Martinez v. City of Clovis, et al.

Filing 60

PROTECTIVE ORDER, signed by Magistrate Judge Michael J. Seng on 1/30/2017. (Lafata, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DESIREE MARTINEZ,

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Plaintiff,

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No. 1:15-CV-00683 JAM MJS
STIPULATED PROTECTIVE
ORDER

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vs.

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KYLE PENNINGTON; KIM

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PENNINGTON; CONNIE

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PENNINGTON; KRISTINA

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HERHBERGER; JESUS

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SANTILLAN; CHANNON HIGH;

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THE CITY OF CLOVIS; ANGELA

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YAMBUPAH; RALPH SALAZAR;

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FRED SANDERS; THE CITY OF

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SANGER; and DOES 1 through 20,

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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 prosecuting this litigation may

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be 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 to

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file confidential information under seal; Eastern District Local Rule 141 sets forth

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the 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 confidential information for which special

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protection from public disclosure and from use for any purpose other than

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prosecution of this action is warranted. Such confidential and proprietary materials

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and information consist of, among other things, confidential business or financial

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information, information regarding police tactics and strategies, police officer

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personnel files, or other confidential research, development, or commercial

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information (including information implicating privacy rights of third parties),

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information otherwise generally unavailable to the public, or which may be

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privileged or otherwise protected from disclosure under state or federal statutes,

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court rules, case decisions, or common law. Accordingly, to expedite the flow of

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information, to facilitate the prompt resolution of disputes over confidentiality of

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discovery materials, to adequately protect information the parties are entitled to

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keep confidential, to ensure that the parties are permitted reasonable necessary uses

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of such material in preparation for and in the conduct of trial, to address their

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handling at the end of litigation, and serve the ends of justice, a protective order for

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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 a

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confidential, non-public manner, and there is good cause why it should not be part

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of the public record of this case.

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2.

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DEFINITIONS
2.1

Action: This pending federal lawsuit and any consolidated or related

actions.
2.2

Challenging Party:

a Party or Non-Party that challenges the

designation of information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of

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how it is generated, stored or maintained) or tangible things that qualify for

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protection under Federal Rule of Civil Procedure 26(c), 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 or

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items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL.”

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2.6

Disclosure or Discovery Material: all items or information, regardless

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of the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced

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or generated in disclosures or responses to discovery in this matter.

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2.7

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who has been retained by a Party or its counsel to serve as

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an expert witness or as a consultant in this Action.

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2.8

House Counsel: attorneys who are employees of a party to this action.

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.
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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 and

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have appeared in this Action on behalf of that party or are affiliated with a law firm

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which has appeared on behalf of that party, and includes 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).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or

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Discovery Material in this Action.
2.13 Professional Vendors:

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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:

Any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL” or “CONFIDENTIAL COUNSEL EYES

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ONLY.”
2.15 Receiving Party:

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Material from a Producing Party.

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3.

a Party that receives Disclosure or Discovery

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 shall 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.
Defendant City of Clovis and City of Sanger designate as Protected Material

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(1) any and all police officer personnel files and/or portions thereof.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations

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imposed by this Order shall remain in effect until a Designating Party agrees

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this action, with

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or without prejudice; and (2) final judgment herein after the completion and

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

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including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
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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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber or retard the case development process or

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to impose unnecessary expenses and burdens on other parties) 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:
(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”

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(hereinafter “CONFIDENTIAL legend”), to each page that contains protected

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material. If only a portion or portions of the material on a page qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings in the margins).

or

“CONFIDNETIAL-ATTORNEY

EYES

ONLY”

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A Party or Non-Party that makes original documents or materials available

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for inspection need not designate them for protection until after the inspecting Party

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has indicated which material it would like copied and produced. During the

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inspection and before the designation, all of the material made available for

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inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has

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identified the documents it wants copied and produced, the Producing Party must

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determine which documents, or portions thereof, qualify for protection under this

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Order. Then, before producing the specified documents, the Producing Party must

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affix the “CONFIDENTIAL legend” to each page that contains Protected Material.

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If 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 deposition that the Designating Party identify

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on the record, before the close of the 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 or item is stored

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the legend “CONFIDENTIAL.” If only a portion or portions of the information or

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item warrant protection, the Producing Party, to the extent practicable, shall identify

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the protected portion(s).
5.3

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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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The burden of persuasion in any such challenge proceeding shall be on

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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 is

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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 the

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conditions described in this Order. When the litigation has been terminated, a

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Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party 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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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:

Party

may

disclose

any

information

or

item

designated

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(a) 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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(b) the officers, directors, and employees (including House Counsel) of
the Receiving Party to whom disclosure is reasonably necessary for this litigation;

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(c) Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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(e) court reporters and their staff;

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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 litigation and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the information;

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(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 depositing

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party requests that the witness sign the form attached as Exhibit A 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 must

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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
(i) any mediator or settlement officer, and their supporting personnel,

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mutually agreed upon by any of the parties engaged in settlement discussions.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

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IN OTHER LITIGATION

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If a Party is served with a subpoena or a court order issued in other litigation

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that compels disclosure of any information or items designated in this action as

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“CONFIDENTIAL,” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or 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 include

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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 with

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the subpoena or court order shall not produce any information designated in this

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action as “CONFIDENTIAL” before a determination by the court from which the

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subpoena or order issued, unless the Party has obtained the Designating Party’s

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permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this action

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to disobey a lawful directive from another court.

