NTCH-WA Inc v. ZTE Corporation et al
Filing
129
ORDER DENYING 127 PLAINTIFF'S MOTION FOR RECONSIDERATION. Signed by Judge Thomas O. Rice. (BF, Judicial Assistant)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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NTCH-WA, INC.,
NO: 12-CV-3110-TOR
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Plaintiff,
ORDER DENYING MOTION FOR
RECONSIDERATION
v.
ZTE CORPORATION,
Defendant.
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BEFORE THE COURT is Plaintiff NTCH-WA’s “Motion for Clarification
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and/or Reconsideration of Protective Order” (ECF No. 127). This matter was
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submitted for consideration without oral argument. The Court has reviewed the
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record and files herein and is fully informed.
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DISCUSSION
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Plaintiff NTCH-WA has moved for “clarification and/or reconsideration” of
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Paragraph No. 22 of the Protective Order entered on May 13, 2014 (ECF No. 126).
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The motion is styled as a motion for “reconsideration” because the inclusion of
ORDER DENYING MOTION FOR CLARIFICATION AND/OR
RECONSIDERATION ~ 1
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Paragraph No. 22 in the protective order was previously the subject of a dispute
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which the parties submitted for informal resolution via letter briefs. As Plaintiff
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has now sought formal reconsideration of the Court’s prior informal ruling, the
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Court has appended to this Order the parties’ letter briefs (Attachments A and B)
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which were considered by the Court prior to entering the protective order.
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Plaintiff’s arguments are not well-taken. Paragraph No. 22 of the protective
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order is designed to streamline the discovery process by eliminating the hassle and
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expense of physically re-producing documents that were made part of the trial
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record in the arbitration proceedings, and are already within the possession of both
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parties to this proceeding:
The trial record in the arbitration . . . specifically including the
transcript of the arbitration trial, all related briefing and memoranda,
and the documents identified on the parties’ trial exhibit lists which
were deemed admitted in the arbitration trial, shall be deemed
produced and designated as CONFIDENTIAL MATERIALS for
purposes of this action (the “Arbitration Materials”). The Arbitration
Materials need not be produced again by any party in response to
discovery requests, unless otherwise specifically requested. It is
expressly understood and agreed by the parties that this paragraph
is without prejudice to the parties’ respective positions regarding the
relevance and/or admissibility of such documents, the scope of this
action, and the effect, if any, of the Arbitration on this action.
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ECF No. 126 at 10-11 (emphasis added). Contrary to Plaintiff’s assertions, there is
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no danger that this paragraph will allow Defendant to “circumvent the relevancy
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requirements of the Federal Rules and improperly introduce Plaintiff’s and the
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non-party Arbitration Claimants’ documents into this litigation.” ECF No. 127 at
ORDER DENYING MOTION FOR CLARIFICATION AND/OR
RECONSIDERATION ~ 2
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2. Indeed, Paragraph No. 22 specifically states that it cannot operate to waive any
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objection to the relevance of a particular document contained within the arbitration
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trial record. As counsel for Defendant explained in her letter brief, this paragraph
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simply ensures that “neither side [will] be put to the expense of re-producing the
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same documents, which were already within the other party’s possession, custody
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and control, by virtue of [having been exchanged during] the arbitration.”
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Lest there be any lingering confusion about the scope of Paragraph No. 22,
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the Court offers the following interpretation: If a document responsive to a
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discovery request is part of the arbitration trial record—“specifically including the
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transcript of the arbitration trial, all related briefing and memoranda, and the
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documents identified on the parties’ trial exhibit lists which were deemed admitted
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in the arbitration trial”—that document need not be photocopied and mailed to
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opposing counsel again. Pursuant to Paragraph No. 22, the document is
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automatically “produced” in the sense that it is deemed to have been already
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provided. To the extent that the “producing” party has a specific objection to the
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admissibility of that document in these proceedings, it shall so notify the other
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party. If the parties cannot agree about the admissibility of the document—after
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meeting and conferring in good faith—then they may seek a ruling from the Court
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in the ordinary course (preferably by way of an informal discovery conference).
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ORDER DENYING MOTION FOR CLARIFICATION AND/OR
RECONSIDERATION ~ 3
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Because the Court recognizes the confidential nature of the arbitration trial
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record it deemed these records “CONFIDENTIAL.” With that label, paragraph 10
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of the Order Governing Confidential Material (ECF No. 126) requires that if
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counsel seeks to use such evidence, it must be filed under seal. This not only
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preserves the confidential nature of the records, but also allows the opposing party
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to challenge the propriety of their use.
