Community Association for Restoration of the Environment Inc et al v. Snipes Mountain Dairy Inc
Filing
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STIPULATED PROTECTIVE ORDER. Signed by Chief Judge Thomas O. Rice. (BF, Paralegal)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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COMMUNITY ASSOCIATION FOR
RESTORATION OF THE
ENVIRONMENT, INC., a Washington
non-profit corporation,
and
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Plaintiffs,
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STIPULATED PROTECTIVE
ORDER
FRIENDS OF TOPPENISH CREEK, a
Washington non-profit corporation,
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NO. 1:17-CV-3067-TOR
v.
SNIPES MOUNTAIN DAIRY, INC., a
Washington corporation,
Defendant.
1.
PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidential,
proprietary, or private information for which special protection may be
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warranted. Accordingly, the parties hereby stipulate to and petition the Court to
enter the following Stipulated Protective Order. The parties acknowledge that this
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agreement is consistent with FRCP 26(c). It does not automatically confer
blanket protection on all disclosures or responses to discovery, the protection it
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affords from public disclosure and use extends only to the limited information or
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items that are entitled to confidential treatment under the applicable legal
principles, and it does not presumptively entitle parties to file confidential
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information under seal.
2.
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“Confidential” material shall include the following documents and tangible
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things produced or otherwise exchanged:
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• Documents pertaining to the purchase and sale of real and personal
property formerly belonging to Snipes Mountain Dairy or used in
operation of the Dairy.
• Financial documents pertaining to Henry Haak, Ev Haak, Snipes
Mountain Dairy, Inc. and/or Red Hawk, LLC, including but not limited
to tax returns, financial statements and balance sheets.
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3.
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SCOPE
The protections conferred by this agreement cover not only confidential
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“CONFIDENTIAL” MATERIAL
material (as defined above), but also (1) any information copied or extracted from
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confidential material; (2) all copies, excerpts, summaries, or compilations of
confidential material; and (3) any testimony, conversations, or presentations by
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parties or their counsel that might reveal confidential material.
//
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//
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However, the protections conferred by this agreement do not cover
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information that is in the public domain or becomes part of the public domain
through trial or otherwise.
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4.
ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
4.1 Basic Principles. A receiving party may use confidential material that
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is disclosed or produced by another party or by a non-party in connection with
this case only for prosecuting, defending, or attempting to settle this litigation.
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Confidential material may be disclosed only to the categories of persons and
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under the conditions described in this agreement. Confidential material must be
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stored and maintained by a receiving party at a location and in a secure manner
that ensures that access is limited to the persons authorized under this agreement.
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4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
otherwise ordered by the court or permitted in writing by the designating party, a
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receiving party may disclose any confidential material only to:
(a) the receiving party’s counsel of record in this action, as well as
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employees of counsel to whom it is reasonably necessary to disclose the
information for this litigation;
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STIPULATED PROTECTIVE ORDER - 3
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(b) the officers, directors, and employees (including in house counsel)
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of the receiving party to whom disclosure is reasonably necessary for this
litigation, unless the parties agree that a particular document or material
produced is for Attorney’s Eyes Only and is so designated;
(c) experts and consultants to whom disclosure is reasonably
necessary for this litigation and who have signed the “Acknowledgment and
Agreement to Be Bound” (Exhibit A);
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(d) the Court, court personnel, and court reporters and their staff;
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(e) copy or imaging services retained by counsel to assist in the
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duplication of confidential material, provided that counsel for the party
retaining the copy or imaging service instructs the service not to disclose
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any confidential material to third parties and to immediately return all
originals and copies of any confidential material;
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(f) during their depositions, witnesses in the action to whom
disclosure
is
reasonably
necessary
and
who
have
signed
the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A), unless
otherwise agreed by the designating party or ordered by the court. Pages of
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transcribed deposition testimony or exhibits to depositions that reveal
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confidential material must be separately bound by the court reporter and may
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not be disclosed to anyone except as permitted under this agreement;
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(g) the author or recipient of a document containing the information
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or a custodian or other person who otherwise possessed or knew the
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information.
