The opinion
1 BRYAN L. HAWKINS (SB #238346)
bryan.hawkins@stoel.com
2 CAROLINE J. LIVETT (SB #278431)
caroline.livett@stoel.com
3 STOEL RIVES LLP
500 Capitol Mall, Suite 1600
4 Sacramento, CA 95814
Telephone: 916.447.0700
5 Facsimile: 916.447.4781
6 Attorneys for Defendant
TriWest Healthcare Alliance Corp.
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8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
DANIEL SOUSA, No. 2:19-cv-02132 WBS DB
11
Plaintiff, STIPULATED PROTECTIVE ORDER FOR
12 STANDARD LITIGATION
v.
13
TRIWEST HEALTHCARE ALLIANCE
14 CORP; and
DOES 1 through 20, inclusive,
15
Defendants.
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1 1. PURPOSES AND LIMITATIONS
2 Disclosure and discovery activity in this action are likely to involve production of
3 confidential, proprietary, or private information for which special protection from public
4 disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
5 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated
6 Protective Order. The parties acknowledge that this Order does not confer blanket protections on
7 all disclosures or responses to discovery and that the protection it affords from public disclosure
8 and use extends only to the limited information or items that are entitled to confidential treatment
9 under the applicable legal principles. The parties further acknowledge, as set forth in Section
10 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential
11 information under seal; Civil Local Rule 141 sets forth the procedures that must be followed and
12 the standards that will be applied when a party seeks permission from the court to file material
13 under seal.
14 2. DEFINITIONS
15 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or
16 items under this Order.
17 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is
18 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
19 of Civil Procedure 26(c).
20 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as
21 well as their support staff).
22 2.4 Designating Party: a Party or Non-Party that designates information or items that
23 it produces in disclosures or in responses to discovery as “CONFIDENTIAL.”
24 2.5 Disclosure or Discovery Material: all items or information, regardless of the
25 medium or manner in which it is generated, stored, or maintained (including, among other things,
26 testimony, transcripts, and tangible things), that are produced or generated in disclosures or
27 responses to discovery in this matter.
28 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to
1 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a
2 consultant in this action.
3 2.7 House Counsel: attorneys who are employees of a party to this action. House
4 Counsel does not include Outside Counsel of Record or any other outside counsel.
5 2.8 Non-Party: any natural person, partnership, corporation, association, or other legal
6 entity not named as a Party to this action.
7 2.9 Outside Counsel of Record: attorneys who are not employees of a party to this
8 action but are retained to represent or advise a party to this action and have appeared in this action
9 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
10 2.10 Party: any party to this action, including all of its officers, directors, employees,
11 consultants, retained experts, and Outside Counsel of Record (and their support staffs).
12 2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
13 Material in this action.
14 2.12 Professional Vendors: persons or entities that provide litigation support services
15 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
16 organizing, storing, or retrieving data in any form or medium) and their employees and
17 subcontractors.
18 2.13 Protected Material: any Disclosure or Discovery Material that is designated as
19 “CONFIDENTIAL.”
20 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a
21 Producing Party.
22 3. SCOPE
23 The protections conferred by this Stipulation and Order cover not only Protected Material
24 (as defined above), but also (1) any information copied or extracted from Protected Material; (2)
25 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
26 conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
27 However, the protections conferred by this Stipulation and Order do not cover the following
28 information: (a) any information that is in the public domain at the time of disclosure to a
1 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a
2 result of publication not involving a violation of this Order, including becoming part of the public
3 record through trial or otherwise; and (b) any information known to the Receiving Party prior to
4 the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained
5 the information lawfully and under no obligation of confidentiality to the Designating Party. Any
6 use of Protected Material at trial shall be governed by a separate agreement or order.
7 4. DURATION
8 Even after final disposition of this litigation, the confidentiality obligations imposed by
9 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
10 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all
11 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after
12 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
13 including the time limits for filing any motions or applications for extension of time pursuant to
14 applicable law.
15 5. DESIGNATING PROTECTED MATERIAL
16 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party
17 or Non-Party that designates information or items for protection under this Order must take care
18 to limit any such designation to specific material that qualifies under the appropriate standards.
19 The Designating Party must designate for protection only those parts of material, documents,
20 items, or oral or written communications that qualify – so that other portions of the material,
21 documents, items, or communications for which protection is not warranted are not swept
22 unjustifiably within the ambit of this Order.
23 Mass, indiscriminate, or routinized designations are prohibited. Designations that are
24 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
25 unnecessarily encumber or retard the case development process or to impose unnecessary
26 expenses and burdens on other parties) expose the Designating Party to sanctions.
