STUDENTS FOR FAIR ADMISSIONS, INC. v. UNIVERSITY OF NORTH CAROLINA, et al

Filing 61

AMENDED CONFIDENTIALITY AND PROTECTIVE ORDER signed by MAG/JUDGE JOE L. WEBSTER on 9/1/2015 as set out herein. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

STUDENTS FOR FAIR ADMISSIONS,
INC,,

Plaintiffs,

)
)
)
)
)

v

)

THE LINIVERSITY OF NORTH
CAROLINA AT CHAPEL HILL, et al.,

)
)
)
)

Defendants

l:14-CY-954

)

Pursuant to Fed. R. Civ. P.26(c), and upon the agreement and stipulation of the
parties, the Court finds good cause to issue an Amended Protective Order in this matter,

protecting the confidentiality of certain Material (as defined below) thatmay be produced
in the course of this litigation. Accordingly, the Court enters the following Order:

1.

DEF'INITIONS
1.1

"Material" refers to any document, data compilation, testimony,
interrogatory response, response to a request to admit, answer, pleading,
filing, or other information in any form produced or disclosed in this action,
whether voluntarily or through any means of discovery authorized by law,
and whether by aparty or non-party to this action.

r.2

"FERPA" is the Family Educational Right and Privacy Act, 20 U.S.C.
$ 12329, and its implementing regulations, 34 C.F.R. pt. 99. The parties
acknowledge that FERPA may apply to certain Material that is requested or
required to be produced in this litigation. The parties further acknowledge
that the parties are obligated to comply with FERPA.

1.3

Material may be deemed "confidential" if (i) it contains or tends to reveal
nonpublic information about University personnel; (ii) it is deemed
conhdential or exempted from the North Carolina Public Records Law,
N.C. Gen. Stat. $ 132-l et seq.; (iii) it is protected from public disclosure
by any applicable law, regulation, protective order, or non-disclosure
agreement; or (iv) other Material as agreed upon by the parties. The
following material may be deemed "highly confidential:" (i) Material that is
subject to the protections of FERPA; (ii) Material that contains or tends to
reveal private information about an applicant or student (as defined in 1.5
and 1.6 herein), including but not limited to, Material contained in
"application ftles" (as defined in 1.4 herein); (iii) contains "personally
identifiable information from or about an applicant for admission" to the
University; protected from public disclosure pursuant to N.C. Gen. Stat.
$ 132- 1. 1 ; or (iv) other material as agreed upon by the parties.

1,4

"Application file" includes all materials submitted by an applicant for
admission to the University or received by the University from a third-party
regarding the applicant's application for admission, including but not
limited to: (1) the applicant's Common Application or any other
application form, essay, transcripts, test scores, extracurricular activities,
and class rank; (2) evaluations, assessments, and comments regarding the
applicant; (3) letters of recommendation regarding the applicant; and (4)
any documents containing an applicant's name, address, social security
number, high school or other institution attended, or other personally
identifiable information. Such materials may be deemed highly confidential
regardless of whether they are subject to FERPA protection.

1.5

"Application Materials" includes Application files, as defined herein, and
any and all materials containing, referencing, or evidencing data or
applicant information contained or reflected in an Application file. Such
materials may be deemed highly confidential regardless of whether they are
subject to FERPA protection.

1.6

"Student" shall mean any individual who currently attends or is enrolled at
the University or has attended or enrolled at the University.

t.7

"Applicant" means any individual who submitted an application for
admission to the University, regardless of whether that person was
admitted, denied admission, or placed on a waitlist.

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1.8

"DisclosingParty" refers to aparty or non-party to this action who
produces Material.

I.9
1.

2.

10

"ReceivingParty" refers to aparty who receives Material.
"Requestin gParty" refers to a party who has made a discovery request.

SCOPE OF ORDER

2.I

2.2

To be subject to the particular confidentiality protections of this Order,
Material must (1) be confidential or highly confidential within the meaning
of Section 1.3 of this Order; and (2) be designated confidential or highly
confidential pursuant to Section 3 of this Order.

