Height Street Skilled Care, LLC v. Liberty Mutual Insurance Company et al

Filing 68

STIPULATED PROTECTIVE ORDER 67 , signed by Magistrate Judge Christopher D. Baker on 11/25/2024. (Hall, S)

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ERIC P. EARLY (SBN 166275)
[e-mail]
PETER SCOTT (SBN 247786)
[e-mail]
EARLY SULLIVAN WRIGHT GIZER & McRAE LLP
6420 Wilshire Boulevard, 17th Floor
Los Angeles, California 90048
Tel: [phone]
Fax: [phone]
LAURENCE M. BERMAN (SBN 93515)
[e-mail]
BERMAN LITIGATION GROUP
815 Moraga Drive
Los Angeles, California 90049
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiff
HEIGHT STREET SKILLED CARE, LLC
NICHOLAS J. BOOS (SBN 233399)
[e-mail]
MAYNARD NEXSEN LLP
Two Embarcadero Center, Suite 1450
San Francisco, California 94111
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendants
LIBERTY MUTUAL INSURANCE COMPANY and
WEST AMERICAN INSURANCE COMPANY

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HEIGHT STREET SKILLED CARE, LLC,

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Plaintiffs,

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v.

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LIBERTY MUTUAL INSURANCE
COMPANY, a Massachusetts Corporation;
WEST AMERICAN INSURANCE
COMPANY, an Indiana Corporation; and
DOES 1 to 20, inclusive,

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Case No. 1:21-cv-01247-JLT-CDB
STIPULATED PROTECTIVE ORDER

Defendants.
STIPULATED PROTECTIVE ORDER

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A.

PURPOSES AND LIMITATIONS

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Discovery in this action might involve production of confidential, proprietary, or private

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information for which special protection from public disclosure and from use for any purpose

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other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate

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to and petition the Court to enter the following Stipulated Protective Order. The parties

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acknowledge that this Order does not confer blanket protections on all disclosures or responses

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to discovery and that the protection it affords from public disclosure and use extends only to the

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limited information or items that are entitled to confidential treatment under the applicable legal

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principles. The parties further acknowledge, as set forth in Section 12.3, below, that this

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Stipulated Protective Order does not entitle them to file confidential information under seal;

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Local Rule 141 sets forth the procedures that must be followed and the standards that will be

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applied when a party seeks permission from the Court to file material under seal.

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Notwithstanding the terms and conditions of this Stipulated Protective Order, all persons

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and/or entities hereto (including Parties to the Action as well as any executing Non-Party to the

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Action) shall fully comply with any other court order or applicable law.

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B.

GOOD CAUSE STATEMENT

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This action may involve trade secrets and other confidential, proprietary, or private

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information for which special protection from public disclosure and from use for any purpose

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other than 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 information,

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information regarding confidential business practices, or other confidential research,

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development, or commercial information, information otherwise generally unavailable to the

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public, or which may be privileged or otherwise protected from disclosure under state or federal

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statutes, court rules, case decisions, or common law.

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Accordingly, to expedite the flow of information, to facilitate the prompt resolution of

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disputes over confidentiality of discovery materials, to adequately protect information the parties

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

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uses of such material in preparation for and in the conduct of trial, to address their handling at
STIPULATED PROTECTIVE ORDER

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the end of the litigation, and serve the ends of justice, a protective order for such information is

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justified in this matter. It is the intent of the parties that information will not be designated as

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confidential for tactical reasons and that nothing be so designated without a good faith belief that

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it has been maintained in a confidential, non-public manner, and there is good cause why it should

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not be part of the public record of this case.

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2.

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DEFINITIONS
2.1

Action: Height Street Skilled Care, LLC v. Liberty Mutual Insurance Company,

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et al., United States District Court for the Eastern District of California, Case No. 1:21-cv-01247-

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JLT-CDB.

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2.2

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Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.

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2.3

“CONFIDENTIAL” Information or Items: information (regardless of how it is

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generated, stored or maintained) or tangible things that constitute private business information,

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as specified above in the Good Cause Statement, and as specified above in the Good Cause

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Statement.

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2.4

Counsel: Outside Counsel of Record and House Counsel (as well as their support

2.5

Designating Party: a Party or Non-Party that designates information or items that

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staff).

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it produces in disclosures or in responses to discovery as “HIGHLY CONFIDENTIAL” or

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“CONFIDENTIAL.”

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2.6

Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among other things,

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testimony, transcripts, and tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.

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2.7

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

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to the litigation who has been retained by a Party or its counsel to serve as an expert witness or

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as a consultant in this Action.

