Fontewberry et al v. MV Transportation, Inc. et al
Filing
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PROTECTIVE ORDER signed by Magistrate Judge Edmund F. Brennan on 5/8/2013. (Reader, L)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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RICHARD FONTENBERRY, HUNTER
BLAINE, and KEITH WARD, on behalf of
themselves and all others similarly situated,
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Case No. 12-CV-01996-JAM-JFM
PROTECTIVE ORDER
Plaintiffs,
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v.
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MV TRANSPORTATION, INC.; and
DOES 1-20,
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Defendants.
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IT IS HEREBY ORDERED:
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1.
Good cause exists for this Joint Stipulation and the issuance by the Court of a
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Protective Order (“Order”) in that the Parties seek to engage in discovery in the above-captioned
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lawsuit while providing the Parties with a means for limiting access to, and disclosure of,
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confidential, private and trade secret information.
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compensation information/data, proprietary route information/data and sensitive employee data,
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Defendant must ensure that some information is kept confidential, and in some cases, viewed only
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by Plaintiffs’ counsel. Therefore, the Parties agree that the following terms should govern the
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exchange of information/documents provided in this matter.
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Because this lawsuit involves Defendant’s
Protective Order
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2.
Each of the Parties may designate all or portions of any document, thing,
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material, testimony or other information derived therefrom as “CONFIDENTIAL” under the terms
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of the Order. Material designated as “CONFIDENTIAL” under the Order (“CONFIDENTIAL
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INFORMATION”) may be used in accordance with Paragraph 5 herein only for the purpose of
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prosecution, defense, discovery, mediation and/or settlement of this action, and not for any other
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purpose. CONFIDENTIAL INFORMATION includes: (a) confidential or sensitive proprietary,
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business, commercial, private or personal information and (b) information about current, past or
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prospective employees that is of a confidential or private nature.
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3.
Each of the Parties may designate all or portions of any document, thing,
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material, testimony, or other information derived therefrom as “ATTORNEYS’ EYES ONLY”
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under the terms of the Order. Material designated as “ATTORNEYS EYES ONLY” under the
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Order (“ATTORNEYS EYES ONLY MATERIAL”) may be used in accordance with paragraph 8
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herein only for the purpose of prosecution, defense, discovery, mediation and/or settlement of this
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action and not for any other purpose.
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4.
CONFIDENTIAL INFORMATION shall be so designated by marking or
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stamping copies of the document produced or testimony with the legend “CONFIDENTIAL.”
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Marking or stamping the legend “CONFIDENTIAL” on the cover of any multi-page document shall
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thereby designate all pages of the document as confidential, and marking or stamping on a label on
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any electronic storage medium shall designate the contents of such electronic storage medium as
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CONFIDENTIAL INFORMATION.
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designated as “CONFIDENTIAL” shall not be conclusive of whether it is lawfully entitled to
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protection as such, and the failure to make such a designation shall not constitute a waiver to do so.
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Furthermore, the production of or testimony regarding any CONFIDENTIAL INFORMATION shall
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not be considered as a waiver of the right by a Party to object to the admissibility of any such
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information, and the admissibility of any such CONFIDENTIAL INFORMATION shall be
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determined by the Court independently of the terms of the Order and without regard to whether such
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information was produced or provided under the terms of the Order.
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Whether or not any evidence or testimony is, in fact,
2.
Protective Order
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5.
CONFIDENTIAL INFORMATION produced pursuant to the Order shall be
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disclosed, revealed or disseminated only to (a) the Court (as provided herein) (b) deposition notaries
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and staff; (c) stenographic, paralegal, clerical and other employees of the Parties' counsel; (d)
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independent experts/consultants who are employed by the Parties’ counsel to perform investigative
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work, factual research, or other services relating to this action; (e) mediators, solely for use during
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the conduct of any mediation of this action; and (f) any other person which the Parties agree to in
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writing.
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Confidential Information but are not entitled to receive copies thereof. “QUALIFIED PERSON(S)”
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are designated below:
Notwithstanding the foregoing, Qualified Persons, as defined below, may review all
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a.
current or former employees of Defendant who may serve as
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witnesses, but only insofar as such CONFIDENTIAL INFORMATION is relevant to their
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testimony;
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b.
the Named Plaintiffs;
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c.
any other person as to whom the Parties agree in writing.
