distinguishing “good cause” 11 showing for sealing documents produced in discovery from “compelling reasons” 12 standard when merits-related documents are part of court record
How later courts described this case
- distinguishing “good cause” 11 showing for sealing documents produced in discovery from “compelling reasons” 12 standard when merits-related documents are part of court record
Written by the judges who cited it.
The opinion
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8 UNITED STATE DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
DANIEL MOIZEL, Case No. 2:19-cv-8527-DSF-JEM
11
Plaintiff, PROTECTIVE ORDER
12 GOVERNING CONFIDENTIAL
v. INFORMATION
13
IRONSHORE SPECIALTY [Discovery Document: Referred to
14 INSURANCE COMPANY, an Arizona Magistrate Judge John E. McDermott]
corporation; and DOES 1 through 10,
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Defendants.
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18 IT IS HEREBY ORDERED:
19 1. PURPOSES AND LIMITATIONS
20 Discovery in this action is likely to involve production of confidential,
21 proprietary, or private information for which special protection from public disclosure
22 and from use for any purpose other than pursuing this litigation may be warranted.
23 Accordingly, the Parties hereby stipulate to and petition the Court to enter the
24 following Stipulated Protective Order. The Parties acknowledge that this Order does
25 not confer blanket protections on all disclosures or responses to discovery and that
26 the protection it affords from public disclosure and use extends only to the limited
27 information or items that are entitled to confidential treatment under the applicable
28 legal principles.
1 2. GOOD CAUSE STATEMENT
2 This action is likely to involve trade secrets and other valuable research,
3 development, commercial, financial, technical, and/or proprietary information for
4 which special protection from public disclosure and from use for any purpose other
5 than litigation of this action is warranted. Such confidential and proprietary materials
6 and information consist of, among other things, (i) insurance underwriting documents,
7 procedures, and policies, (ii) insurance claims handling documents, procedures, and
8 policies, and (iii) other confidential business or financial information, information
9 regarding confidential business practices, or other confidential research,
10 development, or commercial information (including information implicating privacy
11 rights of third parties), information otherwise generally unavailable to the public, or
12 which may be privileged or otherwise protected from disclosure under state or federal
13 statutes, court rules, case decisions, or common law. Public disclosure of such
14 information, documents, and materials would result in prejudice or harm to Ironshore
15 Specialty Insurance Company by providing its competitors with an unfair business
16 advantage. Accordingly, to expedite the flow of information, to facilitate the prompt
17 resolution of disputes over confidentiality of discovery materials, to adequately
18 protect information the Parties are entitled to keep confidential, to ensure that the
19 Parties are permitted reasonable necessary uses of such material in preparation for
20 and in the conduct of trial, to address their handling at the end of the litigation, and
21 serve the ends of justice, a protective order for such information is justified in this
22 matter. It is the intent of the Parties that information will not be designated as
23 confidential for tactical reasons and that nothing be so designated without a good faith
24 belief that it has been maintained in a confidential, non-public manner, and there is
25 good cause why it should not be part of the public record of this case.
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1 3. ACKNOWLEDGMENT OF UNDER SEAL FILING
2 PROCEDURE
3 The Parties further acknowledge, as set forth in Section 14.3, below, that this
4 Stipulated Protective Order does not entitle them to file confidential information
5 under seal. Local Civil Rule 79-5 sets forth the procedures that must be followed and
6 the standards that will be applied when a Party seeks permission from the Court to
7 file material under seal. There is a strong presumption that the public has a right of
8 access to judicial proceedings and records in civil cases. In connection with non-
9 dispositive motions, good cause must be shown to support a filing under seal. See
10 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006);
11 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002) (even
12 stipulated protective orders require good cause showing and a specific showing of
13 good cause or compelling reasons with proper evidentiary support and legal
14 justification, must be made with respect to Protected Material that a Party seeks to file
15 under seal). The Parties’ mere designation of Disclosure or Discovery Material as
16 CONFIDENTIAL does not—without the submission of competent evidence by
17 declaration establishing that the material sought to be filed under seal qualifies as
18 confidential, privileged, or otherwise protectable—constitute good cause.
19 Further, if a Party requests sealing related to a dispositive motion or trial, then
20 compelling reasons, not only good cause, for the sealing must be shown, and the relief
21 sought shall be narrowly tailored to serve the specific interest to be protected. See
22 Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item
23 or type of information, document, or thing sought to be filed or introduced under seal,
24 the Party seeking protection must articulate compelling reasons, supported by specific
25 facts and legal justification, for the requested sealing order. Again, competent
26 evidence supporting the application to file documents under seal must be provided by
27 declaration.
