Benedict v. Hewlett-Packard Company
Filing
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Order by Hon. Lucy H. Koh granting 37 Stipulated Protective Order.(lhklc2, COURT STAFF) (Filed on 5/1/2013)
Case5:13-cv-00119-LHK Document37 Filed04/29/13 Page1 of 20
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Wendy M. Lazerson, SBN 97285
wlazerson@sidley.com
Caryn F. Horner, SBN 273500
chorner@sidley.com
SIDLEY AUSTIN LLP
1001 Page Mill Road
Building 1
Palo Alto, California 94304
Telephone: (650) 565-7000
Facsimile: (650) 565-7100
Attorneys for Defendant Hewlett-Packard Company
Kelly M. Dermody (Cal. Bar No. 171716)
Jahan C. Sagafi (Cal. Bar No. 224887)
Marc A. Pilotin (Cal. Bar No. 266369)
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
E-Mail: kdermody@lchb.com
E-Mail: jsagafi@lchb.com
E-Mail: mpilotin@lchb.com
Attorneys for Plaintiff and proposed Class Members
[additional counsel on signature page]
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
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ERIC BENEDICT, on behalf of himself and
classes of those similarly situated,
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Plaintiff,
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STIPULATED AND [PROPOSED]
PROTECTIVE ORDER GOVERNING
DISCOVERY
v.
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Case No. C13-0119-LHK
HEWLETT-PACKARD COMPANY,
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Defendant.
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1.
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
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 Stipulated Protective
Order. The parties acknowledge that this Order does not confer blanket protections on all
disclosures or responses to discovery and that the protection it affords from public disclosure and
use extends only to the limited information or items that are entitled to confidential treatment under
the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below,
that this Stipulated Protective Order does not entitle them to file confidential information under
seal; Civil Local Rule 79-5 and General Order 62 set forth the procedures that must be followed
and the standards that will be applied when a party seeks permission from the court to file material
under seal.
2.
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2.2
Civil Procedure 26(c) or other applicable law.
2.3
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2.4
Designating Party: a Party or Non-Party that designates information or items that it
produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” each such designation a “Designation.”
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Counsel: Outside Counsel of Record and In-House Counsel (as well as their support
staff).
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“CONFIDENTIAL” Information or Items: information (regardless of how it is
generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of
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Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
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DEFINITIONS
2.1
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PURPOSES AND LIMITATIONS
Disclosure or Discovery Material: all items or information, regardless of the medium
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
discovery in this matter.
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the litigation who (a) has been retained by a Party or its counsel to serve as an expert witness or as a
consultant in this action, (b) is not a past or current employee of a Party or of a Party’s competitor,
and (c) at the time of retention, is not anticipated to become an employee of a Party or of a Party’s
competitor.
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Non-Party would create a substantial risk of serious harm that could not be avoided by less
restrictive means.
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2.9
behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
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storing, or retrieving data in any form or medium) and their employees and subcontractors.
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Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL” or as “HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES ONLY.”
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Professional Vendors: persons or entities that provide litigation support services
(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,
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Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this action.
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Party: any party to this action, including all of its officers, directors, employees,
consultants, Experts, and Outside Counsel of Record (and their support staffs).
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Outside Counsel of Record: attorneys who are not employees of a party to this action
but are retained to represent or advise a party to this action and have appeared in this action on
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Non-Party: any natural person, partnership, corporation, association, or other legal
entity who is not a Party.
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“HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES ONLY” Information or Items:
extremely sensitive “Confidential Information or Items,” disclosure of which to another Party or
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Expert: a person with specialized knowledge or experience in a matter pertinent to
Receiving Party: a Party that receives Disclosure or Discovery Material from a
Producing Party.
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3.
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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. 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.
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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 prejudice; and (2) final judgment herein after the completion and
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exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time
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limits for filing any motions or applications for extension of time pursuant to applicable law.
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This section incorporates and does not diminish the effect of section 7.1.
5.
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DESIGNATING PROTECTED MATERIAL
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. To the
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extent it is practical to do so, the Designating Party must designate for protection only those parts of
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material, documents, items, or oral or written communications that qualify; so that other portions of
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the material, documents, items, or communications for which protection is not warranted are not
swept unjustifiably within 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
encumber or retard the case development process or to impose unnecessary expenses and burdens on
other parties) expose the Designating Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it designated for
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protection do not qualify for protection at all or do not qualify for the level of protection initially
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asserted, that Designating Party must promptly notify all other parties that it is withdrawing the
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mistaken designation.
