Wolff v. David Evans & Associates, Inc.,
Filing
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PROTECTIVE ORDER. Signed by Chief Judge Thomas O. Rice. (BF, Paralegal)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF WASHINGTON
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KEVIN WOLFF,
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Plaintiff,
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v.
STIPULATED PROTECTIVE
ORDER
DAVID EVANS & ASSOCIATES,
INC.,
Defendant.
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No. 2:17-cv-00025-TOR
1.
PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidential,
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proprietary, or private information for which special protection may be warranted.
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Accordingly, the parties hereby stipulate to and petition the court to enter the
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following Stipulated Protective Order. The parties acknowledge that this
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agreement does not confer blanket protection on all disclosures or responses to
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discovery, the protection it affords from public disclosure and use extends only to
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the limited information or items that are entitled to confidential treatment under the
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STIPULATED PROTECTIVE ORDER - 1
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applicable legal principles, and it does not presumptively entitle parties to file
confidential information under seal.
2.
“CONFIDENTIAL” MATERIAL
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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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1. DEA’s contract documents;
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2. DEA’s personnel and salary records;
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3. information protected from disclosure by statute or other legal
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obligations;
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4. trade secrets of a party or non-party;
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5. non-public financial or other sensitive commercial information,
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including but not limited to business or strategic plans and internal
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cost, budget, productivity, and revenue tracking reporting information;
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and
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6. any other sensitive, confidential, proprietary, trade secret documents
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or information that may be target of discovery in this action.
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3.
SCOPE
The protections conferred by this agreement cover not only confidential
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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
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confidential material; and (3) any testimony, conversations, or presentations by
parties or their counsel that might reveal confidential material.
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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.
4.
ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
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4.1
Basic Principles.
purposes of litigation.
Confidential information may be used only for
Confidential material may be disclosed only to the
categories of persons and under the conditions described in this agreement.
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Confidential material must be 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
receiving party may disclose any confidential material only to:
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(a)
the receiving party’s counsel of record in this action, as well as
employees of counsel to whom it is reasonably necessary to disclose the
information for this litigation;
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STIPULATED PROTECTIVE ORDER - 3
(b)
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the officers, directors, and employees (including in house
counsel) of the receiving party to whom disclosure is reasonably necessary for this
litigation;
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(c)
experts and consultants to whom disclosure is reasonably
necessary for this litigation who agree to treat confidential material as confidential
under this agreement;
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(d)
the court, court personnel, and court reporters and their staff;
(e)
copy or imaging services retained by counsel to assist in the
duplication of confidential material, provided that counsel for the party retaining
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the copy or imaging service instructs the service not to disclose 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
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disclosure is reasonably necessary and who have signed the “Acknowledgment and
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Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the designating
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party or ordered by the court.
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exhibits to depositions that reveal confidential material must be separately bound
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Pages of transcribed deposition testimony or
by the court reporter and may not be disclosed to anyone except as permitted under
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this agreement;
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STIPULATED PROTECTIVE ORDER - 4
(g)
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the author or recipient of a document containing the
information or a custodian or other person who otherwise possessed or knew the
information.
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Notwithstanding this provision, nothing in this agreement prevents the
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parties from attempting to use documents obtained in this litigation in other
litigation involving the same parties and the attorneys may provide the documents
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to their co-counsel in such litigation.
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4.3
Filing Confidential Material. Before filing confidential material or
discussing or referencing such material in court filings, the filing party shall confer
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with the designating party to determine whether the designating party will remove
the confidential designation, whether the document can be redacted, or whether a
motion to seal or stipulation and proposed order is warranted.
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5.
DESIGNATING PROTECTED MATERIAL
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
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qualifies under the appropriate standards. The designating party must designate for
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protection only those parts of material, documents, items, or oral or written
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communications that qualify, so that other portions of the material, documents,
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STIPULATED PROTECTIVE ORDER - 5
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items, or communications for which protection is not warranted are not swept
unjustifiably within the ambit of this agreement.
Mass, indiscriminate, or routinized designations are prohibited. Designations
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that are shown to be clearly unjustified or that have been made for an improper
purpose (e.g., to unnecessarily encumber or delay the case development process or
to impose unnecessary expenses and burdens on other parties) expose the
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designating party to sanctions.
If it comes to a designating party’s attention that information or items that it
designated for protection do not qualify for protection, the designating party must
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promptly notify all other parties that it is withdrawing the mistaken designation.
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.
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(a)
Information in documentary form: (e.g., paper or electronic
documents and deposition exhibits, but excluding transcripts of depositions or
other pretrial or trial proceedings), the designating party must affix the word
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“CONFIDENTIAL” to each page that contains confidential material. If only a
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portion or portions of the material on a page qualifies for protection, the producing
STIPULATED PROTECTIVE ORDER - 6
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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:
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the parties and any participating non-parties must identify on the record, during the
deposition or other pretrial proceeding, all protected testimony, without prejudice
to their right to so designate other testimony after reviewing the transcript. Any
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party or non-party may, within fifteen days after receiving the transcript of the
deposition or other pretrial proceeding, designate portions of the transcript, or
exhibits thereto, as confidential.
