[PROPOSED]
PROTECTIVE ORDER
LENDINGTREE, LLC,
Defendant.
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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1.
A. PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidential,
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proprietary, or private information for which special protection from public
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disclosure and from use for any purpose other than this litigation may be
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warranted. Accordingly, the parties hereby stipulate to and petition the Court to
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enter the following Stipulated Protective Order. The parties acknowledge that this
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Order does not confer blanket protections on all disclosures or responses to
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discovery and that the protection it affords from public disclosure and use extends
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only to the limited information or items that are entitled to confidential treatment
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under the applicable legal principles. The parties further acknowledge, as set forth
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in Section 12.3, below, that this Stipulated Protective Order does not entitle them
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to file confidential information under seal; Civil Local Rule 79-5 sets forth the
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procedures that must be followed and the standards that will be applied when a
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party seeks permission from the court to file material under seal.
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B. GOOD CAUSE STATEMENT
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This action is likely to involve customer lists (including, without limitation,
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customer names, telephone numbers, and other personally identifying information),
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confidential agreements between vendors and purchasers, and other valuable
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commercial, financial, technical, and/or proprietary information for which special
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protection from public disclosure of this action is warranted. Such confidential and
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proprietary materials and information consist of, among other things, confidential
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business or financial information, information regarding confidential business
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practices, or other confidential research, development, or commercial information
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(including information implicating privacy rights of third parties), information
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otherwise generally unavailable to the public, or which may be privileged or
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otherwise protected from disclosure under state or federal statutes, court rules, case
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decisions, or common law. Accordingly, to expedite the flow of information, to
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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facilitate the prompt resolution of disputes over confidentiality of discovery
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materials, to adequately protect information the parties are entitled to keep
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confidential, to ensure that the parties are permitted reasonable necessary uses of
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such material in preparation for and in the conduct of trial, to address their
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handling at the end of the litigation, and serve the ends of justice, a protective order
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for such information is justified in this matter. It is the intent of the parties that
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information will not be designated as confidential for tactical reasons and that
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nothing be so designated without a good faith belief that it has been maintained in
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a confidential, non-public manner, and there is good cause why it should not be
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part of the public record of this case.
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2.
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DEFINITIONS
2.1.
Action: Paul Sapan v. LendingTree, LLC, Case No. 8:23-cv-00071-
JWH-DFM.
2.2.
Challenging Party: a Party or Non-Party that challenges the
designation of information or items under this Order.
2.3.
“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), and as specified above in
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the Good Cause Statement.
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2.4.
Counsel: Outside Counsel of Record and House Counsel (as well as
their support staff).
2.5.
Designating Party: a Party or Non-Party that designates information
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or items that it produces in disclosures or in responses to discovery as
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“CONFIDENTIAL.”
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2.6.
Disclosure or Discovery Material: all items or information, regardless
of the medium or manner in which it is generated, stored, or maintained (including,
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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without limitation, 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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2.7.
Expert:
a person with specialized knowledge or experience in a
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matter pertinent to the litigation who has been retained by a Party or its counsel to
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serve as an expert witness or as a consultant in this Action.
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2.8.
House Counsel:
attorneys who are employees of a party to this
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Action. House Counsel does not include Outside Counsel of Record or any other
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outside counsel.
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2.9.
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Non-Party: any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.
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2.10. 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
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and have appeared in this Action on behalf of that party or are affiliated with a law
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firm that has appeared on behalf of that party, including support staff.
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2.11. Party: any party to this Action, including all of its officers, directors,
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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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2.12. Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this Action.
2.13. 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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2.14. Protected Material:
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any Disclosure or Discovery Material that is
designated as “CONFIDENTIAL.”
2.15. Receiving Party:
a Party that receives Disclosure or Discovery
Material from a Producing party.
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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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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Any use of Protected Material at trial will be governed by the orders of the
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trial judge. This Order does not govern the use of Protected Material at trial.
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4.
DURATION
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Even after the final disposition of this litigation, the confidentiality
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obligations imposed by this Order will remain in effect until a Designating Party
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agrees otherwise in writing or a court order otherwise directs. Final disposition
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will be deemed to be the later of (1) dismissal of all claims and defenses in this
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Action, with or without prejudice; and (2) final judgment herein after the
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completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of
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this Action, including the time limits for filing any motions or applications for
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extension of time pursuant to applicable law.
