Perkowski v. FedEx Ground Package System, Inc.
Filing
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STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Jeremy D. Peterson on 1/24/2025. (Deputy Clerk KEZ)
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Christopher S. Alvarez (SBN 294795)
E-Mail: calvarez@fisherphillips.com
Elizabeth C. Lobaugh (SBN 327252)
E-Mail: elobaugh@fisherphillips.com
FISHER & PHILLIPS LLP
621 Capitol Mall, Suite 1400
Sacramento, California 95814
Telephone: (916) 210-0400
Facsimile: (916) 210-0401
Attorneys for Defendant
FEDERAL EXPRESS CORPORATION, successor
by merger to FEDEX GROUND PACKAGE SYSTEM,
INC.
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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WESLEY PERKOWSKI,
Plaintiff,
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CASE NO.: 2:23-CV-02803-DJC-JDP
[Removed from San Joaquin County Superior
Court, Case No. STK-CV-UWT-2023-0011482]
v.
FEDEX GROUND PACKAGE SYSTEM,
INC. and DOES 1 TO 10,
Defendants.
STIPULATED PROTECTIVE ORDER;
[PROPOSED] ORDER
Complaint Filed: November 1, 2023
Trial Date:
November 10, 2025
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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER
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IT IS HEREBY STIPULATED, by and between Plaintiff Wesley Perkowski (“Plaintiff”) and
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Defendant Federal Express Corporation, successor by merger to FedEx Ground Package System, Inc.
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(“Defendant”) (collectively, the “Parties”), the Parties in the above-entitled action, by and through their
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respective counsel of record, that information and documents exchanged in this litigation may be subject
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to confidentiality limitations on disclosure due to federal and state laws, including but not limited to
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information protected by the right to privacy, attorney work-product, attorney-client privilege, other
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applicable privileges or information regarding intellectual property, proprietary business concepts, or
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other proprietary, sensitive or confidential information. In order to facilitate the exchange of such
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information and documents, the Parties stipulate and agree as follows:
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1.
PURPOSES AND LIMITATIONS
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Disclosure and discovery activity in the action are likely to involve the production of
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confidential, proprietary, or private information for which special protection from public disclosure and
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from use for any purpose other than prosecuting the action may be warranted. Accordingly, the Parties
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hereby stipulate to and petition the Court to enter the following Stipulated Protective Order (“Stipulated
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Protective Order”). The Parties acknowledge that this Stipulated Protective Order does not confer
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blanket protections on all disclosures or responses to discovery and that the protection it affords from
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public disclosure and use extends only to the limited information or items that are entitled to confidential
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treatment under the applicable legal principles. The Parties further acknowledge, as set forth in Section
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12.3, below, that this Stipulated Protective Order does not entitle them to file confidential information
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under seal; the Federal Rules of Civil Procedures, Rules 5.2 and 26 and Local Rule 141 set forth the
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procedures that must be followed and the standards that will be applied when a Party seeks permission
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from the Court to file material under seal.
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2.
2.1
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DEFINITIONS
Proceedings: means the above-entitled proceeding, Wesley Perkowski v. FedEx Ground
Package System, Inc., Case No. 2:23-CV-02803-DJC-JDP.
2.2
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Court: means any judge to which this proceeding may be assigned, including Court staff
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participating in such proceedings.
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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER
2.3
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or items under this Stipulated Protective Order.
2.4
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Challenging Party: a Party or Non-Party that challenges the designation of information
“CONFIDENTIAL” Information or Items: information (regardless of how it is generated,
stored or maintained) or tangible things that qualify for protection under applicable law.
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2.5
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their support staff).
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2.6
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Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as
Designating Party: a Party or Non-Party that designates information or items that it
produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
2.7
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Disclosure or Discovery Material: all items or information, regardless of the medium or
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manner in which they are 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 discovery
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in the action.
2.8
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Expert: a person with specialized knowledge or experience in a matter pertinent to the
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action who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in
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this action.
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2.9
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does not include Outside Counsel of Record or any other outside counsel.
2.10
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House Counsel: attorneys who are employees of a Party to the action. House Counsel
Non-Party: any natural person, partnership, corporation, association, or other legal entity
not named as a Party to the action.
2.11
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Outside Counsel of Record: attorneys who are not employees of a Party to the action but
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are retained to represent or advise a Party to the action and have appeared in the action on behalf of that
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Party or are affiliated with a law firm which has appeared on behalf of that Party.
2.11
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Party: any Party to the action, including all of its officers, directors, employees,
consultants, retained experts, and Outside Counsel of Record (and their support staffs).
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2.12
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the action.
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Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in
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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER
2.13
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Professional Vendors: persons or entities that provide litigation support services (e.g.,
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photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or
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retrieving data in any form or medium) and their employees and subcontractors.
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2.14
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“CONFIDENTIAL.”
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2.15
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Party.
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3.
Protected Material: any Disclosure or Discovery Material that is designated as
Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing
SCOPE
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The protections conferred by this Stipulated Protective Order cover not only Protected Material
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(as defined above), but also (1) any information copied or extracted from Protected Material; (2) 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 Stipulated Protective 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 Stipulated Protective Order, including becoming part of the
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public record through trial or otherwise; and (b) any information known to the Receiving Party prior to
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the 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. Any use of
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Protected Material at trial shall be governed by a separate agreement or order.
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4.
DURATION
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Even after final disposition of the action, the confidentiality obligations imposed by this
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Stipulated Protective Order shall remain in effect until a Designating Party agrees otherwise in writing
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or a Court order otherwise directs. Final disposition shall be deemed to be the later of (1) the dismissal
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of all claims and defenses in the 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 these action,
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including the time limits for filing any motions or applications for extension of time pursuant to
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applicable law.
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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER
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5.
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-
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Party that designates information or items for protection under this Stipulated Protective Order must take
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care to 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 oral
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or written communications that qualify—so that other portions of the material, documents, items, or
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communications for which protection is not warranted are not swept unjustifiably within the ambit of
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this Stipulated Protective Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to
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be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber
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or retard the cases development process or to impose unnecessary expenses and burdens on other parties)
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expose the Designating Party to sanctions. If it comes to a Designating Party’s attention that information
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or items that are designated for protection do not qualify for protection, that Designating Party must
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promptly notify all other 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 Stipulated
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Protective Order (see, e.g., second Paragraph of Section 5.2(a) below), or as otherwise stipulated or
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ordered, Disclosure or Discovery Material that qualifies for protection under this Stipulated Protective
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Order must be clearly so designated before the material is disclosed or produced.
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Designation in conformity with this Stipulated Protective 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 affix
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the legend “CONFIDENTIAL” to each page that contains protected material. If only a portion or portions
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of the material on a page qualifies for protection, the Producing Party also must clearly identify the
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protected portion(s) (e.g., by making appropriate markings in the margins). A Party or Non-Party that
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makes original documents or materials available for inspection need not designate them for protection
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until after the inspecting Party has indicated which material it would like copied and produced. During
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the inspection and before the designation, all of the material made available for inspection shall be
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deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants copied
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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER
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and produced, the Producing Party must determine which documents, or portions thereof, qualify for
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protection under this Stipulated Protective Order. Then, before producing the specified documents, the
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Producing Party must affix the “CONFIDENTIAL” legend to each page that contains Protected Material.
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If only a portion or portions of the material on a page qualifies for protection, the Producing Party also
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must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins).
(b)
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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 proceeding,
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all protected testimony.
(c)
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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 portion
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or portions of the information or item warrant protection, the Producing Party, to the extent practicable,
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shall identify the protected portion(s).
5.3
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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate
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qualified information or items does not, standing alone, waive the Designating Party’s right to secure
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protection under this Stipulated Protective 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 Stipulated Protective 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
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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, or
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a significant disruption or delay of the litigation of the action, a Party does not waive its right to challenge
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a confidentiality designation by electing not to mount a challenge promptly after the original designation
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is disclosed.
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6.2
Meet and Confer. The Challenging Party shall initiate the dispute resolution process by
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providing written notice of each designation it is challenging 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 the
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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER
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challenge to confidentiality is being made in accordance with this specific paragraph of the Stipulated
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Protective Order. The Parties shall attempt to resolve each challenge in good faith and must begin the
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process by conferring directly (in voice-to-voice dialogue or via written correspondence; other forms of
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communication are not sufficient) within fourteen (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 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 only if
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it has engaged in this meet and confer process first or establishes that the Designating Party is unwilling
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to participate in the meet and confer process in a timely manner.
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6.3
Judicial Intervention. If the Parties cannot resolve a challenge without Court intervention,
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the Designating Party shall file and serve a motion to retain confidentiality within twenty-one (21) days
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of the initial notice of challenge or within fourteen (14) days of the Parties agreeing that the meet and
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confer process will not resolve their dispute, whichever is later. Each such motion must be accompanied
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by a competent declaration affirming that the movant has complied with the meet and confer
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requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a
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motion including the required declaration within twenty-one (21) days (or fourteen (14) days, if
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applicable) shall automatically waive the confidentiality designation for each challenged designation. In
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addition, the Challenging Party may file a motion challenging a confidentiality designation at any time
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if there is good cause for doing so, including a challenge to the designation of a deposition transcript or
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any portions thereof. Any motion brought pursuant to this provision must be accompanied by a
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competent declaration affirming that the movant has complied with the meet and confer requirements
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imposed by the preceding paragraph.
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The burden of persuasion in any such challenge proceeding shall be on the Designating Party.
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Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary
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expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the
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Designating Party has waived the confidentiality designation by failing to file a motion to retain
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confidentiality as described above, all Parties shall continue to afford the material in question the level
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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER
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of protection to which it is entitled under the Producing Party’s designation until the court rules on the
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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 the action. Such Protected Material may be disclosed only to the
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categories of persons and under the conditions described in this Stipulated Protective Order. When the
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litigation has been terminated, a Receiving Party must comply with the provisions of Section 13 below
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(FINAL DISPOSITION).
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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 Stipulated
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Protective Order.
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7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the
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Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information
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or item designated “CONFIDENTIAL” only to:
(a)
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the Receiving Party’s Outside Counsel of Record in the 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 the action’s litigation and who have signed the “Acknowledgment and Agreement to Be
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Bound” that is attached hereto as Exhibit A;
(b)
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the officers, directors, and employees (including House Counsel) of the Receiving
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Party to whom disclosure is reasonably necessary for the litigation of the action and who have signed
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the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c)
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Experts (as defined in this Stipulated Protective Order) of the Receiving Party to
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whom disclosure is reasonably necessary for the litigation of the action and who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d)
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the Court and its personnel;
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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER
(e)
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court reporters and their staff, professional jury or trial consultants, mock jurors,
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and Professional Vendors to whom disclosure is reasonably necessary for the litigation of the action and
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who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f)
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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), unless
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otherwise agreed by the Designating Party or ordered by the Court. Pages of transcribed deposition
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testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court
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reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order.
(g)
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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 the action as “CONFIDENTIAL,” that Party must:
(a)
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promptly notify in writing the Designating Party. Such notification shall include
a copy of the subpoena or court order;
(b)
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promptly notify in writing the Party who caused the subpoena or order to issue in
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the other litigation that some or all of the material covered by the subpoena or order is subject to this
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Stipulated Protective Order. Such notification shall include a copy of this Stipulated Protective Order;
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and
(c)
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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 subpoena or
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court order shall not produce any information designated in the action as “CONFIDENTIAL” before a
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determination by the court from which the subpoena or order issued, unless the Party has obtained the
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Designating 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 construed
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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER
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as authorizing or encouraging a Receiving Party in the action to disobey a lawful directive from another
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court.
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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION
(a)
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The terms of this Stipulated Protective Order are applicable to information
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produced by a Non-Party in the action and designated as “CONFIDENTIAL.” Such information
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produced by Non-Parties in connection with the litigation of the action is protected by the remedies and
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relief provided by this Stipulated Protective Order. Nothing in these provisions should be construed as
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prohibiting a Non-Party from seeking additional protections.
(b)
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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 with the
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Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
(i)
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promptly notify in writing the Requesting Party and the Non-Party that
some or all of the information requested is subject to a confidentiality agreement with a Non-Party;
(ii)
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promptly provide the Non-Party with a copy of the Stipulated Protective
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Order in the action, the relevant discovery request(s), and a reasonably specific description of the
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information requested; and
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(iii)
(c)
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make the information requested available for inspection by the Non-Party.
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-Party
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timely seeks a protective order, the Receiving Party shall not produce any information in its possession
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or control that is subject to the confidentiality agreement with the Non-Party before a determination by
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the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of
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seeking protection in this Court of its Protected Material.
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10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material
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to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving
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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER
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Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b)
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use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
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persons to whom unauthorized disclosures were made of all the terms of Stipulated Protective Order,
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and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound”
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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 are
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those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
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whatever procedure may be established in an e-discovery order that provides for production without
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prior privilege review. Insofar as the Parties reach an agreement on the effect of disclosure of a
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communication or information covered by the attorney-client privilege or work product protection, the
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Parties may incorporate their agreement in the Stipulated Protective Order submitted to the Court.
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12.
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MISCELLANEOUS
12.1
Right to Further Relief. Nothing in this Stipulated Protective Order abridges the right of
any person to seek its modification by the Court in the future.
12.2
Right to Assert Other Objections. By stipulating to the entry of this Stipulated Protective
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Order, 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 Party
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waives any right to object on any ground to use in evidence any of the material covered by this Stipulated
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Protective Order.
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12.3
Filing Protected Material. Without written permission from the Designating Party or a
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Court order secured after appropriate notice to all interested persons, a Party may not file in the public
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record in the action any Protected Material. A Party that seeks to file under seal any Protected Material
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must comply with Local Rule 141. Protected Material may only be filed under seal pursuant to a court
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order authorizing the sealing of the specific Protected Material at issue. Pursuant to Local Rule 141, a
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sealing order will issue only upon a request establishing that the Protected Material at issue is privileged,
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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER
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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 Local Rule 141 is denied by the Court, then the
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Receiving Party may file the information in the public record pursuant to Local Rule 141 unless
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otherwise instructed by the Court.
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13.
FINAL DISPOSITION
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Within sixty (60) days after the final disposition of the action, as defined in Paragraph 4, each
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Receiving Party must return all Protected Material to the Producing Party or destroy such material. As
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used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries,
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and any other format reproducing or capturing any of the Protected Material. Whether the Protected
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Material is returned or destroyed, the Receiving Party must submit a written certification to the
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Producing Party (and, if not the same person or entity, to the Designating Party) by the sixty (60) day
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deadline that (1) identifies (by category, where appropriate) all the Protected Material that was returned
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or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, compilations,
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summaries or any other format reproducing or capturing any of the Protected Material. Notwithstanding
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this provision, Counsel is entitled to retain an archival copy of all pleadings, motion papers, trial,
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deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits,
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expert reports, attorney work product, and consultant and expert work product, even if such materials
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contain Protected Material. Any such archival copies that contain or constitute Protected Material remain
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subject to this Stipulated 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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DATE: January 24, 2025
PERKOWSKI LAW OFFICE
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By: /s/ Leora J. Perkowski
Leora J. Perkowski
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Attorney for Plaintiff
WESLEY PERKOWSKI
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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER
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DATE: January 24, 2025
FISHER & PHILLIPS LLP
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By: /s/ Elizabeth C. Lobaugh
Christopher S. Alvarez
Elizabeth C. Lobaugh
Attorneys for Defendant
FEDERAL EXPRESS CORPORATION,
successor by merger to FEDEX GROUND
PACKAGE SYSTEM, INC.
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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, _____________________________ [print or type full name], of _________________ [print
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or 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 Court on _____________[date] in the case of Wesley
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Perkowski v. FedEx Ground Package System, Inc., Case No. 2:23-CV-02803-DJC-JDP. I agree to
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comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and
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acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of
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contempt. I solemnly promise that I will not disclose in any manner any information or item that is
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subject to this Stipulated Protective Order to any person or entity except in strict compliance with the
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provisions of this Stipulated Protective Order.
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I further agree to submit to the jurisdiction of the United States District Court for the Eastern
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District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if
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such enforcement proceedings occur after termination of the action.
I
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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 the action or any proceedings related to
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enforcement of this Stipulated Protective Order.
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Date:
______________________
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City and State wherein sworn and signed:
______________________
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Printed name:
______________________
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Signature:
______________________
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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER
[PROPOSED] ORDER
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GOOD CAUSE APPEARING, the Court hereby approves this Stipulated Protective Order.
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IT IS SO ORDERED.
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Dated:
January 24, 2025
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE
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STIPULATED PROTECTIVE ORDER; [PROPOSED] ORDER
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