The opinion
1 MICHAEL N. FEUER, City Attorney
KATHLEEN A. KENEALY, Chief Deputy City Attorney (SBN 212289)
2
SCOTT MARCUS, Chief Assistant City Attorney (SBN 184980)
3 CORY M. BRENTE, Senior Assistant City Attorney (SBN 115453)
MATTHEW W. McALEER, Deputy City Attorney (SBN 278595)
4
200 North Main Street, 6th Floor, City Hall East
5 Los Angeles, CA 90012
Phone No.: (213) 978-7043
6
Fax No.: (213) 978-8785
7 Email: Matthew.McAleer@lacity.org
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Attorneys for Defendants CITY OF LOS ANGELES, CARLOS MENDOZA,
9 DEXTER NAVARRO, and CHRISTIAN PERAZA
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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13 PEDRO PORTILLO, an individual, CASE NO.: CV21-08576-SVW-ASx
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Hon. Stephen V. Wilson; Ctrm. 10A, 10th Fl.
Plaintiff, Hon. Mag. Alka Sagar; Ctrm. 540, 5th Fl.
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16 v. PROTECTIVE ORDER
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CARLOS MENDOZA, #40867,
18 individually and as a peace officer;
DEXTER NAVARRO, #40258,
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individually and as a peace officer;
20 CHRISTIAN PERAZA, #40575,
individually and as a peace officer; CITY
21
OF LOS ANGELES; and, DOES 1-50,
22 inclusive,
23
Defendants.
24
25 1. A. PURPOSES AND LIMITATIONS
26 Discovery in this action is likely to involve production of confidential,
27 proprietary, or private information for which special protection from public
1 warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter
2 the following Stipulated Protective Order. The parties acknowledge that this Order
3 does not confer blanket protections on all disclosures or responses to discovery and
4 that the protection it affords from public disclosure and use extends only to the
5 limited information or items that are entitled to confidential treatment under the
6 applicable legal principles. The parties further acknowledge, as set forth in Section
7 12.3 below, that this Stipulated Protective Order does not entitle them to file
8 confidential information under seal; Local Rule 79-5 sets forth the procedures that
9 must be followed and the standards that will be applied when a party seeks
10 permission from the court to file material under seal.
11 B. GOOD CAUSE STATEMENT
12 This action involves the City of Los Angeles (“Defendant City”) and Pedro
13 Portillo (“Plaintiff”). Plaintiff is seeking materials and information that Defendant
14 City maintains as confidential, such as personnel files of the police officers involved
15 in this incident, video recordings, audio recordings, and information and other
16 administrative materials and information currently in the possession of the City and
17 which Defendant City believes needs special protection from public disclosure and
18 from use for any purpose other than prosecuting this litigation. Plaintiff is also
19 seeking official information contained in the personnel files of the police officers
20 involved in the subject incident, which the Defendant City maintains as strictly
21 confidential and which Defendant City believes needs special protection from public
22 disclosure and from use for any purpose other than prosecuting this litigation.
23 Defendant City asserts that the confidentiality of the materials and information
24 sought by Plaintiff is recognized by California and federal law, as evidenced inter alia
25 by California Penal Code section 832.7 and Kerr v. United States Dist. Ct. for N.D.
26 Cal., 511 F.2d 192, 198 (9th Cir. 1975), aff'd, 426 U.S. 394 (1976). The Defendant
27 City has not publicly released the materials and information referenced above except
1 information are of the type that have been used to initiate disciplinary action against
2 Los Angeles Police Department (“LAPD”) officers, and has been used as evidence in
3 disciplinary proceedings, where the officers’ conduct was considered to be contrary
4 to LAPD policy.
5 Defendant City contends that absent a protective order delineating the
6 responsibilities of nondisclosure on the part of the parties hereto, there is a specific
7 risk of unnecessary and undue disclosure by one or more of the attorneys, secretaries,
8 law clerks, paralegals and expert witnesses involved in this case, as well as the
9 corollary risk of embarrassment, harassment as well as professional, physical and
10 legal harm on the part of the LAPD officers referenced in the materials and
11 information.
