The opinion
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10 UNITED STATES DISTRICT COURT
11 CENTRAL DISTRICT OF CALIFORNIA
12 HEALTHVANA, INC., Case No. 2:20-cv-04305-DDP-SK
a Delaware corporation,
13
[DISCOVERY DOCUMENT:
14 Plaintiff, REFERRED TO MAGISTRATE
JUDGE STEVE KIM]
15 v.
STIPULATED PROTECTIVE
16
TELEBRANDS CORP., a New Jersey ORDER
17 Corporation; HEMPVANA, LLC, a
Delaware Limited Liability Company;
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BULBHEAD.COM, LLC; a Delaware
19 Limited Liability Company; and
HEALTH BLOOM, LLC, a Delaware
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Limited Liability Company,
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Defendants.
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1 1.
2 A. PURPOSE AND LIMITATIONS
3 Discovery in this action is likely to involve production of confidential,
4 proprietary, or private information for which special protection from public
5 disclosure and from use for any purpose other than prosecuting this litigation may
6 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
7 enter the following Stipulated Protective Order. The parties acknowledge that this
8 Order does not confer blanket protections on all disclosures or responses to
9 discovery and that the protection it affords from public disclosure and use extends
10 only to the limited information or items that are entitled to confidential treatment
11 under the applicable legal principles. The parties further acknowledge, as set forth in
12 Section 12.3, below, that this Stipulated Protective Order does not entitle them to
13 file confidential information under seal; Civil Local Rule 79-5 sets forth the
14 procedures that must be followed and the standards that will be applied when a party
15 seeks permission from the court to file material under seal.
16 B. GOOD CAUSE STATEMENT
17 This action is likely to involve trade secrets, customer and pricing lists,
18 financial revenue and profit information, marketing strategies, and other valuable
19 research, development, commercial, financial, technical and/or proprietary
20 information for which special protection from public disclosure and from use for
21 any purpose other than prosecution of this action is warranted. Such confidential
22 and proprietary materials and information consist of, among other things,
23 confidential business or financial information, information regarding confidential
24 business practices, or other confidential research, development, or commercial
25 information (including information implicating privacy rights of third parties),
26 information otherwise generally unavailable to the public, or which may be
27 privileged or otherwise protected from disclosure under state or federal statutes,
1 information, to facilitate the prompt resolution of disputes over confidentiality of
discovery materials, to adequately protect information the parties are entitled to keep
2
confidential, to ensure that the parties are permitted reasonable necessary uses of
3
such material in preparation for and in the conduct of trial, to address their handling
4
at the end of the litigation, and serve the ends of justice, a protective order for such
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information is justified in this matter. It is the intent of the parties that information
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will not be designated as confidential for tactical reasons and that nothing be so
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designated without a good faith belief that it has been maintained in a confidential,
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non-public manner, and there is good cause why it should not be part of the public
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record of this case.
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Additionally, there is a need for a two-tiered, attorneys’ eyes only protective
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order that designates certain material as “HIGHLY CONFIDENTIAL –
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ATTORNEYS’ EYES ONLY,” as this action like. See Elements Spirits, Inc. v.
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Iconic Brands, Inc., Civ. No. CV 15-02692 DDP(AGRx), 2016 WL 2642206, at *1–
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*2 (C.D. Cal. May 9, 2016) (holding that protective order with attorneys’ eyes only
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designation was warranted to protect party’s confidential information) (citing
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Nutratech, Inc. v. Syntech Int’l, Inc., 242 F.R.D. 552, 555 (C.D. Cal. 2008); Brown
17
Bag Software v. Symantec Corp., 960 F.2d 1465, 1470 (9th Cir. 1992)).
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2. DEFINITIONS
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2.1 Action: this pending federal lawsuit, Healthvana, Inc. v. Telebrands
20
Corp., et al., Case No. 2:20-cv-04305-DDP-SK.
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2.2 Challenging Party: a Party or Non-Party that challenges the
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designation of information or items under this Order.
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2.3.1 “CONFIDENTIAL” Information or Items: information (regardless of
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how it is generated, stored or maintained) or tangible things that qualify for
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protection under Federal Rule of Civil Procedure 26(c), and as specified above in
26
the Good Cause Statement.