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1 Any document that is not confidential, privileged, or otherwise protectable in
2 its entirety will not be filed under seal if the confidential portions can be redacted. If
3 documents can be redacted, then a redacted version for public viewing, omitting only
4 the confidential, privileged, or otherwise protectable portions of the document, shall
5 be filed. Any application that seeks to file documents under seal in their entirety
6 should include an explanation of why redaction is not feasible.
7 4. DEFINITIONS
8 4.1 Action: Moizel v. Ironshore Specialty Ins. Co., No. 2:19-cv-8527, U.S.
9 District Court for the Central District of California.
10 4.2 Challenging Party: a Party or Non-Party that challenges the
11 designation of information or items under this Order.
12 4.3 “CONFIDENTIAL” Information or Items: information (regardless of
13 how it is generated, stored or maintained) or tangible things that qualify for protection
14 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
15 Cause Statement.
16 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
17 support staff).
18 4.5 Designating Party: a Party or Non-Party that designates information or
19 items that it produces in disclosures or in responses to discovery as
20 “CONFIDENTIAL.”
21 4.6 Disclosure or Discovery Material: all items or information, regardless of
22 the medium or manner in which it is generated, stored, or maintained (including,
23 among other things, testimony, transcripts, and tangible things), that are produced or
24 generated in disclosures or responses to discovery.
25 4.7 Expert: a person with specialized knowledge or experience in a matter
26 pertinent to the litigation who has been retained by a Party or its counsel to serve as
27 an expert witness or as a consultant in this Action.
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1 4.8 House Counsel: attorneys who are employees of a Party to this Action.
2 House Counsel does not include Outside Counsel of Record or any other outside
3 counsel.
4 4.9 Non-Party: any natural person, partnership, corporation, association, or
5 other legal entity not named as a Party to this action.
6 4.10 Outside Counsel of Record: attorneys who are not employees of a Party
7 but are retained to represent a Party and have appeared in this Action on behalf of that
8 Party or are affiliated with a law firm that has appeared on behalf of that Party, and
9 includes support staff.
10 4.11 Party: any party to this Action, including all of its officers, directors,
11 employees, consultants, retained experts, and Outside Counsel of Record (and their
12 support staff).
13 4.12 Producing Party: a Party or Non-Party that produces Disclosure or
14 Discovery Material in this Action.
15 4.13 Professional Vendors: persons or entities that provide litigation support
16 services (e.g., photocopying, videotaping, translating, preparing exhibits or
17 demonstrations, and organizing, storing, or retrieving data in any form or medium)
18 and their employees and subcontractors.
19 4.14 Protected Material: any Disclosure or Discovery Material that is
20 designated as “CONFIDENTIAL.”
21 4.15 Receiving Party: a Party that receives Disclosure or Discovery
22 Material from a Producing Party.
23 5. SCOPE
24 The protections conferred by this Stipulation and Order cover not only
25 Protected Material, but also (1) any information copied or extracted from Protected
26 Material, (2) all copies, excerpts, summaries, or compilations of Protected Material,
27 and (3) any testimony, conversations, or presentations by Parties or their Counsel that
28 might reveal Protected Material.
1 Any use of Protected Material at trial shall be governed by the orders of the
2 trial judge and other applicable authorities. This Order does not govern the use of
3 Protected Material at trial.
4 6. DURATION
5 Once a case proceeds to trial, information that was designated as
6 CONFIDENTIAL or maintained pursuant to this protective order used or introduced
7 as an exhibit at trial becomes public and will be presumptively available to all
8 members of the public, including the press, unless compelling reasons supported by
9 specific factual findings to proceed otherwise are made to the trial judge in advance
10 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”
11 showing for sealing documents produced in discovery from “compelling reasons”
12 standard when merits-related documents are part of court record). Any such
13 information that becomes public will no longer be subject to the terms of this
14 Protective Order.
15 7. DESIGNATING PROTECTED MATERIAL
16 7.1 Exercise of Restraint and Care in Designating Material for Protection.
17 Each Party or Non-Party that designates information or items for protection under this
18 Order must take care to limit any such designation to specific material that qualifies
19 under the appropriate standards. The Designating Party must designate for protection
20 only those parts of material, documents, items, or oral or written communications that
21 qualify so that other portions of the material, documents, items, or communications
22 for which protection is not warranted are not swept unjustifiably within the ambit of
23 this Order.