12 Defendant City also contends that the unfettered disclosure of the materials and
13 information, absent a protective order, would allow the media to share this
14 information with potential jurors in the area, impacting the rights of the Defendant
15 City and the individual defendants to receive a fair trial. Accordingly, to expedite the
16 flow of information, to facilitate the prompt resolution of disputes over
17 confidentiality of discovery materials, to adequately protect information the parties
18 are entitled to keep confidential, to ensure that the parties are permitted reasonable
19 necessary uses of such material in preparation for and in the conduct of trial, to
20 address their handling at the end of the litigation, and serve the ends of justice, a
21 protective order for such information is justified in this matter. It is the intent of the
22 parties that information will not be designated as confidential for tactical reasons and
23 that nothing be so designated without a good faith belief that it has been maintained
24 in a confidential, non-public manner, and there is good cause why it should not be
25 part of the public record of this case. This also includes (1) any information copied or
26 extracted from the Confidential information; (2) copies, excerpts, summaries or
27 compilations of Confidential information; and (3) any testimony, conversations, or
1 2. DEFINITIONS
2 2.1 Action: this pending federal lawsuit, Portillo v. Mendoza, et al., Case
3 No. CV21-08576-SVW-ASx.
4 2.2 Challenging Party: a Party or Non-Party that challenges the designation
5 of information or items under this Order.
6 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
7 how it is generated, stored or maintained) or tangible things that qualify
8 for protection under Federal Rule of Civil Procedure 26(c), and as
9 specified above in the Good Cause Statement.
10 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as
11 their support staff).
12 2.5 Designating Party: a Party or Non-Party that designates information or
13 items that it produces in disclosures or in responses to discovery as
14 “CONFIDENTIAL.”
15 2.6 Disclosure or Discovery Material: all items or information, regardless of
16 the medium or manner in which it is generated, stored, or maintained
17 (including, among other things, testimony, transcripts, and tangible
18 things), that are produced or generated in disclosures or responses to
19 discovery in this matter.
20 2.7 Expert: a person with specialized knowledge or experience in a matter
21 pertinent to the litigation who has been retained by a Party or its counsel
22 to serve as an expert witness or as a consultant in this Action.
23 2.8 House Counsel: attorneys who are employees of a party to this Action.
24 House Counsel does not include Outside Counsel of Record or any other
25 outside counsel.
26 2.9 Non-Party: Any natural person, partnership, corporation, association, or
27 other legal entity not named as a Party to this action.
1 to this Action but are retained to represent or advise a party to this
2 Action and have appeared in this Action on behalf of that party or are
3 affiliated with a law firm which has appeared on behalf of that party, and
4 includes support staff.
5 2.11 Party: any party to this Action, including all of its officers, directors,
6 employees, consultants, retained experts, and Outside Counsel of Record
7 (and their support staffs).
8 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
9 Discovery Material in this Action.
10 2.13 Professional Vendors: persons or entities that provide litigation support
11 services (e.g., photocopying, videotaping, translating, preparing exhibits
12 or demonstrations, and organizing, storing, or retrieving data in any form
13 or medium) and their employees and subcontractors.
14 2.14 Protected Material: any Disclosure or Discovery Material that is
15 designated as “CONFIDENTIAL.”
16 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
17 from a Producing Party.
18
19 3. SCOPE
20 The protections conferred by this Stipulated and Order cover not only
21 Protected Material (as defined above), but also (1) any information copied or
22 extracted from Protected Material; (2) all copies, excerpts, summaries, or
23 compilations of Protected Material; and (3) any testimony, conversations, or
24 presentations by Parties or their Counsel that might reveal Protected Material.
25 Any use of Protected Material at trial shall be governed by the orders of the
26 trial judge. This Order does not govern the use of Protected Material at trial.
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1 4. DURATION
2 Even after final disposition of this litigation, the confidentiality obligations
3 imposed by this Order shall remain in effect until a Designating Party agrees
4 otherwise in writing or a court order otherwise directs. Final disposition shall be
5 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
6 or without prejudice; and (2) final judgment herein after the completion and
7 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
8 including the time limits for filing any motions or applications for extension of time
9 pursuant to applicable law.
10
11 5. DESIGNATING PROTECTED MATERIAL
12 5.1. Exercise of Restraint and Care in Designating Material for Protection.
13 Each Party or Non-Party that designates information or items for protection under
14 this Order must take care to limit any such designation to specific material that
15 qualifies under the appropriate standards. The Designating Party must designate for
16 protection only those parts of material, documents, items, or oral or written
17 communications that qualify so that other portions of the material, documents, items,
18 or communications for which protection is not warranted are not swept unjustifiably
19 within the ambit of this Order.