27 If it comes to a Designating Party’s attention that information or items that it designated for
28 protection do not qualify for protection, that Designating Party must promptly notify all other
1 Parties that it is withdrawing the mistaken designation.
2 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order
3 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
4 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
5 designated before the material is disclosed or produced.
6 Designation in conformity with this Order requires:
7 (a) for information in documentary form (e.g., paper or electronic documents, but
8 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party
9 affix the legend “CONFIDENTIAL” to each page that contains protected material. If only a
10 portion or portions of the material on a page qualifies for protection, the Producing Party also
11 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the
12 margins).
13 A Party or Non-Party that makes original documents or materials available for inspection need
14 not designate them for protection until after the inspecting Party has indicated which material it
15 would like copied and produced. During the inspection and before the designation, all of the
16 material made available for inspection shall be deemed “CONFIDENTIAL.” After the inspecting
17 Party has identified the documents it wants copied and produced, the Producing Party must
18 determine which documents, or portions thereof, qualify for protection under this Order. Then,
19 before producing the specified documents, the Producing Party must affix the
20 “CONFIDENTIAL” legend to each page that contains Protected Material. If only a portion or
21 portions of the material on a page qualifies for protection, the Producing Party also must clearly
22 identify the protected portion(s) (e.g., by making appropriate markings in the margins).
23 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the
24 Designating Party identify on the record, before the close of the deposition, hearing, or other
25 proceeding, all protected testimony.
26 (c) for information produced in some form other than documentary and for any other
27 tangible items, that the Producing Party affix in a prominent place on the exterior of the container
28 or containers in which the information or item is stored the legend “CONFIDENTIAL.” If only a
1 portion or portions of the information or item warrant protection, the Producing Party, to the
2 extent practicable, shall identify the protected portion(s).
3 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 Order for such material. Upon timely correction of a
6 designation, the Receiving Party must make reasonable efforts to assure that the material is
7 treated in accordance with the provisions of this Order.
8 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
9 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of
10 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
11 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
12 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
13 challenge a confidentiality designation by electing not to mount a challenge promptly after the
14 original designation is disclosed.
15 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution
16 process by providing written notice of each designation it is challenging and describing the basis
17 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
18 notice must recite that the challenge to confidentiality is being made in accordance with this
19 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in
20 good faith and must begin the process by conferring directly (in voice to voice dialogue; other
21 forms of communication are not sufficient) within 14 days of the date of service of notice. In
22 conferring, the Challenging Party must explain the basis for its belief that the confidentiality
23 designation was not proper and must give the Designating Party an opportunity to review the
24 designated material, to reconsider the circumstances, and, if no change in designation is offered,
25 to explain the basis for the chosen designation. A Challenging Party may proceed to the next stage
26 of the challenge process only if it has engaged in this meet and confer process first or establishes
27 that the Designating Party is unwilling to participate in the meet and confer process in a timely
28 manner.
1 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court
2 intervention, the Designating Party shall file and serve a motion to retain confidentiality and in
3 compliance with Civil Local Rule 141, if applicable) within 21 days of the initial notice of
4 challenge or within 14 days of the parties agreeing that the meet and confer process will not
5 resolve their dispute, whichever is earlier. Each such motion must be accompanied by a
6 competent declaration affirming that the movant has complied with the meet and confer
7 requirements imposed in the preceding paragraph. Failure by the Designating Party to make such
8 a motion including the required declaration within 21 days (or 14 days, if applicable) shall
9 automatically waive the confidentiality designation for each challenged designation. In addition,
10 the Challenging Party may file a motion challenging a confidentiality designation at any time if
11 there is good cause for doing so, including a challenge to the designation of a deposition transcript
12 or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a
13 competent declaration affirming that the movant has complied with the meet and confer
14 requirements imposed by the preceding paragraph.
15 The burden of persuasion in any such challenge proceeding shall be on the Designating
16 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose
17 unnecessary expenses and burdens on other parties) may expose the Challenging Party to
18 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
19 file a motion to retain confidentiality as described above, all parties shall continue to afford the
20 material in question the level of protection to which it is entitled under the Producing Party’s
21 designation until the court rules on the challenge.
22 7. ACCESS TO AND USE OF PROTECTED MATERIAL
23 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or
24 produced by another Party or by a Non-Party in connection with this case only for prosecuting,
25 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
26 the categories of persons and under the conditions described in this Order. When the litigation has
27 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL
28 DISPOSITION).
1 Protected Material must be stored and maintained by a Receiving Party at a location and in
2 a secure manner that ensures that access is limited to the persons authorized under this Order.
