M.D. Mark, Inc. v. Pacseis, Inc.
Filing
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Stipulation and Protective Order, signed by Magistrate Judge Jennifer L. Thurston on 10/16/2017. (Rosales, O)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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M.D. MARK, INC.,
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Plaintiff,
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vs.
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PACSEIS, INC.,
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Defendant.
) Case No. 1:17-CV-00258-LJO-JLT
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) STIPULATION AND PROTECTIVE ORDER
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IT IS HEREBY STIPULATED by and between plaintiff M.D. Mark, Inc. (“plaintiff”) and
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defendant PacSeis, Inc. (“defendant”), that in order to facilitate the exchange of information and
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documents that may be subject to confidentiality limitations on disclosure due to federal laws, state
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laws, and privacy rights, the Parties stipulate as follows:
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In this Stipulation and Protective Order, the words set forth below shall have the
following meaning:
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a. “Proceeding” means the above-entitled proceeding (1:17-CV-00258-LJO-JLT).
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b. “Court” means the Hon. Jennifer L. Thurston, or any other judge or magistrate to
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which this Proceeding may be assigned, including Court staff participating in such
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proceedings.
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c. “Confidential” means any information which is in the possession of a Designating
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Party who believes in good faith that such information is entitled to confidential
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treatment under applicable law.
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d. “Confidential Materials” means any Documents, Testimony, or Information as
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defined below designated as “Confidential” pursuant to the provisions of this
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Stipulation and Protective Order.
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e. “Designating Party” means the Party that designates Materials as “Confidential.”
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f. “Disclose” or “Disclosed” or “Disclosure” means to reveal, divulge, give, or make
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available Materials, or any part thereof, or any information contained therein.
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g. “Documents” means (i) any “Writing,” “Original,” and “Duplicate” as those terms are
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defined by California Evidence Code Sections 250, 255, and 260, which have been
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produced in this Proceeding by any person, and (ii) any copies, reproductions, or
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summaries of all or any part of the foregoing.
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h. “Information” means the content of Documents or Testimony.
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i. “Testimony” means all depositions, declarations, or other testimony taken or used in
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this Proceeding.
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The Parties acknowledge that formal non-expert discovery has concluded in the
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Proceeding; however, the Parties desire to informally exchange Information, Testimony, and /or
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Documents through and as part of confidential settlement discussions.
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Protective Order is not intended as a substitute for discovery or the Parties’ rights to discovery, nor
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to allow the reopening of non-expert discovery. No Information, Testimony, and/or Documents
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exchanged through and as part of the settlement discussions shall be admissible unless the same
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were discovered through the formal non-expert discovery or were independently discovered by a
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Party outside of formal discovery and the confidential settlement discussions.
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3.
This Stipulation and
The Designating Party shall have the right to designate as “Confidential” any
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Documents, Testimony, or Information that the Designating Party in good faith believes to contain
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non-public information that is entitled to confidential treatment under applicable law.
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4.
The entry of this Stipulation and Protective Order does not alter, waive, modify, or
abridge any right, privilege or protection otherwise available to any Party with respect to the
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discovery of matters, including but not limited to any Party’s right to assert the attorney-client
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privilege, the attorney work product doctrine, or other privileges, or any Party’s right to contest any
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such assertion.
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The Parties shall endeavor to mark or identify as “Confidential” any Documents,
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Testimony, or Information exchanged pursuant to this Stipulation and Protective Order.
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“Confidential” designation should not obscure or interfere with the legibility of the designated
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Information or Documents.
The
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a. For Documents (apart from transcripts of depositions or other pretrial or trial
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proceedings), the Designating Party must affix the legend “Confidential” on each
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page of any Document containing such designated Confidential Material.
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b. For Information produced in some form other than Documents, and for any other
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tangible items, including, without limitation, compact discs or DVDs, the Designating
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Party must affix in a prominent place on the exterior of the container or containers in
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which the Information or item is stored the legend “Confidential.” If only portions of
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the Information or item warrant protection, the Designating Party, to the extent
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practicable, shall identify the “Confidential” portions.
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6.