20 Mass, indiscriminate, or routinized designations are prohibited. Designations
21 that are shown to be clearly unjustified or that have been made for an improper
22 purpose (e.g., to unnecessarily encumber the case development process or to impose
23 unnecessary expenses and burdens on other parties) may expose the Designating
24 Party to sanctions.
25 If it comes to a Designating Party’s attention that information or items that it
26 designated for protection do not qualify for protection, that Designating Party must
27 promptly notify all other Parties that it is withdrawing the inapplicable designation.
1 this Order (see, e.g., Section 5.2(a) below), or as otherwise stipulated or ordered,
2 Disclosure or Discovery Material that qualifies for protection under this Order must
3 be clearly so designated before the material is disclosed or produced.
4
5 Designation in conformity with this Order requires:
6 (a) for information in documentary form (e.g., paper or electronic
7 documents, but excluding transcripts of depositions or other pretrial or
8 trial proceedings), that the Producing Party affix at a minimum, the
9 legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to
10 each page that contains protected material. If only a portion or portions
11 of the material on a page qualifies for protection, the Producing Party
12 also must clearly identify the protected portion(s) (e.g., by making
13 appropriate markings in the margins).
14 A Party or Non-Party that makes original documents available for inspection
15 need not designate them for protection until after the inspecting Party has indicated
16 which documents it would like copied and produced. During the inspection and
17 before the designation, all of the material made available for inspection shall be
18 deemed “CONFIDENTIAL.” After the inspecting Party has identified the documents
19 it wants copied and produced, the Producing Party must determine which documents,
20 or portions thereof, qualify for protection under this Order. Then, before producing
21 the specified documents, the Producing Party must affix the “CONFIDENTIAL
22 legend” to each page that contains Protected Material. If only a portion or portions of
23 the material on a page qualifies for protection, the Producing Party also must clearly
24 identify the protected portion(s) (e.g., by making appropriate markings in the
25 margins).
26 (b) for testimony given in depositions, that the Designating Party identify
27 the Disclosure or Discovery Material on the record, before the close of the deposition
1 (c) for information produced in nondocumentary form, and for any other
2 tangible items, that the Producing Party affix in a prominent place on the exterior of
3 the container or containers in which the information is stored the legend
4 “CONFIDENTIAL.” If only a portion or portions of the information warrants
5 protection, the Producing Party, to the extent practicable, shall identify the protected
6 portion(s).
7
8 5.3. Inadvertent Failure to Designate. If timely corrected, an inadvertent failure to
9 designate qualified information or items does not, standing alone, waive the
10 Designating Party’s right to secure protection under this Order for such material.
11 Upon timely correction of a designation, the Receiving Party must make reasonable
12 efforts to assure that the material is treated in accordance with the provisions of this
13 Order.
14
15 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
16 6.1. Timing of Challenges. Any Party or Non-Party may challenge a
17 designation of confidentiality at any time that is consistent with the Court’s
18 Scheduling Order.
19 6.2. Meet and Confer. The Challenging Party shall initiate the informal
20 dispute resolution process set forth in the Court's Procedures and Schedules. see
21 http://www.cacd.uscourts.gov/honorable-alka-sagar
22 6.3. The burden of persuasion in any such challenge proceeding shall be on
23 the Designating Party. Frivolous challenges, and those made for an improper purpose
24 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
25 expose the Challenging Party to sanctions. Unless the Designating Party has waived
26 or withdrawn the confidentiality designation, all parties shall continue to afford the
27 material in question the level of protection to which it is entitled under the Producing
1
2 7. ACCESS TO AND USE OF PROTECTED MATERIALS
3 7.1. Basic Principles. A Receiving Party may use Protected Material that is
4 disclosed or produced by another Party or by a Non-Party in connection with this
5 Action only for prosecuting, defending, or attempting to settle this Action. Such
6 Protected Material may be disclosed only to the categories of persons and under the
7 conditions described in this Order. When the Action reaches a final disposition, a
8 Receiving Party must comply with the provisions of Section 13 below (FINAL
9 DISPOSITION).
10 Protected Material must be stored and maintained by a Receiving Party at a
11 location and in a secure manner that ensures that access is limited to the persons
12 authorized under this Order.