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4.3 Filing Confidential Material. Before filing confidential material or
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discussing or referencing such material in court filings, the filing party shall
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confer with the designating party to determine whether the designating party will
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remove the confidential designation, whether the document can be redacted, or
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whether a motion to seal or stipulation and proposed order is warranted.
5.
DESIGNATING PROTECTED MATERIAL
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5.1 Exercise of Restraint and Care in Designating Material for Protection.
Each party or non-party that designates information or items for protection under
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this agreement must take care to limit any such designation to specific material
that qualifies under the appropriate standards. The designating party must
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designate for protection only those parts of material, documents, items, or oral or
written communications that qualify, so that other portions of the material,
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STIPULATED PROTECTIVE ORDER - 5
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documents, items, or communications for which protection is not warranted are
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not swept unjustifiably within the ambit of this agreement.
If it comes to a designating party’s attention that information or items that it
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designated for protection do not qualify for protection, the designating party must
promptly notify all other parties that it is withdrawing the mistaken designation.
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5.2 Manner and Timing of Designations. Except as otherwise provided in
this agreement (see, e.g., second paragraph of section 5.2(a) below), or as
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otherwise stipulated or ordered, disclosure or discovery material that qualifies for
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protection under this agreement must be clearly so designated before or when the
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material is disclosed or produced.
(a) Information in documentary form: (e.g., paper or electronic
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documents and deposition exhibits, but excluding transcripts of depositions
or other pretrial or trial proceedings), the designating party must affix the
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word “CONFIDENTIAL” to each page that contains confidential material.
If only a portion or portions of the material on a page qualifies for protection,
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the producing party also must clearly identify the protected portion(s) (e.g.,
by making appropriate markings in the margins).
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(b) Testimony given in deposition or in other pretrial proceedings: the
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parties and any participating non-parties must identify on the record, during
the deposition or other pretrial proceeding, all protected testimony, without
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prejudice to their right to so designate other testimony after reviewing the
transcript. Any party or non-party may, within fifteen days after receiving
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the transcript of the deposition or other pretrial proceeding, designate
portions of the transcript, or exhibits thereto, as confidential. If a party or
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non-party desires to protect confidential information at trial, the issue should
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be addressed during the pre-trial conference.
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(c) Other tangible items: the producing party must affix in a prominent
place on the exterior of the container or containers in which the information
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or item is stored the word “CONFIDENTIAL.” If only a portion or portions
of the information or item warrant protection, the producing party, to the
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extent practicable, shall identify the protected portion(s).
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
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failure to designate qualified information or items does not, standing alone, waive
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the designating party’s right to secure protection under this agreement for such
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material. Upon timely correction of a designation, the receiving party must make
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reasonable efforts to ensure that the material is treated in accordance with the
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provisions of this agreement.
6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
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6.1 Timing of Challenges. Any party or non-party may challenge a
designation of confidentiality at any time. Unless a prompt challenge to a
designating party’s confidentiality designation is necessary to avoid foreseeable,
substantial unfairness, unnecessary economic burdens, or a significant disruption
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or delay of the litigation, a party does not waive its right to challenge a
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confidentiality designation by electing not to mount a challenge promptly after
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the original designation is disclosed.
6.2 Meet and Confer. The parties must make every attempt to resolve any
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dispute regarding confidential designations without court involvement. Any
motion regarding confidential designations or for a protective order must include
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a certification, in the motion or in a declaration or affidavit, that the movant has
engaged in a good faith meet and confer conference with other affected parties in
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an effort to resolve the dispute without court action. The certification must list
the date, manner, and participants to the conference. A good faith effort to confer
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requires a face-to-face meeting or a telephone conference.
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7.
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PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
If a party is served with a subpoena or a court order issued in other litigation
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that compels disclosure of any information or items designated in this action as
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“CONFIDENTIAL,” that party must:
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(a) promptly notify the designating party in writing and include a copy
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of the subpoena or court order;
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(b) promptly notify in writing the party who caused the subpoena or
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order to issue in the other litigation that some or all of the material covered
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by the subpoena or order is subject to this agreement. Such notification shall
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include a copy of this agreement; and
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(c) cooperate with respect to all reasonable procedures sought to be
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pursued by the designating party whose confidential material may be
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affected.
