Couch v. State of California, et al

Filing 226

Third Amended Protective ORDER, signed by Magistrate Judge Dennis L. Beck on 3/27/2012. (Figueroa, O)

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1 2 3 4 5 6 7 8 9 10 BROOKS M. BEARD (CA Bar No. 181271) Email: DANIEL A. ZLATNIK (CA Bar No. 259690) Email: MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 EDWARD J. CADEN (CA Bar No. 166922) Email: LAW OFFICE OF EDWARD J. CADEN 9245 Laguna Springs Drive, Suite 200 Elk Grove, California 95753 Telephone: (916) 729-3172 Facsimile: (916) 673-2134 Attorneys for Plaintiffs RYAN COUCH and KENNETH JIMENEZ 11 12 13 UNITED STATES DISTRICT COURT 14 EASTERN DISTRICT OF CALIFORNIA 15 16 RYAN COUCH and KENNETH JIMENEZ, Case No. 1:08-CV-01621-LJO-DLB 17 Plaintiff, 18 THIRD AMENDED PROTECTIVE ORDER v. 19 20 21 TOMMY WAN, KIMBERLI BONCORE, and RALPH DIAZ, Defendants. 22 23 24 25 26 27 28 [PROPOSED] THIRD AMENDED PROTECTIVE ORDER CASE NO. 1:08-CV-01621-LJO-DLB sf-3123945 Judge: Hon. Dennis L. Beck 1 2 1. Pursuant to Rule 26 of the Federal Rules of Civil Procedure, and it appearing that 3 discovery in this action will involve the disclosure of confidential information, it is hereby 4 stipulated by and between Plaintiffs Ryan Couch and Kenneth Jimenez (together, “Plaintiffs”) 5 and Defendants Tommy Wan, Kimberli Boncore, and Ralph Diaz (together, “Defendants”), 6 collectively referred to as the “Parties” and individually referred to as “Party,” through their 7 respective counsel, and ordered that the following Protective Order be entered to give effect to the 8 terms and conditions set forth below: 9 10 11 2. “Designating Party” means any one of the Parties producing Documents or information under this Protective Order. 3. “Document” or “Documents” shall have the broadest meaning permitted under 12 Rules 26 and 34 of the Federal Rules of Civil Procedure, Rule 1001 of the Federal Rules of 13 Evidence, and relevant case law. 14 4. “Protected Information” includes the following categories of information, and 15 shall include Documents produced during discovery, answers to interrogatories, responses to 16 requests for admissions, depositions, hearing or trial transcripts, and tangible things, the 17 information contained therein, and all copies, abstracts, excerpts, analyses, or other writings that 18 contain, reflect, or disclose such information. 19 A. “CONFIDENTIAL” designates information that a Designating Party reasonably 20 believes to be confidential due to safety or security reasons, that is not readily available to the 21 public, and/or the disclosure of which is likely to result in imminent or substantial endangerment 22 to an inmate or prison employee. 23 B. “REDACTED & CONFIDENTIAL” designates information that is protected 24 against disclosure by various privacy laws, including, for example, social security numbers and 25 bank account numbers. Each redaction must be identified by showing what information has been 26 redacted (i.e., “social security number,” “bank account number” etc.). Other than information 27 protected against disclosure by applicable privacy laws or information redacted pursuant to the 28 Court’s June 24, 2011 (Dkt. 153) and September 23, 2011 (Dkt. 201) orders, no other information shall be redacted. By way of example only, no names, nicknames, or inmate numbers shall be [PROPOSED] THIRD AMENDED PROTECTIVE ORDER CASE NO. 1:08-CV-01621-LJO-DLB sf-3123945 1 1 2 redacted except as allowed by the Court’s June 24, 2011 (Dkt. 153) and September 23, 2011 (Dkt. 3 201) orders. 4 5 C. The designation of information as “CONFIDENTIAL” or “REDACTED & CONFIDENTIAL” is limited to information falling into one or more of the following categories: i. 6 Prison, CDCR, or OIG policies, operational procedures, rules, or regulations that have previously been designated as confidential; 7 8 ii. personnel documents; 9 iii. post orders; 10 iv. investigation documents; 11 v. documents contained in the central prison file, medical file, or parole files of an inmate or former inmate; 12 vi. 13 any personal information regarding an inmate, former inmate, or staff member employed or formerly employed by the CDCR or OIG; 14 vii. 15 information regarding the identity of a confidential informant and confidential investigations; and 16 viii. 17 the information addressed in Eastern District of California Local Rule 39- 18 140, including minors’ names, financial account numbers, social security 19 numbers, and dates of birth. 