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STIPULATED PROTECTIVE ORDER

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2.8

“HIGHLY CONFIDENTIAL” Information or Items: Information (regardless of

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

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Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause Statement.

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2.9

Counsel does not include Outside Counsel of Record or any other outside counsel.

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

2.10

Non-Party: any natural person, partnership, corporation, association or other legal

entity not named as a Party to this action.

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2.11

Outside Counsel of Record: attorneys who are not employees of a party to this

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Action but are retained to represent or advise a party to this Action and have appeared in this

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Action on behalf of that party or are affiliated with a law firm that has appeared on behalf of that

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party, and includes support staff.

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2.12

consultants, retained experts, and Outside Counsel of Record (and their support staffs).

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Party: any party to this Action, including all of its officers, directors, employees,

2.13

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this Action.

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2.14

Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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organizing, storing, or retrieving data in any form or medium) and their employees and

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subcontractors.

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2.15

Protected Material: any Disclosure or Discovery Material that is designated as

“HIGHLY CONFIDENTIAL” or “CONFIDENTIAL.”

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2.16

Receiving Party: a Party that receives Disclosure or Discovery Material from a

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Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only Protected Material

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(as defined above), but also (1) any information copied or extracted from Protected Material; (2)

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all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
STIPULATED PROTECTIVE ORDER

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However, the protections conferred by this Stipulation and Order do not cover the following

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information: (a) any information that is in the public domain at the time of disclosure to a

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Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as

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a result of publication not involving a violation of this Order, including becoming part of the

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public record through trial or otherwise; and (b) any information known to the Receiving Party

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prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who

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obtained the information lawfully and under obligation of confidentiality to the Designating

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Party. Any use of Protected Material at trial shall be governed by the orders of the trial judge.

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This Order does not govern the use of Protected Material at trial.

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4.

DURATION

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Even after final disposition 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. Final disposition shall be deemed to be the later of (1) dismissal of all

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claims and defenses in this Action, with or without prejudice; and (2) final judgment herein after

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the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this

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Action, 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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DESIGNATED PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

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or Non-Party that designates information or items for protection under this Order must take care

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to limit any such designation to specific material that qualifies under the appropriate standards.

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The Designating Party must designate for protection only those parts of material, documents,

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items or oral or written communications that qualify so that other portions of the material,

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documents, 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 that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber the case development process or to impose unnecessary expenses and
STIPULATED PROTECTIVE ORDER

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burdens on other parties) may expose the Designating Party to sanctions. If it comes to a

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Designating Party’s attention that information or items that it designated for protection do not

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qualify for protection, that Designating Party must promptly notify all other Parties that it is

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withdrawing the inapplicable designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this Order

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(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly

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so designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a)

for information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing

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Party affix at a minimum, the legend “HIGHLY CONFIDENTIAL” or “CONFIDENTIAL”

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(hereinafter “CONFIDENTIALITY legend”), to each page that contains protected material. If

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only a portion of the material on a page qualifies for protection, the Producing Party also must

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clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins).

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A Party or Non-Party that makes original documents available for inspection need not

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designate them for protection until after the inspecting Party has indicated which documents it

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would like copied and produced. During the inspection and before the designation, all of the

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material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL” or

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“CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied and

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produced, the Producing Party must determine which documents, or portions thereof, qualify for

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protection under this Order. Then, before producing the specified documents, the Producing Party

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must affix the “CONFIDENTIALITY legend” to each page that contains Protected Material. If

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only a portion of the material on a page qualifies for protection, the Producing Party also must

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clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins).

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(b)

for testimony given in depositions that the Designating Party identifies the

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Disclosure or Discovery Material on the record, before the close of the deposition all protected

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testimony.
STIPULATED PROTECTIVE ORDER

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(c)

for information produced in some form other than documentary and for any other

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tangible items, that the Producing Party affix in a prominent place on the exterior of the container

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or containers in which the information is stored the legend “HIGHLY CONFIDENTIAL” or

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“CONFIDENTIAL.” If only a portion or portions of the information warrants protection, the

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Producing Party, to the extent practicable, shall identify the protected portion(s).

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating Party’s

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right to secure protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the material is

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treated in accordance with the provisions of this Order.

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6.

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6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation of

confidentiality at any time that is consistent with the Court’s Scheduling Order.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

process under Local Rule 251(b).

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6.3

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

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Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass

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or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party

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to sanctions. Unless the Designating Party has waived or withdrawn the confidentiality

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designation, all parties shall continue to afford the material in question the level of protection to

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which it is entitled under the Producing Party’s designation until the Court rules on the 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 disclosed

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or produced by another Party or by a Non-Party in connection with this Action only for

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prosecuting, defending or attempting to settle this Action. Such Protected Material may be

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disclosed only to the categories of persons and under the conditions described in this Order.