2.3

3.

Except as the parties may otherwise agree or the Court may order, Material
produced in this action, whether or not designated confidential or highly
conf,rdential, including any excerpt, analysis, summary, or description of
any Material, data derived using any Material or documents based on or
generated using any Material, shall be used solely for purposes of the
prosecution or defense of this action, including appeals, and for no other
purpose.

The protections of this Order shall not apply to Material that, prior to
disclosure in this action, was within the actual possession or knowledge of
a Receiving Party or was actually public knowledge, provided that the
Material did not become public knowledge through an act or omission of a
Receiving Party. If and to the extent any party claims that Material was,
prior to disclosure in this action, within its actual possession or knowledge,
or was public knowledge, the Court shall determine which party has the
burden of proving that fact in accordance with applicable law.

DESIGNATION OF MATERIAL AS CONF'IDENTIAL

3.1

General Provisions
3.1

.1

A Disclosing Party may designate Material as conf,rdential or highly
confidential only if the Material (1) is confidential or highly
confidential as defined by Section 1.3; and (2) is not excluded from
the scope of this Order by Section 2.3.

3.1,2 Except

as otherwise provided in this Order, the designation of
Material as confidential or highly conf,rdential should be made

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prior

to, or contemporaneously with, the production or disclosure of that
Material. A Disclosing Party's failure to designate Material as
confidential or highly confidential at the time of production or
disclosure of the Material does not, however, waive its right later to
designate the Material as confidential or highly confidential, and the
Disclosing Party may so designate any Material until the close of all
discovery, as set by the Court. If Material is designated confidential
or highly confidential after that Material has already been disclosed
by a Receiving Party to any other person or entity, the Receiving
Party that disclosed the previously non-confidential Material shall
promptly notify the party to which such Material was disclosed that
the Material has been designated confidential or highly confidential,
and that the requirements of this Order govern any further or
subsequent disclosure of that Material. Such post-disclosure
designation shall not impose aîy obligation, responsibility, or
liability on any Receiving Party with respect to any pre-designation
dissemination of the Material. However, after such a designation,
each Receiving Party shall treat the Material as confidential or
highly confidential, according to the designation, and subject to the
protections of this Order.

3,2

Methods of Designation

3.2.1 A Disclosing Party may designate Material

as conf,rdential by
placing or aff,rxing on the Material in a manner that will not interfere
with its legibility the word "CONFIDENTIAL." A Disclosing Party
may designate Material as highly confidential by placing or aff,rxing
on the Material in a manner thatwill not interfere with its legibility
the words "CONFIDENTIAL; ATTORNEY EYES ONLY."

3,2.2

If

an interrogatory or other discovery request calls for conhdential or
highly conhdential Material, the response may be designated
confidential or highly confidential by labeling the response with the
words "CONFIDENTIAL" or "CONFIDENTIAL ; ATTORNEY
EYES ONLY." In the alternative, any confidential or highly
confidential portion of the response may be provided in a separate
document appended to the main body of the responses and
incorporated by reference therein. Under this alternative, the main
body of the response to the interrogatory or written discovery
request at issue shall state: "Requests confidential information; see

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response contained in addendum, which response is incorporated
herein by reference."
3.2.3

3.2.4

3.3

Transcripts of any depositions in this action shall be treated as
confidential until the expiration of 30 days after the court reporter
delivers the transcript of the deposition to all counsel who request a
copy. If counsel for any party believes that the deposition transcript
or a portion thereof is confidential or highly confidential pursuant to
Section 1.3, counsel shall, within the 30 day period, designate in
writing the specific pages and lines deemed confidential or highly
confrdential, and shall notify all parties and the court reporter.
Unless the deposition testimony is designated conf,rdential or highly
confidential within the 30 day period or as otherwise provided in this
paragraph. any confidentiality is waived, unless otherwise stipulated
or ordered by the Court. Portions of testimony taken during
depositions may also be designated conf,rdential or highly
confidential by counsel so stating on the record during the
deposition, and in such event no further action need be taken to
preserve the confidentiality of that portion (or portions) of the
transcript.
When conf,rdential or highly confidential Material is supplied or
stored on an electronic, digital, or magnetic medium, the conltdential
designation shall be made, to the extent physically possible, on the
medium itself (such as on a label attached to a disk), on the sleeve,
envelope, box, or other container of the medium, and within the
medium itself in a manner that immediately and consistently informs
those persons who access the medium that they have accessed
Material that is restricted from disclosure, This provision shall not
require the parties to protect against disclosure to persons within
their own organizations or those of their counsel actually involved in
the defense or prosecution of the action, and the usual computer
network safeguards preventing access beyond those individuals will
be deemed sufficient.