The inadvertent production by any of the undersigned Parties or non-Parties to the
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Proceedings of any Document, Testimony, or Information in this Proceeding without a
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“Confidential” designation, shall be without prejudice to any claim that such item is “Confidential”
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and such Party shall not be held to have waived any rights by such inadvertent production. In the
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event that any Document, Testimony, or Information that is subject to a “Confidential” designation
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is inadvertently produced without such designation, the Party that inadvertently produced the
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document shall give written notice of such inadvertent production within twenty (20) days of
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discovery of the inadvertent production, together with a further copy of the subject Document,
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Testimony, or Information designated as “Confidential” (the “Inadvertent Production Notice”).
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Upon receipt of such Inadvertent Production Notice, the Party that received the inadvertently
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produced Document, Testimony, or Information shall promptly destroy the inadvertently produced
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Document, Testimony, or Information and all copies thereof, or, at the expense of the producing
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Party, return such together with all copies of such Document, Testimony, or Information to counsel
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for the producing Party and shall retain only the “Confidential” designated Materials. Should the
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receiving Party choose to destroy such inadvertently produced Document, Testimony, or
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Information, the receiving Party shall notify the producing Party in writing of such destruction
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within ten (10) days of receipt of written notice of the inadvertent production. This provision is not
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intended to apply to any inadvertent production of any Information protected by attorney-client or
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work product privileges. In the event that this provision conflicts with any applicable law regarding
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waiver of confidentiality through the inadvertent production of Documents, Testimony, or
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Information, such law shall govern.
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In the event that counsel for a Party receiving Documents, Testimony, or Information
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designated as “Confidential” objects to such designation with respect to any or all of such items, said
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counsel shall advise counsel for the Designating Party, in writing, of such objections, the specific
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Documents, Testimony, or Information to which each objection pertains, and the specific reasons
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and support for such objections (the “Designation Objections”). Counsel for the Designating Party
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shall have thirty (30) days from receipt of the written Designation Objections to either (a) agree in
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writing to de-designate Documents, Testimony, or Information pursuant to any or all of the
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Designation Objections and/or (b) file a motion with the Court seeking to uphold any or all
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designations on Documents, Testimony, or Information addressed by the Designation Objections
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(the “Designation Motion”). Pending a resolution of the Designation Motion by the Court, any and
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all existing designations on the Documents, Testimony, or Information at issue in such Motion shall
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remain in place. The Designating Party shall have the burden on any Designation Motion of
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establishing the applicability of its “Confidential” designation. In the event that the Designation
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Objections are neither timely agreed to nor timely addressed in the Designation Motion, then such
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Documents, Testimony, or Information shall be de-designated in accordance with the Designation
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Objection applicable to such material.
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8.
Access to and/or Disclosure of Confidential Materials designated as “Confidential”
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shall be permitted only to the following persons:
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a. The Court;
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b. (1) Attorneys of record in the Proceedings and their affiliated attorneys, paralegals,
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clerical and secretarial staff employed by such attorneys who are actively involved in
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the Proceedings and are not employees of any Party. (2) In-house counsel to the
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undersigned Parties and the paralegal, clerical and secretarial staff employed by such
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counsel.
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Materials shall be advised that such Confidential Materials are being Disclosed
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pursuant to, and are subject to, the terms of this Stipulation and Protective Order and
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Provided, however, that each non-lawyer given access to Confidential
that they may not be Disclosed other than pursuant to its terms;
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c. those officers, directors, partners, members, employees and agents of all
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nondesignating Parties that counsel for such Parties deems necessary to aid counsel in
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settlement discussions in this Proceeding; provided, however, that prior to the
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Disclosure of Confidential Materials to any such officer, director, partner, member,
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employee or agent, counsel for the Party making the Disclosure shall deliver a copy
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of this Stipulation and Protective Order to such person, shall explain that such person
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is bound to follow the terms of such Order, and shall secure the signature of such
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person on a statement in the form attached hereto as Exhibit A;
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d. outside experts or expert consultants consulted by the undersigned Parties or their
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counsel in connection with settlement discussions in the Proceeding, whether or not
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retained to testify at any oral hearing; provided, however, that prior to the Disclosure
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of Confidential Materials to any such expert or expert consultant, counsel for the
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Party making the Disclosure shall deliver a copy of this Stipulation and Protective
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Order to such person, shall explain its terms to such person, and shall secure the
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signature of such person on a statement in the form attached hereto as Exhibit A. It
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shall be the obligation of counsel, upon learning of any breach or threatened breach of
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this Stipulation and Protective Order by any such expert or expert consultant, to
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promptly notify counsel for the Designating Party of such breach or threatened
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breach; and
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e. any other person that the Designating Party agrees to in writing.
