American Guard Services, Inc. v. Terminal Security Solutions, Inc. et al
Filing
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STIPULATED PROTECTIVE ORDER signed by U.S. District Judge John C Coughenour. (TH)
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The Honorable John C. Coughenhour
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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AMERICAN GUARD SERVICES,
INC., a California corporation,
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Plaintiff,
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CASE NO. C18-00603-JCC
STIPULATED
PROTECTIVE ORDER
v.
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TERMINAL SECURITY SOLUTIONS,
INC., a California corporation; TOR
WALLEN; WAYNE PACK and
KAYSSE MOYNIHAN,
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Defendants.
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1.
PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential, proprietary, or
private information for which special protection may be warranted. Accordingly, the parties
hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The
parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket
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
confidential treatment under the applicable legal principles, and it does not presumptively entitle
parties to file confidential information under seal.
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Stipulated Protective Order
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C18-0603-JCC
1 2.
PROTECTED MATERIAL - “CONFIDENTIAL” AND “CONFIDENTIAL –
2 ATTORNEYS’ EYES ONLY”
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“Protected Material” includes both “Confidential” material and “Confidential –
4 Attorneys’ Eyes Only” material.
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“Confidential” materials shall include the following documents and tangible things
6 produced or otherwise exchanged:
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a) personally identifying information of the producing party or the producing party’s
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employees or customers;
b) data regarding compensation earned by or paid to employees;
c) data reflecting sales of products and services, including information about the
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volume and types of sales, sales leads, sales incentives, or sales goals;
d) customer account information, such as names, telephone numbers, contracts, account
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numbers, or balances;
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e) information about the producing party’s computer information systems (including
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but not limited to systems and applications used in managing commission and
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compensation functions), general hardware and software specifications, and related
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instructions and training information;
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f)
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g) employee personnel files;
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h) the financial books and records of the producing party and information pertaining to
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employee trainings, internal policies, and evaluation materials;
those financial books and records;
i)
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information about the revenues, costs, expenses, profits and losses of the producing
party;
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j)
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k) confidential information that the producing party has regarding its customers,
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information about the producing party’s short- and long-term business plans;
competitors, suppliers, vendors, and subcontractors;
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l)
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information discussing, mentioning, or referring to the producing party’s product
development, design, or specifications;
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m) any information that the producing party is obligated by contract or state or federal
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law to keep confidential;
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n) any other information the producing party’s business competitors could use to obtain
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a business or legal advantage over the producing party; and
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o) tax, accounting, or financial information and materials that are valuable and not
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generally known to AGS’s competitors.
9 “Confidential-Attorneys’ Eyes Only” material shall include all or any part of any Confidential
10 material, the disclosure of which to another party or non-party entity, in the view of the
11 designating party, would create a substantial risk of serious harm that could not be avoided by
12 less restrictive means.
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By designating materials as “Confidential-Attorneys’ Eyes Only” the designating
14 parties and their respective counsel represent that they have a good faith belief that the
15 materials so designated are not only Confidential but also contain extremely sensitive and
16 confidential proprietary, commercial, or personal information, including, without limitations,
17 pricing and contract information, trade secret, and/or competitively sensitive commercial
18 information relating to a party or third parties that could be used to the direct and material
19 detriment of the designating party or any third party not involved in this litigation.
20 3.
SCOPE
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The protections conferred by this agreement cover not only Protected Material (as
22 defined above), but also (1) any information copied or extracted from Protected Material; (2) all
23 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
24 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
26 the public domain or becomes part of the public domain through trial or otherwise.
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1 4.
ACCESS TO AND USE OF “CONFIDENTIAL” AND “CONFIDENTIAL-
2 ATTORNEYS’ EYES ONLY” MATERIAL
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4.1
Basic Principles. A receiving party may use Protected Material that is disclosed or
4 produced by another party or by a non-party in connection with this case only for prosecuting,
5 defending, or attempting to settle this litigation. Protected Material may be disclosed only to the
6 categories of persons and under the conditions described in this agreement. Protected Material
7 must be stored and maintained by a receiving party at a location and in a secure manner that
8 ensures that access is limited to the persons authorized under this agreement.
