Foster v. American Honda Motor Co., Inc. et al
Filing
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STIPULATED PROTECTIVE ORDER re parties' 11 Stipulated MOTION FOR PROTECTIVE ORDER. Signed by U.S. District Judge John C Coughenour. (TH)
THE HONORABLE JOHN C. COUGHENOUR
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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NICLAS FOSTER,
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CASE NO. C17-1727-JCC
Plaintiff,
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STIPULATED PROTECTIVE
ORDER
v.
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AMERICAN HONDA MOTOR
COMPANY, INC., et al.,
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Defendants.
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This matter comes before the Court on the parties’ stipulated motion for protective order
(Dkt. No. 11). Having thoroughly considered the stipulation, the Court ENTERS the following
Order:
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1.
PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidential, proprietary, or
21 private information for which special protection may be warranted. Accordingly, the parties
22 hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The
23 parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket
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protection on all disclosures or responses to discovery, the protection it affords from public
disclosure and use extends only to the limited information or items that are entitled to
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STIPULATED PROTECTIVE ORDER-1
C17-1727-JCC
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confidential treatment under the applicable legal principles, and it does not presumptively entitle
2 parties to file confidential information under seal.
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“CONFIDENTIAL” MATERIAL
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“Confidential” material may include documents involving the design, testing,
5 manufacturing, marketing and/or after-sale reporting related to the 2012-2016 Honda CR-V.
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3.
SCOPE
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The protections conferred by this agreement cover not only confidential material (as
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defined above), but also (1) any information copied or extracted from confidential material; (2)
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10 all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony,
11 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 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. A receiving party may use confidential material that is disclosed
17 or produced by another party or by a non-party in connection with this case only for prosecuting,
18 defending, or attempting to settle this litigation. Confidential material may be disclosed only to
19 the categories of persons and under the conditions described in this agreement. Confidential
20 material must be stored and maintained by a receiving party at a location and in a secure manner
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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
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ordered by the Court or permitted in writing by the designating party, a receiving party may
25 disclose any confidential material only to:
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STIPULATED PROTECTIVE ORDER-2
C17-1727-JCC
(a)
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the receiving party’s counsel of record in this action, as well as employees
2 of counsel to whom it is reasonably necessary to disclose the information for this litigation;
(b)
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the officers, directors, and employees (including in-house counsel) of the
4 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties
5 agree that a particular document or material produced is for Attorney’s Eyes Only and is so
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designated;
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(c)
experts and consultants to whom disclosure is reasonably necessary for
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this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
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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 duplication of
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confidential material, provided that counsel for the party retaining the copy or imaging service
instructs the service not to disclose any confidential material to third parties and to immediately
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return all originals and copies of any confidential material;
(f)
during their depositions, witnesses in the action to whom disclosure is
18 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
19 (Exhibit A), unless otherwise agreed by the designating party or ordered by the Court. Pages of
20 transcribed deposition testimony or exhibits to depositions that reveal confidential material must
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be separately bound by the court reporter and may not be disclosed to anyone except as permitted
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under this agreement;
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(g)
the author or recipient of a document containing the information or a
25 custodian or other person who otherwise possessed or knew the information; and
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STIPULATED PROTECTIVE ORDER-3
C17-1727-JCC
(h)
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lawyers who have a personal injury or wrongful death case against a
2 Honda entity in which it is alleged that a non-collision fire in a 2012-2016 Honda CR-V was
3 caused by a design or manufacturing defect.
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4.3
Filing Confidential Material. Before filing confidential material or discussing or
5 referencing such material in court filings, the filing party shall confer with the designating party
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to determine whether the designating party will remove the confidential designation, whether the
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document can be redacted, or whether a motion to seal or stipulation and proposed order is
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warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the
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10 standards that will be applied when a party seeks permission from the Court to file material
11 under seal.
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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 this agreement must take
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care to limit any such designation to specific material that qualifies under the appropriate
17 standards. The designating party must designate for protection only those parts of material,
18 documents, items, or oral or written communications that qualify, so that other portions of the
19 material, documents, items, or communications for which protection is not warranted are not
20 swept unjustifiably within the ambit of this agreement.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that are
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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
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unnecessarily encumber or delay the case development process or to impose unnecessary
25 expenses and burdens on other parties) expose the designating party to sanctions.
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STIPULATED PROTECTIVE ORDER-4
C17-1727-JCC
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If it comes to a designating party’s attention that information or items that it designated
2 for protection do not qualify for protection, the designating party must promptly notify all other
3 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
5 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
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ordered, disclosure or discovery material that qualifies for protection under this agreement must
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be clearly so designated before or when the material is disclosed or produced.
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(a)
Information in documentary form: (e.g., paper or electronic documents
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10 and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial
11 proceedings), the designating party must affix the words “CONFIDENTIAL—Foster v. Honda
12 case—Western District of Washington” to each page that contains confidential material. If only
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a portion or portions of the material on a page qualifies for protection, the producing party also
must clearly identify the protected portion(s) (e.g., by making appropriate markings in the
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margins).
(b)
Testimony given in deposition or in other pretrial proceedings: the parties
18 and any participating non-parties must identify on the record, during the deposition or other
19 pretrial proceeding, all protected testimony, without prejudice to their right to so designate other
20 testimony after reviewing the transcript. Any party or non-party may, within fifteen days after
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receiving the transcript of the deposition or other pretrial proceeding, designate portions of the
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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.
(c)
Other tangible items: the producing party must affix in a prominent place
26 on the exterior of the container or containers in which the information or item is stored the word
STIPULATED PROTECTIVE ORDER-5
C17-1727-JCC
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“CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection,
2 the producing party, to the extent practicable, shall identify the protected portion(s).
