Touchpoint Communications, LLC v. DentalFone, LLC
Filing
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JOINT STIPULATED PROTECTIVE ORDER (signed); GRANTING 64 Motion for Stipulated Protective Order (replacing 63 Motion for Stipulated Protective Order) - by Judge J Richard Creatura.(SH)
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J. Curtis Edmondson WSBA No. 43795
curtis@slindenelson.com
Darian A. Stanford, WSBA No. 44604
darian@slindenelson.com
SLINDE NELSON STANFORD
111 SW Fifth Avenue, Ste 1940
Portland, OR 97204
Phone: 503-417-7777
Fax: 503-417-4250
Plaintiff
Ana-Maria Popp, WSBA No. 39614
Cairncross & Hempelmann
524 Second Avenue, Suite 500
Seattle, WA 98104-2323
Telephone: (206) 587-0700
Facsimile: (206) 587-2308
E-mail: apopp@cairncross.com
Attorneys for Defendant
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UNITED STATES DISTRICT COURT
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WESTERN DISTRICT OF WASHINGTON
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TOUCHPOINT COMMUNICATIONS,
LLC, an Oregon limited liability company,
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Plaintiff,
Case No. 3:15-cv-05240-JRC
JOINT STIPULATED
PROTECTIVE ORDER
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v.
DENTALFONE, LLC a Florida limited
liability company
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Defendant.
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1. PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidential, proprietary, and/or
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private information for which special protection may be warranted. Accordingly, the parties
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hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The
Page 1 – STIPULATED PROTECTIVE ORDER
SLINDE NELSON STANFORD
111 SW 5th Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
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parties acknowledge that this agreement is consistent with LCR 26(c). This does not confer
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blanket protection on all disclosures or responses to discovery, the protection it affords from
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public disclosure and use extends only to the limited information or items that are entitled to
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confidential treatment under the applicable legal principles, and it does not presumptively entitle
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parties to file confidential information under seal.
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2. “CONFIDENTIAL MATERIAL”
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“Confidential Material” shall include the following documents and tangible things
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produced or otherwise exchanged: including, but not limited to, corporate financials (and related
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documents), communications with customers, confidential communications1, intellectual
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property filings and disclosures to patent, copyright, and/or trademark attorneys or respective
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governmental authorities, customer lists, and sales documents2.
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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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all copies, excerpts, summaries, or compilations of Confidential Material; and (3) any testimony,
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conversations, or presentations by parties or their counsel that might reveal Confidential
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Material. However, the protections conferred by this agreement do not cover information that is
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in the public domain or becomes part of the public domain through trial or otherwise.
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Shall be limited to internal communications related to: proprietary software, software code,
product design, product research and development, algorithms; marketing surveys, sales techniques,
customer lists; and, company financial information, company strategy.
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Shall be limited to customer lists, internal evaluations and/or analysis of sales data, and any
other personal identification information such as social security numbers, date of birth, and employer
identification numbers.
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Page 2 – STIPULATED PROTECTIVE ORDER
SLINDE NELSON STANFORD
111 SW 5th Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
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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
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disclosed or produced by another party or by a non-party in connection with this case only for
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prosecuting, defending, or attempting to settle this litigation. Confidential Material may be
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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
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secure manner that ensures that access is limited to the persons authorized under this agreement.
4.2 Disclosure of Information Constituting Confidential Material. Unless
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otherwise ordered by the court or permitted in writing by the designating party, a receiving party
may disclose any confidential material only to:
(a) the receiving party’s counsel of record in this action, as well as employees of
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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
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receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties
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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 this
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litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(d) the court, court personnel, and court reporters and their staff;
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(e) copy or imaging services retained by counsel to assist in the duplication of
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Confidential Material, provided that counsel for the party retaining the copy or imaging service
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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;
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(f) during their depositions, witnesses in the action to whom disclosure is
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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
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(Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of
Page 3 – STIPULATED PROTECTIVE ORDER
SLINDE NELSON STANFORD
111 SW 5th Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
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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
custodian or other person who otherwise possessed or knew the information.
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4.3 Filing Confidential Material. Before filing Confidential Material or discussing
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or referencing Confidential Material in court filings, the filing party shall confer with the
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designating party to determine whether the designating party will remove the confidential
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designation, whether the document can be redacted, or whether a motion to seal or stipulation
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and proposed order is warranted. Local Civil Rule 5
(g) sets forth the procedures that must be followed and the standards that will be
applied when a party seeks permission from the court to file material under seal.
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5. DESIGNATING PROTECTED MATERIAL
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5.1 Exercise of Restraint and Care in Designating Material for Protection. Each
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party or non-party that designates information or items for protection under this agreement must
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take care to limit any such designation to specific material that qualifies under the appropriate
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standards. The designating party must designate for protection only those parts of material,
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documents, items, or oral or written communications that qualify, so that other portions of the
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material, documents, items, or communications for which protection is not warranted are not
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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
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expenses and burdens on other parties) expose the designating party to sanctions.
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Page 4 – STIPULATED PROTECTIVE ORDER
SLINDE NELSON STANFORD
111 SW 5th Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
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If it comes to a designating party’s attention that information or items that it designated
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for protection do not qualify for protection, the designating party must promptly notify all other
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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
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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 and
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deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings),
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the designating party must affix the word “CONFIDENTIAL” to each page that contains
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Confidential Material. If only a portion or portions of the material on a page qualifies for
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protection, the producing party also must clearly identify the protected portion(s) (e.g., by
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making appropriate markings in the margins).