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IT IS HEREBY ORDERED:
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Plaintiff’s “Motion for Clarification and/or Reconsideration of Protective
Order” (ECF No. 127) is DENIED.
The District Court Executive is hereby directed to enter this Order and
provide copies to counsel.
DATED June 3, 2014.
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THOMAS O. RICE
United States District Judge
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ORDER DENYING MOTION FOR CLARIFICATION AND/OR
RECONSIDERATION ~ 4
ATTACHMENT A
Exhibit
A
Exhibit
B
ATTACHMENT B
I-Jogaii
Lovells
Hogan Love Ms US LLP
600 Brickell Avenue
Suite 2700
Miami, FL 33131
T +1 305 459 6500
F +1 305 459 6550
www.hoganlovells.com
May 8, 2014
Via Electronic Mail
The Honorable Judge Thomas 0. Rice
United States District Court
Eastern District of Washington
Thomas S. Foley U.S. Court House
Re:
NTCH-WA, Inc. v. ZTE Corporation
Case No. 2:12-cv-03110-TOR
Dear Judge Rice:
This firm represents defendant ZTE Corporation in the above-referenced matter. This letter
responds to Ms. Sofio’s letter to your Honor dated May 7, 2014.
As your Honor will recall, Ms. Soflo previously wrote to you on April 7, 2014, to raise issues
regarding defendant’s responses and objections to plaintiffs discovery requests, which had been
timely served six weeks earlier. Plaintiff sent the April 7 letter to you having made no effort to meet
and confer with counsel for defendant regarding the issues raised. Defendant responded to the April
7 letter on April II, 2014, and suggested that most, if not all, of the issues raised by the April 7 letter
could be resolved if the parties simply met and conferred as required by the rules. On April 16,
2014, the Court, through Ms. Fortenberry, “direct[ed] the parties to meet and confer and agree on a
protective order.”
We are pleased to report that, in fact, the parties were able to resolve almost all of the issues
related to specific document requests raised by the April 7 letter. At this juncture, defendant is
considering several requests that plaintiff has agreed to clarify or narrow to determine whether the
newly-revised requests satisfy defendant’s previously-stated concerns. Otherwise, all of the specific
document request issues have been resolved.
The issue that remains is the scope of the confidentiality order. As the Court is aware,
voluminous documents were previously produced in the arbitration between the parties. To facilitate
production in the arbitration, the parties agreed to treat all of the documents produced as
confidential. Plaintiff NTCH-WA was a claimant in the arbitration and its counsel in this matter, Mr.
Gallagher, was counsel to all claimants, including NTCH-WA, in the arbitration. (In fact, Mr.
Gallagher was lead counsel for claimants in the arbitration trial.) Defendant ZTE Corporation was a
respondent in the arbitration and its counsel in this matter, Ms. Besvinick, was counsel for
respondents, including ZTE Corporation, in the arbitration. Consequently, both the parties to this
case and their counsel already have possession, custody and control of the universe of documents
at issue.
Sensitive to this Court’s directive that the parties “economically view the case and determine
what discovery, under either theory of the arbitration award, would be due either side,” we proposed
that the parties agree to continue to treat the documents previously produced (between the parties)
as confidential in the arbitration as confidential in this case. We also suggested that neither side be
put to the expense of re-producing the same documents, which were already within the other party’s
possession, custody and control, by virtue of the arbitration. Finally, we proposed that the
confidentiality order include a provision reflecting these agreements.
Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. Hogan Lovells’ is an international legal practice that includes Hogan Lovells US
LLP and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore Beijing Brussels Caracas Colorado Springs Denver Dubai Dusseldorf
Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Johannesburg London Los Angeles Luxembourg Madrid Miami Milan Moscow Munich New
York Northern Virginia Paris Philadelphia Prague Rio de Janeiro Rome San Francisco SSo Paulo Shanghai Silicon Valley Singapore Tokyo ulaanbaatar
Warsaw Washington DC Associated offices. Budapest Jakarta Jeddah Riyadh Zagreb. For more information see wew.hoganlovells.com
\tMl
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03888B/000004
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184463 vi
Plaintiff has objected to proceeding in this fashion. In support of its objection, plaintiff claims
that it “cannot agree to lift the arbitration confidentiality order on behalf of other parties.” But this
claim has no basis in fact. Continuing to treat the documents previously produced in the arbitration
as confidential in a case between a subset of the parties to the arbitration does not expand the
universe of persons with access to the documents. Moreover, the “other parties” to whom plaintiff
refers are not strangers to plaintiff or this case they are Eric Steinmann, NTCH-WA’s “development
manager,” and ClearTalk affiliates Daredevil, Inc., PTA-FLA, Inc., and NTCH-West Tenn, Inc.
