Ingalsbe v. Henderson Health Facilities, L.P. et al

Filing 24

MEMORANDUM OPINION AND ORDER Signed by Magistrate Judge H. Brent Brennenstuhl on 3/24/2017 granting in part and denying in part 21 Motion for Protective Order: To the extent that Henderson Health seeks a protective order as to the confidentia l documents it intends to produce to Ingalsbe, Henderson Health's motion for a protective order (DN 21 ) is GRANTED. To the extent that Henderson Health seeks the Court's approval of its proposed protective order, Henderson Healths mot ion for a protective order (DN 21 ) is DENIED. The parties are directed to confer and submit an agreed protective order to the undersigned by no later than 4/14/2017. Henderson Health shall produce the documents to Ingalsbe within five days of entry of the agreed protective order. cc: Counsel (JBM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
CIVIL ACTION NO. 4:16-CV-00070-JHM
LINDA INGALSBE, as Personal
Representative of the Estate of
Mae Jarvis, Deceased

PLAINTIFF

VS.
HENDERSON HEALTH FACILITIES, L.P.
d/b/a Henderson Nursing and Rehabilitation
Center and HENDERSON HEALTH
FACILITIES GP, LLC

DEFENDANTS

MEMORANDUM, OPINION
AND ORDER
BACKGROUND
Defendants, Henderson Health Facilities, L.P. d/b/a Henderson Nursing and
Rehabilitation Center and Henderson Health Facilities GP, LLC (“Henderson Health”), have
moved the Court for entry of a protective order pursuant to Fed.R.Civ.P. 26(c)(1)(G), and
requested a hearing (DN 21). Plaintiff, Linda Ingalsbe, as personal representative of the estate of
Mae Jarvis, deceased, has filed a memorandum in opposition (DN 22). Henderson Health has
filed a reply memorandum (DN 23).

NATURE OF THE MOTION
Henderson Health seeks entry of a protective order addressing the documents that are
responsive to Ingalsbe’s first requests for production of documents (DN 21). Henderson Health
explains that the documents contain confidential business information and confidential personal
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information pertaining to its employees (Id.). Henderson Health asserts that the responsive
documents include, but are not limited to, employee personal files; contracts with service
providers; training and attendance records; company policies, procedures and guidelines;
compensation structures; cost reports; and any documentation regarding Mae Jarvis’s residency
at the facility (Id.). Henderson Health explains that defense counsel alerted opposing counsel of
the need for a protective order as soon as defense counsel received and reviewed the documents
(Id.). Henderson Health seeks a protective order that merely limits the use of these documents to
this litigation because any use or dissemination of this confidential information outside this
litigation would prejudice Henderson Health and its employees, as it would allow Henderson
Health’s competitors to view confidential information concerning Henderson Health’s business
practices. Henderson Health further argues unfettered dissemination of the documents would
allow the public to view this information which could improperly open up Henderson Health to
further litigation (Id.). Henderson Health has submitted a proposed protective order that in
pertinent part reads as follows:
It is hereby ORDERED that information to be produced or
otherwise made available by the Defendants shall be subject to a
Protective Order and the Defendant shall, without compromising
the information in the documents, marked the documents as
Confidential and for use in this case. All documents produced
subject to a Protective Order shall be for use by Plaintiff and her
attorneys and staff in this case only and may be given only to the
parties in this action, their counsel and staff, as necessary, and
witnesses, as necessary, in the prosecution and defense of this case,
unless otherwise agreed upon by counsel for both parties.
(DN 21-1). Henderson Health requests a hearing on its motion (DN 21).
Ingalsbe asks the Court to deny Henderson Health’s motion for a protective order as
untimely (DN 22). Ingalsbe accuses Henderson Health of proposing an agreed protective order