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(b) Testimony given in deposition or in other pretrial or trial proceedings: the
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parties must identify on the record, during the deposition, hearing, or other proceeding, all
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protected testimony, without prejudice to their right to so designate other testimony after
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reviewing the transcript. Any party or non-party may, within fifteen days after receiving a
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deposition transcript, designate portions of the transcript, or exhibits thereto, as confidential.
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(c) Other tangible items: the producing party must affix in a prominent place on
the exterior of the container or containers in which the information or item is stored the word
“CONFIDENTIAL.” If only a portion or portions of the information or item warrant
protection, the producing party, to the extent practicable, shall identify the protected portion(s).
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5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure
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to designate qualified information or items does not, standing alone, waive the designating
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party’s right to secure protection under this agreement for such material. Upon timely correction
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Page 5 – STIPULATED PROTECTIVE ORDER
SLINDE NELSON STANFORD
111 SW 5th Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
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of a 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
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confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality
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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
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challenge a confidentiality designation by electing not to mount a challenge promptly after the
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original designation is disclosed.
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6.2 Meet and Confer. The parties must make every attempt to resolve any dispute
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regarding confidential designations without court involvement. Any motion regarding
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confidential designations or for a protective order must include a certification, in the motion or in
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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. The
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certification must list the date, manner, and participants to the conference. A good faith effort to
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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
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intervention, the designating party may file and serve a motion to retain confidentiality under
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Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of
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persuasion in any such motion shall be on the designating party. Frivolous challenges, and those
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made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
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other parties) may expose the challenging party to sanctions. All parties shall continue to
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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
Page 6 – STIPULATED PROTECTIVE ORDER
SLINDE NELSON STANFORD
111 SW 5th Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
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If a party is served with a subpoena or a court order issued in other litigation that compels
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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
subpoena or court order;
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(b) promptly notify in writing the party who caused the subpoena or order to issue
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in the other litigation that some or all of the material covered by the subpoena or order is subject
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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
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If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential
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material to any person or in any circumstance not authorized under this agreement, the receiving
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party must immediately (a) notify in writing the designating party of the unauthorized
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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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this agreement, and (d) request that such person or persons execute the “Acknowledgment and
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Agreement to Be Bound” that is attached hereto as Exhibit A.
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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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produced material is subject to a claim of privilege or other protection, the obligations of the
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receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
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provision is not intended to modify whatever procedure may be established in an e-discovery
Page 7 – STIPULATED PROTECTIVE ORDER
SLINDE NELSON STANFORD
111 SW 5th Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
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order or agreement that provides for production without prior privilege review. Parties shall
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confer on an appropriate non-waiver order under Fed. R. Evid. 502.
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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
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party must return all Confidential Material to the producing party, including all copies, extracts
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and summaries thereof.
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destruction.
Alternatively, the parties may agree upon appropriate methods of
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Notwithstanding this provision, counsel are entitled to retain one archival copy of all
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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.
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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.
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DATED: June 7th, 2016______ ___________/s/J. Curtis Edmondson___
Attorneys for Plaintiff
J. Curtis Edmondson WSBA No. 43795
curtis@slindenelson.com
SLINDE NELSON STANFORD
111 SW Fifth Avenue, Ste 1940
Portland, OR 97204
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DATED: June 7th 2016
_________ ________/s/ Ana-Maria Popp____
Attorneys for Defendant
Ana-Maria Popp, WSBA No. 39614
524 Second Avenue, Suite 500
Seattle, WA 98104-2323
E-mail: apopp@cairncross.com
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Page 8 – STIPULATED PROTECTIVE ORDER
SLINDE NELSON STANFORD
111 SW 5th Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
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DATED: June 7th, 2016__________ ______/s/ Gary C. Adler______
Attorneys for Defendant
Gary C. Adler (Admitted pro hac vice)
CLARK HILL PLC
601 Pennsylvania Avenue NW
North Building, Suite 1000
Washington DC 20004
E-mail: gadler@clarkhill.com
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PURSUANT TO STIPULATION, IT IS SO ORDERED.
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DATED: June 8, 2016
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A
J. Richard Creatura
United States Magistrate Judge
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Page 9 – STIPULATED PROTECTIVE ORDER
SLINDE NELSON STANFORD
111 SW 5th Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
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EXHIBIT A
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ACKNOWLEDMENT 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 the Stipulated
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Protective Order in its entirety and understand that the contents and restrictions set forth herein
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was issued by the United States District Court for the Western District of Washington on [date]
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in the case of TOUCHPOINT COMMUNICATIONS, LLC v. DENTALFONE, LLC, Case No.
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3:15-cv-05240-JRC. 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 comply shall expose me to
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sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose
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in any manner any information or item that is subject to this Stipulated Protective Order to any
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person or entity except in strict compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court for the
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Western District of Washington for the purpose of enforcing the terms of this Stipulated
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Protective Order, even if such enforcement proceedings occur 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: ______________________________
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Signature: __________________________________
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Page 10 – STIPULATED PROTECTIVE ORDER
SLINDE NELSON STANFORD
111 SW 5th Avenue, Suite 1940
Portland, Oregon 97204
p. 503.417.7777; f. 503.417.4250
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