13
14 7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
15 ordered by the Court or permitted in writing by the Designating Party, a Receiving
16 Party may disclose any information or item designated “CONFIDENTIAL” only to:
17 (a) the Receiving Party’s Outside Counsel of Record, as well as employees
18 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
19 information for this Action;
20 (b) the officers, directors, and employees (including House Counsel) of the
21 Receiving Party to whom disclosure is reasonably necessary for this Action;
22 (c) experts (as defined in this Order) of the Receiving Party to whom
23 disclosure is reasonably necessary for this Action and who have signed the
24 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
25 (d) the court and its personnel;
26 (e) court reporters and their staff;
27 (f) professional jury or trial consultants, mock jurors, and Professional
1 signed the “Acknowledgment and Agreement to be Bound” (Exhibit A);
2 (g) the author or recipient of a document containing the information or a
3 custodian or other person who otherwise possessed or knew the information;
4 (h) during their depositions, witnesses, and attorneys for witnesses, in the
5 Action to whom disclosure is reasonably necessary provided: (i) the deposing party
6 requests that the witness sign the “Acknowledgment and Agreement to Be Bound”
7 (Exhibit A); and (ii) the witness will not be permitted to keep any confidential
8 information unless they sign the “Acknowledgment and Agreement to Be Bound”
9 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the
10 court. Pages of transcribed deposition testimony or exhibits to depositions that reveal
11 Protected Material may be separately bound by the court reporter and may not be
12 disclosed to anyone except as permitted under this Stipulated Protective Order; and
13
14 (i) any mediator or settlement officer, and their supporting personnel,
15 mutually agreed upon by any of the parties engaged in settlement discussions.
16
17 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED IN OTHER
18 LITIGATION
19 If a Party is served with a subpoena or a court order issued in other litigation
20 that compels disclosure of any information or items designated in this Action as
21 “CONFIDENTIAL,” that Party must:
22 (a) promptly notify in writing the Designating Party. Such notification shall
23 include a copy of the subpoena or court order;
24 (b) promptly notify in writing the party who caused the subpoena or order to
25 issue in the other litigation that some or all of the material covered by the subpoena
26 or order is subject to this Protective Order. Such notification shall include a copy of
27 this Stipulated Protective Order; and
1 by the Designating Party whose Protected Material may be affected.
2 If the Designating Party timely seeks a protective order, the Party served with the
3 subpoena or court order shall not produce any information designated in this action as
4 “CONFIDENTIAL” before a determination by the Court from which the subpoena or
5 order issued, unless the Party has obtained the Designating Party’s permission. The
6 Designating Party shall bear the burden and expense of seeking protection in that
7 court of its confidential material and nothing in these provisions should be construed
8 as authorizing or encouraging a Receiving Party in this Action to disobey a lawful
9 directive from another court.
10
11 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
12 PRODUCED IN THIS LITIGATION
13
14 (a) The terms of this Order are applicable to information produced by a
15 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information
16 produced by Nonparties in connection with this litigation is protected by the remedies
17 and relief provided by this Order. Nothing in these provisions should be construed as
18 prohibiting a Non-Party from seeking additional protections.
19 (b) In the event that a Party is required, by a valid discovery request, to
20 produce a Non-Party’s confidential information in its possession, and the Party is
21 subject to an agreement with the Non-Party not to produce the Non-Party’s
22 confidential information, then the Party shall:
23 (1) promptly notify in writing the Requesting Party and the Non-Party that
24 some or all of the information requested is subject to a confidentiality agreement with
25 a Non-Party;
26 (2) promptly provide the Non-Party with a copy of the Stipulated Protective
27 Order in this Action, the relevant discovery request(s), and a reasonably specific
1 (3) make the information requested available for inspection by the Non-
2 Party, if requested.
3 (c) If the Non-Party fails to seek a protective order from this court within 14
4 days of receiving the notice and accompanying information, the Receiving Party may
5 produce the Non-Party’s confidential information responsive to the discovery request.
6 If the Non-Party timely seeks a protective order, the Receiving Party shall not
7 produce any information in its possession or control that is subject to the
8 confidentiality agreement with the Non-Party before a determination by the Court.
9 Absent a court order to the contrary, the Non-Party shall bear the burden and expense
10 of seeking protection in this Court of its Protected Material.