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merely to delay the discovery process (Id.). Ingalsbe contends that Henderson Health could have
proposed an agreed protective order months ago because it knew or should have known that the
documents requested may be confidential (Id.). Ingalsbe points out that Henderson Health
refuses to produce any documents, even Ms. Jarvis’ medical chart, until the Court rules on the
protective order motion (Id.). Additionally, Ingalsbe argues the motion should be denied because
Henderson Health has failed to show that disclosure of these documents would cause a “clearly
defined and very serious injury” (Id. citing Owens v. Liberty Life Assur. Co., No. 4:15-CV00071, 2016 U.S. Dist. LEXIS 115477, at *6-7 (W.D. Ky. Aug. 29, 2016)). Ingalsbe contends
that Henderson Health is made only vague and conclusory allegations that production of the
requested documents will put it at a competitive disadvantage or subjected to further litigation
(Id.). Ingalsbe asserts that a hearing is not necessary and the Court should rule on the motion
based on the memoranda submitted by the parties (Id.).
In reply, Henderson Health asserts that the documents to be produced contain
“confidential business information” concerning the facility’s operation, its financial condition, its
financial agreements with third parties, its employees, and company practices (DN 23 citing
Owens, 2016 U.S. Dist. LEXIS 115477, at *6-7). Henderson Health contends that “good cause”
exists for entry of the proposed protective order because if any of the documents are
disseminated outside this litigation there would be nothing to stop the public at large and its
competitors from using the documents for their own litigious and competitive advantage (Id.).
Henderson Health asserts that the public could use these documents in an attempt to bring
frivolous claims against Henderson Health and that it would have to expend time and money to
defend against such claims (Id.). Further, competing businesses would be able to use the
information to destroy any competitive advantage that Henderson Health may have in the

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industry (Id.). Henderson Health points out that the proposed protective order does not limit the
scope of discovery, rather, it merely requires that the documents only be used in this litigation
(Id.). Henderson Health asserts that defense counsel could not seek a protective order before
receiving and reviewing the documents from Henderson Health (Id.).

Henderson Health

contends that defense counsel contacted opposing counsel about the need for a protective order
as soon as defense counsel determined that the information warranted protection from public
dissemination (Id.). Therefore, Henderson Health argues, it has not waived the right to seek
protection of the documents and it’s motion is not untimely (Id.). Henderson Health asserts that
due to the highly contested nature of this dispute a hearing with oral argument should be
conducted (Id.).

DISCUSSION
Henderson Health is seeking an order that will allow it to designate the documents it
intends to produce to Ingalsbe as confidential while in the hands of the parties during the case.
Consequently, the motion presently before the Court does not implicate the scope or relevance of
Ingalsbe’s document requests or the withholding of documents on claim of privilege. Rather, it
only deals with the confidentiality of documents that Henderson Health proposes to produce in
response to Ingalsbe’s document requests. Thus, Ingalsbe’s contentions about the timeliness of
the motion, the absence of specific objections to each document request, and the failure to raise a
privilege and provide a privilege log are misplaced. The substantive consideration here is
whether Henderson Health has sufficiently demonstrated entitlement to such an order.
This Court has observed that:
Pursuant to Rule 26(c), the Court may enter a protective order "for
good cause shown" to protect a party by requiring that confidential
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material not be revealed or be revealed only in a designated
manner. When a business seeks protection of a trade secret or of
commercial information under Rule 26(c), it must show that
disclosure would cause "clearly defined and very serious injury."
Waelde v. Merck, Sharp & Dohme, 94 F.R.D. 27, 28 (E.D. Mich.
1981). "[V]ague and conclusory allegations of confidentiality and
competitive harm are insufficient. The movant must make 'a
particularized showing that the information sought is confidential'
and come forth with 'specific examples' of competitive harm." Id.
(quoting Parsons v. General Motors Corp., 85 F.R.D. 724, 726
(N.D. Georgia 1980)). In sum, in order to satisfy Rule 26(c), [the
movant] must show that (1) the interest for which protection is
sought is an actual trade secret or other confidential business
information, and (2) there is good cause for the entry of a
protective order.
Mitchell v. Home Depot U.S.A., No. 3:11-CV-332, 2012 U.S. Dist. LEXIS 82562, at *4-5 (W.D.
Ky. June 13, 2013).
The Court has wide discretion in weighing any relevant factors and deciding whether to
issue a protective order. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 787 (3d Cir. 1994).
In its motion, Henderson Health has indicated that the documents include, but are not
limited to “employee personal files; contracts with service providers; training and attendance
records; company policies, procedures, and guidelines; compensation structures; cost reports;
and any documentation regarding Ms. Jarvis’s residency at the facility” (DN 21). Henderson
Health has asserted that the documents contain detailed information concerning the facility’s
operation, its financial condition, its financial agreements with third parties, its employees, and
company practices (DN 23).