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5.
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DESIGNATING PROTECTED MATERIAL
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.
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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Mass,
indiscriminate,
or
routinized
designations
are
prohibited.
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Designations that are shown to be clearly unjustified or that have been made for an
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improper purpose (e.g., to unnecessarily encumber the case development process
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or to impose unnecessary expenses and burdens on other parties) may expose the
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Designating 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 inapplicable 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 at a minimum, the legend
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“CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that
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contains protected material. If only a portion or portions of the material on a page
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qualifies for protection, the Producing Party also must clearly identify the
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protected portion(s) (e.g., by making appropriated marking in the margins).
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A Party or Non-Party that makes original documents available for inspection
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need not designate them for protection until after the inspecting Party has indicated
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which documents 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.”
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documents it wants copied and produced, the Producing Party must determine
After the inspecting Party has identified the
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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which documents, or portions thereof, qualify for protection under this Order.
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Then, before producing the specified documents, the Producing Party must affix
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the “CONFIDENTIAL legend” to each page that contains Protected Material. If
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only a portion or portions of the material on a page qualifies for protection, the
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Producing Party also must clearly identify the protected portion(s) (e.g., by making
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appropriate markings in the margins).
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(b)
for testimony given in depositions that the Designating Party identify
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the Disclosure or Discovery Material on the record, before the close of the
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deposition all protected testimony.
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(c)
for information produced in some form other than documentary and
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for any other tangible items, that the Producing Party affix in a prominent place on
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the exterior of the container or containers in which the information is stored the
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legend “CONFIDENTIAL.”
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warrants protection, the Producing Party, to the extent practicable, will identify the
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protected portion(s).
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5.3.
If only a portion or portions of the information
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 that is consistent with the Court’s
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Scheduling Order.
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6.2.
Meet and Confer. The Challenging Party shall initiate the dispute
resolution process under Local rule 37.1 et seq.
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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6.3.
The burden of persuasion in any such challenge proceeding shall be
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on the Designating Party. Frivolous challenges, and those made for an improper
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purpose (e.g., to harass or impose unnecessary expenses and burdens on other
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parties) may expose the Challenging Party to sanctions. Unless the Designating
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Party has waived or withdrawn the confidentiality designation, all parties shall
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continue to afford the material in question the level of protection to which it is
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entitled under the Producing Party’s designation until the Court rules on the
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challenge.
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7.
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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1.
Basic Principles. A Receiving Party may use Protected Material that
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is disclosed or produced by another Party or by a Non-Party in connection with this
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Action only for prosecuting, defending, or attempting to settle this Action. Such
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Protected Material may be disclosed only to the categories of persons and under
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the conditions described in this Order. When the Action 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 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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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
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“CONFIDENTIAL” only to:
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(a)
Party
may
disclose
any
information
or
item
designated
the Receiving Party’s Outside Counsel of Record in this Action, as
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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 Action;
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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(b)
the officers, directors, and employees (including House Counsel) of
the Receiving Party to whom disclosure is reasonably necessary for this Action;
(c)
Experts (as defined in this Order) of the Receiving Party to whom
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disclosure is reasonably necessary for this Action 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;
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(f)
professional jury or trial consultants, mock jurors, and Professional
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Vendors to whom disclosure is reasonably necessary for this Action and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g)
the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information;
(h)
during their depositions, witnesses, and attorneys for witnesses, in the
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Action to whom disclosure is reasonably necessary provided: (1) the deposing
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party requests that the witness sign the form attached as Exhibit 1 hereto; and (2)
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they will not be permitted to keep any confidential information unless they sign the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
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agreed by the Designating Party or ordered by the court. Pages of transcribed
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deposition testimony or exhibits to depositions that reveal Protected Material may
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be separately bound by the court reporter and may not be disclosed to anyone
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except as permitted under this Stipulated Protective Order; and
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(i)
any mediator or settlement officer, and their supporting personnel,
mutually agreed upon by any of the parties engaged in settlement discussions.
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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8.