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12 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
13
14 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
15 Protected Material to any person or in any circumstance not authorized under this
16 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
17 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
18 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
19 persons to whom unauthorized disclosures were made of all the terms of this Order,
20 and (d) request such person or persons to execute the “Acknowledgment and
21 Agreement to Be Bound” that is attached hereto as Exhibit A.
22
23 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
24 PROTECTED MATERIAL
25 When a Producing Party gives notice to Receiving Parties that certain
26 inadvertently produced material is subject to a claim of privilege or other protection,
27 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
1 may be established in an e-discovery order that provides for production without prior
2 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
3 parties reach an agreement on the effect of disclosure of a communication or
4 information covered by the attorney-client privilege or work product protection, the
5 parties may incorporate their agreement in the stipulated protective order submitted
6 to the court.
7
8 12. MISCELLANEOUS
9 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
10 person to seek its modification by the Court in the future.
11 12.2 Right to Assert Other Objections. By stipulating to the entry of this
12 Protective Order no Party waives any right it otherwise would have to object to
13 disclosing or producing any information or item on any ground not addressed in this
14 Stipulated Protective Order. Similarly, no Party waives any right to object on any
15 ground to use in evidence of any of the material covered by this Protective Order.
16 12.3 Filing Protected Material. A Party that seeks to file under seal any
17 Protected Material must comply with Local Rule 79-5. Protected Material may only
18 be filed under seal pursuant to a court order authorizing the sealing of the specific
19 Protected Material at issue. If a Party's request to file Protected Material under seal is
20 denied by the Court, then the Receiving Party may file the information in the public
21 record unless otherwise instructed by the court.
22
23 13. FINAL DISPOSITION
24 After the final disposition of this Action, as defined in paragraph 4, within 60
25 days of a written request by the Designating Party, each Receiving Party must return
26 all Protected Material to the Producing Party or destroy such material. As used in
27 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
1 Material. Whether the Protected Material is returned or destroyed, the Receiving
2 Party must submit a written certification to the Producing Party (and, if not the same
3 person or entity, to the Designating Party) by the 60-day deadline that (1) identifies
4 (by category, where appropriate) all the Protected Material that was returned or
5 destroyed and (2) affirms that the Receiving Party has not retained any copies,
6 abstracts, compilations, summaries or any other format reproducing or capturing any
7 of the Protected Material. Notwithstanding this provision, Counsel are entitled to
8 retain an archival copy of all pleadings; motion papers; trial, deposition, and hearing
9 transcripts; legal memoranda; correspondence; deposition and trial exhibits; expert
10 reports; attorney work product; and consultant and expert work product, even if such
11 materials contain Protected Material. Any such archival copies that contain or
12 constitute Protected Material remain subject to this Protective Order as set forth in
13 Section 4 (DURATION).
14
15 14. Any violation of this Order may be punished by any and all appropriate
16 measures including, without limitation, contempt proceedings and/or monetary
17 sanctions.
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19 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
20
21 DATED 12/10/21
22
/s/ Michael Rahmanou
23 Attorneys for Plaintiff, Pedro Portillo
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25 DATED: 12/10/21
26
/s/ Matthew W. McAleer
27 Attorneys for Defendants, City of Los Angeles, Carlos Mendoza, Dexter Navarro,
and Christian Peraza
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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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DATED December 16, 2021
5
/ s / Sagar
6
Honorable Alka Sagar
7 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
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 was
6 issued by the United States District Court for the Central District of California on
7 [date] in the case of Pedro Portillo v. Carlos Mendoza, et al.; Case No. 2:21-cv-
8 08756-SVW-ASx[insert formal name of the case name and the number and
9 initials assigned to it by the court]. I agree to comply with and to be bound by all
10 the terms of this Stipulated Protective Order and I understand and acknowledge that
11 failure to so comply could expose me to sanctions and punishment in the nature of
12 contempt. I solemnly promise that I will not disclose in any manner any information
13 or item that is subject to this Stipulated Protective Order to any person or entity
14 except in strict compliance with the provisions of this Order.
15 I further agree to submit to the jurisdiction of the United States District Court for the
16 Central District of California for the purpose of enforcing the terms of this Stipulated
17 Protective Order, even if such enforcement proceedings occur after termination of
18 this action. I hereby appoint [print or type full
19 name] of [print or type full address
20 and telephone number] as my California agent for service of process in connection
21 with this action or any proceedings related to enforcement of this Stipulated
22 Protective Order.
23 Date:
24 City and State where sworn and signed:
25 Printed Name:
26 Signature:
27