Henderson Health explains that information within these

documents qualify as “confidential business information,” because it concerns details of
Henderson Health’s operation, from statements of its performance, the policies of how that
performance is to be achieved, and information concerning the people who are responsible for
that performance (Id.). Henderson Health further explains that the information within these

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documents provide an inside look into its business at every level (Id.). Clearly, the identified
document categories do involve confidential business information. The documentation regarding
Ms. Jarvis’s residency are subject to federal and/or state law that restricts the dissemination of
such records. Thus, Henderson Health has demonstrated the interest for which protection is
sought is confidential business information.
Public dissemination of any of the classes of documents identified above could have an
adverse impact on Henderson Health. Competing businesses would be able to see the details of
Henderson Health’s business and finances, and to utilize that information to obtain an unfair
competitive advantage over Henderson Health in the industry. Current or former employees may
have a basis for bringing a lawsuit against Henderson Health if their private information is
publicly disseminated. Further, Henderson Health might be at risk for federal and/or state fines
if it fails to take adequate steps to protect the confidentiality/privacy of the records regarding Ms.
Jarvis’s residency at the facility. Thus, Henderson Health has demonstrated good cause for entry
of a protective order with regard to the documents it proposes to produce to Ingalsbe.
This order only concludes that Henderson Health has succeeded in its motion to
sufficiently demonstrate that the document categories identified are confidential commercial
information for which disclosure will cause a clearly defined and very serious injury and that
there is good cause for entry of a protective order. The undersigned observes that Henderson
Health’s proposed protective order fails to address a number of important matters such as
appropriate storage of the documents, deposition testimony concerning the documents, disclosure
of the documents to experts, challenging the confidential designation of certain documents, and
the procedures regarding the documents that will be followed upon conclusion of the case. For
this reason, the parties are directed to confer regarding an appropriate agreed protective order in

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this case. The undersigned has attached a draft protective order that the parties may find helpful
in reaching an accord regarding the provisions that will be included within their agreed
protective order. Finally, the undersigned concludes that a hearing will not be necessary to
address this matter.

ORDER
IT IS HEREBY ORDERED that Henderson Health’s motion for a protective order (DN
21) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that to the extent that Henderson Health seeks a
protective order as to the confidential documents it intends to produce to Ingalsbe, Henderson
Health’s motion for a protective order (DN 21) is GRANTED.
IT IS FURTHER ORDERED that to the extent that Henderson Health seeks the Court’s
approval of its proposed protective order, Henderson Health’s motion for a protective order (DN
21) is DENIED.
IT IS FURTHER ORDERED that the parties are directed to confer and submit an
agreed protective order to the undersigned by no later than April 14, 2017.
IT IS FURTHER ORDERED that Henderson Health shall produce the documents to
Ingalsbe within five days of entry of the agreed protective order.

March 24, 2017

Copies to:

Counsel of Record
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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY
_____________ DIVISION
Civil Action No. _:__-cv-000__-___
_______________________

PLAINTIFF

VS.
________________________

DEFENDANT

AGREED PROTECTIVE ORDER
1.

This Agreed Protective Order (the "Protective Order") shall govern the use and

disclosure of all Confidential Information produced by or on behalf of the parties, any third party
or furnished by any person associated with the parties in any court appearance, deposition,
interrogatory, request for admission, document production or any other discovery proceeding or
exchange of information in this action, but does not relate to the use of Confidential Information
at trial.
2.

(Potential Definitions of “Confidential Information”, select a or b)

(a)

"Confidential Information" as used in this Protective Order shall mean documents

and other material or information containing sensitive personal information, or reflecting a trade
secret or other confidential research, development, product, employment, financial or business
information. Interrogatory answers, deposition testimony, disclosures, expert reports, or other
responses to discovery requests, may be identified as Confidential Information.
(b) "Confidential Information" as used in this Protective Order shall mean any trade
secrets; customer information; financial data; marketing strategy and techniques; operating
financial information; private financial information; confidential research, development, or
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commercial information; information of a sensitive or proprietary nature; or information which
(1) is of a sensitive or proprietary nature, (2) is not in the public domain, and (3) if disclosed
would unreasonably subject the Party or its customers to risk of material competitive
disadvantage or other material business injury. “Confidential Information” may be oral (if
timely designated as such as provided in this Order), a tangible thing, a document (as that term is
defined under the Federal Rules of Civil Procedure), information contained in a document,
information orally communicated, information revealed during a deposition, or information
revealed in an interrogatory answer or other discovery.
3.

