California State Employees Association v. Bogart
Filing
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STIPULATED PROTECTIVE ORDER signed by Judge John A. Mendez on 5/13/15. (Becknal, R)
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DOWNEY BRAND LLP
WILLIAM R. WARNE (Bar No. 141280)
KELLY L. POPE (Bar No. 235284)
AVALON C. JOHNSON (Bar No. 288167)
621 Capitol Mall, 18th Floor
Sacramento, CA 95814-4731
Telephone:
(916) 444-1000
Facsimile:
(916) 444-2100
bwarne@downeybrand.com
kpope@downeybrand.com
ajohnson@downeybrand.com
Attorneys for Plaintiff
CALIFORNIA STATE EMPLOYEES
ASSOCIATION
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION
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CALIFORNIA STATE EMPLOYEES
ASSOCIATION,
STIPULATED PROTECTIVE ORDER
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Plaintiff,
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Case No. 2:14-cv-02494-JAM-KJN
v.
RICHARD G. BOGART,
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Defendant.
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This Stipulated Protective Order (“Protective Order”) is entered into by and between
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Plaintiff and Counterdefendant California State Employees Association (“CSEA”), and Defendant
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and Counterclaimant Richard G. Bogart (“Bogart”) (collectively “the Parties”), by and through
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their counsel, to protect certain confidential information obtained in connection with this action.
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1.
PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of
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confidential, proprietary, or private information for which special protection from public disclosure
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and from use for any purpose other than prosecuting this litigation may be warranted.
Accordingly, the Parties hereby stipulate to and petition the court to enter the following
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Stipulated Protective Order.
The Parties acknowledge that this Order does not confer blanket protections on all
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disclosures or responses to discovery and that the protection it affords from public disclosure and use
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extends only to the limited information or items that are entitled to confidential treatment under the
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applicable legal principles.
The Parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated
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Protective Order does not entitle them to file confidential information under seal; Eastern District of
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California 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.
2.1
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DEFINITIONS
Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
2.2
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“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 of
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Civil Procedure 26(c).
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Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well
as their support staff).
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Designating Party: a Party or Non-Party that designates information or items that it
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produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
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Disclosure or Discovery Material: all items or information, regardless of the medium
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or manner in which it is generated, stored, or maintained (including, among other things, testimony,
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transcripts, and tangible things), that are produced or generated in disclosures or responses to
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discovery in this matter.
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Expert: a person with specialized knowledge or experience in a matter pertinent to
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the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
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consultant in this action.
2.7
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Counsel does not include Outside Counsel of Record or any other outside counsel.
2.8
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House Counsel: attorneys who are employees of a party to this action. House
Non-Party: any natural person, partnership, corporation, association, or other legal
entity not named as a Party to this action.
2.9
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Outside Counsel of Record: attorneys who are not employees of a party to this action
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but are retained to represent or advise a party to this action and have appeared in this action on
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behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. The
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parties have agreed that Defendant Richard Bogart’s son, Matthew Bogart, who intends to assist
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Defendant Bogart on this matter, will be included within the definition of Outside Counsel of Record
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as used herein. As such, and without necessarily confirming that he is in fact counsel for Defendant
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Bogart, he will be able to review the documents covered by this protective order, but is fully bound
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by its terms and will execute Exhibit A.
2.10
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consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.11
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Party: any party to this action, including all of its officers, directors, employees,
Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this action.
2.12
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Professional Vendors: persons or entities that provide litigation support services
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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,
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storing, or retrieving data in any form or medium) and their employees and subcontractors.
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2.13
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Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL.”
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Receiving Party: a Party that receives Disclosure or Discovery Material from a
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Producing Party.
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3.
SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material (as
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defined above), but also (1) any information copied or extracted from Protected Material; (2) all
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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.
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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 Receiving
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Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of
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publication not involving a violation of this Order, including becoming part of the public record
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through trial or otherwise; and (b) any information known to the Receiving Party prior to the
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disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the
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information lawfully and under no obligation of confidentiality to the Designating Party.
This Stipulation and Order does not govern proceedings during trial nor does it prohibit
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any Party from seeking a protective order to govern proceedings during trial. The
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Parties reserve for future agreement the procedure to be followed in using “Confidential
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Information” at trial.
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4.
DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by this
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Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
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otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and
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defenses in this action, with or without prejudice; and (2) final judgment herein after the completion
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and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the
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time limits for filing any motions or applications for extension of time pursuant to applicable law.
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5.