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5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
4 designate qualified information or items does not, standing alone, waive the designating party’s
5 right to secure protection under this agreement for such material. Upon timely correction of a
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designation, the receiving party must make reasonable efforts to ensure that the material is
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treated in accordance with the provisions of this agreement.
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6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
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6.1
Timing of Challenges. Any party or non-party may challenge a designation of
11 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality
12 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
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burdens, or a significant disruption or delay of the litigation, a party does not waive its right to
challenge a confidentiality designation by electing not to mount a challenge promptly after the
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original designation is disclosed.
6.2
Meet and Confer. The parties must make every attempt to resolve any dispute
18 regarding confidential designations without court involvement. Any motion regarding
19 confidential designations or for a protective order must include a certification, in the motion or in
20 a declaration or affidavit, that the movant has engaged in a good faith meet and confer
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conference with other affected parties in an effort to resolve the dispute without court action.
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The certification must list the date, manner, and participants to the conference. A good faith
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effort to confer requires a face-to-face meeting or a telephone conference.
6.3
Judicial Intervention. If the parties cannot resolve a challenge without court
26 intervention, the designating party may file and serve a motion to retain confidentiality under
STIPULATED PROTECTIVE ORDER-6
C17-1727-JCC
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Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of
2 persuasion in any such motion shall be on the designating party. Frivolous challenges, and those
3 made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
4 other parties) may expose the challenging party to sanctions. All parties shall continue to
5 maintain the material in question as confidential until the court rules on the challenge.
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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 that compels
9 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that
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party must:
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(a)
promptly notify the designating party in writing and include a copy of the
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subpoena or court order;
(b)
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promptly notify in writing the party who caused the subpoena or order to
15 issue in the other litigation that some or all of the material covered by the subpoena or order is
16 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 pursued
by the designating party whose confidential material may be affected.
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8.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential
22 material to any person or in any circumstance not authorized under this agreement, the receiving
23 party must immediately (a) notify in writing the designating party of the unauthorized
24 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material,
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(c) inform the person or persons to whom unauthorized disclosures were made of all the terms of
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STIPULATED PROTECTIVE ORDER-7
C17-1727-JCC
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this agreement, and (d) request that such person or persons execute the “Acknowledgment and
2 Agreement to Be Bound” that is attached hereto as Exhibit A.
3 9.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
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When a producing party gives notice to receiving parties that certain inadvertently
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6 produced material is subject to a claim of privilege or other protection, the obligations of the
7 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
8 provision is not intended to modify whatever procedure may be established in an e-discovery
9 order or agreement that provides for production without prior privilege review. The parties agree
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to the entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth herein.
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10.
NON TERMINATION AND RETURN OF DOCUMENTS
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Within 60 days after the termination of this action, including all appeals, each receiving
party must return all confidential material to the producing party, including all copies, extracts
15 and summaries thereof, or shall shred and recycle all paper copies, or delete and destroy all
16 electronic copies.
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Notwithstanding this provision, counsel is entitled to retain one archival copy of all
documents filed with the court, trial, deposition, and hearing transcripts, correspondence,
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deposition and trial exhibits, expert reports, attorney work product, and consultant and expert
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work product, even if such materials contain confidential material.
The confidentiality obligations imposed by this agreement shall remain in effect until a
23 designating party agrees otherwise in writing or a court orders otherwise.
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STIPULATED PROTECTIVE ORDER-8
C17-1727-JCC
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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KELLER ROHRBACK L.L.P.
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DATED: December 13, 2017
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By/s/ David J. Russell
David J. Russell, WSBA #17289
1201 Third Avenue, Suite 3200
Seattle, WA 98101
drussell@kellerrohrback.com
Attorneys for Defendants American Honda
Motor Co., Inc., Honda North America, Inc., and
Honda R&D Americas, Inc.
SCHROETER GOLDMARK & BENDER
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12 DATED: December 13, 2017
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STIPULATED PROTECTIVE ORDER-9
C17-1727-JCC
By/s/ Peter O’Neil (by email authority)
Thomas J. Breen, WSBA #34574
Peter O’Neil, WSBA #28198
Kristin Houser, WSBA #7286
810 Third Avenue, Suite 500
Seattle, WA 98104
breen@sgb-law.com
peteroneil@peteroneil.org
houser@sgb-law.com
Attorneys for Plaintiff
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PURSUANT TO STIPULATION, IT IS SO ORDERED; and
IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any
3 documents in this proceeding shall not, for the purposes of this proceeding or any other
4 proceeding in any other court, constitute a waiver by the producing party of any privilege
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applicable to those documents, including the attorney-client privilege, attorney work-product
protection, or any other privilege or protection recognized by law.
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DATED this 27th day of December, 2017.
A
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John C. Coughenour
UNITED STATES DISTRICT JUDGE
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STIPULATED PROTECTIVE ORDER-10
C17-1727-JCC
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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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5 ____________________________________ [print or type full address], declare under penalty of
6 perjury that I have read in its entirety and understand the Stipulated Protective Order that was
7 issued by the United States District Court for the Western District of Washington on
8 _____________ in the case of Niclas Foster v. American Honda Motor Co., Inc., et al., Cause
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No. 17-cv-01727-JCC. I agree to comply with and to be bound by all the terms of this Stipulated
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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
13 in any manner any information or item that is subject to this Stipulated Protective Order to any
14 person or entity except in 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 Court for the
Western District of Washington for the purpose of enforcing the terms of this Stipulated
Protective Order, even if such enforcement proceedings occur after termination of this action.
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20 Date:
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STIPULATED PROTECTIVE ORDER-11
C17-1727-JCC
Name:
City and State where signed:
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