Any party may designate as "Confidential" any documents or other materials or

information which the designating party and its counsel believe in good faith contain, or reflect,
Confidential Information. The designation of documents or other materials as "Confidential"
shall be made by written notice in the documents or materials designated or by so designating
them in the record. Documents so marked or designated and all Confidential Information
derived therefrom shall be treated in accordance with the terms of this Protective Order.
4.

Confidential Information shall not be used by any of the parties in this action or

by any other party or entity given access thereto in accordance with this Protective Order, except
solely for the purpose of prosecuting or defending claims, counterclaims, or third party claims in
this action, including any appeals, and/or for settlement purposes. Confidential Information shall
not be used for any business, competitive, commercial or any other purpose whatsoever.
5.

Except upon further Order of the Court or by express written consent of all

counsel of record, Confidential Information designated as "Confidential" shall be maintained
pursuant to the provisions of Paragraph 6 below and shall not be shown, described or otherwise
revealed to any person or entity other than the following:

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(a)

outside counsel of record and in-house counsel for the

parties to this action;
(b)

the parties to this action, and any officers, directors or

employees of such parties, to whom disclosure is required for the
prosecution or defense of this action and/or evaluation or
settlement purposes;
(c)

paralegals, office clerks, secretaries and clerical or support

personnel employed or retained by outside counsel for a party of
record in this action or in-house counsel, but only if:
(i)

it is necessary to disclose the Confidential

Information for purposes of this action; and
(ii)

they are not officers, directors, employees or

affiliates of any competitors of any party;
(d)

the Court in this action, or any other Court having

jurisdiction over discovery procedures in the action, and any court
reporter, videographer or typist recording or transcribing testimony
in this action, and any outside, independent reproduction services;
(e)

consulting experts or testifying expert witnesses (as

provided for in Fed. R. Civ. P. 26(b)), their associates, assistants,
and other personnel employed directly by the experts who agree to
be bound by the terms of this Protective Order, provided that it is
necessary to disclose the Confidential Information to them for
purposes of this action;

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(f)

the author, addressee, or any other person identified as a

recipient of specified Confidential Information who would
otherwise be entitled to receive same;
(g)

other persons who may be specifically designated by

written consent of all attorneys of record or pursuant to Court
Order; and
(h)

witnesses (and/or their counsel) during the course of trials,

hearings and depositions (or in preparation therefore) in this action,
but only if they agree to be bound by the terms of this Protective
Order.
6.

All documents or other materials marked or designated as "Confidential" pursuant

to this Protective Order which are provided to a party's counsel of record shall be secured and
stored at the office of the recipient counsel of record and shall not be removed from said office
for any reason unrelated to the prosecution or defense of claims, counterclaims, or third party
claims in this action, except upon further Order of the Court or express written consent of
counsel for the designating party. At all times, counsel shall exercise due and proper care with
respect to the storage, custody and use of all Confidential Information; and shall not reveal,
discuss or disclose such Confidential Information in any manner, in any form, to any person or
entity other than as provided in this Protective Order. No individual reviewing or otherwise
accessing Confidential Information maintained at counsel's office shall be permitted to make
copies of or otherwise duplicate any portion of the Confidential Information for any reason
unrelated to the prosecution or defense of claims, counterclaims, or third party claims in this
action.

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7. Before disclosure of any Confidential Material to persons in the categories set forth in
Paragraphs 5(b), (e), (f), (g), and (h) of this Protective Order, that person shall be furnished with
a copy of this Protective Order and shall sign a copy of the “Undertaking” attached as Exhibit A
to this Protective Order. Counsel responsible for such disclosure shall retain the original of each
such executed Undertaking.
8.