DESIGNATING PROTECTED MATERIAL
5.1
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Exercise of Restraint and Care in Designating Material for Protection. Each Party or
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Non-Party that designates information or items for protection under this Order must take care to
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limit any such designation to specific material that qualifies under the appropriate standards. The
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Designating Party must designate for protection only those parts of material, documents, items, or
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oral or written communications that qualify – so that other portions of the material, documents,
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items, or communications for which protection is not warranted are not swept unjustifiably within
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the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown
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to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily
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encumber or retard the case development process or to impose unnecessary expenses and burdens on
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other parties) expose the Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it designated for
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protection do not qualify for protection, that Designating Party must promptly notify all other Parties
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that it is withdrawing the mistaken designation.
5.2
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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 so
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designated before the material is disclosed or produced.
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 Party
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affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion
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or portions of the material on a page qualifies for protection, the Producing Party also must clearly
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identify the protected portion(s) (e.g., by making appropriate markings in the margins). A Party or
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Non-Party that makes original documents or materials available for inspection need not designate
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them for protection until after the inspecting Party has indicated which material it would like copied
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and produced. During the inspection and before the designation, all of the material made available
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for inspection shall be deemed “CONFIDENTIAL.” After the inspecting Party has identified the
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documents it wants copied and produced, the Producing Party must determine which documents, or
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portions thereof, qualify for protection under this Order. Then, before producing the specified
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documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page that
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contains Protected Material. If only a portion or portions of the material on a page qualifies for
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protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making
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appropriate markings in the margins).
(b) for testimony given in deposition or in other pretrial or trial proceedings, that the
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Designating Party identify on the record, before the close of the deposition, hearing, or other
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proceeding, all protected testimony.
(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 or
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containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a
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portion or portions of the information or item warrant protection, the Producing Party, to the extent
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practicable, shall identify the protected portion(s).
5.3
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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 treated in
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accordance with the provisions of this Order.
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6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
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Timing of Challenges. Any Party or Non-Party may challenge a designation of
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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 burdens,
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or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a
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confidentiality designation by electing not to mount a challenge promptly after the original
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designation is disclosed.
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Meet and Confer. The Challenging Party shall initiate the dispute resolution process
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by providing written notice of each designation it is challenging and describing the basis for each
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challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must
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recite that the challenge to confidentiality is being made in accordance with this specific paragraph
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of the 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 communication
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are not sufficient) within fourteen (14) days of the date of service of notice. In conferring, the
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Challenging Party must explain the basis for its belief that the confidentiality designation was not
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proper and must give the Designating Party an opportunity to review the designated material, to
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reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the
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chosen designation. A Challenging Party may proceed to the next stage of the challenge process
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only if it has engaged in this meet and confer process first or establishes that the Designating Party is
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unwilling to participate in the meet and confer process in a timely manner.
6.3
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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 under
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Eastern District of California Local Rule 251 within 21 days of the initial notice of challenge or
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within 14 days of the parties agreeing that the meet and confer process will not resolve their dispute,
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whichever is earlier. Each such motion must be accompanied by a competent declaration affirming
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that the movant has complied with the meet and confer requirements imposed in the preceding
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paragraph. Failure by the Designating Party to make such a motion including the required
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declaration within twenty-one (21) days (or fourteen (14) days, if applicable) shall automatically
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waive the confidentiality designation for each challenged designation. In addition, the Challenging
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Party may file a motion challenging a confidentiality designation at any time if there is good cause
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for doing so, including a challenge to the designation of a deposition transcript or any portions
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thereof. Any motion brought pursuant to this provision must be accompanied by a competent
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declaration affirming that the movant has complied with the meet and confer requirements imposed
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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 sanctions.
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Unless the Designating Party has waived the confidentiality designation by failing to file a motion to
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retain confidentiality as described above, all parties shall continue to afford the material in question
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the level of protection to which it is entitled under the Producing Party’s designation until the court
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rules on the challenge.
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7.
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
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Basic Principles. A Receiving Party may use Protected Material that is disclosed or
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produced by another Party or by a Non-Party in connection with this case only for prosecuting,
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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
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the categories of persons and under the conditions described in this Order. When the litigation has
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been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL
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DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and in a
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secure manner that ensures that access is limited to the persons authorized under this Order.
7.2
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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
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by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
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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 employees
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of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for
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this litigation;
(b) the officers, directors, and employees (including House Counsel) of the Receiving
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Party to whom disclosure is reasonably necessary for this litigation;
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
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reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement
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to Be Bound” (Exhibit A);
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(d) the court and its personnel;
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(e) court reporters and their staff, professional jury or trial consultants, mock jurors, and
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Professional Vendors to whom disclosure is reasonably necessary for this litigation;
(f) during their depositions, witnesses in the action to whom disclosure is reasonably
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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
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unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed
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deposition testimony or exhibits to depositions that reveal Protected Material must be separately
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bound by the court reporter and may not be disclosed to anyone except as permitted under this
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Stipulated Protective Order; and
(g) the author or recipient of a document containing the information or a custodian or
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other person who otherwise possessed or knew the information.