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5.2
Manner and Timing of Designations. Except as otherwise provided in this Order
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(see, e.g., second paragraph of Section 5.2(a) below), or as otherwise stipulated or ordered,
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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
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designated before the material is disclosed or produced.
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Designation in conformity with this Order requires:
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(a) for information in documentary form (e.g., paper or electronic documents, but
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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party
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affixes the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES
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ONLY” to each page that contains protected material. If only a portion or portions of the material
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on a page qualifies for protection, the Producing Party also must clearly identify the protected
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portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion,
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the level of protection being asserted.
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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 it
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would like copied and produced. During the inspection and before the designation, all of the material
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made available for inspection shall be deemed “HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES
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ONLY.” After the inspecting Party has identified the documents it wants copied and produced, the
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Producing Party must determine which documents, or portions thereof, qualify for protection under
this Order. Then, before producing the specified documents, the Producing Party must affix the
appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES
ONLY”) to each page that contains Protected Material. If only a portion or portions of the material
on a page qualifies for protection, the Producing Party also must clearly identify the protected
portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion,
the level of protection being asserted.
(b) for testimony given in deposition or in other pretrial or trial proceedings, that
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the Designating Party identifies on the record, before the close of the deposition, hearing, or other
proceeding, all protected testimony and specify the level of protection being asserted. When it is
impractical to identify separately each portion of testimony that is entitled to protection and it
appears that substantial portions of the testimony may qualify for protection, the Designating Party
may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right
to have up to twenty-one (21) days from receipt of the official transcript to identify the specific
portions of the testimony as to which protection is sought and to specify the level of protection
being asserted. Only those portions of the testimony that are appropriately designated for protection
within such 21-day period deemed to be covered by any designation so made. Alternatively, a
Designating Party may specify, at the deposition or up to twenty-one (21) days after receipt of the
official transcript if that period is properly invoked, that the entire transcript shall be treated as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES ONLY.”
Parties shall give the other parties notice if they reasonably expect a deposition, hearing or
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other proceeding to include Protected Material so that the other parties can ensure that only
authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition
shall not in any way affect its Designation.
Transcripts containing Protected Material shall have an obvious legend on the title page that
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the transcript contains Protected Material, and the title page shall be followed by a list of all pages
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(including line numbers as appropriate) that have been designated as Protected Material and the level
of protection being asserted by the Designating Party. The Designating Party shall inform the court
reporter of these requirements. Before the expiration of the 21-day period for designation, any
transcript shall be treated during that period as if it had been designated “HIGHLY
CONFIDENTIAL–ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After the
expiration of that period, the transcript shall be treated only as actually designated.
(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
container or containers in which the information or item is stored the legend “CONFIDENTIAL”
or “HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES ONLY.” If only a portion or portions of
the information or item warrant protection, the Producing Party, to the extent practicable, shall
identify the protected portion(s) and specify the level of protection being asserted.
5.3
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designate qualified information or items does not, standing alone, waive the Designating Party’s
right to secure protection under this Order for such material. Upon timely correction of a
designation, the Receiving Party must make reasonable efforts to assure that the material is treated in
accordance with the provisions of this Order.
6.
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Timing of Challenges. Any Party may challenge a Designation at any time. Unless a
prompt challenge to a Designating Party’s Designation is necessary to avoid foreseeable, substantial
unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a
Party does not waive its right to challenge a Designation by electing not to mount a challenge
promptly after the Designation is disclosed.
6.2
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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
Meet and Confer. The Challenging Party shall initiate the dispute resolution process
by providing written notice of each Designation it is challenging and describing the basis for each
challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must
recite that the challenge to the Designation 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
begin the process by conferring directly (in voice-to-voice dialogue; other forms of communication
are not sufficient) within fourteen (14) days of the date of service of notice. In conferring, the
Challenging Party must explain the basis for its belief that the Designation was not proper and must
give the Designating Party an opportunity to review the designated material, to reconsider the
circumstances and, if no change in Designation is offered, to explain the basis for the chosen
Designation. A Challenging Party may proceed to the next stage of the challenge process only if it
has engaged in this meet and confer process first or establishes that the Designating Party is
unwilling to participate in the meet and confer process in a timely manner.