24 Mass, indiscriminate, or routinized designations are prohibited. Designations
25 that are shown to be clearly unjustified or that have been made for an improper
26 purpose (e.g., to unnecessarily encumber the case development process or to impose
27 unnecessary expenses and burdens on other Parties) may expose the Designating Party
28 to sanctions.
1 If it comes to a Designating Party’s attention that information or items that it
2 designated for protection do not qualify for protection, that Designating Party must
3 promptly notify all other Parties that it is withdrawing the inapplicable designation.
4 7.2 Manner and Timing of Designations. Except as otherwise provided in
5 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material
6 that qualifies for protection under this Order must be clearly so designated before the
7 material is disclosed or produced.
8 Designation in conformity with this Order requires:
9 (a) For information in documentary form (e.g., paper or electronic
10 documents, but excluding transcripts of depositions or other pretrial or
11 trial proceedings), that the Producing Party affix at a minimum, the
12 legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to
13 each page that contains protected material. If only a portion of the
14 material on a page qualifies for protection, the Producing Party also must
15 clearly identify the protected portion(s) (e.g., by making appropriate
16 markings in the margins). A Party or Non-Party that makes original
17 documents available for inspection need not designate them for
18 protection until after the inspecting Party has indicated which documents
19 it would like copied and produced. During the inspection and before the
20 designation, all of the material made available for inspection shall be
21 deemed “CONFIDENTIAL.” After the inspecting Party has identified
22 the documents it wants copied and produced, the Producing Party must
23 determine which documents, or portions thereof, qualify for protection
24 under this Order. Then, before producing the specified documents, the
25 Producing Party must affix the “CONFIDENTIAL” legend to each page
26 that contains Protected Material. If only a portion of the material on a
27 page qualifies for protection, the Producing Party also must clearly
28 identify the protected portion(s) (e.g., by making appropriate markings
1 in the margins).
2 (b) For testimony given in depositions that the Designating Party identifies
3 the Disclosure or Discovery Material on the record, before the close of
4 the deposition all protected testimony.
5 (c) For information produced in some form other than documentary and for
6 any other tangible items, that the Producing Party affix in a prominent
7 place on the exterior of the container or containers in which the
8 information is stored the “CONFIDENTIAL” legend. If only a portion
9 or portions of the information warrants protection, the Producing Party,
10 to the extent practicable, shall identify the protected portion(s).
11 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
12 failure to designate qualified information or items does not, standing alone, waive the
13 Designating Party’s right to secure protection under this Order for such material.
14 Upon timely correction of a designation, the Receiving Party must make reasonable
15 efforts to assure that the material is treated in accordance with the provisions of this
16 Order.
17 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
18 8.1. Timing of Challenges. Any Party or Non-Party may challenge a
19 designation of confidentiality at any time that is consistent with the Court’s
20 Scheduling Order.
21 8.2 Meet and Confer. The Challenging Party shall initiate the dispute
22 resolution process under Local Rule 37-1, et seq.
23 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
24 joint stipulation pursuant to Local Rule 37-2.
25 8.4 The burden of persuasion in any such challenge proceeding shall be on
26 the Designating Party. Frivolous challenges, and those made for an improper purpose
27 (e.g., to harass or impose unnecessary expenses and burdens on other Parties) may
28 expose the Challenging Party to sanctions. Unless the Designating Party has waived
1 or withdrawn the confidentiality designation, all Parties shall continue to afford the
2 material in question the level of protection to which it is entitled under the Producing
3 Party’s designation until the Court rules on the challenge.
4 9. ACCESS TO AND USE OF PROTECTED MATERIAL
5 9.1 Basic Principles. A Receiving Party may use Protected Material that is
6 disclosed or produced by another Party or by a Non-Party in connection with this
7 Action only for prosecuting, defending or attempting to settle this Action. Such
8 Protected Material may be disclosed only to the categories of persons and under the
9 conditions described in this Order. When the Action has been terminated, a Receiving
10 Party must comply with the provisions of section 15 below (FINAL DISPOSITION).
11 Protected Material must be stored and maintained by a Receiving Party at a
12 location and in a secure manner that ensures that access is limited to the persons
13 authorized under this Order.
