Whitmore v. Does 1-25, inclusive

Filing 33

STIPULATED PROTECTIVE ORDER re 31 STIPULATION WITH PROPOSED ORDER Stipulated Protective Order filed by Charles Blount, Joseph Horsman. Signed by Judge Phyllis J. Hamilton on 1/28/14. (sisS, COURT STAFF) (Filed on 1/28/2014)

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STEVEN C. MITCHELL, ESQ., SBN 124644
ROBERT W. HENKELS, ESQ., SBN 255410
GEARY, SHEA, O’DONNELL, GRATTAN & MITCHELL, P.C.
37 Old Courthouse Square, Fourth Floor
Santa Rosa, California 95404
Telephone: [phone]
Facsimile:
707/545-1876
Email:
[e-mail]

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Attorneys for Defendants
JOSEPH HORSMAN and CHARLES BLOUNT
CAROLINE L. FOWLER, City Attorney, SBN 110313
ROBERT L. JACKSON, Assistant City Attorney, SBN 101770
City of Santa Rosa
100 Santa Rosa Avenue, Room 8
Santa Rosa, California 95404
Telephone: [phone]
Facsimile: 707/543-3055
Attorneys for Defendants
TIMOTHY WILHELM, CHRIS PETERS, JESUS AVINA,
THOMAS BOHANAN and MICHAEL CLARK
JOHN L. BURRIS, ESQ., SBN 69888
BENJAMIN NISENBAUM, ESQ., SBN 222173
LAW OFFICES OF JOHN L. BURRIS
Airport Corporate Centre
7677 Oakport Street, Suite 1120
Oakland, California 94621
Telephone: [phone]
Facsimile:
510/839-3882
Email:
[e-mail]
[e-mail]

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UNITED STATES DISTRICT COURT, FOR THE NORTHERN DISTRICT OF CALIFORNIA,

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OAKLAND DIVISION

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MARLON WHITMORE,

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Plaintiff,

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v.

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LAW OFFICES OF

GEARY,
SHEA,
O’DONNELL,
GRATTAN &

MITCHELL
P.C.

CASE NO.: 4:13-cv-01408 PJH

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STIPULATED PROTECTIVE ORDER

TIMOTHY WILHELM, an individual; CHRIS
PETERS, an individual; JESUS AVINA, an
individual; THOMAS BOHANON, an
individual; MICHAEL CLARK, an individual;
JOSEPH HORSMAN, an individual; CHARLES
BLOUNT, an individual; and DOES 1-25,
inclusive,
Defendants.

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-1Stipulated Protective Order

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, 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 would 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

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protections on all disclosures or responses to discovery and that the protection it affords extends

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only to the limited information or items that are entitled under the applicable legal principles to

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treatment as confidential. The parties further acknowledge, as set forth in Section 10, below, that

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this Stipulated Protective Order creates no entitlement to file confidential information under seal;

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Civil Local Rule 79-5 sets forth the procedures that must be followed and reflects the standards that

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will be applied when a party seeks permission from the court to file material under seal.

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2.

DEFINITIONS

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2.1

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

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consultants, retained experts, and outside counsel (and their support staff).
2.2

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

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or manner generated, stored, or maintained (including, among other things, testimony, transcripts,

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or tangible things) that are produced or generated in disclosures or responses to discovery in this

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matter.
2.3

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“Confidential” Information or Items: information (regardless of how generated,

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stored or maintained) or tangible things that qualify for protection under standards developed under

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F.R.Civ.P. 26(c).

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2.4

“Highly Confidential – Attorneys’ Eyes Only” Information or Items: extremely

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LAW OFFICES OF

GEARY,
SHEA,
O’DONNELL,
GRATTAN &

MITCHELL
P.C.

sensitive “Confidential Information or Items” whose disclosure to another Party or nonparty would
create a substantial risk of serious injury that could not be avoided by less restrictive means.

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2.5

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

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Producing Party.

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-2Stipulated Protective Order

2.6

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Producing Party: a Party or non-party that produces Disclosure or Discovery

Material in this action.
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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” or “Highly Confidential —

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Attorneys’ Eyes Only.”
2.8

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“Confidential” or as “Highly Confidential – Attorneys’ Eyes Only.”
2.9

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

Outside Counsel: attorneys who are not employees of a Party but who are retained to

represent or advise a Party in this action.