ChallengestoConfidentialityDesignations
3.3.

1

A Receiving Party may challenge a confidentiality designation of a
Designating Party by objecting to the confidentiality designation in a
letter to the Designating Party. Any such objection must be faxed or

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emailed to the DesignatingPafty within a reasonable time after the
confidentiality designation at issue is made. The Designating Party
and the Receiving Party who objects to the confidentiality
designation then must engage in a conference to address and if
possible resolve the objection to the confidentiality designation. If
the Designating Party and the Receiving Party are unable to resolve
the dispute regarding the confidentiality designation, the Receiving
Party may make an appropriate motion in the Court challenging the
designation. If and to the extent a ReceivingParty challenges the
confidentiality designation of a Designating Party, the Court shall
determine which party has the burden of proof in accordance with
applicable law.

3.3.2 Pending

an agreement resolving a challenge to a conhdentiality
designation under Section 3.3.1, or a ruling on a motion under
Section 3.3.1, the Material in question shall be treated as confidential
or highly confidential and subject to the protections of this Order.

4.

DISCLOSURE. USE. AND HAND
AS CONFIDENTIAL

4.1

G OF' MATR,RIAL DESIGNATED

Use and Handling of Confidential Material
4.1.1

2.l,Material designated

as confidential or highly
confidential by a DesignatingParty shall not be used or disclosed by
any Receiving Party or its counsel for any purpose other than the
prosecution or defense of this action, including appeals. This
Order's restrictions on the dissemination of confidential or highly
confidential Material apply with equal force to any excerpt, analysis,

Pursuant to Section

summary, or description of the confidential or highly confidential
Material, as well as any briet pleading, filing, exhibit, transcript, or
other document containing or tending to reveal such confidential or
highly confi dential Material.

4.1.2 Except

provided in Section 4.2, counsel for any Receiving Party
shall keep all Materials designated as confidential or highly
conhdential within his or her exclusive possession and in a secure
as

area.

4.t.3

Except upon the Designating Party's consent to the filing in the
Court of Material that has been designated confidential or highly

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confidential, a party wishing to file with the Court any paper or
matter that contains or tends to reveal confidential Material shall file
such material pursuant to the procedures of Local Rule 5.4.

All copies,

4,1.4

duplicates, extracts, summaries, or descriptions
(collectively, "copies") of Materials designated as confidential or
highly confidential, or any portion thereot shall immediately be
affixed with the words "CONFIDENTIAL" or "CONFIDENTIAL;
ATTORNEY EYES ONLY" if those words do not akeady appear on
the copies.

4.1.5

Nothing in this Order shall prohibit the parties or their counsel from
transmitting confidential or highly confidential Materials through the
mail, by other common carrier, or by non-public telephonic
transmission or email, so long as the transmission is for purposes of
this litigation. However, under no circumstances may material
designated as confidential or highly confidential be posted on a
publicly-available Internet web site.

4.1.6 Material

designated as confidential or highly confidential shall not
lose its protected status through disclosure, either intentionally or
inadvertently, by a Receiving Party. In the event of such a
disclosure, the parties shall take all steps reasonably required to
assure the continued confidentiality of the Material.