6.3
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intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil
Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if applicable)
within twenty-one (21) days of the initial notice of the challenge or within fourteen (14) days of the
parties agreeing that the meet and confer process will not resolve their dispute, whichever is later,
but in no event thirty (30) days from the initial notice of the challenge. Each such motion must be
accompanied by a competent declaration affirming that the movant has complied with the meet and
confer requirements imposed in the preceding paragraph. Failure by the Designating Party to make
such a motion including the required declaration within the timeframe set forth above shall
automatically waive the confidentiality designation for each challenged designation. In addition, the
Challenging Party may file a motion challenging a confidentiality designation at any time if there is
good cause for doing so, including a challenge to the designation of a deposition transcript or any
portions thereof. Any motion brought pursuant to this provision must be accompanied by a
competent declaration affirming that the movant has complied with the meet and confer
requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the Designating
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Judicial Intervention. If the Parties cannot resolve a challenge without court
Party. Unless the Designating Party has waived the confidentiality designation by failing to file a
motion to retain confidentiality as described above, 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 until
the court rules on the challenge.
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7.1
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defending, or attempting bilaterally or through a mediator to settle this litigation. Such Protected
Material may be disclosed only to the categories of persons and under the conditions described in
this Order. When the litigation has been terminated, a Receiving Party must comply with the
provisions of Section 13 below (FINAL DISPOSITION).
7.2
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7.3
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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
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
information for this litigation and who have signed the “Acknowledgment and Agreement to Be
Bound” that is attached hereto as Exhibit A;
(b) the officers, directors, and employees (including In-House Counsel) of the
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Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed
the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
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Protected Material must be stored and maintained by a Receiving Party at a location
and in a secure manner1 that ensures that access is limited to the persons authorized under this Order.
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Basic Principles. A Receiving Party may use Protected Material that is disclosed or
produced by another Party or by a Non-Party in connection with this case only for prosecuting,
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ACCESS TO AND USE OF PROTECTED MATERIAL
reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement
to Be Bound” (Exhibit A);
(d) the court and its personnel;
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It may be appropriate under certain circumstances to require the Receiving Party to store any electronic Protected
Material in password-protected form.
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(e) court reporters and their staff, professional jury or trial consultants, and
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Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is
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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of
transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be
separately bound by the court reporter and may not be disclosed to anyone except as permitted
under this Stipulated Protective Order.
(g) the author or ordinary course recipient of a document containing the information
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or a custodian or other person who otherwise possessed or knew the information in the ordinary
course.
7.4
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Information or Items. Unless otherwise ordered by the court or permitted in writing by the
Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY
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 Outside Counsel of Record to whom it is reasonably necessary to disclose the
information for this litigation;
(b) In-House Counsel of the Receiving Party to whom disclosure is reasonably
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necessary for this litigation and who has signed the “Acknowledgment and Agreement to Be
Bound” that is attached hereto as Exhibit A.
(c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary
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Disclosure of “HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES ONLY”
for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A), and (3) as to whom the procedures set forth in Section 7.5, below, have been followed;
(c) the court and its personnel;
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(d) court reporters and their staff, professional jury or trial consultants, and
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Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
(e) the author or ordinary course recipient of a document containing the information
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or a custodian or other person who otherwise possessed or knew the information in the ordinary
course.
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CONFIDENTIAL–ATTORNEYS’ EYES ONLY” to Certain Experts.