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2.10

House Counsel: attorneys who are employees of a Party.

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2.11

Counsel (without qualifier): Outside Counsel and House Counsel (as well as their

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support staffs).
2.12

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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 and who is not a past or a current employee of a Party or of a competitor of

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a Party’s and who, at the time of retention, is not anticipated to become an employee of a Party or a

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competitor of a Party’s. This definition includes a professional jury or trial consultant retained in

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connection with this litigation.
2.13

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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; organizing,

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storing, retrieving data in any form or medium; etc.) and their employees and subcontractors.

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MITCHELL
P.C.

(as defined above), but also any information copied or extracted therefrom, as well as all copies,

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GEARY,
SHEA,
O’DONNELL,
GRATTAN &

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

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LAW OFFICES OF

3.

SCOPE

excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by

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parties or counsel to or in court or in other settings that might reveal Protected Material.

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-3Stipulated Protective Order

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4.

DURATION

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Even after the termination 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.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

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

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Designating Party must take care to designate for protection only those parts of material,

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

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material, documents, items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are 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

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on other parties), expose the Designating Party to sanctions.

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If it comes to a Party’s or a non-party’s attention that information or items that it designated

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for protection do not qualify for protection at all, or do not qualify for the level of protection

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initially asserted, that Party or non-party must promptly notify all other parties that it is

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withdrawing the mistaken designation.

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5.2

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

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

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that qualifies for protection under this Order must be clearly so designated before the material is

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disclosed or produced.

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LAW OFFICES OF

GEARY,
SHEA,
O’DONNELL,
GRATTAN &

MITCHELL
P.C.

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Designation in conformity with this Order requires:
(a) for information in documentary form (apart from transcripts of depositions or

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other pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” at the top of each page that contains
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-4Stipulated Protective Order

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protected material. If only a portion or portions of the material on a page qualifies for protection,

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the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins) and must specify, for each portion, the level of protection being

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asserted (either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY”).

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A Party or non-party that makes original documents or materials available for inspection

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need not designate them for protection until after the inspecting Party has indicated which material

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

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material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions thereof,

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qualify for protection under this Order, then, before producing the specified documents, the

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Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) at the top of each page that contains Protected

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Material. If only a portion or portions of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate

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markings in the margins) and must specify, for each portion, the level of protection being asserted

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(either “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”).

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(b) for testimony given in deposition or in other pretrial or trial proceedings, that the

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ONLY.” When it is impractical to identify separately each portion of testimony that is entitled to

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protection, and when it appears that substantial portions of the testimony may qualify for

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MITCHELL
P.C.

portions of the testimony that qualify as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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GEARY,
SHEA,
O’DONNELL,
GRATTAN &

the deposition, hearing, or other proceeding, all protected testimony, and further specify any

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LAW OFFICES OF

Party or non-party offering or sponsoring the testimony identify on the record, before the close of

protection, the Party or non-party that sponsors, offers, or gives the testimony may invoke on the

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record (before the deposition or proceeding is concluded) a right to have up to 20 days to identify

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the specific portions of the testimony as to which protection is sought and to specify the level of

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protection being asserted (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
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-5Stipulated Protective Order

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EYES ONLY”). Only those portions of the testimony that are appropriately designated for

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protection within the 20 days shall be covered by the provisions of this Stipulated Protective Order.

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Transcript pages containing Protected Material must be separately bound by the court

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reporter, who must affix to the top of each such page the legend “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” as instructed by the Party or nonparty offering

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or sponsoring the witness or presenting the testimony.
(c) for information produced in some form other than documentary, and for any

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

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

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only portions of the information

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or item warrant protection, the Producing Party, to the extent practicable, shall identify the

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protected portions, specifying whether they qualify as “Confidential” or as “Highly Confidential –

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Attorneys’ Eyes Only.”
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 as “Confidential” or “Highly Confidential – Attorneys’

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Eyes Only” does not, standing alone, waive the Designating Party’s right to secure protection under

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this Order for such material. If material is appropriately designated as “Confidential” or “Highly

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Confidential – Attorneys’ Eyes Only” after the material was initially produced, the Receiving Party,

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on timely notification of the designation, must make reasonable efforts to assure that the material is

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treated in accordance with the provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

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6.1

Timing of Challenges. Unless a prompt challenge to a Designating Party’s

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GEARY,
SHEA,
O’DONNELL,
GRATTAN &

MITCHELL
P.C.

economic burdens, or a later significant disruption or delay of the litigation, a Party does not waive

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LAW OFFICES OF

confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary

its right to challenge a confidentiality designation by electing not to mount a challenge promptly

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after the original designation is disclosed.