4.1.7 At the conclusion of the litigation, all Material designated

as

confidential or highly conhdential under this Order and not received
in evidence or contained in papers filed with the Court shall be
returned to the Disclosing Party. If the Disclosing Party agrees in
writing, the Material may be destroyed; in that event, counsel for the
Receiving Party shall certify in writing that all Material designated
as conhdential or highly confidential under this Order and not
received in evidence or contained in papers f,rled with the Court has
been destroyed.

4.2

PermittedDisclosures
Other than as provided in Section 4.1.3, disclosure of Material designated
as confidential or highly confidential may be made only in the following
circumstances:

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4.2.1 Unless otherwise prohibited by this Protective Order,

conflrdential
Material may be disclosed to named parties to this litigation, to their
counsel, and to the employees and agents of counsel who have
working responsibilities in connection with this litigation. Any
employee or agent to whom a disclosure is made pursuant to the
preceding sentence shall be advised of and shall agree to be bound
by, the provisions of this Order requiring that the Materials be held
in confidence.

4.2.2

Confidential Material may be disclosed to: a) present or former
officers, directors, partners, and employees of a party to this
litigation; b) agents of aparty to this litigation who have working
responsibilities in connection with this litigation; and c) to a
deponent or trial witness if it appears that the witness authored or
received a copy of it. Any present or former offltcer, director,
partner, employee, or agent to whom a disclosure is made pursuant
to the preceding sentence shall be advised of the provisions of this
Order. Confidential Material also may be disclosed to non-party
experts, pursuant to Section 4.2.5, to court reporters and copy
services, pursuant to Section 4.2.4, and to the Court, pursuant to
Section 4.1.3.

4.2.3 Highly confidential material may be disclosed only to: a) counsel for
the parties; b) to the employees and agents of counsel who have
working responsibilities in connection with this litigation; and c) to a
deponent or trial witness if it appears that the witness authored or
received a copy of it. Any employee or agent to whom a disclosure
is made pursuant to the preceding sentence shall be advised of the
provisions of this Order requiring that the Materials be held in
confidence. Highly confidential Material also may be disclosed to
non-party experts, pursuant to Section 4.2.5, to court reporters and
copy services, pursuant to Section 4.2.4, and to the Court, pursuant
to Section 4.1.3. Absent an Order of the Court or the agreement of
the Disclosing Party, materials designated as highly confidential
shall not be disclosed to any other person or entity, including the
parties themselves.

4,2,4 Confidential

and highly conhdential Material may be disclosed to
court reporters engaged for depositions, and to those persons, if any,
specif,rcally engaged for the limited purpose of providing litigation

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support (e.g.,making copies of Materials). Prior to disclosure to any
such persons, such persons must f,rrst be informed of and agree to be
bound by, the terms of this Order.

4.2.5 Confidential

and highly confidential Material may be disclosed to
non-party consultants, investigators, and experts (along with any
person assisting them) (collectively, "experts") who are employed by
counsel for the parties for the sole purpose of assisting in the
preparation and trial of the lawsuit, provided that such experts are
first advised of, and agree in writing to be bound by, the provisions
of this Order. Experts shall be provided with a copy of the Order
and sign the Third Party Acknowledgement attached hereto as
Exhibit A. Counsel of record shall keep copies of all signed Exhibit

A acknowledgments for all Third parties to whom confidential and
highly confidentialMaterial is disclosed. In addition to any other
relief provided in this Order or available by law, if an expert is
shown to have violated the terms of this Order at any time, he or she
may be subject to being held in contempt by this Court.
Experts are prohibited from using any Material produced in this
litigation for any other purpose than assisting in the preparation and
trial of the lawsuit. Experts may not use Material or any compilation
or reports made from reviewing Material to support activities not
related to the lawsuit, including but not limited to scholarship,
articles, and for promotional purposes.
and highly confidential Material shall not
be made in open court, except as follows If aparty intends to
disclose confidential or highly conflrdential Material, and has not
otherwise provided notice to the other parties of this intention in a
writing filed with the Court and served on all parties, then the party
intending to disclose the confidential or highly confidential Material
shall provide reasonable notice of this intention to the other parties
to this litigation prior to disclosure at trial or a hearing. Prior to
disclosure attrial or a hearing of materials or information designated
confidential or highly confidential, the parties may seek further

4.2.6 Disclosure of confidential

protections against public disclosure from the Court.