(a) Unless otherwise ordered by the court or agreed to in writing by the Designating
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Procedures for Approving or Objecting to Disclosure of “HIGHLY
Party, a Party that seeks to disclose to an Expert (as defined in this Order) who has worked as a
consultant, advisor, employee, or contractor for any of the entities (including any known subsidiaries
or affiliates of such entities) who appear on a list to be provided by HP as a Highly Confidential –
Attorneys Eyes’ Only Document (collectively “Competitive Entities”) within three years of the date
of the proposed disclosure, any information or item that has been designated “HIGHLY
CONFIDENTIAL–ATTORNEYS’ EYES ONLY” pursuant to Section 7.4(b) first must make a
written request to the Designating Party that (i) identifies the general categories of “HIGHLY
CONFIDENTIAL–ATTORNEYS’ EYES ONLY” information that the Receiving Party seeks
permission to disclose to the Expert, (ii) sets forth the full name of the Expert and the city and state
of his or her primary residence, (iii) attaches a copy of the Expert’s current resume, (iv) identifies the
Expert’s current employer(s), (v) identifies each person or entity from whom the Expert has received
compensation or funding for work in his or her areas of expertise or to whom the expert has provided
professional services, including in connection with a litigation, at any time during the preceding
three years, (vi) specifies the work, advise, and/or professional services that the Expert provided to
any Competitive Entity, and (vii) identifies (by name and number of the case, filing date, and
location of court) any litigation in connection with which the Expert has offered expert testimony,
including through a declaration, report, or testimony at a deposition or trial, during the preceding
three years. For purposes of this section, the Party seeking to retain a consultant or expert shall be
entitled to supply the proposed expert with the list of Competitive Entities in order for the consultant
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or expert and the Party to comply with the terms of this paragraph. Before supplying the list, the
Party seeking to retain the proposed Expert will obtain such proposed Expert’s agreement to
maintain the list’s confidentiality.
(b) A Party that makes a request and provides the information specified in the
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preceding respective paragraphs may disclose the subject Protected Material to the identified
Expert unless, within fourteen (14) days of delivering the request, the Party receives a written
objection from the Designating Party. Any such objection must set forth in detail the grounds on
which it is based.
(c) A Party that receives a timely written objection must meet and confer with the
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Designating Party (through direct voice-to-voice dialogue) to try to resolve the matter by agreement
within seven (7) days of the written objection. If no agreement is reached, the Party seeking to make
the disclosure to the Expert may file a motion as provided in Civil Local Rule 7 (and in compliance
with Civil Local Rule 79-5 and General Order 62, if applicable) seeking permission from the court to
do so. Any such motion must describe the circumstances with specificity, assess the risk of harm that
the disclosure would entail, and suggest any additional means that could be used to reduce that
risk. In addition, any such motion must be accompanied by a competent declaration describing the
parties’ efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and
confer discussions) and setting forth the reasons advanced by the Designating Party for its refusal to
approve the disclosure. In any such proceeding, the Party opposing disclosure to the Expert shall
bear the burden of proving that the risk of harm that the disclosure would entail (under the
safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected Material to its
Expert.
8.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
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If a Party or Non-Party is served with a subpoena or a court order issued in other
litigation that compels disclosure of any information or items designated in this action as
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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES ONLY,” that Party or
Non-Party must:
(a) promptly notify in writing the Designating Party. Such notification shall include
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a copy of the subpoena or court order;
(b) 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 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.
8.2
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If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this action as
“CONFIDENTIAL or” “HIGHLY CONFIDENTIAL–ATTORNEYS’ EYES ONLY” before a
determination by the court from which the subpoena or order issued, unless the Party has obtained
the Designating Party’s permission. The Designating Party shall bear the burden and expense of
seeking protection in that court of its confidential material and nothing in these provisions should be
construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive
from another court.
9.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
THIS LITIGATION
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9.1
21
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 or” “HIGHLY CONFIDENTIAL–ATTORNEYS’
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EYES ONLY.” Such information produced by Non-Parties in connection with this litigation is
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protected by the remedies and relief provided by this Order. Nothing in these provisions should be
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construed as prohibiting a Non-Party from seeking additional protections.
9.2
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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:
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(a) 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;
(b) promptly provide the Non-Party with a copy of the Stipulated Protective Order
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in this litigation, the relevant discovery request(s), and a reasonably specific description of the
information requested; and
(c) make the information requested available for inspection by the Non-Party.
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9.3
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fourteen (14) days of receiving the notice and accompanying information, the Receiving Party may
produce the Non-Party’s confidential information responsive to the discovery request. If the NonParty timely seeks a protective order, the Receiving Party shall not produce any information in its
possession or control that is subject to the confidentiality agreement with the Non-Party before a
determination by the court.2 Absent a court order to the contrary, the Non-Party shall bear the burden
and expense of seeking protection in this court of its Protected Material.
10.
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Material to any person or in any circumstance not authorized under this Stipulated Protective Order,
the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c)
inform the person or persons to whom unauthorized disclosures were made of all the terms of this
Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to
Be Bound” that is attached hereto as Exhibit A.
11.