Prior
to
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6.
reviewing
any
CONFIDENTIAL
INFORMATION,
each
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QUALIFIED PERSON designated in Paragraph 5(a)-(c), as well as experts/consultants employed by
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the Parties’ counsel and mediators, shall execute the Non-Disclosure Agreement in the form set forth
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in Attachment A. The Parties shall retain copies of any executed Non-Disclosure Agreements and
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deliver a copy thereof to counsel for all the Parties following the adjudication or settlement of this
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action.
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7.
ATTORNEYS’ EYES ONLY MATERIAL shall be so designated by marking
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or stamping copies of the document produced or testimony with the legend “ATTORNEYS’ EYES
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ONLY.” Marking or stamping the legend “ATTORNEYS’ EYES ONLY” on the cover of any
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multi-page document shall thereby designate all pages of the document as ATTORNEYS’ EYES
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ONLY MATERIAL, and marking or stamping on a label on any electronic storage medium shall
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designate the contents of such electronic storage medium as ATTORNEYS’ EYES ONLY
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MATERIAL. Whether or not any evidence or testimony is, in fact, designated as “ATTORNEYS’
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EYES ONLY MATERIAL” shall not be conclusive of whether it is lawfully entitled to protection as
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3.
Protective Order
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such, and the failure to make such a designation shall not constitute a waiver to do so. Furthermore,
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the production of or testimony regarding any ATTORNEYS’ EYES ONLY MATERIAL shall not
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be considered as a waiver of the right by a Party to object to the admissibility of such information,
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and the admissibility of any such ATTORNEYS’ EYES ONLY MATERIAL shall be determined by
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the Court independently of the terms of the Order and without regard to whether such information
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was produced or provided under the terms of the Order.
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8.
ATTORNEYS’ EYES ONLY MATERIAL produced pursuant to the Order
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shall be viewed only by the Court, mediators, jurors, and counsel of record for the Parties, their
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associate attorneys, paralegals, secretaries and clerical staff, and court reporters or deposition
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reporters, and to the persons designated below:
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a.
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defense, or settlement of this action;
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b.
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for the examination at a deposition of an employee or agent of the
Party who designated such information as ATTORNEYS’ EYES ONLY MATERIAL;
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experts and consultants retained by counsel in the prosecution,
c.
any other person as to whom the Parties agree in writing (collectively,
“ATTORNEYS’ EYES ONLY QUALIFIED PERSONS”).
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Prior to reviewing any ATTORNEYS’ EYES ONLY MATERIAL each of the
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ATTORNEYS’ EYES ONLY QUALIFIED PERSONS identified in paragraph 8(a) through (c) shall
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execute the Attorneys’ Eyes Only Material Non-Disclosure Agreement in the form of Attachment B.
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Counsel for the Parties must retain copies of any executed Attorneys’ Eyes Only Material
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Non-Disclosure Agreements and must surrender said copies following the adjudication or settlement
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of this action as set forth in paragraph 15 herein.
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MATERIAL may be reproduced, distributed or transmitted only to ATTORNEYS’ EYES ONLY
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QUALIFIED PERSONS.
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10.
Copies of ATTORNEYS’ EYES ONLY
Testimony taken at a deposition may be designated as CONFIDENTIAL
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INFORMATION or ATTORNEYS’ EYES ONLY MATERIAL by making a statement to that effect
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on the record at the deposition. Arrangements shall be made with the deposition reporter taking and
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transcribing information designated as CONFIDENTIAL and/or ATTORNEYS’ EYES ONLY
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MATERIAL to bind separately such portions of the deposition transcript, and to label such portions
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appropriately. CONFIDENTIAL deposition testimony shall be conducted only before those persons
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identified in Paragraph 5(a)-(c) herein. ATTORNEYS’ EYES ONLY deposition testimony shall be
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conducted only before those persons identified in Paragraph 8(a)-(c) herein. No person other than a
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Qualified Person may attend, read the transcript of or the exhibits marked as CONFIDENTIAL in
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any deposition taken in this case. No person other than an Attorneys Eyes Only Qualified Person
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may attend, read the transcript of or exhibits marked as ATTORNEYS’ EYES ONLY in any
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deposition taken in this case. Prior to attending any deposition where CONFIDENTIAL deposition
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testimony shall be taken, or reviewing CONFIDENTIAL transcript or exhibits, each Qualified
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Person listed in Paragraph 5 (a)-(c), as well as experts/consultants employed by the Parties’ counsel
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and mediators, shall execute a Non-Disclosure Agreement in the form set forth in Attachment A.