4.3

UnauthorizedDisclosures

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4.3.1

If

thaf,by inadvertence or otherwise, it has disclosed
confidential or highly confidential Material to any person or in any
circumstance not authorized under this Stipulated Protective Order,
the Receiving Party must immediately (a) notifu in writing the
DesignatingParty of the unauthorized disclosures, (b) use its best
efforts to retrieve all unauthoúzed copies of the confidential or
Highly Confidential 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.
a Party learns

4.3.2 In the event that

any person or party should violate the terms of this
Protective Order, the aggrieved Disclosing Party should apply to the
Court to obtain relief against any such person or party violating or
threatening to violate any of the terms of this Protective Order.

5.

THIRD PARTIES
5.1

any person or entity who is not a party to this litigation (a "third party")
receives a subpoena or request for the production of Material from any
party in connection with this litigation, and the Material so subpoenaed or
requested (1) is confidential or highly confidential, as defined by Section
1.3, and (2) is not excluded from the scope of this Order by Section 2.3,the
third party may execute a copy of this Order by executing the Third-Party
Endorsement of Agreed Confidentiality Order (the "Third-Party
Endorsement") that appears as Exhibit A hereto, and thereafter make any
appropriate designations pursuant to Section 3 of this Order. By executing
the Third-Party Endorsement, the third party agrees to comply with the
terms and conditions of this Order, and submits to the jurisdiction of the
Court for purposes of enforcing this Order. If the third party executes the
Third-Party Endorsement, he, she, or it shall promptly serve the executed
Endorsement on all parties to the litigation.

5.2

If any party issues

If

a subpoena for documents or information to any third
party in connection with this litigation, the party issuing the subpoena shall
serye a copy of this Order on the third party, together with the subpoena, in
order to allow the third party to execute the Third-Party Endorsement (if the
third party so chooses) and thereafter avail him-, her-, or itself of the
protections provided by the Order. Furthermore, any party that has issued a

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subpoena to any third party in connection with this litigation prior to entry
of this Order shall serve, within 14 days after entry of this Order, a copy of
this Order on all third parties on which the party served a subpoena, in
order to allow such third parties to execute the Third-Party Endorsement,
they so choose.

if

5.3

5.4

6.

any third party demands by subpoena or other compulsory process the
production of confidential or highly confidentialMaterial from a Receiving
Party, the Receiving Party served with the third-party subpoena or
compulsory process shall immediately notify the DesignatingParty that
designated the subject Material confidential or highly confidential of the
subpoena or compulsory process. This notice shall be both written (by
facsimile and mail) and oral (by telephone). In no event shall production or
disclosure of the confidential or highly confidential Material be made,
unless required by law. The purpose of this parugraph is to provide the
Designating Party the opportunity to seek to intervene, at its own expense,
to object to the production of confidential or highly confidential Material
pursuant to any such subpoena or compulsory process.

In the event any additional person or entity joins or is joined in the
litigation as a party, that party shall not have access to Material designated
as confidential or highly confidential unless the newly-joined party, through
its counsel, first executes and files with the Court its agreement to be bound
by the terms of this agreed Order.

If

PRODUCTION OF APPLICATION MATERIALS

6.1

Application Materials shall be deemed highly conf,rdential pursuant to
Section 3.

6.2

Prior to the production of any Application Materials, Defendants shall take
any steps required by FERPA or N.C. Gen. Stat. $ 132- 1 . 1(Ð.

