Romaine v. Ford Motor Company
Filing
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ORDER entering Stipulated Protective Order - Discovery Only 23 signed by Magistrate Judge Stanley A. Boone on 5/14/2024. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ORDER ENTERING STIPULATED
PROTECTIVE ORDER – DISCOVERY
ONLY
Plaintiff,
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Case No. 1:23-cv-00766-SAB
DAVID ROMAINE,
v.
(ECF No. 23)
FORD MOTOR COMPANY,
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Defendant.
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1.
PURPOSES AND LIMITATIONS
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Disclosure and discovery activity in this action are likely to involve production of
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confidential, proprietary, commercially sensitive, personally identifiable information (“PII”) or
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private information for which special protection from public disclosure and from use for any
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purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby
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stipulate 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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Civil Local Rule 141 sets forth the procedures that must be followed and the standards that will
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be applied when a party seeks permission from the court to file material under seal.
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2.
DEFINITIONS
2.1
Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
2.2
“CONFIDENTIAL” Information or Items: information (regardless of how it is
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generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
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of Civil Procedure 26(c), including materials that contain trade secret or other confidential
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research, technical, cost, price, marketing, or other commercial information, which are, for
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competitive reasons, normally, kept confidential by the parties, as contemplated by Federal
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Rules of Civil Procedure 26(c)(1)(G).
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2.3
Counsel (without qualifier): Outside Counsel of Record and House Counsel (as
well as their support staff).
2.4
Designating Party: a Party or Non-Party that designates information or items that
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it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “SUBJECT
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TO PROTECTIVE ORDER.”
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2.5
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
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things, testimony, transcripts, and tangible things), that are produced or generated in disclosures
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or responses to discovery in this matter.
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2.6
Expert: a non-attorney person with specialized knowledge or experience in a
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matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an
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expert witness or as a consultant in this action, provided that no disclosure shall be made to any
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expert or consultant who is currently employed by a competitor of the Designating Party.
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2.7
House Counsel: attorneys who are employees of a party to this action. House
Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8
Non-Party: any natural person, partnership, corporation, association, or other legal
entity not named as a Party to this action.
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Outside Counsel of Record: attorneys who are not employees of a party to this
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 which has appeared on behalf of
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that party.
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2.10 Party: any party to this action, including all of its officers, directors, employees,
consultants, retained experts, and Outside Counsel of Record (and their support staffs).
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2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this action.
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2.12 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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2.13 Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER.”
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2.14 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
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Material (as defined above), but also (1) any information copied or extracted from Protected
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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any
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testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected
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Material. However, the protections conferred by this Stipulation and Order do not cover the
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following information: (a) any information that is in the public domain at the time of disclosure
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to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving
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Party as a result of publication not involving a violation of this Order, including becoming part
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of the public record through trial or otherwise; and (b) any information known to the Receiving
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Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source
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who obtained the information lawfully and under no obligation of confidentiality to the
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Designating Party. Any use of Protected Material at trial shall be governed by a separate
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agreement or order.
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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.
DESIGNATING PROTECTED MATERIAL
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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 or retard the case development process or to impose unnecessary
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expenses and burdens on other parties) expose the Designating Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it designated
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for protection do not qualify for protection, that Designating Party must promptly notify all other
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Parties that it is withdrawing the mistaken 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 the legend “CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER” to each
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page that contains protected material.
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A Party or Non-Party that makes original documents or materials available for inspection
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need not designate them for protection until after the inspecting Party has indicated which
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material it would like copied and produced. During the inspection and before the designation,
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all of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the
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inspecting Party has identified the documents it wants copied and produced, the Producing Party
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must determine which documents, or portions thereof, qualify for protection under this Order.
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Then, before producing the specified documents, the Producing Party must affix the
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“CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER” legend to each page that
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contains Protected Material.
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(b) for testimony given in deposition or in other pretrial or trial proceedings, that
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the Designating Party identify on the record, before the close of the deposition, hearing, or other
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proceeding, all protected testimony.
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(c) for information produced in some form other than documentary and for any
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other tangible items, that the Producing Party affix in a prominent place on the exterior of the
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container or containers in which the information or item is stored the legend
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“CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER.”
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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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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a designation of
confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
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challenge a confidentiality designation by electing not to mount a challenge promptly after the
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original designation is disclosed.