3 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
4 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
5 information or item designated “CONFIDENTIAL” only to:
6 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as
7 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
8 information for this litigation and who have signed the “Acknowledgment and Agreement to Be
9 Bound” that is attached hereto as Exhibit A;
10 (b) the officers, directors, and employees (including House Counsel) of the Receiving
11 Party to whom disclosure is reasonably necessary for this litigation and who have signed the
12 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
13 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
14 reasonably necessary for this litigation and who have signed the “Acknowledgment and
15 Agreement to Be Bound” (Exhibit A);
16 (d) the court and its personnel;
17 (e) court reporters and their staff, professional jury or trial consultants, mock jurors,
18 and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
19 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
20 (f) during their depositions, witnesses in the action to whom disclosure is reasonably
21 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
22 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed
23 deposition testimony or exhibits to depositions that reveal Protected Material must be separately
24 bound by the court reporter and may not be disclosed to anyone except as permitted under this
25 Stipulated Protective Order.
26 (g) the author or recipient of a document containing the information or a custodian or
27 other person who otherwise possessed or knew the information.
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1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
2 LITIGATION
3 If a Party is served with a subpoena or a court order issued in other litigation that compels
4 disclosure of any information or items designated in this action as “CONFIDENTIAL,” that Party
5 must:
6 (a) promptly notify in writing the Designating Party. Such notification shall include a
7 copy of the subpoena or court order;
8 (b) promptly notify in writing the party who caused the subpoena or order to issue in
9 the other litigation that some or all of the material covered by the subpoena or order is subject to
10 this Protective Order. Such notification shall include a copy of this Stipulated Protective Order;
11 and
12 (c) cooperate with respect to all reasonable procedures sought to be pursued by the
13 Designating Party whose Protected Material may be affected.
14 If the Designating Party timely seeks a protective order, the Party served with the
15 subpoena or court order shall not produce any information designated in this action as
16 “CONFIDENTIAL” before a determination by the court from which the subpoena or order
17 issued, unless the Party has obtained the Designating Party’s permission. The Designating Party
18 shall bear the burden and expense of seeking protection in that court of its confidential material –
19 and nothing in these provisions should be construed as authorizing or encouraging a Receiving
20 Party in this action to disobey a lawful directive from another court.
21 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
22 LITIGATION
23 (a) The terms of this Order are applicable to information produced by a Non-Party in
24 this action and designated as “CONFIDENTIAL.” Such information produced by Non-Parties in
25 connection with this litigation is protected by the remedies and relief provided by this Order.
26 Nothing in these provisions should be construed as prohibiting a Non-Party from seeking
27 additional protections.
28 (b) In the event that a Party is required, by a valid discovery request, to produce a
1 Non-Party’s confidential information in its possession, and the Party is subject to an agreement
2 with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
3 (1) promptly notify in writing the Requesting Party and the Non-Party that some
4 or all of the information requested is subject to a confidentiality agreement with a Non-Party;
5 (2) promptly provide the Non-Party with a copy of the Stipulated Protective Order
6 in this litigation, the relevant discovery request(s), and a reasonably specific description of the
7 information requested; and
8 (3) make the information requested available for inspection by the Non-Party.
9 (c) If the Non-Party fails to object or seek a protective order from this court within 14
10 days of receiving the notice and accompanying information, the Receiving Party may produce the
11 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely
12 seeks a protective order, the Receiving Party shall not produce any information in its possession
13 or control that is subject to the confidentiality agreement with the Non-Party before a
14 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the
15 burden and expense of seeking protection in this court of its Protected Material.
16 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
17 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
18 Material to any person or in any circumstance not authorized under this Stipulated Protective
19 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
20 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
21 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made
22 of all the terms of this Order, and (d) request such person or persons to execute the
23 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
24 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
25 MATERIAL
26 When a Producing Party gives notice to Receiving Parties that certain inadvertently
27 produced material is subject to a claim of privilege or other protection, the obligations of the
28 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
1 provision is not intended to modify whatever procedure may be established in an e-discovery
2 order that provides for production without prior privilege review. Pursuant to Federal Rule of
3 Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a
4 communication or information covered by the attorney-client privilege or work product
5 protection, the parties may incorporate their agreement in the stipulated protective order
6 submitted to the court.
7 12. MISCELLANEOUS
8 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to
9 seek its modification by the court in the future.
10 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective
11 Order no Party waives any right it otherwise would have to object to disclosing or producing any
12 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
13 Party waives any right to object on any ground to use in evidence of any of the material covered
14 by this Protective Order.
15 12.3 Filing Protected Material. Without written permission from the Designating Party
16 or a court order secured after appropriate notice to all interested persons, a Party may not file in
17 the public record in this action any Protected Material. A Party that seeks to file under seal any
18 Protected Material must comply with Civil Local Rule 141. Protected Material may only be filed
19 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at
20 issue.