14 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
15 otherwise ordered by the Court or permitted in writing by the Designating Party, a
16 Receiving Party may disclose any information or item designated
17 “CONFIDENTIAL” only to:
18 (a) The Receiving Party’s Outside Counsel of Record in this Action, as well
19 as employees of said Outside Counsel of Record to whom it is reasonably
20 necessary to disclose the information for this Action;
21 (b) The officers, directors, and employees (including House Counsel) of the
22 Receiving Party to whom disclosure is reasonably necessary for this
23 Action;
24 (c) Experts (as defined in this Order) of the Receiving Party to whom
25 disclosure is reasonably necessary for this Action and who have signed
26 the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
27 (d) The Court and its personnel;
28 (e) Court reporters and their staff;
1 (f) Professional jury or trial consultants, mock jurors, and Professional
2 Vendors to whom disclosure is reasonably necessary for this Action and
3 who have signed the “Acknowledgment and Agreement to Be Bound”
4 (Exhibit A);
5 (g) The author or recipient of a document containing the information or a
6 custodian or other person who otherwise possessed or knew the
7 information;
8 (h) During their depositions, witnesses, and attorneys for witnesses, in the
9 Action to whom disclosure is reasonably necessary provided: (1) the
10 deposing Party requests that the witness sign the form attached as Exhibit
11 A hereto; and (2) they will not be permitted to keep any confidential
12 information unless they sign the “Acknowledgment and Agreement to
13 Be Bound” (Exhibit A), unless otherwise agreed by the Designating
14 Party or ordered by the Court. Pages of transcribed deposition testimony
15 or exhibits to depositions that reveal Protected Material may be
16 separately bound by the court reporter and may not be disclosed to
17 anyone except as permitted under this Stipulated Protective Order;
18 (i) Any mediators or settlement officers and their supporting personnel,
19 mutually agreed upon by any of the Parties engaged in settlement
20 discussions; and
21 (j) auditors, regulators, and other such entities as is reasonably necessary in
22 the ordinary course of business and who have signed the
23 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
24 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
25 PRODUCED IN OTHER LITIGATION
26 If a Party is served with a subpoena or a court order issued in other litigation
27 that compels disclosure of any information or items designated in this Action as
28 “CONFIDENTIAL,” that Party must:
1 (a) Promptly notify in writing the Designating Party, and such notification
2 shall include a copy of the subpoena or court order;
3 (b) Promptly notify in writing the party who caused the subpoena or order
4 to issue in the other litigation that some or all of the material covered by
5 the subpoena or order is subject to this Protective Order, and such
6 notification shall include a copy of this Stipulated Protective Order; and
7 (c) Cooperate with respect to all reasonable procedures sought to be pursued
8 by the Designating Party whose Protected Material may be affected. If
9 the Designating Party timely seeks a protective order, the Party served
10 with the subpoena or court order shall not produce any information
11 designated in this action as “CONFIDENTIAL” before a determination
12 by the court from which the subpoena or order issued, unless the Party
13 has obtained the Designating Party’s permission. The Designating Party
14 shall bear the burden and expense of seeking protection in that court of
15 its confidential material and nothing in these provisions should be
16 construed as authorizing or encouraging a Receiving Party in this Action
17 to disobey a lawful directive from another court.
18 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
19 BE PRODUCED IN THIS LITIGATION
20 The terms of this Order are applicable to information produced by a Non-Party
21 in this Action and designated as “CONFIDENTIAL.” Such information produced by
22 Non-Parties in connection with this litigation is protected by the remedies and relief
23 provided by this Order. Nothing in these provisions should be construed as prohibiting
24 a Non-Party from seeking additional protections.
25 In the event that a Party is required, by a valid discovery request, to produce a
26 Non-Party’s confidential information in its possession, and the Party is subject to an
27 agreement with the Non-Party not to produce the Non-Party’s confidential
28 information, then the Party shall:
1 (a) promptly notify in writing the Requesting Party and the Non-Party that
2 some or all of the information requested is subject to a confidentiality
3 agreement with a Non-Party;
4 (b) Promptly provide the Non-Party with a copy of the Stipulated Protective
5 Order in this Action, the relevant discovery request(s), and a reasonably
6 specific description of the information requested; and
7 (c) make the information requested available for inspection by the Non-
8 Party, if requested.
9 If the Non-Party fails to seek a protective order from this Court within 14 days
10 of receiving the notice and accompanying information, the Receiving Party may
11 produce the Non-Party’s confidential information responsive to the discovery request.
12 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce
13 any information in its possession or control that is subject to the confidentiality
14 agreement with the Non-Party before a determination by the Court. Absent a court
15 order to the contrary, the Non-Party shall bear the burden and expense of seeking
16 protection in this court of its Protected Material.