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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
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If the Non-Party fails to object or seek a protective order from this court within
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
11.1
Definition of “Privileged Material”. Privileged Material is any information protected
by a privilege defined under Rule 501 of the Federal Rules of Evidence or applicable law.
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2
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The purpose of this provision is to alert the interested parties to the existence of the confidentiality rights of a NonParty and to afford the Non-Party an opportunity to protect its confidentiality interests in this court.
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11.2
2
(a) Producing Party: A Designating Party that discovers it has disclosed Privileged
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Material (“Disclosed Privileged Material”) through its own discovery shall notify the Receiving
Party that it wishes to preserve the protection of the Disclosed Privileged Material.
(b) Receiving Party: If the Receiving Party receives material it knows to be
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Privileged, the Receiving Party shall notify the Designating Party, in writing by overnight mail,
courier, hand delivery, electronic mail or facsimile, as soon as possible and no later than within
fifteen (15) business days of the discovery of such material. The Receiving Party shall provide a
copy or the production identification number of the material it knows to be Privileged. The
Receiving Party shall not use or disclose such material to anyone for any purpose following its
discovery of the material pending the Designating Party’s response to the notification or the
expiration of the fifteen (15) business day period described below.
11.3
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telephone, in person, overnight mail, courier, hand delivery, electronic mail or facsimile), within
those fifteen (15) business days that it wishes to preserve the protection of the Disclosed Privileged
Material, then the protection of the Disclosed Privileged Material is preserved in accordance with
Rule 502(d) of the Federal Rules of Evidence. In the notification, the Designating Party shall
instruct the Receiving Party either to return or destroy the Disclosed Privileged Material and all
copies thereof.
(b) Upon receipt of a notification from the Designating Party that it wishes to
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Procedure After Notification.
(a) If the Designating Party notifies the Receiving Party, in any manner (e.g. via
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Notification.
preserve the protection of the Disclosed Privileged Material, the Receiving Party shall, within
fifteen (15) business days, return or destroy the Disclosed Privileged Material and any material
reflecting or referring to the information contained in the Disclosed Privileged Material in
accordance with the Designating Party’s instructions, and provide a certification of counsel of
record that all such materials have been returned or destroyed. If any material reflecting the
information contained in the Disclosed Privileged Material cannot practicably be returned or
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destroyed, then the Parties shall agree upon a reasonable means by which the protection of the
Disclosed Privileged Material shall be preserved or, if unable to agree on the means to be used,
bring the question before the Court for resolution.
(c) Within thirty (30) business days of the notification that such Disclosed
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8
Privileged Material has been returned or destroyed, the Designating Party shall produce a privilege
log with respect to the Disclosed Privileged Material that was returned or destroyed to the extent it
has not already done so.
11.4
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10
11
12
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discloses Disclosed Privileged Material, such disclosure shall not constitute or be deemed a waiver
or forfeiture of any claim of privilege or protection that the Designating Party would be entitled to
assert with respect to the disclosed Privileged Material in this Court or in any other proceeding.
Instead, any Disclosed Privileged Material and its subject matter shall be treated as if there had been
no disclosure for all purposes.
11.5
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16
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18
19
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specific contents of the Disclosed Privileged Material shall be filed under seal, pursuant to Civil
Local Rule 79-5. The Receiving Party shall not assert as a ground for entering such an order the fact
or circumstances of the disclosure of the Disclosed Privileged Material in connection with this
adversary action.
11.6
12.
28
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
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Consistency. Section 11 shall be interpreted in a manner consistent with Federal Rule
of Civil Procedure 26(b)(5)(B).
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Motion to Compel Production. The Disclosed Privileged Material itself may be
submitted to the Court if filed under seal, and any argument that discusses, refers to, or discloses the
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No Waiver of Privilege. If, in connection with this litigation, the Designating Party
Right to Assert Other Objections. By stipulating to the entry of this Protective Order
no Party waives any right it otherwise would have to object to disclosing or producing any
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
this Protective Order.
12.3
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6
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8
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10
11
12
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a court order secured after appropriate notice to all interested persons, a Party may not file in the
public record in this action any Protected Material. A Party that seeks to file under seal any Protected
Material must comply with Civil Local Rule 79-5 and General Order 62. Protected Material may
only be filed under seal pursuant to a court order authorizing the sealing of the specific Protected
Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a sealing order will be
issued only upon a request establishing that the Protected Material at issue is privileged, protectable
as a trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to
file Protected Material under seal pursuant to Civil Local Rule 79-5(d) and General Order 62 is
denied by the court, then the Receiving Party may file the Protected Material in the public record
pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court.