Plaintiff also claims that “plaintiffs counsel in this action has not had the opportunity to review all of
plaintiff’s documents,” but this claim also rings hollow. As noted, Mr. Gallagher, counsel to plaintiff in
this case, was lead counsel in the arbitration trial. Finally, plaintiff claims the “sensitive and
irrelevant information was produced in the arbitration on the understanding that arbitration was a
confidential
procedure.” As noted above, defendant proposes to continue to treat the documents
at issue as confidential in this case. Accordingly, it is unclear what harm our proposal could possibly
cause to plaintiff or any of the other ClearTalk claimants.
—
.
.
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Nonetheless, in an effort to keep this case moving forward, we proposed a compromise
solution to plaintiff. We proposed that, rather than agreeing to treat all documents produced in the
arbitration as produced and confidential in this case, the parties agree to treat only the arbitration
trial record (i.e., the transcript of the arbitration trial, the related briefing and memoranda, and the
documents identified on the parties’ trial exhibit lists which were deemed admitted in the arbitration
trial) accepted as produced and confidential in this case. The compromise proposal was intended to
directly address plaintiff’s stated concerns regarding the breadth of claimants’ production in the
arbitration and whether plaintiffs counsel had had the opportunity to review it in full. Plaintiff
declined the compromise proposal without explanation.
In a further effort to meet plaintiffs concerns, we also agreed to include specific language in
the protective order to make clear that production of documents pursuant to the confidentiality order
would not be deemed a waiver of either party’s objections based on relevance or admissibility.
Accordingly, Defendant respectfully urges the Court to enter the proposed Confidentiality
Order attached hereto as Exhibit A. The proposed Confidentiality Order reflects the agreement of
the parties, with the sole exception of paragraph 22, which reflects the defendant’s compromise
proposal.
As the Court knows, the question of the preclusive impact of the arbitration on these
proceedings will need to be addressed by the Court at the appropriate time. In order for the Court to
do that, the Court will need to have complete access to the arbitration trial record, at minimum.
Moreover, defendant previously identified the documents “already produced by NTCH-WA and ZTE
USA
in the Arbitration” in its Rule 26 initial disclosures as the documents that “may be used to
support ZTE Corporation’s defenses.” Lastly, the documents are responsive to plaintiffs document
requests to defendant. Defendant needs to produce them to plaintiff.
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Based on the foregoing, we are prepared to make a full production to plaintiff, including the
arbitration trial record, and intend to do so absent contrary direction from the Court. Thank you for
your attention to this matter. We are available at the Court’s convenience should the Court
determine a hearing is appropriate.
Res ecifully submitted
Laura Besvinick
Partner
laura.besvinick@hoganlovells.com
D 305-459-6622
cc: All counsel of record
\\MI
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038886/000004
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184463 vi
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THOMAS D. COCHRAN, WSBA 5910
MICHAEL J. KAPAUN, WSBA 36864
WITHERSPOON KELLEY
422 West Riverside Avenue, Suite 1100
Spokane, Washington 99201
Phone: (509) 624-5265
Fax:
(509) 458-2728
The Honorable Thomas 0. Rice
Email: tdc@witherspoonkelley.com
mjk@witherspoonkelly.com
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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NTCH-WA, INC., a Washington
Corporation,
Case No. 2:12-cv-03110-TOR
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Plaintiff,
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v.
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ZTE CORPORATION, a business
incorporated under the laws of the
People’s Republic of China; and DOES
1 through 10, inclusive
[PROPOSED] ORDER GOVERNING
CONFIDENTIAL MATERIAL
Defendants.