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Unless otherwise ordered by the Court or permitted in writing by the Designating

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Party, a Receiving Party may disclose any information or item designated as

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“CONFIDENTIAL-ATTORNEY EYES ONLY” only to

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(a) Counsel for the parties;

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(b) Paralegal, clerical, and secretarial personnel regularly employed by

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counsel referred to in subpart (a) directly above, including stenographic

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deposition reporters or videographers retained in connection with this

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action;
(c) Court personnel including stenographic reporters or videographers

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engaged in proceedings as are necessarily incidental to the preparation

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for the trial of the civil action;

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(d) Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);
(e) The finder of fact at the time of trial, subject to the court’s rulings on in

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limine motions and objections of counsel.

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9.

A

NON-PARTY’S

PROTECTED

MATERIAL

SOUGHT

TO

BE

PRODUCED IN THIS LITIGATION
(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 litigation, the relevant discovery request(s), and a

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reasonably specific description of the information requested; and
(3) make the information requested available for inspection by the

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Non-Party, if requested.

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(c) If the Non-Party fails to object or seek a protective order from this

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court within 14 days of receiving the notice and accompanying information, the

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Receiving Party may produce the Non-Party’s confidential information responsive

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to the discovery request. If the Non-Party timely seeks a protective order, the

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Receiving Party shall not produce any information in its possession or control that

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is subject to the confidentiality agreement with the Non-Party before a

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determination by the court. Absent a court order to the contrary, the Non-Party

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shall bear the burden and expense of seeking protection in this court of its Protected

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Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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Protected Material to any person or in any circumstance not authorized under this
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Stipulated Protective Order, the Receiving Party must immediately (a) notify in

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writing the Designating Party of the unauthorized disclosures, (b) use its best

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efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the

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person or persons to whom unauthorized disclosures were made of all the terms of

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this Order, and (d) request such person or persons to execute the “Acknowledgment

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and Agreement to Be Bound” that is attached hereto as Exhibit A.

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

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PROTECTED

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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 work

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product protection, the parties may incorporate their agreement in the stipulated

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protective order submitted to the court.

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12.

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MATERIAL

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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12.3 Filing Protected Material. A Party that seeks to file under seal any
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Protected Material must comply with Local Civil Rule 141. Protected Material may

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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 60

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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 Protective

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Order as set forth in Section 4 (DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Date: January 26, 2017

/s/ G. Craig Smith
G. Craig Smith
Ferguson, Praet & Sherman
Attorneys for Defendants
City of Clovis, City of Sanger and
Kristina Hershberger, Jesus
Santillan, Channon High, Angela
Yambupah, Ralph Salazar and Fred
Sanders

Date: January 26, 2017

/s/ Kevin G. Little
Kevin G. Little
Law Office of Kevin G. Little
Attorneys for Plaintiff
Desiree Martinez

Date: January 26, 2017

/s/ Yan Shrayberman
Yan Shrayberman
Attorney for Defendant
Kyle Pennington

Date: January 26, 2017

/s/ John W. Phillips
John W. Phillips
Wild, Carter & Tipton
Attorneys for Defendants
Kim and Connie Pennington

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

_____________________________

[print

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_________________________________ [print or type full address], declare under

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penalty of perjury that I have read in its entirety and understand the Stipulated

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Protective Order that was issued by the United States District Court for the Eastern

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District of California on __________ [date] in the case of Desiree Martinez v.

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City of Clovis, et al.; No. 1:15-CV-00683 JAM MJS.

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I agree to comply with and to be bound by all the terms of this Stipulated Protective

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Order and I understand and acknowledge that failure to so comply could expose me

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to sanctions and punishment in the nature of contempt. I solemnly promise that I

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will not disclose in any manner any information or item that is subject to this

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Stipulated Protective Order to any person or entity except in strict compliance with

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the 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 Eastern District of California for the purpose of enforcing the terms of this

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Stipulated Protective Order, even if such enforcement proceedings occur after

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termination of this action.

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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 Stipulated Protective

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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: _________________________________
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or

type

full

name],

of

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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No. 1:15-CV-00683 JAM MJS

DESIREE MARTINEZ,

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STIPULATED PROTECTIVE
ORDER

Plaintiff,

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vs.

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KYLE PENNINGTON; KIM

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PENNINGTON; CONNIE

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PENNINGTON; KRISTINA

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HERHBERGER; JESUS

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SANTILLAN; CHANNON HIGH;

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THE CITY OF CLOVIS; ANGELA

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YAMBUPAH; RALPH SALAZAR;

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FRED SANDERS; THE CITY OF

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SANGER; and DOES 1 through 20,

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Good cause appearing, the foregoing stipulation for protective order in case No.
1:15-CV-00683 JAM MJS is accepted and its terms adopted as the Order of this Court.

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IT IS SO ORDERED.

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Dated:

January 30, 2017

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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