distinguishing “good 8 cause” showing for sealing documents produced in discovery from “compelling 9 reasons” standard when merits-related documents are part of court record
How later courts described this case
- distinguishing “good 8 cause” showing for sealing documents produced in discovery from “compelling 9 reasons” standard when merits-related documents are part of court record
Written by the judges who cited it.
The opinion
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UNITED STATES DISTRICT COURT
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10 CENTRAL DISTRICT OF CALIFORNIA
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12 GILBERT JAMES NORIEGA, Case No. 5:24-cv-00170 JAK-(DTBx)
Individually, and as Successor in Interest
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to Jason Noriega,
14 STIPULATED PROTECTIVE
Plaintiff, ORDER
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16 v.
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COUNTY OF SAN BERNARDINO, and
18 DOES 1 through 10, Inclusive,
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Defendants.
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1. A. PURPOSES AND LIMITATIONS
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Discovery in this action is likely to involve production of confidential,
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proprietary, or private information for which special protection from public disclosure
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and from use for any purpose other than prosecuting this litigation may be warranted.
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Accordingly, the parties hereby stipulate to and petition the Court to enter the following
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1 blanket protections on all disclosures or responses to discovery and that the protection
2 it affords from public disclosure and use extends only to the limited information or items
3 that are entitled to confidential treatment under the applicable legal principles. The
4 parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated
5 Protective Order does not entitle them to file confidential information under seal; Civil
6 Local Rule 79-5 sets forth the procedures that must be followed and the standards that
7 will be applied when a party seeks permission from the court to file material under seal.
8 B. GOOD CAUSE STATEMENT
9 This action is likely to involve law enforcement sensitive information, jail and
10 custody sensitive information, law enforcement personnel information, medical
11 information, third party contact information, and other information for which special
12 protection from public disclosure and from use for any purpose other than prosecution
13 of this action is warranted. Such confidential materials and information consist of,
14 among other things, law enforcement internal investigation reports, and law
15 enforcement personnel records, as well as confidential medical records, (including
16 information implicating privacy rights of third parties), information otherwise generally
17 unavailable to the public, or which may be privileged or otherwise protected from
18 disclosure under state or federal statutes, court rules, case decisions, or common law.
19 Accordingly, to expedite the flow of information, to facilitate the prompt resolution of
20 disputes over confidentiality of discovery materials, to adequately protect information
21 the parties are entitled to keep confidential, to ensure that the parties are permitted
22 reasonable necessary uses of such material in preparation for and in the conduct of trial,
23 to address their handling at the end of the litigation, and to serve the ends of justice, a
24 protective order for such information is justified in this matter. It is the intent of the
25 parties that information will not be designated as confidential for tactical reasons and
26 that nothing be so designated without a good faith belief that it has been maintained in
27 a confidential, non-public manner, and there is good cause why it should not be part of
1 2. DEFINITIONS
2 2.1 Action: this pending federal law suit.
3 2.2 Challenging Party: a Party or Non-Party that challenges the designation
4 of information or items under this Order.
5 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
6 how it is generated, stored or maintained) or tangible things that qualify for protection
7 under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
8 Statement.
9 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
10 support staff).
11 2.5 Designating Party: a Party or Non-Party that designates information or
12 items that it produces in disclosures or in responses to discovery as
13 “CONFIDENTIAL.”
14 2.6 Disclosure or Discovery Material: all items or information, regardless of
15 the medium or manner in which it is generated, stored, or maintained (including, among
16 other things, testimony, transcripts, and tangible things), that are produced or generated
17 in disclosures or responses to discovery in this matter.
18 2.7 Expert: a person with specialized knowledge or experience in a matter
19 pertinent to the litigation who has been retained by a Party or its counsel to serve as an
20 expert witness or as a consultant in this Action.
21 2.8 House Counsel: attorneys who are employees of a party to this Action.
22 House Counsel does not include Outside Counsel of Record or any other outside
23 counsel.
24 2.9 Non-Party: any natural person, partnership, corporation, association, or
25 other legal entity not named as a Party to this action.
26 2.10 Outside Counsel of Record: attorneys who are not employees of a party to
27 this Action but are retained to represent or advise a party to this Action and have
1 has appeared on behalf of that party, and includes support staff.
2 2.11 Party: any party to this Action, including all of its officers, directors,
3 employees, consultants, retained experts, and Outside Counsel of Record (and their
4 support staffs).