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IT IS HEREBY ORDERED THAT certain materials containing the
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parties’ confidential and proprietary trade secrets, financial data, proprietary
standards, guidelines and practices; employee contracts and compensation
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information, personal or private information regarding customers, and other
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[PROPOSED] ORDER GOVERNTNG
CONFIDENTIAL MATERIAL:
WITHERSPO ONKELLEY
Attorneys & Counselors
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 9920 1-0300
Phone: 509,624.5265
Fax: 509.458.2728
business information the release of which could pose a significant risk of
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personal, business or competitive harm if made public, which are produced by the
Plaintiffs or the Defendants in this action in response to discovery requests, or are
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produced by third parties to the Plaintiffs or the Defendants in connection with
this action, and which the party or third party producing such information
designates as CONFIDENTIAL, shall be protected as described in this ORDER
(hereinafter referred to as the “CONFIDENTIAL MATERIALS”).
1.
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Any materials or CONFIDENTIAL MATERIALS exchanged or
obtained in discovery shall be used by the receiving party solely for the
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prosecution and/or defense of the lawsuit and for purposes of evaluation of
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settlement and for settlement negotiations, and not for any other purpose,
including without limitation, any competitive or business purpose. Nothing
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contained herein shall restrict or prevent any party from disclosing or otherwise
using any information or documents not obtained under this Order.
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2.
Any party may designate the information it produces as
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“CONFIDENTIAL” if it believes, in its good faith judgment, that the material
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contains confidential, sensitive or proprietary information that falls within the
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foregoing description of CONFIDENTIAL MATERIALS. The party shall make
this designation by placing on every document or other material containing such
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[PROPOSED] ORDER GOVERNING
CONFIDENTIAL MATERIAL: 2
WITHERS P0 ON• K EL L EY
Attorneys &
Counselors
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300
Phone: 509.624.5265
Fax: 509.458.2728
information the legend “CONFIDENTIAL” prior to providing such document or
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other material or, if such method of designation is not feasible by providing other
written notice of such designation.
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3.
In the case of depositions, designation of the portion of the
transcript, including exhibits, which contains “Confidential” information shall be
made by a statement to such effect on the record in the course of the deposition.
All copies of deposition transcripts that contain material designated as
“CONFIDENTIAL” shall be prominently marked “CONFIDENTIAL” on the
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cover thereof and, if and when filed with the Clerk, the portions of such transcript
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designated “CONFIDENTIAL” shall be filed under seal.
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4.
If, at any time, a party disagrees with the designation of a document
or other information as “Confidential” and protected by this Order, the parties
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must first attempt to resolve the dispute by conferring pursuant to Rule 26.
Failure to challenge a “Confidential” designation shall not constitute an
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admission that such designation is appropriate. If the dispute is not resolved
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through the conference process, then the designator will have fourteen (14) days
to move the Court for protection. As provided in Rule 26(c), the burden of
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establishing that any information or material should be designated and treated as
“Confidential” shall be on the party seeking to uphold the designation. Any
[PROPOSED] ORDER GOVERNING
CONFIDENTIAL MATERIAL: 3
WITHERSPOON•KELLEY
Attorneys & Counselors
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300
Phone: 509.624.5265
Fax: 509.458.2728
disputed document or information will be treated as protected under this Order
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unless and until the Court enters an order otherwise, or until the time period for
seeking such a ruling expires.
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Under no circumstances, other than those specifically provided for in
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this AGREEMENT or subsequent agreement or a court order or with the explicit
consent in writing of the producing party with respect to specifically identified
CONFIDENTIAL MATERIALS, shall CONFIDENTIAL MATERIALS or their
contents in any way whatsoever be revealed, published, disclosed or otherwise
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made known to persons other than the following:
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a. the parties to this action;
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b. inside and outside counsel for the parties, as well as their employees
assisting with this action;
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c. Outside photocopying, data processing, graphic production services
or other vendors retained by counsel for a Party to assist in this
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litigation;
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d. experts or consultants retained in good faith to assist counsel in this
litigation, but only upon the prior execution of an agreement to be
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bound by this AGREEMENT in the form attached hereto as Appendix
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A;
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[PROPOSED] ORDER GOVERNING
CONFIDENTIAL MATERIAL: 4
WITHERS P0 0N KE L L EY
Attorneys & Counselors
422 W. Riverside Avenue, Suite I 100
Spokane, Washington 99201-0300
Phone: 509.624.5265
Fax: 509.458.2728
e. court reporters who record testimony taken in the course of this
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litigation,
f. the Court, pursuant to paragraph 10 of this AGREEMENT;
g. any deponent or witness to whom counsel for a Party determines in
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the exercise ofjudgment reasonably exercised disclosure is necessary
for the prosecution or defense of this litigation, including preparation
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for deposition or other testimony, provided that prior to disclosure such
deponent agrees, in writing to be bound by the terms of this Order.