If a party or non-party desires to protect
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confidential information at trial, the issue should be addressed during the pre-trial
conference.
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(c)
Other tangible items: the producing party must affix in a
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prominent place on the exterior of the container or containers in which the
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information or item is stored the word “CONFIDENTIAL.” If only a portion or
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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
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
STIPULATED PROTECTIVE ORDER - 7
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reasonable efforts to ensure that the material is treated in accordance with the
provisions of this agreement.
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Notwithstanding this provision, once information or data is admitted into
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evidence at trial, it loses its confidential designation. Where appropriate parties
will seek to file confidential documents under seal.
6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any party or non-party may challenge a designation
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of confidentiality at any time, and it is the burden of the designating party to prove
that the designation is valid under the Federal Rules of Civil Procedure.
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6.2
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Meet and Confer. The parties must make every attempt to resolve any
dispute regarding confidential designations without court involvement.
Any
motion regarding confidential designations or for a protective order must include a
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certification, in the motion or in a declaration or affidavit, that the movant has
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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
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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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/////
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/////
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/////
STIPULATED PROTECTIVE ORDER - 8
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7.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
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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
“CONFIDENTIAL,” that party must:
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(a)
promptly notify the designating party in writing and include a
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copy of the subpoena or court order;
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(b)
promptly notify in writing the party who caused the subpoena
or order to issue in the other litigation that some or all of the material covered by
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the subpoena or order is subject to this agreement. Such notification shall 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 affected.
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8.
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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
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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 retrieve
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all unauthorized copies of the protected material, (c) inform the person or persons
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to whom unauthorized disclosures were made of all the terms of this agreement,
STIPULATED PROTECTIVE ORDER - 9
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and (d) request that such person or persons execute the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A.
9.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
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PROTECTED MATERIAL
When a producing party gives notice to receiving parties that certain
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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
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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
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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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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 to whom confidential documents
have been provided have the right to keep one copy of the documents after the end
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of the case.
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STIPULATED PROTECTIVE ORDER - 10
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The confidentiality obligations imposed by this agreement shall remain in
effect until a designating party agrees otherwise in writing or a court orders
otherwise.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: June 7, 2017
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/s/ Thomas G. Jarrard
Law Office of Thomas G. Jarrard, PLLC
1020 N Washington Street
Spokane, WA 99201
Telephone: (425) 239-7290
TJarrard@att.net
Attorneys for Plaintiff
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DATED: June 7, 2017
/s/Christopher T. Wall
Victor J. Kisch, WSBA No. 38699
Karin D. Jones, WSBA 42406
Christopher T. Wall, WSBA No. 45873
STOEL RIVES LLP
600 University Street, Suite 3600
Seattle, WA 98101
Telephone: 206-624-0900
Email: victor.kisch@stoel. com
Email: karin.jones@stoel.com
Email: christopher.wall@stoel.com
Attorneys for Defendant
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STIPULATED PROTECTIVE ORDER - 11
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PURSUANT TO STIPULATION, IT IS SO ORDERED
IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the
production of any documents in this proceeding shall not, for the purposes of this
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proceeding or any other proceeding in any other court, constitute a waiver by the
producing party of any privilege applicable to those documents, including the
attorney-client privilege, attorney work-product protection, or any other privilege
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or protection recognized by law.
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DATED: June 12, 2017
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Hon. Chief Judge Thomas O. Rice
United States District Court Judge
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STIPULATED PROTECTIVE ORDER - 12
EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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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
Stipulated Protective Order that was issued by the United States District Court for
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the Eastern District of Washington on [date] in the case of Kevin Wolff v. David
Evans & Associates, U.S. District Court of Washington, Eastern District, Case No.
2:17-cv-00025-TOR. I agree to comply with and to be bound by all the terms of
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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 contempt.
I solemnly promise that I will not disclose in any manner any information or item
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that is subject to this Stipulated Protective Order to any person or entity except in
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strict compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District
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Court for the Eastern District of Washington for the purpose of enforcing the terms
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of this Stipulated Protective Order, even if such enforcement proceedings occur
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after termination of this action.
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Date:
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City and State where sworn and signed:
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Printed name:
Signature:
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STIPULATED PROTECTIVE ORDER - 14
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CERTIFICATE OF SERVICE
I hereby certify that on June 7, 2017, I caused the forgoing to be
electronically filed with the Clerk of the Court using the CM/ECF system, which
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sent notification of such filing to all counsel of record.
/s/ Thomas G. Jarrard
Law Office of Thomas G. Jarrard, PLLC
1020 N Washington Street
Spokane, WA 99201
Telephone: (425) 239-7290
TJarrard@att.net
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STIPULATED PROTECTIVE ORDER - 15
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