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2.3.2 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
1 Information or Items: sensitive “Confidential Information or Items,” disclosure of
2 which to another Party or Non-Party would create a substantial risk of serious harm
3 that could not be avoided by less restrictive means, and that qualifies for protection
4 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good
5 Cause Statement.
6 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
7 their support staff).
8 2.5 Designating Party: a Party or Non-Party that designates information or
9 items that it produces in disclosures or in responses to discovery as
10 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
11 ONLY.”
12 2.6 Disclosure or Discovery Material: all items or information, regardless
13 of the medium or manner in which it is generated, stored, or maintained (including,
14 among other things, testimony, transcripts, and tangible things), that are produced or
15 generated in disclosures or responses to discovery in this matter.
16 2.7 Expert: a person with specialized knowledge or experience in a matter
17 pertinent to the litigation who has been retained by a Party or its counsel to serve as
18 an expert witness or as a consultant in this Action.
19 2.8 House Counsel: attorneys who are employees of a party to this Action.
20 House Counsel does not include Outside Counsel of Record or any other outside
21 counsel.
22 2.9 Non-Party: any natural person, partnership, corporation, association, or
23 other legal entity not named as a Party to this action.
24 2.10 Outside Counsel of Record: attorneys who are not employees of a
25 party to this Action but are retained to represent or advise a party to this Action and
26 have appeared in this Action on behalf of that party or are affiliated with a law firm
27 which has appeared on behalf of that party, and includes support staff.
2.11 Party: any party to this Action, including all of its officers, directors,
1 employees, consultants, retained experts, and Outside Counsel of Record (and their
2 support staffs).
3 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
4 Discovery Material in this Action.
5 2.13 Professional Vendors: persons or entities that provide litigation
6 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
7 demonstrations, and organizing, storing, or retrieving data in any form or medium)
8 and their employees and subcontractors.
9 2.14 Protected Material: any Disclosure or Discovery Material that is
10 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
11 ATTORNEYS’ EYES ONLY.”
12 2.15 Receiving Party: a Party that receives Disclosure or Discovery
13 Material from a Producing Party.
14
15 3. SCOPE
16 The protections conferred by this Stipulation and Order cover not only
17 Protected Material (as defined above), but also (1) any information copied or
18 extracted from Protected Material; (2) all copies, excerpts, summaries, or
19 compilations of Protected Material; and (3) any testimony, conversations, or
20 presentations by Parties or their Counsel that might reveal Protected Material.
21 Any use of Protected Material at trial shall be governed by the orders of the
22 trial judge. This Order does not govern the use of Protected Material at trial.
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24 4. DURATION
25 Even after final disposition of this litigation, the confidentiality obligations imposed
26 by this Order shall remain in effect until a Designating Party agrees otherwise in
27 writing or a court order otherwise directs. Final disposition shall be deemed to be
1 prejudice; and (2) final judgment herein after the completion and exhaustion of all
2 appeals, rehearings, remands, trials, or reviews of this Action, including the time
3 limits for filing any motions or applications for extension of time pursuant to
4 applicable law.
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6 5. DESIGNATING PROTECTED MATERIAL
7 5.1 Exercise of Restraint and Care in Designating Material for Protection.
8 Each Party or Non-Party that designates information or items for protection under
9 this Order must take care to limit any such designation to specific material that
10 qualifies under the appropriate standards. The Designating Party must designate for
11 protection only those parts of material, documents, items, or oral or written
12 communications that qualify so that other portions of the material, documents,
13 items, or communications for which protection is not warranted are not swept
14 unjustifiably within the ambit of this Order.
15 Mass, indiscriminate, or routinized designations are prohibited. Designations
16 that are shown to be clearly unjustified or that have been made for an improper
17 purpose (e.g., to unnecessarily encumber the case development process or to impose
18 unnecessary expenses and burdens on other parties) may expose the Designating
19 Party to sanctions.
20 If it comes to a Designating Party’s attention that information or items that it
21 designated for protection do not qualify for protection, that Designating Party must
22 promptly notify all other Parties that it is withdrawing the inapplicable designation.
23 5.2 Manner and Timing of Designations. Except as otherwise provided in
24 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
25 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
26 under this Order must be clearly so designated before the material is disclosed or
27 produced.