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6.
Any deposition or portion thereof during which Information
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designated as “Confidential” is being disclosed by any party shall be taken as if in
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camera without any persons in attendance other than the deposition witness, and
those identified in paragraph 5 (for “Confidential” Information). The court
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reporter shall be provided with a copy of this Stipulated Confidentiality
Agreement and Protective Order.
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7.
Each person given access to the CONFIDENTIAL MATERIALS
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pursuant to paragraph 5 of this AGREEMENT shall be advised by counsel for the
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party giving access that the material or information is subject to the terms of this
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AGREEMENT and may not be disclosed other than pursuant to the terms thereof.
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[PROPOSED] ORDER GOVERNING
CONFIDENTIAL MATERIAL: 5
WITHERS P00 N K EL L E Y
Attorneys & Counselors
422 W. Riverside Avenue, Suite I 100
Spokane, Washington 99201-0300
Phone: 509624.5265
Fax: 509.458.2728
8.
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Prior to disclosure of the CONFIDENTIAL MATERIALS to the
parties in this action, counsel for the party seeking to make such disclosure shall
provide to its client(s) a copy of this AGREEMENT and explain the terms and
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conditions thereof.
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Prior to disclosure of CONFIDENTIAL MATERIALS to any of the
persons described in paragraph 4.c, d, and g. of this AGREEMENT, such persons
shall first:
a. read this AGREEMENT; and
b. sign a copy of the Confidentiality Agreement attached hereto as
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Appendix A and thereby become subject to this AGREEMENT. Copies
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of the signed Confidentiality Agreement are to be retained by counsel
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for the party making the disclosure.
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In addition, upon request, persons described in paragraph 5.c, d and g. of this
AGREEMENT must destroy or promptly return all CONFIDENTIAL
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MATERIALS to the producing party.
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10.
In the event that counsel for any party files with this Court any
CONFIDENTIAL MATERIALS or any papers containing or making reference to
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such material or information, such documents shall be filed under seal pursuant to
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[PROPOSED] ORDERGOVERNING
CONFIDENTIAL MATERIAL: 6
WITHERSPOON•KELLEY
Attorneys & Counselors
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300
Phone: 509.624.5265
Fax: 509.458.2728
the E.D. Wa. instructions available at
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http ://www.waed .uscourts .gov/sites/default/files/u90/sealed handout civil .pdf.
11.
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Entering into, agreeing to and/or producing or receiving materials or
otherwise complying with the terms of this AGREEMENT shall not:
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a. prejudice in any way the rights of a party to object to the future
production of documents it considers not subject to discovery;
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b. prejudice in any way the rights of a party to attempt to introduce into
evidence the CONFIDENTIAL MATERIALS, subject to any and all
objections made thereto;
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c. prejudice in any way the rights of a party to apply to the Court for a
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protective order or an in camera inspection relating to any
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CONFIDENTIAL MATERIALS or other discovery materials; or
d. prejudice in any way the rights of a party to apply to the Court at any
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time for an order removing a party’s confidential designation.
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12.
This AGREEMENT has no effect upon, and its scope shall not
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extend to, a party’s use of its own CONFIDENTIAL MATERIALS.
13.
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Counsel for the parties will maintain, for in camera inspection by the
Court, copies of all Confidentiality Agreements signed pursuant to the provisions
of this AGREEMENT.
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[PROPOSED] ORDER GOVERNING
CONFIDENTIAL MATERIAL: 7
WITHERSPOON•KELLEY
Attorneys & Counselors
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300
Phone: 509.624.5265
Fax: 509.458.2728
14.
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The inadvertent production of CONFIDENTIAL MATERIALS
subject to the attorney-client, work-product or other privilege or doctrine shall not
waive any such privilege or doctrine. In addition, the fact that privileged
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CONFIDENTIAL MATERIALS were inadvertently produced shall not be used
in any manner to support a claim of waiver. Upon receiving notice from a party
that privileged or otherwise protected CONFIDENTIAL MATERIALS have been
inadvertently produced, any person or entity receiving such CONFIDENTIAL
MATERIALS shall return them and all copies, and all documents or other
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material containing all or any portion of information contained in or derived from
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such CONFIDENTIAL MATERIALS shall be destroyed, within seven (7)
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business days to the producing party, unless the receiving party intends to
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challenge the producing party’s claim(s) of attorney-client, work-product or other
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privilege or doctrine. If the receiving party intends to challenge the producing
party’s claim(s) the receiving party nevertheless shall treat the CONFIDENTIAL
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MATERIALS as confidential, subject to this Order, and may not use the
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CONFIDENTIAL MATERIALS for any purpose other than making a motion to
the Court that challenges the producing party’s claim(s) of attorney-client, work-
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product or other privilege or doctrine.