20 However, information falling within these categories does not, solely by virtue of that fact, merit 21 designation as “CONFIDENTIAL” or “REDACTED & CONFIDENTIAL.” Such information 22 must also meet the criteria described in Paragraphs 4.A and 4.B, respectively, to merit those 23 designations. 24 D. “CONFIDENTIAL: ATTORNEYS’ EYES ONLY” or “REDACTED & 25 CONFIDENTIAL: ATTORNEYS’ EYES ONLY” designates information that constitutes part 26 of or an entire confidential memorandum produced from the confidential section of an inmate’s 27 central file or constitutes a part of or an entire debriefing report. 28 E. Protected Information shall not include: (i) information that is in the public domain at the time of disclosure; (ii) information that after disclosure is published or becomes [PROPOSED] THIRD AMENDED PROTECTIVE ORDER CASE NO. 1:08-CV-01621-LJO-DLB sf-3123945 2 1 2 part of the public domain through no fault or action (in whole or in part) of any Party receiving 3 information under this Protective Order, but only after it is published or comes into the public 4 domain; (iii) information that is in the possession of a Party receiving such information without 5 any confidentiality obligations at the time of disclosure; or (iv) information disclosed by a third 6 party without any confidentiality obligations at the time of disclosure. 7 5. This Protective Order shall apply to all Protected Information exchanged by any 8 Party, including, without limitation, Documents, things, other discovery materials, transcripts, 9 depositions, testimony, or other papers produced, filed, generated, or served by a Party in this 10 litigation. 11 6. All Protected Information produced and designated as confidential hereunder shall 12 have stamped or affixed on each page that contains Protected Information the appropriate 13 confidentiality classification—either “CONFIDENTIAL,” “REDACTED & CONFIDENTIAL,” 14 “CONFIDENTIAL: ATTORNEYS’ EYES ONLY” or “REDACTED & CONFIDENTIAL: 15 ATTORNEYS’ EYES ONLY” — and the designation “Case No. 1:07-CV-01621-LJO-DLB 16 (E.D. Cal.)” at the time such materials, or copies thereof, are delivered to the receiving Party, or 17 within ten (10) court days thereafter in the event such labeling or marking is inadvertently 18 omitted. Until ten (10) court days have elapsed after receipt, the reviewing Party will treat 19 Documents and things that have been received and that have not been designated 20 “CONFIDENTIAL,” “REDACTED & CONFIDENTIAL,” “CONFIDENTIAL: ATTORNEYS’ 21 EYES ONLY” or “REDACTED & CONFIDENTIAL: ATTORNEYS’ EYES ONLY” as if they 22 had been designated with the “CONFIDENTIAL: ATTORNEYS’ EYES ONLY” or 23 “REDACTED & CONFIDENTIAL: ATTORNEYS’ EYES ONLY” classification. The parties 24 will use due care to designate as Protected Information only Documents or other materials that 25 truly encompass such information. 26 27 28 7. Protected Information that has been classified as “CONFIDENTIAL” or “REDACTED & CONFIDENTIAL” may be disclosed only to the following: A. outside counsel for the receiving Party and their clerical and paralegal staffs and litigation support providers (for example, outside copy services, coding and imaging vendors, [PROPOSED] THIRD AMENDED PROTECTIVE ORDER CASE NO. 1:08-CV-01621-LJO-DLB sf-3123945 3 1 2 graphic art and visual aid providers, or jury consultants) whose duties and responsibilities require 3 access to Protected Information; 4 B. Plaintiffs and Defendants; 5 C. experts and consultants who are requested by counsel of the receiving Party to 6 7 8 furnish technical, legal, expert, or other specialized services in connection with this litigation; D. an officer before whom a deposition is taken, including stenographic reporters and any necessary secretarial, clerical, or other lay personnel of such officer; and 9 E. any other person to whom the parties agree in writing or as allowed by the Court. 10 8. Protected Information that has been classified as “CONFIDENTIAL: 11 ATTORNEYS’ EYES ONLY” or “REDACTED & CONFIDENTIAL: ATTORNEYS’ EYES 12 ONLY” may be disclosed only to those persons identified in subparts A, C, D, and E of 13 Paragraph 7 above. 