Unless otherwise ordered by the Court or agreed to by the parties, should any

party seek to file any documents and deposition transcripts containing or reflecting Confidential
Information with the Court or any appellate court, said party shall notify the party that has
designated the information as Confidential Information and afford the designating party no less
than 3 business days to file a joint motion for leave to seal pursuant to LR 5.7 and applicable
law. Although filed jointly, the designating party is fully responsible for preparing the joint
motion, filing same, and making any and all arguments in support of the motion. Consistent with
the requirements in LR 5.7(c), the motion for leave to seal must explain why “sealing is required
and must establish that the document sought to be filed under seal is entitled to protection from
public disclosure.” The party seeking to file any said Confidential Information shall not oppose
the motion, but shall have no further obligations under this Order, and the party seeking to file
does not waive any rights under numerical paragraph 13 to this Order. Should the Court grant
the motion, the Confidential Information shall be filed in a sealed envelope with a cover label
bearing the caption of the action containing the following notice: TO BE FILED UNDER SEAL
PURSUANT TO AGREED CONFIDENTIALITY ORDER ENTERED IN THE UNITED
STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY, CASE NO.
_:__-cv-_____-___.

And, any filings shall comply with LR 5.7(d) as well as the Court’s

Amended Electronic Case filing Administrative Policies and Procedures.

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Confidential

Information used in any court proceeding in connection with this action shall not lose its
confidential status through such use.

All such Confidential Information so filed shall be

maintained by the Clerk of the Court separate from the public records in this action and shall be
released to persons or entities other than attorneys for the parties and Court personnel only upon
written agreement of each designating party or upon further order of the Court entered after
reasonable written notice and opportunity to each designating party to file objections thereto. In
the event that each designating party and any party seeking to use such Confidential Information
at trial are unable to reach an agreement as to the procedure to ensure the confidentiality of the
Confidential Information, the matter shall be submitted to the Court.
9.

Any member of the public not otherwise subject to this Protective Order may

challenge any attempt by any party to seal or redact documents filed with the Court.
10.

Confidential Information used in any court proceeding in connection with this

action shall not lose its confidential status through such use. All such Confidential Information
so filed shall be maintained by the Clerk of the Court separate from the public records in this
action and shall be released to persons or entities other than attorneys for the parties and Court
personnel only upon written agreement of each designating party or upon further order of the
Court entered after reasonable written notice and opportunity to each designating party to file
objections thereto. In the event that each designating party and any party seeking to use such
Confidential Information at trial are unable to reach an agreement as to the procedure to ensure
the confidentiality of the Confidential Information, the matter shall be submitted to the Court.

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11.

If deposition testimony concerning Confidential Information is requested or

elicited, counsel for the designating party may request that:
(a)

the testimony, and the transcript thereof, be treated as

"Confidential"; and
(b)

the room in which the deposition is being taken shall, at the

request of the designating party, be closed except to persons who
are permitted access to such information or documents under the
terms of this Protective Order. Counsel for any party may also
request that portions of a deposition transcript be treated as
Confidential Information within thirty (30) days of receipt of the
final transcript.
12.

Within thirty (30) days of conclusion of this case, (including any appeals), all

Confidential Information and all copies, duplications, extracts and summaries thereof shall be
returned to the producing party or destroyed at the producing party's request with a letter to
counsel for the producing party certifying that all Confidential Information has been returned or
destroyed, except that counsel of record shall be entitled to retain all information and materials
which constitute work product. If requested by any party, counsel of record shall certify in
writing filed with the Court that all Confidential Information required to be returned has been so
returned or destroyed within fourteen (14) days of receipt of a written request for certification by
any party.
13.

In the event that any party to this litigation disagrees with the propriety of a

"Confidential" designation, such party shall give the designating party or entity written notice of
its disagreement. The interested parties shall first try to resolve such a dispute extra-judicially

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and in good faith by responding in writing to the challenging party substantiating the basis for
such designations.

If a party files a motion challenging another party's designation of

Confidential Information, the designating party shall bear the burden of establishing that the
documents in question are confidential and are properly designated as "Confidential" as provided
in this Protective Order. No party, by entering into this Protective Order, concedes that any
document, material or information classified by any other party as Confidential Information or
any documents, transcripts or other material reflecting claimed Confidential Information does in
fact contain or reflect trade secrets or proprietary or confidential research, development, product,
employee, financial or business information.
14.

The provisions of this Protective Order shall not affect, and this Order does not

limit, the use or admissibility of Confidential Information as evidence at trial, or during an
evidentiary hearing in this action, provided that any party may seek an appropriate Court Order
to protect Confidential Information. Any document, exhibit, or transcript designated Confidential
under this Order, and that is otherwise admissible, may be used at trial, subject to the terms of
this Order.
15.