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4.2
Disclosure of “Protected Material” or Items. Unless otherwise ordered by the
10 Court or permitted in writing by the designating party, a receiving party may disclose any
11 Protected Material only to:
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(a)
the receiving party’s counsel of record in this action, as well as employees
13 of counsel to whom it is reasonably necessary to disclose the information for this litigation;
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(b)
the officers, directors, and employees (including in house counsel) of the
15 receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties
16 agree that a particular document or material produced is for Attorney’s Eyes Only and is so
17 designated;
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(c)
experts and consultants to whom disclosure is reasonably necessary for
19 this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
20 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 duplication of
23 confidential material, provided that counsel for the party retaining the copy or imaging service
24 instructs the service not to disclose any confidential material to third parties and to immediately
25 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
2 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
3 (Exhibit A), unless otherwise agreed by the designating party or ordered by the Court. Pages of
4 transcribed deposition testimony or exhibits to depositions that reveal confidential material must
5 be separately bound by the court reporter and may not be disclosed to anyone except as permitted
6 under this agreement;
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(g)
the author or recipient of a document containing the information or a
8 custodian or other person who otherwise possessed or knew the information.
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4.3
Disclosure of “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” Information or
10 Items. Unless otherwise ordered by the Court or permitted in writing by the designating party, a
11 receiving party may disclose any CONFIDENTIAL-ATTORNEYS’ EYES ONLY only to:
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(a)
the receiving party’s counsel of record in this action, as well as employees
13 of counsel to whom it is reasonably necessary to disclose the information for this litigation, with
14 the understanding that all such employees are bound by the terms of this Order with respect to
15 such CONFIDENTIAL-ATTORNEYS’ EYES ONLY material;
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(b)
for a corporate party, in-house counsel of the receiving party to whom
17 disclosure is reasonably necessary for this litigation, with the understanding that such in-house
18 counsel is bound by the terms of this Protective Order with respect to such Confidential19 Attorneys’ Eyes Only material;
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(c)
experts and consultants to whom disclosure is reasonably necessary for
21 this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
22 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 duplication of
25 CONFIDENTIAL-ATTORNEYS’ EYES ONLY material , provided that counsel for the party
26 retaining the copy or imaging service instructs the service not to disclose any CONFIDENTIALStipulated Protective Order
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C18-0603-JCC
1 ATTORNEYS’ EYES ONLY material to third parties and to immediately return all originals and
2 copies of any CONFIDENTIAL-ATTORNEYS’ EYES ONLY material;
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(f)
during their depositions, witnesses in the action to whom disclosure is
4 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
5 (Exhibit A), unless otherwise agreed by the designating party or ordered by the Court. Pages of
6 transcribed deposition testimony or exhibits to depositions that reveal CONFIDENTIAL7 ATTORNEYS’ EYES ONLY material must be separately bound by the court reporter and may
8 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 or a
10 custodian or other person who otherwise possessed or knew the information.
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4.4
Filing Protected Material. Before filing Protected Material or discussing or
12 referencing such material in court filings, the filing party shall confer with the designating party
13 to determine whether the designating party will remove the confidential designation, whether the
14 document can be redacted, or whether a motion to seal or stipulation and proposed order is
15 warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the
16 standards that will be applied when a party seeks permission from the Court to file material
17 under seal.
18 5.
DESIGNATING PROTECTED MATERIAL
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5.1
Exercise of Restraint and Care in Designating Material for Protection. Each party
20 or non-party that designates information or items for protection under this agreement must take
21 care to limit any such designation to specific material that qualifies under the appropriate
22 standards. The designating party must designate for protection only those parts of material,
23 documents, items, or oral or written communications that qualify, so that other portions of the
24 material, documents, items, or communications for which protection is not warranted are not
25 swept unjustifiably within the ambit of this agreement.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that are
2 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
3 unnecessarily encumber or delay the case development process or to impose unnecessary
4 expenses and burdens on other parties) expose the designating party to sanctions.
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If it comes to a designating party’s attention that information or items that it designated
6 for protection do not qualify for protection, the designating party must promptly notify all other
7 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
9 agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
10 ordered, disclosure or discovery material that qualifies for protection under this agreement must
11 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
13 and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial
14 proceedings), the designating party must affix the word “CONFIDENTIAL” or
15 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY” to each page that contains Protected
16 Material. If only a portion or portions of the material on a page qualifies for protection, the
17 producing party also must clearly identify the protected portion(s) (e.g., by making appropriate
18 markings in the margins).
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(b)
Testimony given in deposition or in other pretrial proceedings: the parties
20 and any participating non-parties must identify on the record, during the deposition or other
21 pretrial proceeding, all protected testimony, without prejudice to their right to so designate other
22 testimony after reviewing the transcript. Any party or non-party may, within fifteen days after
23 receiving the transcript of the deposition or other pretrial proceeding, designate portions of the
24 transcript, or exhibits thereto, as protected. If a party or non-party desires to protect Protected
25 Material 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 prominent place
2 on the exterior of the container or containers in which the information or item is stored the words
3 “CONFIDENTIAL” or “CONFIDENTIAL-ATTORNEYS’ EYES ONLY.” If only a portion or
4 portions of the information or item warrant protection, the producing party, to the extent
5 practicable, shall identify the protected portion(s).