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8.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a receiving party learns that, by inadvertence or otherwise, it has disclosed
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confidential material to any person or in any circumstance not authorized under
this agreement, the receiving party must immediately (a) notify in writing the
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designating party of the unauthorized disclosures, (b) use its best efforts to
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retrieve all unauthorized copies of the protected material, (c) inform the person
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or persons to whom unauthorized disclosures were made of all the terms of this
agreement, and (d) request that such person or persons execute the
“Acknowledgment and Agreement to Be Bound” that is attached hereto as
Exhibit A.
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9.
IN ADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
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When a producing party gives notice to receiving parties that certain
inadvertently produced material is subject to a claim of privilege or other
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protection, the obligations of the receiving parties are those set forth in Federal
Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
whatever procedure may be established in an e-discovery order or agreement that
provides for production without prior privilege review. The parties agree to the
entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein.
10. NON TERMINATION AND RETURN OF DOCUMENTS
Within 60 days after the termination of this action, including all appeals,
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each receiving party must return all confidential material to the producing party,
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STIPULATED PROTECTIVE ORDER 10
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including all copies, extracts and summaries thereof. Alternatively, the parties
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may agree upon appropriate methods of destruction.
Notwithstanding this provision, counsel are entitled to retain one archival
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copy of all documents filed with the court, trial, deposition, and hearing
transcripts, correspondence, deposition and trial exhibits, expert reports, attorney
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work product, and consultant and expert work product, even if such materials
contain confidential material.
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The confidentiality obligations imposed by this agreement shall remain in
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effect until a designating party agrees otherwise in writing or a court orders
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otherwise.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD
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Attorneys for Defendant
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DATED: June 22, 2018
___/s/_______________________________
KENT NEIL DOLL, JR., WSBA 40549
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__/s/________________________________
KIRK A. EHLIS, WSBA 22908
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STIPULATED PROTECTIVE ORDER 11
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Attorneys for Plaintiffs
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___/s/_______________________________
SEANN M. MUMFORD, WSBA 43853
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___/s/______________________________
CHARLES M. TEBBUTT, WSBA 47255
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___/s/_______________________________
ANDREA K. RODGERS, WSBA 38683
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__/s/_______________________________
TOBY J. MARSHALL, WSBA 32726
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___/s/_______________________________
BLYTHE H. CHANDLER, WSBA 43387
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PURSUANT TO STIPULATION, IT IS SO ORDERED
IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the
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production of any documents in this proceeding shall not, for the purposes of this
proceeding or any other proceeding in any other court, constitute a waiver by the
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STIPULATED PROTECTIVE ORDER 12
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producing party of any privilege applicable to those documents, including the
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attorney-client privilege, attorney work-product protection, or any other privilege
or protection recognized by law.
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DATED August 22, 2018.
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THOMAS O. RICE
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Chief United States District Judge
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STIPULATED PROTECTIVE ORDER 13
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, ____________________________________ [print or type full name], of
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____________________________________ [print or type full address], declare
under penalty of perjury that I have read in its entirety and understand the
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Stipulated Protective Order that was issued by the United States District Court
for the Eastern District of Washington on _______________ in the case of
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Community Association for Restoration of the Environment, Inc., a Washington
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non-profit corporation; and Friends of Toppenish Creek, a Washington non-
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profit corporation v. Snipes Mountain Dairy, Inc., a Washington corporation;
Case No. 17-CV-03067. I agree to comply with and to be bound by all the terms
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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
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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
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person or entity except in strict compliance with the provisions of this Order.
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STIPULATED PROTECTIVE ORDER 14
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I further agree to submit to the jurisdiction of the United States District Court
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for the Eastern District of Washington for the purpose of enforcing the terms of
this Stipulated Protective Order, even if such enforcement proceedings occur
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after termination of this action.
Date: __________________
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City and State where sworn and signed: ________________________________
Printed name: _______________________________
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Signature: __________________________________
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STIPULATED PROTECTIVE ORDER 15
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