14 9. No Protected Information shall be provided to any person identified in subpart B 15 or C of Paragraph 7 until each such person has been provided with a copy of this Protective 16 Order, reviewed it, and signed the Certification attached hereto as Exhibit A. 17 10. Designations of Discovery 18 A. Depositions may be designated as Protected Information in accordance with this 19 Order: (a) in the course of the deposition, orally on the record; or (b) by notifying the other Party 20 in writing, within ten (10) court days of receipt of the transcript by the parties, of the pages and 21 lines of the transcript that contain the Protected Information. 22 i. All depositions shall presumptively be treated as Protected Information 23 marked with the “CONFIDENTIAL” designation in accordance with the 24 definition above and subject to this Order during the deposition and for a 25 period of ten (10) court days after a transcript of said deposition is received 26 by the Parties. 27 28 ii. Counsel of record for the Designating Party may also request that all persons other than the individuals specified in Paragraph 7 of this Protective Order, as appropriate, leave the deposition room during the [PROPOSED] THIRD AMENDED PROTECTIVE ORDER CASE NO. 1:08-CV-01621-LJO-DLB sf-3123945 4 1 2 portion of the deposition in which Protected Information is disclosed. If 3 the Protected Information disclosed is of the type identified by 4 subparagraph 4.D of Paragraph 4, counsel of record for the Designating 5 Party may request that all persons other than the individuals specified by 6 subparagraph A, C, D, and E of Paragraph 7, as appropriate, leave the 7 deposition room. The failure of such other persons to comply with a 8 request of this type shall constitute substantial justification for counsel of 9 record to advise the witness not to answer the question pending a ruling from the Court on the issue. 10 iii. 11 Where appropriate in light of the amount of Protected Information likely to 12 be disclosed at a given deposition, counsel of record for the Parties may 13 agree at the beginning of the deposition that the entire transcript shall be 14 designated “CONFIDENTIAL,” subject to review of the transcript and 15 withdrawal of any unnecessary designation within ten (10) court days of 16 receipt of the transcript. 17 18 19 B. Answers to interrogatories and requests for admission may also be designated confidential by marking the Documents in a manner described in Paragraph 6 of this Order. C. Notwithstanding Paragraphs 7 and 8 above, other persons may be shown a specific 20 item of Protected Information of the producing Party if such persons are identified in that specific 21 item, or on any attachment thereto, as being the author, or as having previously received a copy of 22 an exact duplicate of said specific item. 23 D. Notwithstanding Paragraph 7, other persons may be shown a specific item of 24 Protected Information designated CONFIDENTIAL or REDACTED & CONFIDENTIAL if such 25 persons are past or present employees of the producing Party. 26 11. Documents Available for Inspection and Copying 27 A. Notwithstanding the provisions of Paragraph 6, all Documents and things that are 28 produced for initial inspection prior to copying and delivery shall presumptively be considered to be designated Protected Information marked with the “CONFIDENTIAL” classification or, for [PROPOSED] THIRD AMENDED PROTECTIVE ORDER CASE NO. 1:08-CV-01621-LJO-DLB sf-3123945 5 1 2 documents identified by subparagraph D of Paragraph 4, the “CONFIDENTIAL: ATTORNEYS’ 3 EYES ONLY” classification, and shall be produced for inspection only by persons representing 4 the receiving Party who fall within at least one of the categories permitted under Paragraph 7 or, 5 for documents identified by subparagraph 4.D of Paragraph 4, only by persons representing the 6 receiving Party who fall within at least subparagraph A, C, or E of Paragraph 7, above. 7 B. At the initial inspection of Documents and things, the receiving Party shall not 8 make copies of the Documents made available for inspection, and if notes are made therefrom 9 other than a list identifying Documents or things to be copied or otherwise furnished, the notes 10 shall be treated as Protected Information marked with the “CONFIDENTIAL” classification or, 11 for notes regarding documents identified by subparagraph D of paragraph 4, as Protected 12 Information marked with the “CONFIDENTIAL: ATTORNEYS’ EYES ONLY” classification. 