21 13. FINAL DISPOSITION
22 Within 60 days after the final disposition of this action, as defined in paragraph 4, each
23 Receiving Party must return all Protected Material to the Producing Party or destroy such
24 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
25 compilations, summaries, and any other format reproducing or capturing any of the Protected
26 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must
27 submit a written certification to the Producing Party (and, if not the same person or entity, to the
28 Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all
1 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has
2 not retained any copies, abstracts, compilations, summaries or any other format reproducing or
3 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
4 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
5 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work
6 product, and consultant and expert work product, even if such materials contain Protected
7 Material. Any such archival copies that contain or constitute Protected Material remain subject to
8 this Protective Order as set forth in Section 4 (DURATION). Nothing herein shall operate to
9 prevent Counsel from record keeping in compliance with the applicable state bar requirements.
10 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
11
12 Dated: July 24, 2020 STOEL RIVES LLP
13
By:/s/ Bryan L. Hawkins
14 Bryan L. Hawkins
Caroline J. Livett
15 Attorneys for Defendant
TriWest Healthcare Alliance Corp.
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Dated: July 24, 2020 LAW OFFICE OF MICHAEL FREIMAN
17
By:/s/ Michael Freiman
18 Michael Freiman
Attorneys for Plaintiff
19 Daniel Sousa
20 ORDER
21 Pursuant to the parties’ stipulation, IT IS SO ORDERED.
22 IT IS FURTHER ORDERED THAT:
23 1. Requests to seal documents shall be made by motion before the same judge who will
24 decide the matter related to that request to seal.
25 2. The designation of documents (including transcripts of testimony) as confidential
26 pursuant to this order does not automatically entitle the parties to file such a document with the
27 court under seal. Parties are advised that any request to seal documents in this district is governed
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1 by Local Rule 141. In brief, Local Rule 141 provides that documents may only be sealed by a
2 written order of the court after a specific request to seal has been made. L.R. 141(a). However, a
3 mere request to seal is not enough under the local rules. In particular, Local Rule 141(b) requires
4 that “[t]he ‘Request to Seal Documents’ shall set forth the statutory or other authority for sealing,
5 the requested duration, the identity, by name or category, of persons to be permitted access to the
6 document, and all relevant information.” L.R. 141(b).
7 3. A request to seal material must normally meet the high threshold of showing that
8 “compelling reasons” support secrecy; however, where the material is, at most, “tangentially
9 related” to the merits of a case, the request to seal may be granted on a showing of “good cause.”
10 Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana
11 v. City and County of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006).
12 4. Nothing in this order shall limit the testimony of parties or non-parties, or the use of
13 certain documents, at any court hearing or trial – such determinations will only be made by the
14 court at the hearing or trial, or upon an appropriate motion.
15 5. With respect to motions regarding any disputes concerning this protective order which
16 the parties cannot informally resolve, the parties shall follow the procedures outlined in Local Rule
17 251. Absent a showing of good cause, the court will not hear discovery disputes on an ex parte
18 basis or on shortened time.
19 6. The parties may not modify the terms of this Protective Order without the court’s
20 approval. If the parties agree to a potential modification, they shall submit a stipulation and
21 proposed order for the court’s consideration.
22 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement
23 of the terms of this Protective Order after the action is terminated.
24 8. Any provision in the parties’ stipulation that is in conflict with anything in this order is
25 hereby DISAPPROVED.
26 DATED: July 28, 2020 /s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
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1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, _____________________________ [print or type full name], of _________________ [print or
4 type full address], declare under penalty of perjury that I have read in its entirety and understand
5 the Stipulated Protective Order that was issued by the United States District Court for the Eastern
6 District of California on [date] in the case of Sousa v. TriWest Healthcare Alliance Corp., Case
7 No. 2:19-cv-02132-WBS-DB. I agree to comply with and to be bound by all the terms of this
8 Stipulated Protective Order and I understand and acknowledge that failure to so comply could
9 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will
10 not disclose in any manner any information or item that is subject to this Stipulated Protective
11 Order to any person or entity except in strict compliance with the provisions of this Order.
12 I further agree to submit to the jurisdiction of the United States District Court for the Eastern
13 District of California for the purpose of enforcing the terms of this Stipulated Protective Order,
14 even if such enforcement proceedings occur after termination of this action.
15 I hereby appoint __________________________ [print or type full name] of
16 _______________________________________ [print or type full address and telephone
17 number] as my California agent for service of process in connection with this action or any
18 proceedings related to enforcement of this Stipulated Protective Order.
19
20 Date: ______________________________________
21 City and State where sworn and signed: _________________________________
22
23 Printed name: _______________________________
24
25 Signature: __________________________________
26
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