5 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
6 Discovery Material in this Action.
7 2.13 Professional Vendors: persons or entities that provide litigation support
8 services (e.g., photocopying, videotaping, translating, preparing exhibits or
9 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
10 their employees and subcontractors.
11 2.14 Protected Material: any Disclosure or Discovery Material that is
12 designated as “CONFIDENTIAL.”
13 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
14 from a Producing Party.
15 3. SCOPE
16 The protections conferred by this Stipulation and Order cover not only Protected
17 Material (as defined above), but also (1) any information copied or extracted from
18 Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
19 Material; and (3) any testimony, conversations, or presentations by Parties or their
20 Counsel that might reveal Protected Material.
21 Any use of Protected Material at trial shall be governed by the orders of the trial
22 judge. This Order does not govern the use of Protected Material at trial.
23 4. DURATION
24 Even after final disposition of this litigation, the confidentiality obligations
25 imposed by this Order shall remain in effect until a Designating Party agrees otherwise
26 in writing or a court order otherwise directs. Final disposition shall be deemed to be the
27 later of (1) dismissal of all claims and defenses in this Action, with or without prejudice;
1 rehearings, remands, trials, or reviews of this Action, including the time limits for filing
2 any motions or applications for extension of time pursuant to applicable law.
3 Any protected material identified and/or admitted into evidence at the trial of this
4 action shall become public and will be presumptively available to all members of the
5 public, including the press, unless compelling reasons supported by specific factual
6 findings to proceed otherwise are made to the trial judge. See Kamakana v. City and
7 County of Honolulu, 447 F.3d 1172, 1180-81 (9th Cir. 2006) (distinguishing “good
8 cause” showing for sealing documents produced in discovery from “compelling
9 reasons” standard when merits-related documents are part of court record).
10 Accordingly, the terms of this protective order do not extend beyond the
11 commencement of the trial to any protected material identified and/or admitted into
12 evidence at the trial of this action.
13 This stipulation is without prejudice for any party to seek a separate order during
14 or after trial that certain evidence identified and/or admitted should be sealed from the
15 public record.
16 5. DESIGNATING PROTECTED MATERIAL
17 5.1 Exercise of Restraint and Care in Designating Material for Protection.
18 Each Party or Non-Party that designates information or items for protection under this
19 Order must take care to limit any such designation to specific material that qualifies
20 under the appropriate standards. The Designating Party must designate for protection
21 only those parts of material, documents, items, or oral or written communications that
22 qualify so that other portions of the material, documents, items, or communications for
23 which protection is not warranted are not swept unjustifiably within the ambit of this
24 Order.
25 Mass, indiscriminate, or routinized designations are prohibited. Designations that
26 are shown to be clearly unjustified or that have been made for an improper purpose
27 (e.g., to unnecessarily encumber the case development process or to impose
1 to sanctions.
2 If it comes to a Designating Party’s attention that information or items that it
3 designated for protection do not qualify for protection, that Designating Party must
4 promptly notify all other Parties that it is withdrawing the inapplicable designation.
5 5.2 Manner and Timing of Designations. Except as otherwise provided in this
6 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated
7 or ordered, Disclosure or Discovery Material that qualifies for protection under this
8 Order must be clearly so designated before the material is disclosed or produced.
9 Designation in conformity with this Order requires:
10 (a) for information in documentary form (e.g., paper or electronic documents, but
11 excluding transcripts of depositions or other pretrial or trial proceedings), that the
12 Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
13 “CONFIDENTIAL legend”), to each page that contains protected material. If only a
14 portion or portions of the material on a page qualifies for protection, the Producing Party
15 also must clearly identify the protected portion(s) (e.g., by making appropriate markings
16 in the margins).
17 A Party or Non-Party that makes original documents available for inspection
18 need not designate them for protection until after the inspecting Party has indicated
19 which documents it would like copied and produced. During the inspection and before
20 the designation, all of the material made available for inspection shall be deemed
21 “CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
22 copied and produced, the Producing Party must determine which documents, or portions
23 thereof, qualify for protection under this Order. Then, before producing the specified
24 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each page
25 that contains Protected Material. If only a portion or portions of the material on a page
26 qualifies for protection, the Producing Party also must clearly identify the protected
27 portion(s) (e.g., by making appropriate markings in the margins).