1 (a) for information in documentary form (e.g., paper or electronic
2 documents, but excluding transcripts of depositions or other pretrial or trial
3 proceedings), that the Producing Party affix at a minimum, the legend
4 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
5 ONLY” (hereinafter “CONFIDENTIAL legend”), to each page that contains
6 protected material. If only a portion or portions of the material on a page qualifies
7 for protection, the Producing Party also must clearly identify the protected portion(s)
8 (e.g., by making appropriate markings in the margins).
9 A Party or Non-Party that makes original documents available for inspection
10 need not designate them for protection until after the inspecting Party has indicated
11 which documents it would like copied and produced. During the inspection and
12 before the designation, all of the material made available for inspection shall be
13 deemed “CONFIDENTIAL.” After the inspecting Party has identified the
14 documents it wants copied and produced, the Producing Party must determine which
15 documents, or portions thereof, qualify for protection under this Order. Then, before
16 producing the specified documents, the Producing Party must affix the
17 “CONFIDENTIAL legend” to each page that contains Protected Material. If only a
18 portion or portions of the material on a page qualifies for protection, the Producing
19 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
20 markings in the margins).
21 (b) for testimony given in depositions that the Designating Party, at the
22 same time the witness’s statement of changes is due pursuant to Fed. R. Civ. P.
23 30(e).
24 (c) for information produced in some form other than documentary and for
25 any other tangible items, that the Producing Party affix in a prominent place on the
26 exterior of the container or containers in which the information is stored the legend
27 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
1 Producing Party, to the extent practicable, shall identify the protected portion(s).
2 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
3 failure to designate qualified information or items does not, standing alone, waive
4 the Designating Party’s right to secure protection under this Order for such material.
5 Upon timely correction of a designation, the Receiving Party must make reasonable
6 efforts to assure that the material is treated in accordance with the provisions of this
7 Order.
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9 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
10 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
11 designation of confidentiality at any time that is consistent with the Court’s
12 Scheduling Order.
13 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
14 resolution process under Local Rule 37.1 et seq.
15 6.3 The burden of persuasion in any such challenge proceeding shall be on
16 the Designating Party. Frivolous challenges, and those made for an improper
17 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
18 parties) may expose the Challenging Party to sanctions. Unless the Designating
19 Party has waived or withdrawn the confidentiality designation, all parties shall
20 continue to afford the material in question the level of protection to which it is
21 entitled under the Producing Party’s designation until the Court rules on the
22 challenge.
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24 7. ACCESS TO AND USE OF PROTECTED MATERIAL
25 7.1 Basic Principles. A Receiving Party may use Protected Material that is
26 disclosed or produced by another Party or by a Non-Party in connection with this
27 Action only for prosecuting, defending, or attempting to settle this Action. Such
1 conditions described in this Order. When the Action has been terminated, a
2 Receiving Party must comply with the provisions of section 13 below (FINAL
3 DISPOSITION).
4 Protected Material must be stored and maintained by a Receiving Party at a
5 location and in a secure manner that ensures that access is limited to the persons
6 authorized under this Order.
7 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
8 otherwise ordered by the court or permitted in writing by the Designating Party, a
9 Receiving Party may disclose any information or item designated
10 “CONFIDENTIAL” only to:
11 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well
12 as employees of said Outside Counsel of Record to whom it is reasonably necessary
13 to disclose the information for this Action;
14 (b) the officers, directors, and employees (including House Counsel) of
15 the Receiving Party to whom disclosure is reasonably necessary for this Action;
16 (c) Experts (as defined in this Order) of the Receiving Party to whom
17 disclosure is reasonably necessary for this Action and who have signed the
18 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
19 (d) the court and its personnel;
20 (e) court reporters and their staff;
21 (f) professional jury or trial consultants, mock jurors, and Professional
22 Vendors to whom disclosure is reasonably necessary for this Action and who have
23 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
24 (g) the author or recipient of a document containing the information or a
25 custodian or other person who otherwise possessed or knew the information;
26 (h) during their depositions, witnesses, and attorneys for witnesses, in the
27 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
1 not be permitted to keep any confidential information unless they sign the
2 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
3 agreed by the Designating Party or ordered by the court. Pages of transcribed
4 deposition testimony or exhibits to depositions that reveal Protected Material may
5 be separately bound by the court reporter and may not be disclosed to anyone except
6 as permitted under this Stipulated Protective Order; and
7 (i) any mediator or settlement officer, and their supporting personnel,
8 mutually agreed upon by any of the parties engaged in settlement discussions.