13 C. After the receiving Party has selected Documents or things for copying, they shall 14 promptly be sequentially numbered (if not already done), copied, and the copies delivered to the 15 receiving Party by the producing Party (with the receiving Party paying only for the costs of its 16 copy set and delivery of such set). Before copies are delivered to the receiving Party, counsel for 17 the producing Party shall designate and mark each page of the Documents and things with the 18 appropriate confidentiality classification — either “CONFIDENTIAL,” “REDACTED & 19 CONFIDENTIAL,” “CONFIDENTIAL: ATTORNEYS’ EYES ONLY” or “REDACTED & 20 CONFIDENTIAL: ATTORNEYS’ EYES ONLY” — and with the litigation case number (“Case 21 No. 1:08-CV-01621-LJO-DLB (E.D. Cal.)”) if and to the extent appropriate in accordance with 22 Paragraph 6 of this Protective Order. Copies of Documents and things delivered to the receiving 23 Party and not so marked shall be considered thereafter to be outside the restrictions imposed by 24 this Protective Order, except as provided in Paragraph 6. 25 12. Compliance With Civil Local Rule 39-141 26 A. All deposition transcripts, exhibits, answers to interrogatories, and other 27 Documents that have previously been designated by a Party as comprising or containing Protected 28 Information, or any pleading, brief, or memorandum purporting to reproduce or paraphrase such material, shall be lodged with the Court for filing in accordance with Gen. L.R. 39-141. [PROPOSED] THIRD AMENDED PROTECTIVE ORDER CASE NO. 1:08-CV-01621-LJO-DLB sf-3123945 6 1 2 3 4 B. The confidential portions of Documents and things that are accepted for filing under seal by the Court shall be treated in accordance with Gen. L.R. 39-141. 13. If the receiving Party disagrees with the confidential or redacted status of any 5 Document or other material, or if the receiving Party disagrees with the level of confidentiality 6 classification, the receiving Party will notify and confer with the producing Party to request 7 reclassification of the Document or material. If no agreement has been reached within ten (10) 8 court days of such notification or a later date if agreed to in writing by the parties, the receiving 9 Party may thereafter make a request of the Court for an order reclassifying the confidentiality 10 designation and/or removing such Document or other material from the restrictions of this Order. 11 If such a request is made, the Party seeking to maintain a confidentiality classification bears the 12 burden of establishing that the restrictions of this Order apply to such Protected Information. 13 14. In light of the Court’s June 24, 2011 order regarding Protected Information 14 identified by subparagraph D of Paragraph 4, if the parties cannot reach an agreement regarding 15 specific documents that fall within that category, the parties may seek in camera review of those 16 documents. 17 15. Privileged Information and Inadvertent Disclosure of Privileged Information. 18 A. Nothing in this Protective Order shall in and of itself require disclosure of 19 information that is protected by the attorney-client privilege, work-product doctrine, or any other 20 privilege, doctrine, or immunity, nor does this Protective Order result in any Party giving up its 21 right to argue that otherwise privileged documents must be produced due to waiver or for any 22 other reason. 23 B. Inadvertent production of information subject to the attorney-client and/or 24 attorney-work-product privileges shall not constitute a waiver of any claim for protection under 25 the privileges, provided that the provisions of this paragraph are satisfied. 26 i. If the Producing Party discovers that information produced in discovery 27 should have been withheld on the basis of privilege, the Producing Party 28 must provide written notice to all other Parties as soon as is reasonably practicable. In such event, the Parties must immediately: (a) return the [PROPOSED] THIRD AMENDED PROTECTIVE ORDER CASE NO. 1:08-CV-01621-LJO-DLB sf-3123945 7 1 2 privileged information along with all duplicates to the Producing Party; or 3 (b) destroy the originals and all copies of the privileged information. The 4 Producing Party shall designate which of these approaches the Parties must 5 follow. Once notified of the production of privileged information, the 6 Receiving Party shall not duplicate the privileged information, nor 7 distribute the privileged information by any means other than returning it to 8 the Producing Party or destroying it consistent with this Paragraph. In 9 addition, once notified of the production of privileged information, the 10 Receiving Party shall, if such material has previously been disclosed to 11 others