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6.2
Meet and Confer. The Challenging Party shall initiate the dispute resolution
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process by providing written notice of each designation it is challenging and describing the basis
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for each challenged designation by Bates number, and describing the basis for each challenge.
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To avoid ambiguity as to whether a challenge has been made, the written notice must recite that
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the challenge to confidentiality is being made in accordance with this specific paragraph of the
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Protective Order. The parties shall attempt to resolve each challenge in good faith and must
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begin the process by conferring directly (in voice to voice dialogue; other forms of
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communication are not sufficient) within 14 days of the date of service of notice. In conferring,
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the Challenging Party must explain the basis for its belief that the confidentiality designation
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was not proper and must give the Designating Party an opportunity to review the designated
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material, to reconsider the circumstances, and, if no change in designation is offered, to explain
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the basis for the chosen designation. A Challenging Party may proceed to the next stage of the
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challenge process only if it has engaged in this meet and confer process first or establishes that
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the Designating Party is unwilling to participate in the meet and confer process in a timely
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manner.
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6.3
Judicial Intervention. If the Parties cannot resolve a challenge without court
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intervention, the Designating Party shall file and serve a motion to retain confidentiality within
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21 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet
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and confer process will not resolve their dispute, whichever is earlier. Each such motion must
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be accompanied by a competent declaration affirming that the movant has complied with the
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meet and confer requirements imposed in the preceding paragraph. Failure by the Designating
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Party to make such a motion including the required declaration within 21 days (or 14 days, if
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applicable) shall automatically waive the confidentiality designation for each challenged
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designation. In addition, the Challenging Party may file a motion challenging a confidentiality
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designation at any time if there is good cause for doing so, including a challenge to the
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designation of a deposition transcript or any portions thereof. Any motion brought pursuant to
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this provision must be accompanied by a competent declaration affirming that the movant has
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complied with the meet and confer requirements imposed by the preceding paragraph.
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The burden of persuasion in any such challenge proceeding shall be on the Designating
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Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose
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unnecessary expenses and burdens on other parties) may expose the Challenging Party to
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sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
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file a motion to retain confidentiality as described above, all parties shall continue to afford the
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material in question the level of protection to which it is entitled under the Producing Party’s
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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 case only for
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prosecuting, defending, or attempting to settle this litigation. 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 litigation has been terminated, a Receiving Party must comply with the provisions of
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section 13 below (FINAL DISPOSITION).
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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 “CONFIDENTIAL” Information or Items. Unless otherwise
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ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
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disclose any information or item designated “CONFIDENTIAL” only to:
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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
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employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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information for this litigation and who have signed the Acknowledgment and Agreement to Be
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Bound” that is attached hereto as Exhibit A;
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(b) the officers, directors, and employees (including House Counsel) of the
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Receiving Party to whom disclosure is reasonably necessary for this litigation and who have
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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure
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is reasonably necessary for this litigation and who have signed the “Acknowledgment and
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Agreement to Be Bound” (Exhibit A);
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(d) the court and its personnel;
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(e) court reporters, videographers, and their staff, who are not personnel of the
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court, professional jury or trial consultants, and Professional Vendors to whom disclosure is
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reasonably necessary for this litigation and who have signed the “Acknowledgment and
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Agreement to Be Bound” (Exhibit A);
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(f) during their depositions, witnesses in the action to whom disclosure is
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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
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(Exhibit 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 must
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be 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.
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(g) the author or recipient of a document containing the information or a custodian
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or other person who otherwise possessed or knew the information provided that these individuals
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may only be shown the protected information and may not retain a copy of the protected
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information that was produced in this case.
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8.
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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
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 “CONFIDENTIAL” or
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“SUBJECT TO PROTECTIVE ORDER,” 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;
(b) promptly notify in writing the party who caused the subpoena or order to issue
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in the other litigation that some or all of the material covered by the subpoena or order is subject
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to this Protective Order. Such notification shall include a copy of this Stipulated Protective
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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 the
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subpoena or court order shall not produce any information designated in this action as
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“CONFIDENTIAL” or “SUBJECT TO PROTECTIVE ORDER” before a determination by the
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court from which the subpoena or order issued, unless the Party has obtained the Designating
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Party’s 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 should be
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construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful
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directive from another court.
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9.