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Prior to attending any deposition where ATTORNEYS’ EYES ONLY testimony shall be taken, or
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reviewing any ATTORNEYS’ EYES ONLY transcript or exhibits, each Attorneys’ Eyes Only
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Qualified Person listed in Paragraph 8(a)-(c), as well as experts/consultants employed by the Parties’
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counsel and mediators, shall execute the Non-Disclosure Agreement in the form set forth in
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Attachment B. Nothing in the Order gives any individual the right to attend a deposition that they
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would not otherwise be entitled to attend. Should the need arise to offer testimony at a hearing or
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trial to present evidence of CONFIDENTIAL or ATTORNEYS’ EYES ONLY MATERIAL, the
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Parties will execute a stipulated protective order for that purpose.
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Notwithstanding the foregoing, the Parties do not waive any right to challenge
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whether any material designated or not designated as CONFIDENTIAL INFORMATION or
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ATTORNEYS’ EYES ONLY MATERIAL is properly designated or not designated as such, and do
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not waive the right to challenge at any hearing, trial or other proceeding whether such information is,
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in fact, confidential or private, or is admissible for any purpose other than as specified by the Order.
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12.
With regard to any CONFIDENTIAL INFORMATION or ATTORNEYS’
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EYES ONLY MATERIAL to be filed with the Court, before a party files with the Court any
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materials designated by the other party as CONFIDENTIAL INFORMATION or ATTORNEYS’
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EYES ONLY MATERIAL, they shall follow the procedure set forth in Federal Rule of Civil
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5.
Protective Order
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Procedure 5.2. Specifically, subject to public policy, and further court order, nothing shall be filed
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under seal and the Court shall not be required to take any action, without separate prior order by the
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Judge before whom the hearing or proceeding will take place, after application by the affected party
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with appropriate notices to opposing counsel. Accordingly, any party who is seeking to file a
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document under seal must file a motion, with notice to opposing counsel, in order to obtain the
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Court’s order in that regards. If the Court grants a Party permission to file an item under seal, a
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duplicate disclosing all non-CONFIDENTIAL INFORMATION or non-ATTORNEYS’ EYES
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ONLY MATERIAL, if any, shall be filed and made part of the public record. The item may be
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redacted to eliminate CONFIDENTIAL INFORMATION or ATTORNEYS’ EYES ONLY
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MATERIAL from the document. The document shall be titled to show that it corresponds to an item
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filed under seal, e.g., “Redacted Copy of Sealed Declaration Of John Smith In Support Of Motion
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For Summary Judgment.” The sealed and redacted documents shall be filed simultaneously.
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13.
If, through inadvertence, any Party produces or offers as testimony any
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CONFIDENTIAL INFORMATION or ATTORNEYS’ EYES ONLY MATERIAL without labeling
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it or otherwise designating it as such, the producing Party may, at any time, give written notice
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designating such information as CONFIDENTIAL INFORMATION or ATTORNEYS’ EYES
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ONLY MATERIAL.
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14.
The terms of the Order shall survive the final termination of this action and
shall be binding on all of the Parties thereafter.
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Within thirty (30) business days of the final termination or settlement of this
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action, each party must either destroy or make available for pick-up CONFIDENTIAL
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INFORMATION and ATTORNEYS’ EYES ONLY MATERIAL received during this litigation
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from the other Party and copies of any deposition transcripts designated as CONFIDENTIAL
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INFORMATION or ATTORNEYS’ EYES ONLY MATERIAL.
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CONFIDENTIAL INFORMATION or ATTORNEYS’ EYES ONLY MATERIAL during this
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litigation shall notify the Party in possession of the CONFIDENTIAL INFORMATION or
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ATTORNEYS’ EYES ONLY MATERIAL whether those materials should be destroyed or made
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available for pick-up. Upon surrendering to the other side all CONFIDENTIAL INFORMATION,
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6.
The Party that provided the
Protective Order
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ATTORNEYS’ EYES ONLY MATERIAL and/or deposition testimony, the surrendering Party must
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also execute and furnish the Surrender of Confidential Information and Attorneys’ Eyes Only
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Material Agreement in the form set forth in Attachment C.