17 12. UNAUTHORIZED DISCLOSURE OF PROTECTED
18 MATERIAL
19 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
20 Protected Material to any person or in any circumstance not authorized under this
21 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
22 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
23 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
24 persons to whom unauthorized disclosures were made of all the terms of this Order,
25 and (d) request such person or persons to execute the “Acknowledgment an
26 Agreement to Be Bound” attached hereto as Exhibit A.
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1 13. INADVERTENT PRODUCTION OF PRIVILEGED OR
2 OTHERWISE PROTECTED MATERIAL
3 When a Producing Party gives notice to Receiving Parties that certain
4 inadvertently produced material is subject to a claim of privilege or other protection,
5 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
6 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
7 may be established in an e-discovery order that provides for production without prior
8 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
9 Parties reach an agreement on the effect of disclosure of a communication or
10 information covered by the attorney-client privilege or work product protection, the
11 Parties may incorporate their agreement in the stipulated protective order submitted
12 to the Court.
13 14. MISCELLANEOUS
14 14.1 Right to Further Relief. Nothing in this Order abridges the right of any
15 person to seek its modification by the Court in the future.
16 14.2 Right to Assert Other Objections. By stipulating to the entry of this
17 Protective Order, no Party waives any right it otherwise would have to object to
18 disclosing or producing any information or item on any ground not addressed in this
19 Stipulated Protective Order. Similarly, no Party waives any right to object on any
20 ground to use in evidence of any of the material covered by this Protective Order.
21 14.3 Filing Protected Material. A Party that seeks to file under seal any
22 Protected Material must comply with Local Civil Rule 79-5. Protected Material may
23 only be filed under seal pursuant to a court order authorizing the sealing of the specific
24 Protected Material. If a Party’s request to file Protected Material under seal is denied
25 by the Court, then the Receiving Party may file the information in the public record
26 unless otherwise instructed by the Court.
27 15. FINAL DISPOSITION
28 After the final disposition of this Action and exhaustion of any related appeals,
within 60 days of a written request by the Designating Party, each Receiving Party
2|| must return all Protected Material to the Producing Party or destroy such material. As
used in this subdivision, “all Protected Material” includes all copies, abstracts,
4|| compilations, summaries, and any other format reproducing or capturing any of the
5|| Protected Material. Whether the Protected Material is returned or destroyed, the
6|| Receiving Party must submit a written certification to the Producing Party (and, if not
7|| the same person or entity, to the Designating Party) by the 60-day deadline that (1)
8|| identifies (by category, where appropriate) all the Protected Material that was returned
9|| or destroyed, and (2) affirms that the Receiving Party has not retained any copies,
abstracts, compilations, summaries, or any other format reproducing or capturing any
of the Protected Material. Notwithstanding this provision, Counsel are entitled to
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
reports, attorney work product, and consultant and expert work product, even if such
15|| materials contain Protected Material. Any such archival copies that contain or
16|| constitute Protected Material remain subject to this Protective Order.
17 16. VIOLATION
18 Any violation of this Order may be punished by appropriate measures
including, without limitation, contempt proceedings and/or monetary sanctions.
20
|| FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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33 DATED: May 22, 2020
25 nited 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
4 _____________________________________________ [print or type full address],
5 declare under penalty of perjury that I have read in its entirety and understand the
6 Stipulated Protective Order that was issued by the United States District Court for the
7 Central District of California on [date] in the case of Moizel v. Ironshore Specialty
8 Ins. Co., No. 2:19-cv-8527-DSF-JEM. I agree to comply with and to be bound by all
9 the terms of this Stipulated Protective Order and I understand and acknowledge that
10
failure to so comply could expose me to sanctions and punishment in the nature of
11
contempt. I solemnly promise that I will not disclose in any manner any information
12
or item that is subject to this Stipulated Protective Order to any person or entity except
13
in strict compliance with the provisions of the Order.
14
I further agree to submit to the jurisdiction of the United States District Court
15
for the Central District of California for the purpose of enforcing the terms of this
16
Stipulated Protective Order, even if such enforcement proceedings occur after
17
termination of this action.
18
I hereby appoint __________________________ [print or type full name] of
19
________________________________________________________ [print or type
20
full address and telephone number] as my California agent for service of process in
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connection with this action or any proceedings related to enforcement of this
22
Stipulated Protective Order.
23
Date:
24
City and State where sworn and signed:
25
Printed name:
26
Signature:
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