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Confidential Materials shall be used by the persons receiving them only for the
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purposes of preparing for, conducting, and participating in confidential settlement discussions, and
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not for any business, litigation, or other purpose whatsoever.
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Any Party to the Proceeding (or other person subject to the terms of this Stipulation
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and Protective Order) may ask the Court, after appropriate notice to the other Parties to the
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Proceeding, to modify or grant relief from any provision of this Stipulation and Protective Order.
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Entering into, agreeing to, and/or complying with the terms of this Stipulation and
Protective Order shall not:
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a. operate as an admission by any person that any particular Document, Testimony, or
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Information marked “Confidential: contains or reflects trade secrets, proprietary,
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confidential or competitively sensitive business, commercial, financial or personal
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information; or
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b. prejudice in any way the right of any Party (or any other person subject to the terms
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of this Stipulation and Protective Order):
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i. to seek a determination by the Court of whether any particular Confidential
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Material should be subject to protection as “Confidential” under the terms of
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this Stipulation and Protective Order; or
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ii. to seek relief from the Court on appropriate notice to all other Parties to the
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Proceeding from any provision(s) of this Stipulation and Protective Order, either
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generally or as to any particular Document, Testimony, or Information.
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Any Party to the Proceeding who has not executed this Stipulation and Protective
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Order as of the time it is presented to the Court for signature may thereafter become a Party to this
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Stipulation and Protective Order by its counsel’s signing and dating a copy thereof and filing the
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same with the Court, and serving copies of such signed and dated copy upon the other Parties to this
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Stipulation and Protective Order.
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Any Confidential Materials that may be produced by a non-Party witness in the
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Proceeding pursuant to subpoena or otherwise may be designated by such non-Party as
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“Confidential” under the terms of this Stipulation and Protective Order, and any such designation by
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a non-Party shall have the same force and effect, and create the same duties and obligations, as if
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made by one of the undersigned Parties hereto. Any such designation shall also function as a
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consent by such producing Party to the authority of the Court in the Proceeding to resolve and
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conclusively determine any motion or other application made by any person or Party with respect to
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such designation, or any other matter otherwise arising under this Stipulation and Protective Order.
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If any person subject to this Stipulation and Protective Order who has custody of any
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Confidential Materials receives a subpoena or other process (“Subpoena”) from any government or
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other person or entity demanding production of Confidential Materials, the recipient of the Subpoena
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shall promptly give notice of the same by electronic mail transmission, followed by either express
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mail or overnight delivery to counsel of record for the Designating Party, and shall furnish such
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counsel with a copy of the Subpoena. Upon receipt of this notice, the Designating Party may, in its
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sole discretion and at its own cost, move to quash or limit the Subpoena, otherwise oppose
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production of the Confidential Materials, and/or seek to obtain confidential treatment of such
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Confidential Materials from the subpoenaing person or entity to the fullest extent available under
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law. The recipient of the Subpoena may not produce any Documents, Testimony, or Information
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pursuant to the Subpoena prior to the date specified for production on the Subpoena.
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15.
Nothing in this Stipulation and Protective Order shall be construed to preclude either
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Party from asserting in good faith that certain Confidential Materials require additional protection.
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The Parties shall meet and confer to agree upon the terms of such additional protection.
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If, after execution of this Stipulation and Protective Order, any Confidential Materials
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submitted by a Designating Party under the terms of this Stipulation and Protective Order is
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Disclosed by a non-Designating Party to any person other than in the manner authorized by this
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Stipulation and Protective Order, the non-Designating Party responsible for the Disclosure shall
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bring all pertinent facts relating to the Disclosure of such Confidential Materials to the immediate
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attention of the Designating Party.
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This Stipulation and Protective Order is entered into without prejudice to the right of
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any Party to knowingly waive the applicability of this Stipulation and Protective Order to any
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Confidential Materials designated by that Party. If the Designating Party uses Confidential Materials
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in a non-Confidential manner, then the Designating Party shall advise that the designation no longer
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applies.
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Without written permission from the Designating Party or a court order secured after
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appropriate notice to all interested persons and compliance with the scheduling order and/or Local
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Rule 141, a Party receiving Confidential Materials may not file in the public record in this action any
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Confidential Materials.
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The Parties shall meet and confer regarding the procedures for use of Confidential
Materials at trial and shall move the Court for entry of an appropriate order.