by the Receiving Party, take reasonable steps to obtain all such 12 previously disclosed material and advise such persons of the claims of 13 privilege. Within fifteen (15) days of notifying all other Parties, the 14 Producing Party must provide a privilege log to all Parties that lists the 15 privileged information. The Receiving Party shall have no liability, under 16 this Order or otherwise, for any disclosure or use of privileged information 17 occurring before the Receiving Party was placed on notice of the Producing 18 Party's claims of privilege, provided the Receiving Party did not know that 19 the information was privileged. ii. 20 If the Receiving Party has a reasonable basis to believe that information 21 produced in discovery should have been withheld on the basis of privilege, 22 the Receiving Party has an affirmative obligation to provide written notice 23 to the Producing Party. The Receiving Party must provide such written 24 notice within a reasonable time period after identifying the information as 25 privileged, but in any event, no later than seven (7) days after it discovers 26 that privileged information was inadvertently produced. 27 28 16. A third party from whom discovery is sought in this litigation (“the Third Party”) may produce Protected Information entitled to the protections afforded by this Order as follows: A. The Third Party shall be given a copy of this Order; [PROPOSED] THIRD AMENDED PROTECTIVE ORDER CASE NO. 1:08-CV-01621-LJO-DLB sf-3123945 8 1 B. 2 3 Party’s counsel, the protections afforded by this Order; C. 4 5 The Third Party shall request, in writing addressed to the propounding The Third Party shall produce any Protected Information in the manner described in Paragraphs 6, 10, and/or 11; D. 6 The Third Party’s Protected Information produced in such manner may be 7 disclosed only to the persons identified in Paragraphs 7, 8, 10.C or 10.D, depending on how the 8 Protected Information is designated; E. 9 10 material produced by the Third Party; F. 11 12 The Third Party is entitled to the protections against inadvertent disclosure found in Paragraph 15; G. 13 14 Paragraphs 13 and 14 set the procedures for disputing classification of Following the termination of this Action, the Third Party’s Protected Information shall be treated as described in Paragraph 18; and H. 15 Before any modification of the Order pursuant to Paragraph 20 that might 16 affect the Third Party’s rights under this Order, the Third Party is entitled to notice and an 17 opportunity to object. 18 17. If Protected Information produced in accordance with this Order is disclosed to 19 any person other than in the manner authorized by this Order, the Party responsible for the 20 disclosure shall immediately bring all pertinent facts relating to such disclosure to the attention of 21 all counsel of record and, without prejudice to other rights and remedies available to the 22 producing Party, make every effort to obtain the return of the disclosed Protected Information and 23 prevent further disclosure of it by the person who was the recipient of such information. 24 18. Any person who, prior to official production of documents as signified by Bates 25 numbers being applied to those documents, has reviewed or accessed another Party’s raw 26 electronic data that is ultimately deemed by agreement of the Parties or judicial determination to 27 be non-responsive or irrelevant to the claims in this litigation shall be prohibited from using any 28 such raw electronic discovery deemed non-responsive or irrelevant for any other purpose, including but not limited to further investigation, initiation of a separate lawsuit, representation in [PROPOSED] THIRD AMENDED PROTECTIVE ORDER CASE NO. 1:08-CV-01621-LJO-DLB sf-3123945 9 1 2 a separate lawsuit, or referral for initiation of a separate lawsuit. Before beginning review of the 3 other Party’s raw electronic data, the receiving Party shall first identify any person who will be 4 reviewing the raw electronic data. 5 19. Unless otherwise agreed or ordered by the Court, within ninety (90) calendar days 6 after the termination of this Action, Case No. 1:08-CV-01621-LJO-DLB (E.D. Cal.), including 7 any and all appeals therefrom, attorneys for the receiving Party shall destroy all Protected 8 Information received from the other parties to this litigation or third parties hereunder, and 9 provide the other parties with written verification of such destruction. Notwithstanding this 10 provision, outside counsel for each Party may maintain for archival purposes one copy of all 11 pleadings, transcripts, exhibits and written discovery responses, including portions designated 12 under this Protective Order. Prompt written notice shall be given to a Party who produced 13 Protected Information hereunder if that Party’s Protected Information is sought by any person not 14 a party to this litigation, by subpoena in another action, or by service with any legal process. Any 15 person seeking such Protected Information who takes action to enforce such subpoena or other 16 legal process shall be apprised of this Order. 