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CONFIDENTIAL INFORMATION, ATTORNEYS’ EYES ONLY MATERIAL and/or deposition
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testimony, the destroying Party must execute and furnish a Certificate of Destruction in the form set
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forth in Attachment D. The Party who originally produced the CONFIDENTIAL INFORMATION
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and/or ATTORNEYS’ EYES ONLY MATERIAL in discovery and who receives return of material
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pursuant to this paragraph shall keep and maintain said materials for no less than four (4) years from
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the date this case is finally resolved and closed with the Court.
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Upon destruction of the
The Parties expressly agree that, by entering into the Order, they do not waive
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any objections to any discovery requests and, further, that they do not agree to the production of any
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information or documents, or type or category of information or documents.
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The Order is subject to modification by joint motion of the Parties or by
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further order of the Court.
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DATED: May 8, 2013.
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Protective Order
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ATTACHMENT A
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CONFIDENTIAL INFORMATION NON-DISCLOSURE AGREEMENT
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The undersigned hereby agrees that:
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(1)
I have had the opportunity to review the Protective Order (“Order”) in this
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(2)
I agree that I am a “QUALIFIED PERSON” as set forth in the Order.
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(3)
As a QUALIFIED PERSON, I will not disclose any of the CONFIDENTIAL
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action.
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INFORMATION to any third person and further agree that my use of any CONFIDENTIAL
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INFORMATION shall only be for the prosecution, defenses, discovery, mediation and/or settlement
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of this action, and not for any other purpose.
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(4)
As a “QUALIFIED PERSON” I further agree that on the termination or
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settlement of this action, I will surrender all CONFIDENTIAL INFORMATION which is in my
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possession, custody, or control in the manner set forth in paragraph 15 of the Order.
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(5)
By signing this Confidential Information Non-Disclosure Agreement, I
stipulate to the jurisdiction of this Court to enforce the terms of this Agreement.
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Dated:
[Print Name]
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[Sign Name]
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ATTACHMENT B
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CONFIDENTIAL ATTORNEYS’ EYES ONLY MATERIAL
NON-DISCLOSURE AGREEMENT
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The undersigned hereby agrees that:
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(1)
I have had the opportunity to review the Protective Order in this action.
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(2)
I agree that I am an “ATTORNEYS’ EYES ONLY QUALIFIED PERSON”
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as set forth in the Order.
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(3)
As an ATTORNEYS’ EYES ONLY QUALIFIED PERSON, I will not
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disclose any of the ATTORNEYS’ EYES ONLY MATERIAL to any third person and further agree
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that my use of any ATTORNEYS’ EYES ONLY MATERIAL shall be for the prosecution, defense,
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discovery, mediation and/or settlement of this action, and not for any other purpose.
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(4)
As an ATTORNEYS’ EYES ONLY QUALIFIED PERSON, I further agree
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that on the termination or settlement of this action, I will surrender all ATTORNEYS’ EYES ONLY
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MATERIAL which is in my possession, custody, or control in the manner set forth in paragraph 15
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of the Order.
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(5)
By signing this Attorneys’ Eyes Only Material Non-Disclosure Agreement, I
stipulate to the jurisdiction of this Court to enforce the terms of this Agreement.
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Dated:
[Print Name]
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[Sign Name]
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ATTACHMENT C
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SURRENDER OF CONFIDENTIAL INFORMATION OR
ATTORNEYS’ EYES ONLY MATERIAL
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The undersigned hereby represents that, pursuant to Paragraph 15 of the Protective
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Order (“Order”), all CONFIDENTIAL INFORMATION and ATTORNEYS’ EYES ONLY
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MATERIAL within the possession, custody or control of the undersigned was surrendered to the
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Party designating such information.
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Dated:
[Print Name]
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[Sign Name]
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ATTACHMENT D
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CERTIFICATE OF DESTRUCTION
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The undersigned hereby represents that, pursuant to Paragraph 15 of the Protective
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Order (“Order”), all CONFIDENTIAL INFORMATION and ATTORNEYS’ EYES ONLY
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MATERIAL within the possession, custody or control of the undersigned was destroyed.
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Dated:
[Print Name]
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[Sign Name]
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Protective Order
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