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[PROPOSED] ORDER GOVERNING
CONFIDENTIAL MATERIAL: 8
WITHERS P00 N KE L L EY
Attorneys & Counselors
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300
Phone: 509.6245265
Fax: 509.458.2728
15.
2
The inadvertent failure by a Party to designate CONFIDENTIAL
MATERIALS as CONFIDENTIAL shall not be a waiver of such designation
provided that the party who fails to make such designation informs the receiving
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party within seven (7) business days from when the failure to designate first
became known to the producing party. The party receiving CONFIDENTIAL
MATERIALS that the producing party inadvertently failed to designate as
CONFIDENTIAL shall not be in breach of this Order for any use made of such
information before the receiving party is informed of the inadvertent failure to
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designate pursuant to this Paragraph. Upon receipt of such notice, the receiving
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party shall immediately take reasonable steps to ensure that any
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CONFIDENTIAL MATERIALS disclosed to persons or entities not authorized to
receive it pursuant to this Order, and all copies thereof, are retrieved and secured
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as required by this Order, and that the unauthorized persons or entities provided
with such CONFIDENTIAL MATERIALS agree, in writing, to be bound by the
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provisions of this Order.
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16.
In the event additional parties to this litigation desire to have access
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to the CONFIDENTIAL MATERIALS, neither such parties or their counsel or
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their experts or consultants retained to assist said counsel shall have access to the
CONFIDENTIAL MATERIALS until said party or their counsel has executed
[PROPOSED] ORDER GOVERNTNG
WITHERSPOON•KELLEY
CONFIDENTIAL MATERIAL: 9
Attorneys & Counselors
422 W, Riverside Avenue. Suite 1100
Spokane, Washington 99201-0300
Phone: 509.624.5265
Fax: 509.458.2728
and filed with the Court a copy of this AGREEMENT, and has served a copy of
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same on all counsel of record.
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After the termination of this proceeding, this AGREEMENT shall
continue to be binding upon the parties hereto and their successors and assigns,
and upon all persons to whom the CONFIDENTIAL MATERIALS has been
disclosed or communicated and the parties hereto agree that the Court shall retain
jurisdiction over the parties for enforcement of its provisions.
18.
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Upon conclusion of this litigation and upon request of the producing
party, all the CONFIDENTIAL MATERIALS and all copies thereof (including
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copies provided to testifying or consulting experts) shall either be destroyed or
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returned to the producing party along with an affidavit of counsel indicating that
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counsel has made a good faith effort to destroy or return all such
CONFIDENTAL MATERIALS, and believes in good faith that all such copies
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have been destroyed or returned.
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19.
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If any party (or their counsel) to this action receives a subpoena or
other compulsory process demanding information, documents or materials
considered “CONFIDENTIAL” pursuant to this AGREEMENT, the party or
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counsel receiving the subpoena or other compulsory process shall give written
notice of the subpoena or other compulsory process to counsel for the producing
[PROPOSED] ORDERGOVERNING
WITHERSPOONKELLEY
CONFIDENTIAL MATERIAL: 10
Attorneys &
Counselors
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300
Phone: 509.624.5265
Fax: 509.458.2728
party at least 14 days prior to the return date, or, if the subpoena or other
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compulsory process has a return date of less than 14 days, notice shall be given to
the designating person by facsimile as soon as possible but in no event later than
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72 hours prior to the return date.
20.
Absent notification in writing that the producing party has taken (or
intends to take) action to protect the confidentiality of the requested information,
document or material, the party or counsel subject to the subpoena or other
compulsory process may produce the requested information, document or
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material on the return date provided it makes clear that such information,
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documents and material were provided with the understanding that they would be
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Is
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maintained confidentially pursuant to this AGREEMENT.
21.