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When the Action has been terminated, a Receiving Party must comply with the provisions of

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section 13 below (FINAL DISPOSITION).
STIPULATED PROTECTIVE ORDER

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Protected Material must be stored and maintained by a Receiving Party at a location and

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in a secure manner that ensures that access is limited to the persons authorized under this Order.

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7.2

Disclosure of “HIGHLY CONFIDENTIAL” Information or Items. Unless

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otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving

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Party may disclose any information or item designated “HIGHLY CONFIDENTIAL” only to:

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(a)

the Receiving Party’s Outside Counsel of Record in this Action, as well

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as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose

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the information for this Action;

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(b)

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the officers, directors, and employees (including House Counsel) of the

Receiving Party to whom disclosure is reasonably necessary for this Action;
(c)

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

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disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Ex. A);

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(d)

the Court and its personnel;

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(e)

court reporters and their staff;

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(f)

professional jury or trial consultants, mock jurors, and Professional

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Vendors to whom disclosure is reasonably necessary for this Action and who have signed the

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

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(g)

the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information;
(h)

during their depositions, witnesses, and attorneys for witnesses, in the

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Action to whom disclosure is reasonably necessary provided: (1) the deposing party requests that

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the witness sign the form attached as Ex. A hereto; and (2) they will not be permitted to keep any

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confidential information unless they sign the “Acknowledgment and Agreement to Be Bound”

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(Ex. A), unless otherwise agreed by the Designating Party or ordered by the Court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected Material may be

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separately bound by the court reporter and may not be disclosed to anyone except as permitted

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under this Stipulated Protective Order;
STIPULATED PROTECTIVE ORDER

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(i)

any mediator or settlement officer who may be utilized in connection with

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this Action, and their supporting personnel, mutually agreed upon by any of the parties engaged

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in settlement discussions;

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(j)

any other person that the Designating Party agrees to in writing; and

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(k)

any person designated by the Court in the interest of justice, upon such

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terms as the Court may deem proper.

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8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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LITIGATION

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

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disclosure of any information or items designated in this Action as “HIGHLY

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CONFIDENTIAL” or “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 to issue in

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the other litigation that some or all of the material covered by the subpoena or order is subject to

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this Protective Order. Such notification shall include a copy of this Stipulated Protective Order;

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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 the

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subpoena or court order shall not produce any information designated in this action as “HIGHLY

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CONFIDENTIAL” or “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 permission. The

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Designating Party shall bear the burden and expense of seeking protection in that court of its

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confidential material and nothing in these provisions should be construed as authorizing or

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encouraging a Receiving Party in this Action to disobey a lawful directive from another court.

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STIPULATED PROTECTIVE ORDER

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9.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS

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LITIGATION

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(a)

The terms of this Order are applicable to information produced by a Non-Party in

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this Action and designated as “HIGHLY CONFIDENTIAL” or “CONFIDENTIAL.” Such

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information 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 construed as

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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 produce a

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Non-Party’s confidential information in its possession, and the Party is subject to an agreement

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with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:

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(1)

promptly notify in writing the Requesting Party and the Non-Party that

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some or all of the information requested is subject to a confidentiality agreement with a Non-

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Party;

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(2)

promptly provide the Non-Party with a copy of the Stipulated Protective

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Order in this Action, the relevant discovery request(s), and a reasonably specific description of

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the information requested; and

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(3)

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make the information requested available for inspection by the Non-Party,

if requested.

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(c)

If the Non-Party fails to seek a protective order from this court within 14 days of

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receiving the notice and accompanying information, the Receiving Party may produce the Non-

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Party’s confidential information responsive to the discovery request. If the Non-Party timely

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seeks a protective order, the Receiving Party shall not produce any information in its possession

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or control that 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 shall bear the

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burden and expense of seeking protection in this court of its Protected Material.

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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Material to any person or in any circumstance not authorized under this Stipulated Protective
STIPULATED PROTECTIVE ORDER

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Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the

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unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

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Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

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made of all the terms of this Order, and (d) request such person or persons to execute the

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

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11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

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MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain inadvertently

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produced material is subject to a claim of privilege or other protection, the obligations of the

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Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

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provision is not intended to modify whatever procedure may be established in an e-discovery

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order that provides for production without prior privilege review. Pursuant to Federal Rule of

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Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of

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a communication or information covered by the attorney-client privilege or work product

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protection, the parties may incorporate their agreement in the stipulated protective order

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submitted to the court.

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12.