6.3

Plaintiff, its counsel, agents, and experts shall not attempt to identi$' or
learn or verify the name, Social Security number, date of birth, street
address, email address, telephone number, or other contact information of
any IINC students or applicants, or their family members, who are not
members of SFFA from any Material unless Plaintiff demonstrates that it
requires this information to support its claims or defenses. Plaintiff may not
use Material in connection with contacting any IINC students or applicants
unless Plaintiff demonstrates that it must do so to support its claims or

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defenses. In the event Plaintiff asserts it must (a) identify or learn or verify
the name, date of birth, street address, email address, telephone number, or
other contact information of any UNC students or applicants, or their
family members, who are not members of SFFA from any Material in order
to support its claims or defenses, or (b) use Material to contact any IINC
students or applicants in order to support its claims or defenses, the Parties
shall confer in good faith ten (10) days after Plaintiff notifies Defendants
that it requires this information. If the Parties are unable to reach an
agreement, Plaintiff may make an appropriate application to the Court.
During the pendency of any such application, Plaintiff, its counsel, agents,
and experts shall not (i) attempt to identify or learn or verify the name, date
of birth, street address, email address, telephone number, or other contact
information of any UNC students or applicants, or their family members,
who are not members of SFFA from any Material, or (ii) use information
learned from any Material to contact any IJNC students or applicants.
Nothing in this Order prevents Plaintiff, its counsel, agents, and experts
from contacting or being contacted by UNC students or applicants using
means other than Material.
6.4

7.

Any Application Materials produced in this action shall be used for the sole
purpose of litigating this action and shall not be used or disclosed, directly
or indirectly, for any other purpose whatsoever.

OTHER PROVISIONS

7.1

A Disclosing Party that designates Material it has created as conf,tdential or
highly confidential may continue to use that Material in any way consistent
with the terms of this Order, including in the ordinary course of business,
provided that the contents of Material so designated do not become public
as a result of such use.

7.2

If Material that is requested in discovery is subject to a claim of attorneyclient privilege, attorney work product, or any other ground on which
production of such material or information should not be made to any party
(collectively, "privilege"), and such privileged Material is inadvertently
produced in the course of the litigation, such production shall in no way
prejudice or otherwise constitute a waiver of, or estoppel as to, the claimed
privilege. If a claim of inadvertent production is made with respect to
Material then in the custody of a Receiving Party, the Receiving Party shall
promptly return to the Disclosing Party the Material as to which the claim

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of inadvertent production has been made, and the Receiving Party shall not
use the Material for any purpose until further order of the Court. The
Receiving Party in such a situation may file a motion disputing the claim of
privilege, and seeking an order compelling production of the Material at
issue; the Disclosing Party may oppose any such motion, including on the
grounds that inadvertent disclosure does not waive any privilege.

7.3

This Order shall not prevent any party from applying to the Court for
further or additional protective orders, or from agreeing with the other
parties to modify this Order, subject to the approval of the Court.

7.4

This Order shall not preclude any party from enforcing its rights against
any other party, or any non-party, believed to be violating its rights under
this Order.

7.s

In addition to such other remedies as may be available at law or in equity,
violation of the terms of this Order may constitute a contempt of this Court,
which may result in the imposition of sanctions, including, ínter alia, an
award of damages, costs, attorneys' fees, fines , and any other appropriate
relief.

SO ORDERED.

This, the

H

day of September

,2015

J oe

L. Webster

United States Magistrate Judge

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EXHIBIT A

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
STUDENTS FOR FAIR ADMISSIONS,
INC.,

Plaintiffs,

)
)

Case No.

)
)

l:14-CY-954

)
V

THE LINIVERSITY OF NORTH
CAROLINA AT CHAPEL HILL, et al.,
Defendants.

)
)
)
)
)
)
)
)

THIRD.PARTY ENDORSEMENT OF AGREED CONFIDENTIALITY ORDER

1. Third-party

, hereby

(i) consents to the terms

and conditions of the Agreed Conf,rdentiality and Protective Order (the "Order"), as
entered by the Court, and

(ii) consents to the jurisdiction of the Court for purposes of

enforcing the terms of the Order.

2.

By executing this Third-Party Endorsement, the third-party

by the terms and conditions of the Order.

agrees

to abide

3.

The terms used in this Third-Party Endorsement have the same meanings as

set forth in the Order.

Name:
Street Address:

City, State, ZIP
Telephone:

Facsimile:
Counsel for Third Party:
Dated:
Signature: