Howard v. Experian Information Solutions Inc
Filing
15
CONFIDENTIALITY ORDER. Signed by the Honorable R. Bryan Harwell on 8/11/2015. (hcic, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
TAHNEE DANIELS HOWARD,
Plaintiff,
v.
CASE NO.: 4:15-CV-01279-RBH
EXPERIAN INFORMATION
SOLUTIONS, INC.,
Defendant.
Whereas, the parties to this Consent Confidentiality Order (“parties”), have stipulated
that certain discovery material is and should be treated as confidential, and have agreed to the
terms of this order; accordingly, it is this 11th day of August, 2015, ORDERED:
1.
Scope. All documents produced in the course of discovery, all responses to
discovery requests and all deposition testimony and deposition exhibits and any other materials
which may be subject to discovery (hereinafter collectively “documents”) shall be subject to this
Order concerning confidential information as set forth below.
2.
Form and Timing of Designation.
Confidential documents shall be so
designated by placing or affixing the word “CONFIDENTIAL” on the document in a manner
which will not interfere with the legibility of the document and which will permit complete
removal of the Confidential designation. Documents shall be designated “CONFIDENTIAL”
prior to, or contemporaneously with, the production or disclosure of the documents. Inadvertent
or unintentional production of documents without prior designation as confidential shall not be
deemed a waiver, in whole or in part, of the right to designate documents as confidential as
otherwise allowed by this Order.
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3.
Documents Which May be Designated Confidential. Any party may designate
documents as confidential but only after review of the documents by an attorney1 who has, in
good faith, determined that the documents contain information protected from disclosure by
statute, sensitive personal information, trade secrets, or confidential research, development, or
commercial information. The certification shall be made concurrently with the disclosure of the
documents, using the form attached hereto at Attachment A which shall be executed subject to
the standards of Rule 11 of the Federal Rules of Civil Procedure. Information or documents
which are available in the public sector may not be designated as confidential.
4.
Attorneys’ Eyes Only Protection. If a party believes in good faith after review
of documents in accordance with Paragraph 3, above, that, despite the provisions of this Order,
there is a substantial risk of identifiable harm if particular documents it designates as
“CONFIDENTIAL” are disclosed to all other parties or non-parties to this action, the producing
party may designate those particular documents as “CONFIDENTIAL—ATTORNEYS’ EYES
ONLY” or “CONFIDENTIAL—PLAINTIFF’S ATTORNEYS’ EYES ONLY” on the document
in a manner which will not interfere with the legibility of the document and which will permit
complete removal of the Confidential designation. The certification shall be made concurrently
with the disclosure of the documents, using the form attached hereto at Attachment A which
shall be executed subject to the standards of Rule 11 of the Federal Rules of Civil Procedure.
Information or documents which are available in the public sector may not be designated as
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL—PLAINTIFF’S
ATTORNEY’S EYES ONLY.” Inadvertent or unintentional production of documents without
prior
designation
as
“CONFIDENTIAL—ATTORNEYS’
1
EYES
ONLY”
or
The attorney who reviews the documents and certifies them to be CONFIDENTIAL must be admitted to
the Bar of at least one state but need not be admitted to practice in the District of South Carolina and need not apply
for pro hac vice admission. By signing the certification, counsel submits to the jurisdiction of this court in regard to
the certification.
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“CONFIDENTIAL—PLAINTIFF’S ATTORNEYS’ EYES ONLY” shall not be deemed a
waiver, in whole or in part, of the right to designate documents as “CONFIDENTIAL—
ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL—PLAINTIFF’S ATTORNEYS’ EYES
ONLY” as otherwise allowed by this Order.
5.
Depositions. Portions of depositions shall be deemed “CONFIDENTIAL” or
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL—PLAINTIFF’S
ATTORNEYS’ EYES ONLY” only if designated as such when the deposition is taken or within
fourteen days after receipt of the transcript. Such designation shall be specific as to the portions
to be protected. Until fourteen (14) days after receipt of the transcribed testimony, such
testimony shall be treated, at minimum, as “CONFIDENTIAL-ATTORNEYS’ EYES ONLY.”
6.
Protection of Confidential Material.
a.
General Protections. Documents designated “CONFIDENTIAL” under this
Order shall not be used or disclosed by the parties or counsel for the parties or any other
persons identified below (¶ 6.b.) for any purposes whatsoever other than preparing for
and conducting the litigation in which the documents were disclosed (including any
appeal of that litigation). The parties shall not disclose documents designated as
confidential to putative class members not named as plaintiffs in putative class litigation
unless and until one or more classes have been certified.
b.
Limited Third Party Disclosures. The parties and counsel for the parties shall
not disclose or permit the disclosure of any documents designated “CONFIDENTIAL”
under the terms of this Order to any other person or entity except as set forth in
subparagraphs (1)-(5) below, and then only after the person to whom disclosure is to be
made has executed an acknowledgment (in the form set forth at Attachment B hereto),
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that he or she has read and understands the terms of this Order and is bound by it.
Subject to these requirements, the following categories of persons may be allowed to
review documents which have been designated “CONFIDENTIAL” pursuant to this
Order:
(1)
counsel and employees of counsel for the parties who have responsibility
for the preparation and trial of the lawsuit;
(2)
parties and employees of a party to this Order but only to the extent
counsel shall certify that the specifically named individual party or employee’s
assistance is necessary to the conduct of the litigation in which the information is
disclosed2;
(3)
court reporters engaged for depositions and those persons, if any,
specifically engaged for the limited purpose of making photocopies of documents;
(4)
consultants, investigators, or experts (hereinafter referred to collectively as
“experts”) employed by the parties or counsel for the parties to assist in the
preparation and trial of the lawsuit; and
(5)
other persons only upon consent of the producing party or upon order of
the court and on such conditions as are agreed to or ordered.
c.
Control of Documents. Counsel for the parties shall take reasonable efforts to
prevent unauthorized disclosure of documents designated as Confidential pursuant to the
terms of this order. Counsel shall maintain a record of those persons, including
employees of counsel, who have reviewed or been given access to the documents along
2
At or prior to the time such party or employee completes his or her acknowledgment of review of this
Order and agreement to be bound by it (Attachment B hereto), counsel shall complete a certification in the form
shown at Attachment C hereto. Counsel shall retain the certification together with the form signed by the party or
employee.
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with the originals of the forms signed by those persons acknowledging their obligations
under this Order.
d.
Copies. All copies, duplicates, extracts, summaries or descriptions (hereinafter
referred to collectively as “copies”), of documents designated as Confidential under this
Order or any portion of such a document, shall be immediately affixed with the
designation “CONFIDENTIAL” if the word does not already appear on the copy. All
such copies shall be afforded the full protection of this Order.
7.
Protection of Attorneys’ Eyes Only Material.
a.
General Protections. Documents designated “CONFIDENTIAL—
ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL—PLAINTIFF’S ATTORNEYS’
EYES ONLY” under this Order shall not be used or disclosed by the parties or counsel
for the parties or any other persons identified below (¶ 7.b. or ¶ 7.c) for any purposes
whatsoever other than preparing for and conducting the litigation in which the documents
were disclosed (including any appeal of that litigation).
b.
Except with the prior written consent of the individual or entity designating a
document or portions of a document as “CONFIDENTIAL—ATTORNEYS’ EYES
ONLY,” or pursuant to prior Order after notice, any document, transcript or pleading
given “CONFIDENTIAL—ATTORNEYS’ EYES ONLY” treatment under this Order,
and any information contained in, or derived from any such materials (including but not
limited to, all deposition testimony that refers, reflects or otherwise discusses any
information designated “CONFIDENTIAL—ATTORNEYS’ EYES ONLY” hereunder)
may not be disclosed other than in accordance with this Order and may not be disclosed
to any person other than:
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(1)
the receiving party’s outside counsel of record in this action, as well as
employees of said counsel to whom it is reasonably necessary to disclose the
information for this litigation (employees of said counsel to whom disclosure is to
be made must execute an acknowledgment in the form set forth at Attachment B
hereto);
(2)
Experts specifically retained as consultants or expert witnesses in
connection with this litigation who have signed the acknowledgment in the form
set forth at Attachment B hereto;
(3)
the Court and its personnel;
(4)
court reporters, their staffs, and professional vendors to whom disclosure
is reasonably necessary for this litigation and who have signed the
acknowledgment in the form set forth at Attachment B hereto; and
(5)
c.
the author of the document or the original source of the information.
Except with the prior written consent of the individual or entity designating a
document or portions of a document designated “CONFIDENTIAL—PLAINTIFF’S
ATTORNEYS’ EYES ONLY,” or pursuant to prior Order after notice, any document,
transcript, or pleading given “CONFIDENTIAL—PLAINTIFF’S ATTORNEYS’ EYES
ONLY” treatment under this Order, and any information contained in, or derived from
any such materials (including but not limited to, all deposition testimony that refers,
reflects or otherwise discusses any information designated “CONFIDENTIAL—
PLAINTIFF’S ATTORNEYS’ EYES ONLY” hereunder) may not be disclosed other
than in accordance with this Order and may not be disclosed to any person other than:
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(1)
Plaintiff’s outside counsel of record in this action, as well as employees of
said counsel to whom it is reasonably necessary to disclose the information for
this litigation (employees of said counsel to whom disclosure is to be made must
execute an acknowledgement in the form set forth at Attachment B hereto);
(2)
Experts specifically retained by Plaintiff as consultants or expert witnesses
in connection with this litigation who have signed the acknowledgment in the
form set forth at Attachment B hereto;
(3)
the Court and its personnel;
(4)
court reporters, their staffs, and professional vendors to whom disclosure
is reasonably necessary for this litigation and who have signed the
acknowledgment in the form set forth at Attachment B hereto; and
(5)
d.
the author of the document or the original source of the information.
Control of Documents. Counsel for the parties shall take reasonable efforts to
prevent unauthorized disclosure of documents designated as “CONFIDENTIAL—
ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL—PLAINTIFF’S ATTORNEYS’
EYES ONLY” pursuant to the terms of this order. Counsel shall maintain a record of
those persons, including employees of counsel, who have reviewed or been given access
to the documents along with the originals of the forms signed by those persons
acknowledging their obligations under this Order.
e.
Copies. All copies, duplicates, extracts, summaries or descriptions (hereinafter
referred to collectively as “copies”), of documents designated as “CONFIDENTIAL—
ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL—PLAINTIFF’S ATTORNEYS’
EYES ONLY” under this Order or any portion of such a document, shall be immediately
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affixed with the designation “CONFIDENTIAL—ATTORNEYS’ EYES ONLY” or
“CONFIDENTIAL—PLAINTIFF’S ATTORNEYS’ EYES ONLY” if the word does not
already appear on the copy. All such copies shall be afforded the full protection of this
Order.
8.
Filing of Confidential Materials. In the event a party seeks to file any material
that is subject to protection under this Order with the court, that party shall take appropriate
action to insure that the documents receive proper protection from public disclosure including:
(1) filing a redacted document with the consent of the party who designated the document as
confidential; (2) where appropriate (e.g. in relation to discovery and evidentiary motions),
submitting the documents solely for in camera review; or (3) where the preceding measures are
not adequate, seeking permission to file the document under seal pursuant to the procedural steps
set forth in Local Civil Rule 5.03, DSC, or such other rule or procedure as may apply in the
relevant jurisdiction. Absent extraordinary circumstances making prior consultation impractical
or inappropriate, the party seeking to submit the document to the court shall first consult with
counsel for the party who designated the document as confidential to determine if some measure
less restrictive than filing the document under seal may serve to provide adequate protection.
This duty exists irrespective of the duty to consult on the underlying motion. Nothing in this
Order shall be construed as a prior directive to the Clerk of Court to allow any document be filed
under seal. The parties understand that documents may be filed under seal only with the
permission of the court after proper motion pursuant to Local Civil Rule 5.03.
9.
Objections. Nothing in this order shall constitute a waiver of any objections by
any defendant to the use of or reference to any documents or materials designated as
“CONFIDENTIAL—PLAINTIFF’S ATTORNEYS’ EYES ONLY.”
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10.
Greater Protection of Specific Documents. No party may withhold information
from discovery on the ground that it requires protection greater than that afforded by this Order
unless the party moves for an Order providing such special protection.
11.
Challenges to Designation as Confidential. Any “CONFIDENTIAL” or
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL—PLAINTIFF’S
ATTORNEYS’ EYES ONLY” designation is subject to challenge.
The following procedures
shall apply to any such challenge.
a.
The burden of proving the necessity of a “CONFIDENTIAL” or
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” or “CONFIDENTIALPLAINTIFF’S ATTORNEYS’ EYES ONLY” designation remains with the party
asserting confidentiality.
b.
A party who contends that documents designated “CONFIDENTIAL” or
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL—
PLAINTIFF’S ATTORNEYS’ EYES ONLY” are not entitled to confidential treatment
shall give written notice to the party who affixed the designation of the specific basis for
the challenge. The party who so designated the documents shall have fifteen (15) days
from service of the written notice to determine if the dispute can be resolved without
judicial intervention and, if not, to move for an Order confirming the Confidential
designation.
c.
Notwithstanding any challenge to the designation of documents as confidential,
all material previously designated “CONFIDENTIAL” or “CONFIDENTIAL—
ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL—PLAINTIFF’S ATTORNEYS’
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EYES ONLY” shall continue to be treated as subject to the full protections of this Order
until one of the following occurs:
(1)
the party who claims that the documents are confidential withdraws such
designation in writing;
(2)
the party who claims that the documents are confidential fails to move
timely for an Order designating the documents as confidential as set forth in
paragraph 11.b. above; or
(3)
the court rules that the documents should no longer be designated as
confidential information.
d.
Challenges to the confidentiality of documents may be made at any time and are
not waived by the failure to raise the challenge at the time of initial disclosure or
designation.
12.
Treatment on Conclusion of Litigation.
a.
Order Remains in Effect. All provisions of this Order restricting the use of
documents designated “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’
EYES ONLY” or “CONFIDENTIAL—PLAINTIFF’S ATTORNEYS’ EYES ONLY”
shall continue to be binding after the conclusion of the litigation unless otherwise agreed
or ordered.
b.
Return of “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’
EYES ONLY” or “CONFIDENTIAL—PLAINTIFF’S ATTORNEY’S EYES
ONLY” Documents. Within thirty (30) days after the conclusion of the litigation,
including conclusion of any appeal, all documents treated as confidential under this
Order, including copies as defined above (¶6.d. and ¶7.e.) shall be returned to the
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producing party unless: (1) the document has been entered as evidence or filed (unless
introduced or filed under seal); (2) the parties stipulate to destruction in lieu of return; or
(3) as to documents containing the notations, summations, or other mental impressions of
the receiving party, that party elects destruction. Notwithstanding the above
requirements to return or destroy documents, counsel may retain attorney work product
including an index which refers or relates to information designated CONFIDENTIAL so
long as that work product does not duplicate verbatim substantial portions of the text of
confidential documents. This work product continues to be Confidential under the terms
of this Order.
13.
Order Subject to Modification. This Order shall be subject to modification on
motion of any party or any other person who may show an adequate interest in the matter to
intervene for purposes of addressing the scope and terms of this Order. The Order shall not,
however, be modified until the parties shall have been given notice and an opportunity to be
heard on the proposed modification.
14.
No Judicial Determination. This Order is entered based on the representations
and agreements of the parties and for the purpose of facilitating discovery. Nothing herein shall
be construed or presented as a judicial determination that any specific document or item of
information designated as “CONFIDENTIAL” or “CONFIDENTIAL—ATTORNEYS’ EYES
ONLY” or “CONFIDENTIAL—PLAINTIFF’S ATTORNEYS’ EYES ONLY” by counsel is
subject to protection under Rule 26(c) of the Federal Rules of Civil Procedure or otherwise until
such time as a document-specific ruling shall have been made.
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15.
Persons Bound. This Order shall take effect when entered and shall be binding
upon: (1) counsel who signed below and their respective law firms; and (2) their respective
clients.
16.
Admissibility of Evidence. This Order shall govern pretrial proceedings only,
and nothing set forth herein prohibits the use at trial of any Confidential Information or affects
the admissibility of any evidence. The procedures to govern the use and disclosure of
Confidential Information and the redaction of any “CONFIDENTIAL” or “CONFIDENTIAL—
ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL—PLAINTIFF’S ATTORNEYS’ EYES
ONLY” designation may be the subject of further agreement of the Parties or order of the Court.
17.
Parties’ Own Confidential Information. Nothing herein shall be construed as
limiting a party’s use of its own Confidential Information and such use shall not constitute a
waiver of the terms of this Order or the status of such information as Confidential Information.
Any of the parties can remove their designation of Confidential Information from any
information it has previously so designated.
18.
Pretrial Proceedings. The Parties may use or disclose any Confidential
Information in any pretrial court proceeding only in the event that such hearing is a closed
proceeding. If the hearing is not closed, the parties may request that the court close the hearing
for the purpose of allowing the parties to freely discuss confidential documents with the Court.
This provision does not limit the right of any of the Parties to submit any Confidential
Information to the Court under seal as described above.
IT IS SO ORDERED.
s/ R. Bryan Harwell
R. Bryan Harwell
August 11, 2015
United States District Judge
Florence, South Carolina
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ATTACHMENT A
CERTIFICATION BY COUNSEL OF DESIGNATION
OF INFORMATION AS CONFIDENTIAL
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
TAHNEE DANIELS HOWARD,
Plaintiff,
v.
CASE NO.: 4:15-CV-01279-RBH
EXPERIAN INFORMATION
SOLUTIONS, INC.,
Defendant.
Documents produced herewith [whose bates numbers are listed below (or) which are
listed on the attached index] have been marked as “CONFIDENTIAL” and/or
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” and/or “CONFIDENTIAL—PLAINTIFF’S
ATTORNEYS’ EYES ONLY” subject to the Confidentiality Order entered in this action which
Order is dated _________________________.
By signing below, I am certifying that I have personally reviewed the marked documents
and believe, based on that review, that they are properly subject to protection under the terms of
Paragraph 3 and/or Paragraph 4 of the Confidentiality Order.
Check and complete one of the two options below.
I am a member of the Bar of the United States District Court for the District of
South Carolina. My District Court Bar number is _____________________.
I am not a member of the Bar of the United States District Court for the District of
South Carolina but am admitted to the bar of one or more states. The state in
which I conduct the majority of my practice is ______________________ where
my Bar number is ____________________. I understand that by completing this
certification I am submitting to the jurisdiction of the United States District Court
for the District of South Carolina as to any matter relating to this certification.
Date: ______________________
______________________________________
Signature of Counsel
______________________________________
Printed Name of Counsel
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ATTACHMENT B
ACKNOWLEDGMENT OF UNDERSTANDING AND
AGREEMENT TO BE BOUND
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
TAHNEE DANIELS HOWARD,
Plaintiff,
v.
CASE NO.: 4:15-CV-01279-RBH
EXPERIAN INFORMATION
SOLUTIONS, INC.,
Defendant.
The undersigned hereby acknowledges that he or she has read the Confidentiality Order
dated _____________________, in the above captioned action, understands the terms thereof,
and agrees to be bound by such terms. The undersigned submits to the jurisdiction of the United
States District Court for the District of South Carolina in matters relating to the Confidentiality
Order and understands that the terms of said Order obligate him/her to use discovery materials
designated “CONFIDENTIAL” and/or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY”
and/or “CONFIDENTIAL—PLAINTIFF’S ATTORNEYS’ EYES ONLY” solely for the
purposes of the above-captioned action, and not to disclose any such confidential information to
any other person, firm or concern.
The undersigned acknowledges that violation of the Stipulated Confidentiality Order may
result in penalties for contempt of court.
Name:
_________________________
Job Title:
_________________________
Employer:
_________________________
Business
Address:
____________________________________________________________
Date: _______________
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_________________________________________
Signature
ATTACHMENT C
CERTIFICATION OF COUNSEL OF NEED
FOR ASSISTANCE OF PARTY/EMPLOYEE
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
TAHNEE DANIELS HOWARD,
Plaintiff,
v.
CASE NO.: 4:15-CV-01279-RBH
EXPERIAN INFORMATION
SOLUTIONS, INC.,
Defendant.
CONSENT
Pursuant to the Confidentiality Order entered in this action, most particularly the
provisions of Paragraphs 6.b.2. and/or 7.b.1, 2, or 4 and/or 7.c.1, 2, or 4, I certify that the
assistance of _____________________ is reasonably necessary to the conduct of this litigation
and that this assistance requires the disclosure to this individual of information which has been
designated as “CONFIDENTIAL” and/or “CONFIDENTIAL—ATTORNEYS’ EYES ONLY”
and/or “CONFIDENTIAL—PLAINTIFF’S ATTORNEYS’ EYES ONLY.”
I have explained the terms of the Confidentiality Order to the individual named above
and will obtain his or her signature on an “Acknowledgment of Understanding and Agreement to
be Bound” prior to releasing any confidential documents to the named individual and I will
release only such confidential documents as are reasonably necessary to the conduct of the
litigation.
The individual named above is:
A named party.
An employee of named party ____________________. This employee’s job title
is __________________ and work address is ____________________________.
An employee of Outside Counsel of named party _____________________
(NOTE: Certification only necessary if documents are designated
“CONFIDENTIAL—ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL—
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PLAINTIFF’S ATTORNEYS’ EYES ONLY.”) This employee’s job title is
________________ and work address is _______________________________.
An expert witness of named party_____________________.
(NOTE:
Certification only necessary if documents are designated “CONFIDENTIAL—
ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL—PLAINTIFF’S
ATTORNEYS’ EYES ONLY.”) This expert witness’s work address is
_______________________________.
A court reporter, employee of a court reporter, or a professional vendor. (NOTE:
Certification only necessary if documents are designated “CONFIDENTIAL—
ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL—PLAINTIFF’S
ATTORNEYS’ EYES ONLY.”) This individual’s job title is __________ and
his/her work address is __________________________.
Date: ______________
___________________________________
Signature
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