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-6Stipulated Protective Order

6.2

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Meet and Confer. A Party that elects to initiate a challenge to a Designating Party’s

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confidentiality designation must do so in good faith and must begin the process by conferring

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directly (in voice to voice dialogue; other forms of communication are not sufficient) with counsel

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for the Designating Party. In conferring, the challenging Party must explain the basis for its belief

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that the confidentiality designation was not proper and must give the Designating Party an

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opportunity to review the designated material, to reconsider the circumstances, and, if no change in

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designation is offered, to explain the basis for the chosen designation. A challenging Party may

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proceed to the next stage of the challenge process only if it has engaged in this meet and confer

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process first.
6.3

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Judicial Intervention. A Party that elects to press a challenge to a confidentiality

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designation after considering the justification offered by the Designating Party may file and serve a

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motion under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) that

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identifies the challenged material and sets forth in detail the basis for the challenge. Each such

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motion must be accompanied by a competent declaration that affirms that the movant has complied

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with the meet and confer requirements imposed in the preceding paragraph and that sets forth with

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specificity the justification for the confidentiality designation that was given by the Designating

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Party in the meet and confer dialogue.
The burden of persuasion in any such challenge proceeding shall be on the Designating

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Party. Until the court rules on the challenge, all parties shall continue to afford the material in

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question the level of protection to which it is entitled under the Producing Party’s designation.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL

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7.1

Basic Principles. A Receiving Party may use Protected Material that is disclosed or

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GEARY,
SHEA,
O’DONNELL,
GRATTAN &

MITCHELL
P.C.

defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to

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LAW OFFICES OF

produced by another Party or by a non-party in connection with this case only for prosecuting,

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 11, below (FINAL

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DISPOSITION).

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-7Stipulated Protective Order

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Protected Material must be stored and maintained by a Receiving Party at a location and in a
secure manner that ensures that access is limited to the persons authorized under this Order.
7.2

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:
(a) the Receiving Party’s Outside Counsel of record in this action, as well as

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employees of said Counsel to whom it is reasonably necessary to disclose the information for this

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litigation and who have signed the “Agreement to Be Bound by Protective Order” that is attached

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hereto as Exhibit A;
(b) the officers, directors, and employees (including House Counsel) of the

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Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed

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the “Agreement to Be Bound by Protective Order” (Exhibit A);
(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 “Agreement to Be Bound by

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Protective Order” (Exhibit A);

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(d) the Court and its personnel;

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(e) court reporters, their staffs, and professional vendors to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by

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Protective Order” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is reasonably

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necessary and who have signed the “Agreement to Be Bound by Protective Order” (Exhibit A).

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Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material

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

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permitted under this Stipulated Protective Order.
(g) the author of the document or the original source of the information.

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LAW OFFICES OF

GEARY,
SHEA,
O’DONNELL,
GRATTAN &

MITCHELL
P.C.

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7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items. Unless otherwise ordered by the court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY
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-8Stipulated Protective Order

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
(a) the Receiving Party’s Outside Counsel of record in this action, as well as

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employees of said Counsel to whom it is reasonably necessary to disclose the information for this

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litigation and who have signed the “Agreement to Be Bound by Protective Order” that is attached

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hereto as Exhibit A;
(b) Experts (as defined in this Order) (1) to whom disclosure is reasonably necessary

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for this litigation, (2) who have signed the “Agreement to Be Bound by Protective Order” (Exhibit

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A);

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(c) the Court and its personnel;

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(d) court reporters, their staffs, and professional vendors to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Agreement to Be Bound by

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Protective Order” (Exhibit A); and
(e) the author of the document or the original source of the information.

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8.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

OTHER LITIGATION.
If a Receiving Party is served with a subpoena or an order issued in other litigation that

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would compel disclosure of any information or items designated in this action as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” the

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Receiving Party must so notify the Designating Party, in writing (by fax, if possible) immediately

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and in no event more than three court days after receiving the subpoena or order. Such notification

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must include a copy of the subpoena or court order.
The Receiving Party also must immediately inform in writing the Party who caused the

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GEARY,
SHEA,
O’DONNELL,
GRATTAN &

MITCHELL
P.C.

subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must

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LAW OFFICES OF

subpoena or order to issue in the other litigation that some or all the material covered by the

deliver a copy of this Stipulated Protective Order promptly to the Party in the other action that

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caused the subpoena or order to issue.

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-9Stipulated Protective Order

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The purpose of imposing these duties is to alert the interested parties to the existence of this

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Protective Order and to afford the Designating Party in this case an opportunity to try to protect its

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confidentiality interests in the court from which the subpoena or order issued. The Designating

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Party shall bear the burdens and the expenses of seeking protection in that court of its confidential

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material – and nothing in these provisions should be construed as authorizing or encouraging a

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

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9.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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Material to any person or in any circumstance not authorized under this Stipulated Protective Order,

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

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

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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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10.

FILING PROTECTED MATERIAL. Without written permission from the

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Designating Party or a court order secured after appropriate notice to all interested persons, a Party

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may not file in the public record in this action any Protected Material. A Party that seeks to file

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under seal any Protected Material must comply with Civil Local Rule 79-5.

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11.

FINAL DISPOSITION. Unless otherwise ordered or agreed in writing by the

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or capturing any of the Protected Material. With permission in writing from the Designating Party,

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the Receiving Party may destroy some or all of the Protected Material instead of returning it.

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MITCHELL
P.C.

Material” includes all copies, abstracts, compilations, summaries or any other form of reproducing

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GEARY,
SHEA,
O’DONNELL,
GRATTAN &

must return all Protected Material to the Producing Party. As used in this subdivision, “all Protected

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LAW OFFICES OF

Producing Party, within sixty days after the final termination of this action, each Receiving Party

Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written

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certification to the Producing Party (and, if not the same person or entity, to the Designating Party)

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by the sixty day deadline that identifies (by category, where appropriate) all the Protected Material

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that was returned or destroyed and that affirms that the Receiving Party has not retained any copies,
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- 10 Stipulated Protective Order

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abstracts, compilations, summaries or other forms of reproducing or capturing any of the Protected

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

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pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney work product,

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even if such materials contain Protected Material. Any such archival copies that contain or

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constitute Protected Material remain subject to this Protective Order as set forth in Section 4

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(DURATION), above.

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12.

MISCELLANEOUS
12.1

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

person to seek its modification by the Court in the future.
12.2

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

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

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

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

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material covered by this Protective Order.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: January 27, 2014

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/s/
Benjamin Nisenbaum
BENJAMIN NISENBAUM
Attorneys for Plaintiff

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DATED: January 27, 2014

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/s/
Steven C. Mitchell
STEVEN C. MITCHELL
Attorneys for Defendants

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DATED: January 27, 2014

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LAW OFFICES OF

GEARY,
SHEA,
O’DONNELL,
GRATTAN &

MITCHELL
P.C.

/s
Caroline L. Fowler
Attorney for Defendants

PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: ____________
January 28, 2014

_____________________________________
UNITED STATES DISTRICT JUDGE

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- 11 Stipulated Protective Order

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EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of _________________

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[print or type full address], declare under penalty of perjury that I have read in its entirety and

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understand the Stipulated Protective Order that was issued by the United States District Court for

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the Northern District of California on [date] in the case of Marlon Whitmore v. Timothy Wilhelm, et

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al, C 13 01408 PJH. I agree to comply with and to be bound by all the terms of this Stipulated

9

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

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

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

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

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

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Northern District of California for the purpose of enforcing the terms of this Stipulated Protective

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Order, even if such enforcement proceedings occur after termination of this action.

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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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LAW OFFICES OF

GEARY,
SHEA,
O’DONNELL,
GRATTAN &

MITCHELL
P.C.

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- 12 Stipulated Protective Order