Nothing contained in this Protective Order shall be construed to restrict the use or

disclosure of Confidential Information by the party producing that information or to prevent any
party from interposing an objection to a request for discovery.
16.

If a non-designating party in possession of Confidential Information receives a

subpoena or other request seeking production or other disclosure of Confidential Information, he,
she or it shall give written notice within three (3) business days to counsel for the designating
party identifying the Confidential Information sought and the date and time production or other

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disclosure is required. In no event may production or disclosure be made without written
approval by counsel of the designating party or by further Order of a Court.
17.

Any non-parties summoned for trial or served with a deposition or other discovery

request and called upon to produce their own confidential or proprietary information may opt in
to the protections of this Protective Order and designate their information as Confidential
Material pursuant to the terms of this Protective Order by (a) advising counsel for all Parties in
writing, (b) filing a copy of said writing with the Clerk of the court captioned above, and (c)
complying with any applicable terms of this Protective Order.
18.

In the event an additional party joins or intervenes in the action, such party shall

not have access to Confidential Information until such party has filed with the Court its
agreement to be bound by this Protective Order. The terms of this Protective Order shall apply
to any material produced by such additional parties that is marked or designated "Confidential"
by such additional parties, pursuant to the terms of this Protective Order.
19.

Nothing contained in this Protective Order shall prejudice in any way the right of

any party to seek, by way of consent of all parties or by application to the Court, (i) additional
protection for specific items of Confidential Information; or (ii) relief from the provisions of this
Protective Order with respect to specific terms or categories of Confidential Information.
20.

The parties, by entering into this Protective Order, do not waive any applicable

privileges, and reserve their right to contest any requests or subpoenas for documents or
testimony and to assert such applicable privileges.
21.

Nothing herein constitutes or may be interpreted as a waiver by any party of the

attorney-client privilege, attorney work product protection, or any other privilege.

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22.

It is recognized by the parties to this Protective Order that, due to the exigencies

of producing numerous documents and the taking of testimony, certain documents or testimony
may be designated erroneously as Confidential, or documents or information that are entitled to
confidential treatment erroneously may not be designated as Confidential. The parties to this
Protective Order may, no later than the discovery deadline, correct their Confidentiality
designations, or lack thereof, and then will, at their own expense, furnish to all counsel copies of
the documents for which there is a change in designation, unless copies have already been
provided.
23.

Documents or information produced by any party prior to the entry of this

Protective Order by the Court, and subsequently designated as Confidential Information by any
party within thirty (30) days of the entry of this Protective Order, will be subject to the
provisions of this Protective Order to the same extent as if the Protective Order had been entered
by the Court as of the date the documents or information were produced.
24.

All parties and attorneys of record in this action, and all other persons and entities

possessing or granted access to Confidential Information pursuant to this Protective Order shall
be bound by this Protective Order. The Court may impose sanctions on any person or entity
possessing or granted access to Confidential Information pursuant to this Protective Order who
discloses or uses the Confidential Information for any purpose other than as authorized by this
Protective Order or who otherwise violates the terms of this Protective Order.
25.

Nothing in this Order prevents any party from using or disclosing its own

documents or information in any way, regardless of whether they are designated as Confidential.

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26.

The restrictions set forth in this Protective Order shall not apply to information or

material that was, is, or becomes public knowledge in a manner other than by violation of this
Protective Order.

IT IS SO ORDERED
SIGNED this

APPROVED FOR ENTRY BY:

COUNSEL FOR PLAINTIFF:

COUNSEL FOR DEFENDANT:

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EXHIBIT A
(Form of Undertaking)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY
_____________ DIVISION
Civil Action No. _:__-cv-000__-___
_______________________

PLAINTIFF

VS.
________________________
I,

DEFENDANT

, hereby declare:
1. I have read the Agreed Protective Order entered in this action and agree to be bound

by the terms thereof, and to comply with the terms thereof. I hereby submit to the jurisdiction of
this Court for the purpose of enforcing the Protective Order in the event that I am alleged to have
violated the terms thereof.
2. I will not disclose or use (other than for purposes of giving testimony or assisting in
the prosecution or defense of this lawsuit) any of the Confidential Materials (as that term is
defined in the Protective Order) to which I receive access pursuant to this Undertaking.
3. I declare under penalty of perjury that the foregoing is true and correct.

[Name and signature of Witness here]

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