1 Disclosure or Discovery Material on the record, before the close of the deposition all
2 protected testimony.
3 (c) for information produced in some form other than documentary and for any
4 other tangible items, that the Producing Party affix in a prominent place on the exterior
5 of the container or containers in which the information is stored the legend
6 “CONFIDENTIAL.” If only a portion or portions of the information warrants
7 protection, the Producing Party, to the extent practicable, shall identify the protected
8 portion(s).
9 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
10 failure to designate qualified information or items does not, standing alone, waive the
11 Designating Party’s right to secure protection under this Order for such material. Upon
12 timely correction of a designation, the Receiving Party must make reasonable efforts to
13 assure that the material is treated in accordance with the provisions of this Order.
14 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
15 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
16 designation of confidentiality at any time that is consistent with the Court’s Scheduling
17 Order.
18 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
19 resolution process under Local Rule 37.1 et seq.
20 6.3 The burden of persuasion in any such challenge proceeding shall be on the
21 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,
22 to harass or impose unnecessary expenses and burdens on other parties) may expose the
23 Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn
24 the confidentiality designation, all parties shall continue to afford the material in
25 question the level of protection to which it is entitled under the Producing Party’s
26 designation until the Court rules on the challenge.
27 7. ACCESS TO AND USE OF PROTECTED MATERIAL
1 disclosed or produced by another Party or by a Non-Party in connection with this Action
2 only for prosecuting, defending, or attempting to settle this Action. Such Protected
3 Material may be disclosed only to the categories of persons and under the conditions
4 described in this Order. When the Action has been terminated, a Receiving Party must
5 comply with the provisions of section 13 below (FINAL DISPOSITION).
6 Protected Material must be stored and maintained by a Receiving Party at a
7 location and in a secure manner that ensures that access is limited to the persons
8 authorized under this Order.
9 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
10 ordered by the court or permitted in writing by the Designating Party, a Receiving Party
11 may disclose any information or item designated “CONFIDENTIAL” only to:
12 (a) the Receiving Party’s Outside Counsel of Record in this Action, as well as
13 employees of said Outside Counsel of Record to whom it is reasonably necessary to
14 disclose the information for this Action;
15 (b) the officers, directors, and employees (including House Counsel) of
16 the Receiving Party to whom disclosure is reasonably necessary for this Action;
17 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure
18 is reasonably necessary for this Action and who have signed the “Acknowledgment and
19 Agreement to Be Bound” (Exhibit A);
20 (d) the court and its personnel;
21 (e) court reporters and their staff;
22 (f) professional jury or trial consultants, mock jurors, and Professional Vendors
23 to whom disclosure is reasonably necessary for this Action and who have signed the
24 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
25 (g) the author or recipient of a document containing the information or a
26 custodian or other person who otherwise possessed or knew the information;
27 (h) during their depositions, witnesses ,and attorneys for witnesses, in the Action
1 that the witness sign the form attached as Exhibit 1 hereto; and (2) they will not be
2 permitted to keep any confidential information unless they sign the “Acknowledgment
3 and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating
4 Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to
5 depositions that reveal Protected Material may be separately bound by the court reporter
6 and may not be disclosed to anyone except as permitted under this Stipulated Protective
7 Order; and
8 (i) any mediator or settlement officer, and their supporting personnel, mutually
9 agreed upon by any of the parties engaged in settlement discussions.
10 (j) the parties to this action.
11 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
12 IN OTHER LITIGATION
13 If a Party is served with a subpoena or a court order issued in other litigation that
14 compels disclosure of any information or items designated in this Action as
15 “CONFIDENTIAL,” that Party must:
16 (a) promptly notify in writing the Designating Party. Such notification shall
17 include a copy of the subpoena or court order;
18 (b) promptly notify in writing the party who caused the subpoena or order to issue
19 in the other litigation that some or all of the material covered by the subpoena or order
20 is subject to this Protective Order. Such notification shall include a copy of this
21 Stipulated Protective Order; and
22 (c) cooperate with respect to all reasonable procedures sought to be pursued by
23 the Designating Party whose Protected Material may be affected.
24 If the Designating Party timely seeks a protective order, the Party served with the
25 subpoena or court order shall not produce any information designated in this action as
26 “CONFIDENTIAL” before a determination by the court from which the subpoena or
27 order issued, unless the Party has obtained the Designating Party’s permission. The
1 of its confidential material and nothing in these provisions should be construed as
2 authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive
3 from another court.