9 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
10 ONLY” Information or Items. Unless otherwise ordered by the court or permitted in
11 writing by the Designating Party, a Receiving Party may disclose any information or
12 item designated “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” only
13 to those individuals listed above in Paragraphs 7.2(a), (c)–(g), and (i), except that a
14 Receiving Party may in good faith request that the Designating Party consent in
15 writing to the disclosure of particular material designated “HIGHLY
16 CONFIDENTIAL - ATTORNEYS’ EYES ONLY” to one or more representatives
17 of the Receiving Party to whom disclosure is reasonably necessary for this Action.
18 The Receiving Party may seek leave of court to designate such representatives if the
19 Receiving Party believes that the Designating Party has unreasonably withheld such
20 consent. Before receiving any information designated “HIGHLY CONFIDENTIAL
21 - ATTORNEYS’ EYES ONLY,” each designated representative shall sign the
22 “Acknowledgment and Agreement to Be Bound” (Exhibit A).
23 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
24 IN OTHER LITIGATION
25 If a Party is served with a subpoena or a court order issued in other litigation
26 that compels disclosure of any information or items designated in this Action as
27 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
1 (a) promptly notify in writing the Designating Party. 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 the
5 subpoena or order is subject to this Protective Order. Such notification shall include
6 a copy of this Stipulated Protective Order; and
7 (c) cooperate with respect to all reasonable procedures sought to be
8 pursued by the Designating Party whose Protected Material may be affected.
9 If the Designating Party timely seeks a protective order, the Party served with the
10 subpoena or court order shall not produce any information designated in this action
11 as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
12 ONLY” before a determination by the court from which the subpoena or order
13 issued, unless the Party has obtained the Designating Party’s permission. The
14 Designating Party shall bear the burden and expense of seeking protection in that
15 court of its confidential material and nothing in these provisions should be construed
16 as authorizing or encouraging a Receiving Party in this Action to disobey a lawful
17 directive from another court.
18
19 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
20 PRODUCED IN THIS LITIGATION
21 (a) The terms of this Order are applicable to information produced by a
22 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY
23 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by
24 Non-Parties in connection with this litigation is protected by the remedies and relief
25 provided by this Order. Nothing in these provisions should be construed as
26 prohibiting a Non-Party from seeking additional protections.
27 (b) In the event that a Party is required, by a valid discovery request, to
1 subject to an agreement with the Non-Party not to produce the Non-Party’s
2 confidential information, then the Party shall:
3 (1) promptly notify in writing the Requesting Party and the Non-
4 Party that some or all of the information requested is subject to a
5 confidentiality agreement with a Non-Party;
6 (2) promptly provide the Non-Party with a copy of the Stipulated
7 Protective Order in this Action, the relevant discovery request(s), and a
8 reasonably specific description of the information requested; and
9 (3) make the information requested available for inspection by the
10 Non-Party, if requested.
11 (c) If the Non-Party fails to seek a protective order from this court within
12 14 days of receiving the notice and accompanying information, the Receiving Party
13 may produce the Non-Party’s confidential information responsive to the discovery
14 request. If the Non-Party timely seeks a protective order, the Receiving Party shall
15 not produce any information in its possession or control that is subject to the
16 confidentiality agreement with the Non-Party before a determination by the court.
17 Absent a court order to the contrary, the Non-Party shall bear the burden and
18 expense of seeking protection in this court of its Protected Material.
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20 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
21 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
22 Protected Material to any person or in any circumstance not authorized under this
23 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
24 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
25 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
26 persons to whom unauthorized disclosures were made of all the terms of this Order,
27 and (d) request such person or persons to execute the “Acknowledgment and
1
2 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
3 PROTECTED MATERIAL
4 When a Producing Party gives notice to Receiving Parties that certain
5 inadvertently produced material is subject to a claim of privilege or other protection,
6 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
7 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
8 may be established in an e-discovery order that provides for production without
9 prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar
10 as the parties reach an agreement on the effect of disclosure of a communication or
11 information covered by the attorney-client privilege or work product protection, the
12 parties may incorporate their agreement in the stipulated protective order submitted
13 to the court.