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This Stipulation and Protective Order shall continue to be binding after the conclusion
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of this Proceeding and all subsequent proceedings arising from this Proceeding, except that a Party
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may seek the written permission of the Designating Party or may move the Court for relief from the
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provisions of this Stipulation and Protective Order. To the extent permitted by law, the Court shall
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retain jurisdiction to enforce, modify, or reconsider this Stipulation and Protective Order, even after
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the Proceeding is terminated.
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Within thirty (30) days after the settlement or other termination of the Proceeding, the
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undersigned Parties shall have thirty (30) days to either (a) promptly return to counsel for each
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Designating Party all Confidential Materials and all copies thereof (except that counsel for each
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Party may maintain in its files, in continuing compliance with the terms of this Stipulation and
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Protective Order, all work product, and one copy of each pleading filed with the Court, (b) agree
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with counsel for the Designating Party upon appropriate methods and certification of destruction or
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other disposition of such Confidential Materials, or (c) as to any Documents, Testimony, or other
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Information not addressed by subparagraphs (a) and (b), file a motion seeking a Court order
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regarding proper preservation of such Confidential Materials. To the extent permitted by law the
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Court shall retain continuing jurisdiction to review and rule upon the motion referred to in sub-
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paragraph (c) herein.
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After this Stipulation and Protective Order has been signed by counsel for all Parties,
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it shall be presented to the Court for entry. Counsel agree to be bound by the terms set forth herein
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with regard to any Confidential Materials that have been produced before the Court signs this
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Stipulation and Protective Order.
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The Parties and all signatories to the Certification attached hereto as Exhibit A agree
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to be bound by this Stipulation and Protective Order pending its approval and entry by the Court. In
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the event that the Court modifies this Stipulation and Protective Order, or in the event that the Court
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enters a different Protective Order, the Parties agree to be bound by this Stipulation and Protective
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Order until such time as the Court may enter such a different Order. It is the Parties’ intent to be
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bound by the terms of this Stipulation and Protective Order pending its entry so as to allow for
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immediate production of Confidential Materials under the terms herein.
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Even after the termination of this litigation, the confidentiality obligations imposed by
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this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
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order otherwise directs.
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This Stipulation and Protective Order may be executed in counterparts.
DATED: September ___, 2017
ALEXANDER & ASSOCIATES, PLC
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By:
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WILLIAM L. ALEXANDER
Attorneys for Defendants
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DATED: September ___, 2017
NEMKOV & BONIFAVI, PLLC
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By:
DAN BONIFAZI
Attorneys for Plaintiff
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DATED: September ___, 2017
RICHARD A. NERVIG, P.C.
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By:
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RICHARD A. NERVIG
Attorneys for Plaintiff
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ORDER
GOOD CAUSE APPEARING, the Court hereby approves the Stipulation for Protective
Order as modified by the Court in paragraph 18.
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IT IS SO ORDERED.
Dated:
October 16, 2017
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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EXHIBIT A
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CERTIFICATION RE CONFIDENTIAL MATERIALS
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I hereby acknowledge that I,
[NAME],
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[POSITION AND EMPLOYER], am about to receive Confidential Materials supplied in connection
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with the Proceeding, Case No. 1:17-CV-00258-LJO-JLT.
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Materials,” as defined in the Stipulation and Protective Order (“Protective Order”), are provided to
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me subject to the terms and restrictions of the Protective Order filed in this Proceeding. I have been
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given a copy of the Protective Order; I have read it, and I agree to be bound by its terms. I
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understand that Confidential Materials, including any notes or other records that may be made
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regarding any such materials, shall not be Disclosed to anyone except as expressly permitted by the
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Protective Order. I will not copy or use, except solely for the purposes of this Proceeding, any
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Confidential Materials obtained pursuant to this Protective Order, except as provided therein or
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otherwise ordered by the Court. I understand that I am to retain all copies of all Confidential
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Materials provided to me in the Proceeding in a secure manner, and that all copies are to remain in
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my personal custody until termination of my participation in this Proceeding, whereupon the copies
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of such Confidential Materials will be returned to counsel who provided me with such Materials.
I understand that the “Confidential
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I declare under penalty of perjury, under the laws of the State of California, that the
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foregoing is true and correct. Executed this _____ day of ______, 2017, at __________________.
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DATED:
BY:
Signature
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Title
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Address
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City, State, Zip
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Telephone Number
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