17 20. This Order may be changed only by the written agreement of the parties or further 18 order of the Court, and is without prejudice to the rights of a Party to seek relief from or variation 19 of any of its provisions. 20 21. Subject to Paragraph 18 above, the remaining provisions of this Order, including 21 the obligations to maintain confidentiality embodied herein, shall survive the final disposition of 22 this litigation and continue in full force and effect. 23 Dated: March 23, 2012 24 MORRISON & FOERSTER LLP BROOKS M. BEARD DANIEL A. ZLATNIK 25 26 By: /s/ Brooks M. Beard Brooks M. Beard 27 Attorneys for Plaintiffs RYAN COUCH and KENNETH JIMENEZ 28 [PROPOSED] THIRD AMENDED PROTECTIVE ORDER CASE NO. 1:08-CV-01621-LJO-DLB sf-3123945 10 1 2 Dated: March 23, 2012 EDWARD J. CADEN LAW OFFICE OF EDWARD J. CADEN 3 By: 4 /s/ Edward J. Caden Edward J. Caden 5 Attorney for Plaintiffs RYAN COUCH and KENNETH JIMENEZ 6 7 Dated: March 23, 2012 8 9 10 11 KAMALA D. HARRIS. Attorney General of the State of California SCOTT H. WYCKOFF Supervising Deputy Attorney General MARY HORST Deputy Attorney General WILLIAM H. LITTLEWOOD Deputy Attorney General 12 By: 13 14 /s/ Mary Horst Mary Horst Attorneys for Defendants TOMMY WAN, KIMBERLI BONCORE, AND RALPH DIAZ 15 16 IT IS SO ORDERED. 17 18 Dated: 27 March 2012 19 /s/ Dennis L. Beck HON. DENNIS L. BECK UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 [PROPOSED] THIRD AMENDED PROTECTIVE ORDER CASE NO. 1:08-CV-01621-LJO-DLB sf-3123945 11 1 EXHIBIT A 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [PROPOSED] THIRD AMENDED PROTECTIVE ORDER CASE NO. 1:08-CV-01621-LJO-DLB sf-3123945 12 1 CERTIFICATION 2 3 4 5 I, __________________________, residing at __________________________________, ___________________________, being duly sworn according to law, state as follows: 1. I understand that information or Documents designated “Protected Information” 6 will be provided to me in accordance with the terms and conditions and restrictions of the 7 Protective Order (“Protective Order”), dated __________________, entered in the lawsuit styled 8 Couch v. Wan, et al., United States District Court, Eastern District of California, Civil Action No. 9 1:08-CV-01621-LJO-DLB (the “Litigation”); 10 11 12 2. I have been given a copy of and have read and understand the Protective Order, and I hereby agree to be bound by its terms; 3. I further agree that I shall not disclose to others, except in accordance with the 13 terms and conditions of the Protective Order, such Protected Information and that such Protected 14 Information shall be used only for the purposes of the Litigation; 15 16 17 4. I further understand that my obligation to honor the confidentiality of such Protected Information will continue even after the Litigation terminates; 5. I further agree and attest to my understanding that, in the event that I fail to abide 18 by the terms of the Protective Order, I may be subject to sanctions imposed by the Court for such 19 a failure, including sanctions by way of contempt of court, and a claim for damages by the party 20 producing the Protected Information disclosed to me; 21 6. For purposes of enforcing this Protective Order, I hereby consent to the 22 jurisdiction of the federal courts and state courts in California, and agree that service by mail or 23 personal service of any notice, order, or proceeding in connection therewith shall be valid service 24 upon me; 25 7. 26 I certify that the foregoing statements made by me are true and correct under penalty of perjury under the laws of the State of California. 27 28 Executed on: ___________________ [PROPOSED] THIRD AMENDED PROTECTIVE ORDER CASE NO. 1:08-CV-01621-LJO-DLB sf-3123945 By: _____________________________ 13

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