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5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
7 designate qualified information or items does not, standing alone, waive the designating party’s
8 right to secure protection under this agreement for such material. Upon timely correction of a
9 designation, the receiving party must make reasonable efforts to ensure that the material is
10 treated in accordance with the provisions of this agreement.
11 6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
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6.1
Timing of Challenges. Any party or non-party may challenge a designation of
13 confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality
14 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
15 burdens, or a significant disruption or delay of the litigation, a party does not waive its right to
16 challenge a confidentiality designation by electing not to mount a challenge promptly after the
17 original designation is disclosed.
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6.2
Meet and Confer. The parties must make every attempt to resolve any dispute
19 regarding confidential designations without court involvement. Any motion regarding
20 confidential designations or for a protective order must include a certification, in the motion or in
21 a declaration or affidavit, that the movant has engaged in a good faith meet and confer
22 conference with other affected parties in an effort to resolve the dispute without court action. The
23 certification must list the date, manner, and participants to the conference. A good faith effort to
24 confer requires a face-to-face meeting or a telephone conference.
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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
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1 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 protected until the Court rules on the challenge.
6 7.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
7 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” or
10 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” that party must:
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(a)
promptly notify the designating party in writing and include a copy of the
12 subpoena or court order;
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(b)
promptly notify in writing the party who caused the subpoena or order to
14 issue in the other litigation that some or all of the material covered by the subpoena or order is
15 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
17 by the designating party whose confidential material may be affected.
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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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If a receiving party learns that, by inadvertence or otherwise, it has disclosed Protected
20 Material to any person or in any circumstance not authorized under this agreement, the receiving
21 party must immediately (a) notify in writing the designating party of the unauthorized
22 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material,
23 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of
24 this agreement, and (d) request that such person or persons execute the “Acknowledgment and
25 Agreement to Be Bound” that is attached hereto as Exhibit A.
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1 9.
INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
2 MATERIAL
When a producing party gives notice to receiving parties that certain inadvertently
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4 produced material is subject to a claim of privilege or other protection, the obligations of the
5 receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
6 provision is not intended to modify whatever procedure may be established in an e-discovery
7 order or agreement that provides for production without prior privilege review. The parties
8 agree to the entry of a non-waiver order under Federal Rule of Evidence 502(d) as set forth
9 herein.
10 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
12 party must return all Protected Material to the producing party, including all copies, extracts and
13 summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction.
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Notwithstanding this provision, counsel are entitled to retain one archival copy of all
15 documents filed with the Court, trial, deposition, and hearing transcripts, correspondence,
16 deposition and trial exhibits, expert reports, attorney work product, and consultant and expert
17 work product, even if such materials contain confidential material.
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The confidentiality obligations imposed by this agreement shall remain in effect until a
19 designating party agrees otherwise in writing or a court orders otherwise.
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
22 DATED:
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24 DATED:
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s/Gregor Hensrude
Attorneys for Plaintiff
s/ Matthew Jedreski
Attorneys for Defendant
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PURSUANT TO STIPULATION, IT IS SO ORDERED
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IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any
4 documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding
5 in any other court, constitute a waiver by the producing party of any privilege applicable to those
6 documents, including the attorney-client privilege, attorney work-product protection, or any other
7 privilege or protection recognized by law.
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9 DATED: August 31, 2018
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A
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John C. Coughenour
UNITED STATES DISTRICT JUDGE
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I,
____________________________________
[print
or
type
full
name],
of
4 ____________________________________ [print or type full address], declare under penalty of
5 perjury that I have read in its entirety and understand the Stipulated Protective Order that was
6 issued by the United States District Court for the Western District of Washington on
7 ____________ in the case of American Guard Services, Inc. v. Terminal Security Solutions, Inc.,
8 et al, Case No. 2:18-cv-00603-JCC. I agree to comply with and to be bound by all the terms of this
9 Stipulated Protective Order and I understand and acknowledge that failure to so comply could
10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will
11 not disclose in any manner any information or item that is subject to this Stipulated Protective
12 Order to any 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
14 Western District of Washington for the purpose of enforcing the terms of this Stipulated Protective
15 Order, even if such enforcement proceedings occur after termination of this action.
16 Date:
17 City and State where sworn and signed:
18 Printed name:
19 Signature:
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