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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,” that Party
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must:
(a) promptly notify in writing the Designating Party. Such notification shall include a
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copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to issue in the
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other litigation that some or all of the material covered by the subpoena or order is subject to this
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Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the
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Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the subpoena
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or court order shall not produce any information designated in this action as “CONFIDENTIAL”
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before a determination by the court from which the subpoena or order issued, unless the Party has
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obtained the Designating Party’s permission. The Designating Party shall bear the burden and
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expense of seeking protection in that court of its confidential material – and nothing in these
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provisions should be construed as authorizing or encouraging a Receiving Party in this action to
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disobey a lawful 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
(a) The terms of this Order are applicable to information produced by a Non-Party in this
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action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in
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connection with this litigation is protected by the remedies and relief provided by this Order.
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Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional
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protections.
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(b) In the event that a Party is required, by a valid discovery request, to produce a Non-
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Party’s confidential information in its possession, and the Party is subject to an agreement with the
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Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
(1) promptly notify in writing the Requesting Party and the Non-Party that some or
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all of the information requested is subject to a confidentiality agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in
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this litigation, the relevant discovery request(s), and a reasonably specific description of the
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information requested; and
(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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fourteen (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 Non-
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Party timely seeks a protective order, the Receiving Party shall not produce any information in its
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possession 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 burden
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and expense of seeking protection in this court of its Protected Material.
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10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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 Order,
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the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
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disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material,
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(c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this
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Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to
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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 produced
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material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties
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are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to
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modify whatever procedure may be established in an e-discovery order that provides for production
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without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
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parties reach an agreement on the effect of disclosure of a communication or information covered by
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the attorney-client privilege or work product protection, the parties may incorporate their agreement
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in the stipulated protective order submitted to the court.
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12.
12.1
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MISCELLANEOUS
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
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Right to Assert Other Objections. By stipulating to the entry of this Protective Order
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no Party waives any right it otherwise would have to object to disclosing or producing any
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information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
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Party waives any right to object on any ground to use in evidence of any of the material covered by
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this Protective Order.
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12.3
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Filing Protected Material. Without written permission from the Designating Party or
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a court order secured after appropriate notice to all interested persons, a Party may not file in the
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public record in this action any Protected Material. A Party that seeks to file under seal any
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Protected Material must comply with Eastern District of California Local Rule 141. Protected
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Material may only be filed under seal pursuant to a court order authorizing the sealing of the specific
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Protected Material at issue. Pursuant to Eastern District of California Local Rule 141, a sealing
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order will issue only upon a request establishing that the Protected Material at issue is privileged,
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protectable as a trade secret, or otherwise entitled to protection under the law. If a Receiving Party's
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request to file Protected Material under seal pursuant to Eastern District of California Local Rule
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141 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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13.
FINAL DISPOSITION
Within sixty (60) days after the final disposition of this action, as defined in paragraph 4,
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each Receiving Party must return all Protected Material to the Producing Party or destroy such
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material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
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compilations, summaries, and any other format reproducing or capturing any of the Protected
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Material. Whether the Protected Material is returned or destroyed, the Receiving Party must submit
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a written certification to the Producing Party (and, if not the same person or entity, to the
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Designating Party) by the sixty (60) day deadline that (1) identifies (by category, where appropriate)
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all the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has
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not retained any copies, abstracts, compilations, summaries or any other format reproducing or
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capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
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retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
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legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work
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product, and consultant and expert work product, even if such materials contain Protected Material.
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Any such archival copies that contain or constitute Protected Material remain subject to this
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Protective Order as set forth in Section 4 (DURATION).
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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DATED: May 12, 2015
DOWNEY BRAND LLP
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By: /s/ William R. Warne
WILLIAM R. WARNE
Attorney for Plaintiff
CALIFORNIA STATE EMPLOYEES
ASSOCIATION
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DATED: May 13, 2015
KENNADAY, LEAVITT & DAPONDE PC
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By: /s/ Kelli Kennaday (as authorized on 5-13-15)
KELLI KENNADAY
Attorney for Defendant
RICHARD G. BOGART
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PURSUANT TO STIPULATION, IT IS SO ORDERED.
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DATED: 5/13/2015
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/s/ John A. Mendez_____________
Hon. John A. Mendez
United States District Court Judge
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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 or
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type full address], declare under penalty of perjury that I have read in its entirety and understand the
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Stipulated Protective Order that was issued by the United States District Court for the Eastern
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District of California on [date] in the case of California State Employees Association v. Richard G.
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Bogart, Case No. 2:14-cv-02494-JAM-KJN. I agree to comply with and to be bound by all the terms
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of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could
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expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not
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disclose in any manner any information or item that is subject to this Stipulated Protective Order to
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any person 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 District
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of California for the purpose of 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 telephone number] as
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my California agent for service of process in connection with this action or any proceedings related
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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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