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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION
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(a) The terms of this Order are applicable to information produced by a Non-Party
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in this action and designated as “CONFIDENTIAL” or “SUBJECT TO PROTECTIVE
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ORDER.” Such information produced by Non-Parties in connection with this litigation is
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protected by the remedies and relief provided by this Order. Nothing in these provisions should
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be 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 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 some
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or all of the information requested is subject to a confidentiality agreement with a Non-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 litigation, the relevant discovery request(s), and a reasonably specific description
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of the information requested; and
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(3) make the information requested available for inspection by the Non-Party.
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(c) If the Non-Party fails to object or seek a protective order from this court within
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14 days of receiving the notice and accompanying information, the Receiving Party may
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produce the Non-Party’s confidential information responsive to the discovery request. If the
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Non-Party timely seeks a protective order, the Receiving Party shall not produce any
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information in its possession or control that is subject to the confidentiality agreement with the
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Non-Party before a determination by the court. Absent a court order to the contrary, the Non-
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Party shall bear the burden and expense of seeking protection in this court of its Protected
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Material.
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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
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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.
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
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.
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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, or upon another timeframe agreeable under the
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circumstances, to all interested persons, a Party may not file in the public record in this action
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any Protected Material. A Party that seeks to file under seal any Protected Material must comply
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with Local Rule 141. Protected Material may only be filed under seal pursuant to a court order
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authorizing the sealing of the specific Protected Material at issue. A sealing order will issue only
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upon a request establishing that the Protected Material at issue is privileged, protectable as a
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trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to
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file Protected Material under seal is
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denied by the court, then the Receiving Party may file the information in the public record unless
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otherwise instructed by the court.
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13.
FINAL DISPOSITION
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Upon final termination of this action, including any and all appeals, counsel for each party
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must, upon request of the producing party, return all confidential information to the party that
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produced the information, including any copies, excerpts, and summaries of that information,
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or must destroy same at the option of the receiving party, and must purge all such information
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from all machine-readable media on which it resides. Notwithstanding the foregoing, counsel
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for each party may retain all pleadings, briefs, memoranda, motions, and other documents filed
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with the Court that refer to or incorporate confidential information, and will continue to be
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bound by this Order with respect to all such retained information.
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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 _________________ [print
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or type full address], declare under penalty of perjury that I have read in its entirety and
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understand the Stipulated Protective Order that was issued by the United States District Court
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for the Eastern District of California on [
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MOTOR COMPANY, Case No. 1:23-cv-00766-JLT-SAB. I agree to comply with and to be
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bound by all the terms of this Stipulated Protective Order and I understand and acknowledge
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that failure to so comply could expose me to sanctions and punishment in the nature of contempt.
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I solemnly promise that I will not disclose in any manner any information or item that is subject
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to this Stipulated Protective Order to any person or entity except in strict compliance with the
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provisions of this Order.
] in the case of DAVID ROMAINE v. FORD
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I further agree to submit to the jurisdiction of the United States District Court for the
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Eastern District of California for the purpose of enforcing the terms of this Stipulated Protective
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Order, even if such 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 telephone
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number] as my California agent for service of process in connection with this action or any
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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: __________________________________
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COURT ORDER ENTERING STIPULATED PROTECTIVE ORDER
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Pursuant to the stipulation of the parties and good cause appearing, IT IS HEREBY
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ORDERED that:
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1.
The above stipulated protective order is ENTERED;
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2.
The provisions of the parties’ stipulation and this protective order shall remain in
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effect until further order of the Court;
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3.
The parties are advised that pursuant to the Local Rules of the United States
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District Court, Eastern District of California, any documents which are to be
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filed under seal will require a written request which complies with Local Rule
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141;
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4.
The party making a request to file documents under seal shall be required to
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show either good cause or compelling reasons to seal the documents, depending
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on the type of filing, Pintos v. Pac. Creditors Ass’n, 605 F.3d 665, 677–78 (9th
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Cir. 2009); Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1101 (9th
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Cir. 2016); and
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5.
If a party’s request to file Protected Material under seal is denied by the Court,
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then the previously filed material shall be immediately accepted by the court and
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become information in the public record and the information will be deemed
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filed as of the date that the request to file the Protected Information under seal
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was made.
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IT IS SO ORDERED.
Dated:
May 14, 2024
UNITED STATES MAGISTRATE JUDGE
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