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MISCELLANEOUS
12.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the Court in the future.
12.2

Right to Assert Other Objections. By stipulating to the entry of this Protective

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Order, no Party waives any right it otherwise would have to object to disclosing or producing

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any information or item on any ground not addressed in this Stipulated Protective Order.

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Similarly, no Party waives any right to object on any ground to use in evidence of any of the

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material covered by this Protective Order.

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12.3

Filing Protected Material. Without written permission from the Designating Party

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or a court order secured after appropriate notice to all interested persons, a Party may not file in

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the public record in this action any Protected Material without complying with Local Rule 141.

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A Party that seeks to file under seal any Protected Material must comply with Local Rule 141.
STIPULATED PROTECTIVE ORDER

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Protected Material may only be filed under seal pursuant to a court order authorizing the sealing

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of the specific Protected Material at issue. If a Party's request to file Protected Material under

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seal is denied by the Court, then the Receiving Party may file the information in the public record

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unless otherwise instructed by the Court.

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12.4

Use of Protected Material at Trial: The Parties shall meet and confer regarding the

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procedures for use of Protected Materials at trial and shall move the Court for entry of an

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appropriate order. The use of designated materials at trial shall be governed by the orders of the

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trial judge.

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12.5

Counsel Bound by Protective Order: Counsel agree to be bound by the terms set

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forth herein with regard to any Protective Materials that have been produced before the Court

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signs this Stipulation and Protective Order.

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12.6

New Parties: Any new party to the Action who has not executed this Stipulation

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and Protective Order as of the time it is presented to the Court for signature may thereafter

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become a Party to this Stipulation and Protective Order by its Counsel’s signing and dating a

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copy of Ex. A attached hereto, and filing the same with the Court, and serving copies of such

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signed and dated copy upon the other Parties to this Stipulation and Protective Order.

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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 days of a

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written request by the Designating Party, each Receiving Party must return all Protected Material

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to the Producing Party or destroy such material. As used in this subdivision, “all Protected

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Material” includes all copies, abstracts, compilations, summaries, and any other format

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reproducing or capturing any of the Protected Material. Whether the Protected Material is

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returned or destroyed, the Receiving Party must submit a written certification to the Producing

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Party (and, if 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 returned or

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destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts,

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compilations, summaries or any other format reproducing or capturing any of the Protected

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Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
STIPULATED PROTECTIVE ORDER

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pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, expert reports, attorney work product, and

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consultant and expert work product, even if such materials contain Protected Material. Any such

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archival 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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14.

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VIOLATION
Any violation of this Order may be punished by appropriate measures including, without

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limitation, contempt proceedings and/or monetary sanctions.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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SIGNATURE PAGE FOLLOWS.

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STIPULATED PROTECTIVE ORDER

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Dated: November 22, 2024

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EARLY SULLIVAN WRIGHT GIZER & McRAE
LLP

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By:

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/s/ Peter Scott
Eric P. Early
Peter Scott
Attorneys for Plaintiffs
HEIGHT STREET SKILLED CARE, LLC
777n

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Dated: November 22, 2024

MAYNARD NEXSEN LLP

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By:

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/s/ Nicholas J. Boos
Nicholas J. Boos
Attorneys for Defendant
LIBERTY MUTUAL INSURANCE
COMPANY and
WEST AMERICAN INSURANCE
COMPANY

IT IS SO ORDERED.

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Dated:
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November 25, 2024

___________________

_

UNITED STATES MAGISTRATE JUDGE

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STIPULATED PROTECTIVE ORDER

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, ___________________________________ [print or type full name], of

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______________________________ [print or type full address], declare under penalty of perjury

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that I have read in its entirety and understand the Stipulated Protective Order that was issued by the

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United States District Court for the Eastern District of California on November 25, 2024, in the

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case of Height Street Skilled Care, LLC v. Liberty Mutual Insurance Company, et al., Case No.

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1:21-cv-01247-JLT-CDB. I agree to comply with and to be bound by all the terms of this Stipulated

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

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sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in

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any manner any information or item that is subject to this Stipulated Protective Order to any person

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or entity except in strict compliance with the provisions of this Order.

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I further agree to submit to the jurisdiction of the United States District Court for the Eastern

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District of California for enforcing the terms of this Stipulated Protective Order, even if such

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enforcement proceedings occur after termination of this action.

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I hereby appoint __________________________________ [print or type full name] of

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____________________________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with this action

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or any proceedings related to enforcement of this Stipulated Protective Order.

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Date: ______________________________________________

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City and State where sworn and signed:

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Printed name:

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Signature:
5794351.1

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STIPULATED PROTECTIVE ORDER