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IN OTHER LITIGATION
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
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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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(a)
promptly notify in writing the Designating Party. Such notification
will include a copy of the subpoena or court order;
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(b)
promptly notify in writing the party who caused the subpoena or order
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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 Protective Order. Such notification shall
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include a copy of this Stipulated Protective 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
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with the subpoena or court order shall not produce any information designated in
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this action as “CONFIDENTIAL” before a determination by the court from which
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the subpoena or order issued, unless the Party has obtained the Designating Party’s
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permission. The Designating Party will 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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PRODUCED IN THIS LITIGATION
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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
(a)
The terms of this Order are applicable to information produced by 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 a Non-Party from seeking additional protections.
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(b)
In the event that a Party is required, by a valid discovery request, to
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produce a Non-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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(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
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agreement with a Non-Party;
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(2) promptly provide the Non-Party with a copy of the Stipulated
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Protective Order in this Action, the relevant discovery request(s), and a reasonably
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specific description of the information requested; and
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(3) make the information requested available for inspection by the NonParty, if requested.
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(c)
If the Non-Party fails to seek a protective order from this court within
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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
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to the confidentiality agreement with the Non-Party before a determination by the
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court. Absent a court order to the contrary, the Non-Party will bear the burden and
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expense of seeking protection in this court of its Protected Material.
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10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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If a Receiving Party learns that, by inadvertence or otherwise, it has
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disclosed Protected Material to any person or in any circumstance not authorized
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under this Stipulated Protective Order, the Receiving Party must immediately
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(a) notify in writing the Designating Party of the unauthorized disclosures, (b) use
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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its best efforts to retrieve all unauthorized copies of the Protected Material,
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(c) inform the person or persons to whom unauthorized disclosures were made of
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all the terms of this Order, and (d) request such person or persons to execute 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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11.
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PROTECTED MATERIAL
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
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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
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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 Rule of Evidence
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502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure
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of a communication or information covered by the attorney-client privilege or
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work product protection, the parties may incorporate their agreement in the
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stipulated protective order submitted to 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
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this Stipulated Protective Order. Similarly, no Party waives any right to object on
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any ground to use in evidence of any of the material covered by this Protective
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Order.
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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12.3. Filing Protected Material. A Party that seeks to file under seal any
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Protected Material must comply with Civil Local Rule 79-5. Protected Material
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may only be filed under seal pursuant to a court order authorizing the sealing of the
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specific Protected Material at issue. If a Party's request to file Protected Material
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under seal is denied by the court, then the Receiving Party may file the information
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in the public record unless otherwise instructed by the court.
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13.
FINAL DISPOSITION
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After the final disposition of this Action, as defined in paragraph 4, within
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60 days of a written request by the Designating Party, each Receiving Party must
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return all Protected Material to the Producing Party or destroy such material. As
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used in this subdivision, “all Protected Material” includes all copies, abstracts,
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compilations, summaries, and any other format reproducing or capturing any of the
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Protected Material. Whether the Protected Material is returned or destroyed, the
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Receiving Party must submit a written certification to the Producing Party (and, if
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not the same person or entity, to the Designating Party) by the 60 day deadline that
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(1) identifies (by category, where appropriate) all the Protected Material that was
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returned or destroyed and (2) affirms that the Receiving Party has not retained any
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copies, abstracts, compilations, summaries or any other format reproducing or
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capturing any of the Protected Material. Notwithstanding this provision, Counsel
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are entitled to retain an archival copy of all pleadings, motion papers, trial,
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deposition, and hearing transcripts, legal memoranda, correspondence, deposition
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and trial exhibits, expert reports, attorney work product, and consultant and expert
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work product, even if such materials contain Protected Material. Any such archival
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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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[PROPOSED] STIPULATED PROTECTIVE ORDER
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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
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under penalty of perjury that I have read in its entirety and understand the
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Stipulated Protective Order that was issued by the United States District Court for
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the Central District of California on [date] in the case of Paul Sapan v.
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LendingTree, LLC, Case No. 8:23-cv-00071-JWH-DFM. I agree to comply with
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and to be bound by all the terms of this Stipulated Protective Order and I
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understand and acknowledge that failure to so comply could expose me to
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sanctions and punishment in the nature of contempt. I solemnly promise that I will
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not disclose in any manner any information or item that is subject to this Stipulated
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Protective Order to any person or entity except in strict compliance with the
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provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court for
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the Central District of California for the purpose of enforcing the terms of this
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Stipulated Protective Order, even if such enforcement proceedings occur after
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termination of this action. 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.
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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:
[print or
[print or type full
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[PROPOSED] STIPULATED PROTECTIVE ORDER
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