The failure of either party to enforce any provision or provisions of
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this AGREEMENT shall not be in any way construed as a waiver of any such
provision or provisions, nor prevent that party from thereafter enforcing each and
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every other provision of this AGREEMENT.
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22.
The trial record in the arbitration between Daredevil, Inc., PTA
FLA, Inc., NTCH-West Tenn, Inc., NTCH-WA, Inc., and Eric Steinmann, and
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ZTE Corporation and ZTE USA, Inc., ICDR N 50 494 T 00665 11 (the
“Arbitration”), specifically including the transcript of the arbitration trial, all
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[PROPOSED] ORDER GOVERNTNG
CONFIDENTIAL MATERIAL: 11
WITHERSPOONKELLEY
Attorneys & Counselors
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300
Phone: 509.624.5265
Fax: 509.458.2728
related briefing and memoranda, and the documents identified on the parties’ trial
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exhibit lists which were deemed admitted in the arbitration trial, shall be deemed
produced and designated as CONFIDENTIAL MATEALS for puoses of this
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action (the “Arbitration Materials”). The Arbitration Materials need not be
produced again by any party in response to discovery requests, unless otherwise
specifically requested. It is expressly understood and agreed by the parties that
this paragraph is without prejudice to the parties’ respective positions regarding
the relevance and/or admissibility of such documents, the scope of this action,
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and the effect, if any, of the Arbitration on this action.
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DONE IN OPEN COURT, this
day of May, 2014.
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HONORABLE THOMAS 0. RICE
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[PROPOSED] ORDER GOVERNING
CONFIDENTIAL MATERIAL: 12
WITHERS P0 ON• K EL L E Y
Attorneys & Counselors
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300
Phone: 509.624.5265
Fax: 509.458.2728
APPENDIX A
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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NTCH-WA, INC., a Washington
Corporation,
Case No. 2:1 2-cv-03 11 0-TOR
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Plaintiff,
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V.
ZTE CORPORATION, a business
incorporated under the laws of the
People’s Republic of China; and DOES
1 through 10, inclusive
STIPULATED AGREED ORDER
GOVERNING CONFIDENTIAL
MATERIAL
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Defendants.
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WHEREAS, the Court in the above-captioned matter has entered an Order
‘
Governing Confidential Material (hereinafter “Order”) governing the disclosure
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of Confidential Information in the above-captioned matter; and
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WHEREAS, pursuant to the Order, the parties have determined that the
undersigned is a person and/or entity to whom it may be necessary to disclose
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designated CONFIDENTIAL MATERIAL that may contain Confidential
.
.
Information and/or may be privileged, confidential, proprietary and/or
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inappropriate for disclosure as set forth in the Order; and
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[PROPOSED] ORDER GOVERNTNG
CONFIDENTIAL MATERIAL: 13
WITHERSPOON•KELLEY
Attorneys & Counselors
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300
Phone: 509.624.5265
Fax: 509.458.2728
WHEREAS, pursuant to the Order all designated CONFIDENTIAL
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MATERIAL are required to be kept confidential and may not be disclosed or
disseminated except as set forth in the Order; and
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WHEREAS, the Order requires the execution of this Confidentiality
Agreement which is referred to as “Appendix A” in the Order; and
WHEREAS, the undersigned has fully read and understands the terms and
conditions contained in the Order and this Confidentiality Agreement;
NOW THEREFORE, the undersigned acknowledges, agrees and affirms
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that it/he/she has read the Order and this Confidentiality Agreement; fully
understands all the terms and conditions contained in the Order and this
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Confidentiality Agreement; and shall be bound by and shall comply with the
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terms and conditions of the Order and any penalties and/or liability that may exist
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for breach of the Order by the undersigned.
IN WITNESS WHEREOF, the undersigned executes this Confidentiality
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Agreement as of the date written below.
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SIGNATURE
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[PROPOSED] ORDER GOVERNING
CONFIDENTIAL MATERIAL: 14
WITHERS P0 ON- K EL L E Y
Attorneys & Couns&ors
422W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300
Phone: 509.624.5265
Fax: 509.458.2728
Name:
(Please Print)
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Title:
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Address:
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Telephone:
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Date:
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[PROPOSED] ORDER GOVERNING
CONFIDENTIAL MATERIAL: 15
WITHERS P0 0N
K EL L EY
Attorneys & Counselors
422 W. Riverside Avenue, Suite 1100
Spokane, Washington 99201-0300
Phone: 509.624.5265
Fax: 509.458.2728
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