13.
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FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in Section 4, each
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Filing Protected Material. Without written permission from the Designating Party or
Receiving Party must return all Protected Material to the Producing Party or destroy such material.
As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
summaries, and any other format reproducing or capturing any of the Protected Material. Whether
the Protected Material is returned or destroyed, the Receiving Party must submit a written
certification to the Producing Party (and, if not the same person or entity, to the Designating Party)
by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protected Material
that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies,
abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected
Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant
and expert work product, even if such materials contain Protected Material. Any such archival copies
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that contain or constitute Protected Material remain subject to this Protective Order as set forth in
Section 4 (DURATION).
IT IS SO STIPULATED.
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Dated: April 29, 2013
6
SIDLEY AUSTIN LLP
By:
/s/ Wendy M. Lazerson
Wendy M. Lazerson
7
Wendy M. Lazerson (Cal. Bar No. 97285)
Caryn F. Horner (Cal. Bar No. 273500)
1001 Page Mill Road
Building 1
Palo Alto, California 94304
Telephone: (650) 565-7000
Facsimile: (650) 565-7100
E-Mail: wlazerson@sidley.com
E-Mail: chorner@sidley.com
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Attorneys for Defendant Hewlett-Packard Company
Dated: April 29, 2013
LIEFF CABRASER HEIMANN & BERNSTEIN, LLP
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By:
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/s/ Jahan C. Sagafi
Jahan C. Sagafi
Kelly M. Dermody (Cal. Bar No. 171716)
Jahan C. Sagafi (Cal. Bar No. 224887)
Marc A. Pilotin (Cal. Bar No. 266369)
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
E-Mail: kdermody@lchb.com
E-Mail: jsagafi@lchb.com
E-Mail: mpilotin@lchb.com
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Adam T. Klein (admitted pro hac vice)
Juno Turner (admitted pro hac vice)
OUTTEN & GOLDEN LLP
3 Park Avenue, 29th Floor
New York, New York 10016
Telephone: (212) 245-1000
Fax: (212) 977-4005
E-Mail: atk@outtengolden.com
E-Mail: jturner@outtengolden.com
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Attorneys for Plaintiff and proposed Class Members
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PURSUANT TO STIPULATION, IT IS SO ORDERED.
2
May 1
Dated: ____________, 2013
THE HONORABLE LUCY H. KOH
UNITED STATES DISTRICT JUDGE
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7
ATTESTATION
8
Pursuant to Civil Local Rule 5-1(i)(3), the filer of this document attests that concurrence in
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the filing of this document has been obtained from the other signatory above.
Dated: April 29, 2013
By:
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/s/ Jahan C. Sagafi
Jahan C. Sagafi
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EXHIBIT A
2
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
I, _____________________________ [print or type full name], of
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13
_________________ [print or type full address], declare under penalty of perjury that I have read
in its entirety and understand the Stipulated Protective Order that was issued by the United States
District Court for the Northern District of California on [date] in the case of Benedict v. HewlettPackard Company, Case No. C13-0119-LHK (N.D. Cal. 2013). I agree to comply with and to be
bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that
failure to so comply could expose me to sanctions and punishment in the nature of contempt. I
solemnly promise that I will not disclose in any manner any information or item that is subject to
this Stipulated Protective Order to any person or entity except in strict compliance with the
provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the
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16
Northern District of California for the purpose of enforcing the terms of this Stipulated Protective
Order, even if such enforcement proceedings occur after termination of this action.
I hereby appoint __________________________ [print or type full name] of
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_______________________________________ [print or type full address and telephone number]
as my California agent for service of process in connection with this action or any proceedings
related to enforcement of this Stipulated Protective Order.
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Date: _________________________________
City and State where sworn and signed: _________________________________
Printed name: ______________________________
[printed name]
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Signature: __________________________________
[signature]
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STIPULATED AND [PROPOSED] PROTECTIVE ORDER - GOVERNING DISCOVERY - CASE NO. 13-0119 LHK
SF1 1951045v.1
1094007.5
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