14
15 12. MISCELLANEOUS
16 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
17 person to seek its modification by the Court in the future.
18 12.2 Right to Assert Other Objections. By stipulating to the entry of this
19 Protective Order no Party waives any right it otherwise would have to object to
20 disclosing or producing any information or item on any ground not addressed in this
21 Stipulated Protective Order. Similarly, no Party waives any right to object on any
22 ground to use in evidence of any of the material covered by this Protective Order.
23 12.3 Filing Protected Material. A Party that seeks to file under seal any
24 Protected Material must comply with Civil Local Rule 79-5. Protected Material may
25 only be filed under seal pursuant to a court order authorizing the sealing of the
26 specific Protected Material at issue. If a Party's request to file Protected Material
27 under seal is denied by the court, then the Receiving Party may file the information
1 13. FINAL DISPOSITION
2 After the final disposition of this Action, as defined in paragraph 4, within 60
3 days of a written request by the Designating Party, each Receiving Party must return
4 all Protected Material to the Producing Party or destroy such material. As used in
5 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
6 summaries, and any other format reproducing or capturing any of the Protected
7 Material. Whether the Protected Material is returned or destroyed, the Receiving
8 Party must submit a written certification to the Producing Party (and, if not the same
9 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
10 (by category, where appropriate) all the Protected Material that was returned or
11 destroyed and (2)affirms that the Receiving Party has not retained any copies,
12 abstracts, compilations, summaries or any other format reproducing or capturing any
13 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
14 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
15 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
16 reports, attorney work product, and consultant and expert work product, even if such
17 materials contain Protected Material. Any such archival copies that contain or
18 constitute Protected Material remain subject to this Protective Order as set forth in
19 Section 4 (DURATION).
20 14. Any violation of this Order may be punished by any and all appropriate
21 measures including, without limitation, contempt proceedings and/or monetary
22 sanctions.
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□□ □□ IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Respectfully Submitted,
A
Dated: August 21, 2020 PRANGER LAW PC
By: /s/Scott Lonardo
6 Holly Pranger
7 Scott Lonardo
8 Attorney for Plaintiff Healthvana, Inc.
10 || Dated: August 21, 2020 BESHADA FARNESE LLP
i By: /s/Peter J. Farnese
12 Peter J. Farnese
13 Attorneys for Defendants Telebrands Corp.,
14 Bulbhead.com, LLC, Hempvana, LLC and
Health Bloom, LLC
15
16 I, Scott Lonardo, hereby attest that all other signatories listed, and on whose
17 || behalf the filing is submitted, concur in the filing’s content and have authorized the
18 || filing, consistent with Civil L.R. 5-4.3.4(a)(2)(i).
19 Dated: August 21, 2020 By: /s/Scott Lonardo
20
21
49 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
23
94 || DATED: 8/21/2020
25
271! Honorable Steve Kim
2g || United States Magistrate Judge
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, _____________________________ [print or type full name], of
4 _________________ [print or type full address], declare under penalty of perjury
5 that I have read in its entirety and understand the Stipulated Protective Order that
6 was issued by the United States District Court for the Central District of California
7 on [date] in the case of ___________ [insert formal name of the case and the
8 number and initials assigned to it by the court]. I agree to comply with and to be
9 bound by all the terms of this Stipulated Protective Order and I understand and
10 acknowledge that failure to so comply could expose me to sanctions and punishment
11 in the nature of contempt. I solemnly promise that I will not disclose in any manner
12 any information or item that is subject to this Stipulated Protective Order to any
13 person or entity except in strict compliance with the provisions of this Order.
14 I further agree to submit to the jurisdiction of the United States District Court for the
15 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. I hereby appoint __________________________ [print
18 or type full name] of _______________________________________ [print or type
19 full address and telephone number] as my California agent for service of process in
20 connection with this action or any proceedings related to enforcement of this
21 Stipulated Protective Order.
22 Date: ______________________________________
23
24 City and State where sworn and signed: _________________________________
25
26 Printed name: _______________________________
27