4 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
5 PRODUCED IN THIS LITIGATION
6 (a) The terms of this Order are applicable to information produced by a Non-
7 Party in this Action and designated as “CONFIDENTIAL.” Such information produced
8 by Non-Parties in connection with this litigation is protected by the remedies and relief
9 provided by this Order. Nothing in these provisions should be construed as prohibiting
10 a Non-Party from seeking additional protections.
11 (b) In the event that a Party is required, by a valid discovery request, to produce
12 a Non-Party’s confidential information in its possession, and the Party is subject to an
13 agreement with the Non-Party not to produce the Non-Party’s confidential information,
14 then the Party shall:
15 (1) promptly notify in writing the Requesting Party and the Non-Party that some
16 or all of the information requested is subject to a confidentiality agreement with a Non-
17 Party;
18 (2) promptly provide the Non-Party with a copy of the Stipulated Protective
19 Order in this Action, the relevant discovery request(s), and a reasonably specific
20 description of the information requested; and
21 (3) make the information requested available for inspection by the Non-Party, if
22 requested.
23 (c) If the Non-Party fails to seek a protective order from this court within 14 days
24 of receiving the notice and accompanying information, the Receiving Party may
25 produce the Non-Party’s confidential information responsive to the discovery request.
26 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce
27 any information in its possession or control that is subject to the confidentiality
1 to the contrary, the Non-Party shall bear the burden and expense of seeking protection
2 in this court of its Protected Material.
3 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
4 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
5 Protected Material to any person or in any circumstance not authorized under this
6 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
7 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
8 all unauthorized copies of the Protected Material, (c) inform the person or persons to
9 whom unauthorized disclosures were made of all the terms of this Order, and (d) request
10 such person or persons to execute the “Acknowledgment and Agreement to Be Bound”
11 that is attached hereto as Exhibit A.
12 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
13 PROTECTED MATERIAL
14 When a Producing Party gives notice to Receiving Parties that certain
15 inadvertently produced material is subject to a claim of privilege or other protection,
16 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
17 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
18 may be established in an e-discovery order that provides for production without prior
19 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
20 parties reach an agreement on the effect of disclosure of a communication or
21 information covered by the attorney-client privilege or work product protection, the
22 parties may incorporate their agreement in the stipulated protective order submitted to
23 the court.
24 12. MISCELLANEOUS
25 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
26 person to seek its modification by the Court in the future.
27 12.2 Right to Assert Other Objections. By stipulating to the entry of this
1 disclosing or producing any information or item on any ground not addressed in this
2 Stipulated Protective Order. Similarly, no Party waives any right to object on any
3 ground to use in evidence of any of the material covered by this Protective Order.
4 12.3 Filing Protected Material. A Party that seeks to file under seal any Protected
5 Material must comply with Civil Local Rule 79-5. Protected Material may only be filed
6 under seal pursuant to a court order authorizing the sealing of the specific Protected
7 Material at issue. If a Party's request to file Protected Material under seal is denied by
8 the court, then the Receiving Party may file the information in the public record unless
9 otherwise instructed by the court.
10 13. FINAL DISPOSITION
11 After the final disposition of this Action, as defined in paragraph 4, within 60
12 days of a written request by the Designating Party, each Receiving Party must return all
13 Protected Material to the Producing Party or destroy such material. As used in this
14 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
15 summaries, and any other format reproducing or capturing any of the Protected
16 Material. Whether the Protected Material is returned or destroyed, the Receiving Party
17 must submit a written certification to the Producing Party (and, if not the same person
18 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
19 category, where appropriate) all the Protected Material that was returned or destroyed
20 and (2)affirms that the Receiving Party has not retained any copies, abstracts,
21 compilations, summaries or any other format reproducing or capturing any of the
22 Protected Material. Notwithstanding this provision, Counsel are entitled to retain a copy
23 of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal
24 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work
25 product, and consultant and expert work product, even if such materials contain
26 Protected Material. Any such copies that contain or constitute Protected Material remain
27 subject to this Protective Order as set forth in Section 4 (DURATION).
1 14. Any violation of this Order may be punished by any and all appropriate
2 measures including, without limitation, contempt proceedings and/or monetary
3 sanctions.
4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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6 DATED: January 16, 2025_______ LAW OFFICE OF GREGORY
PEACOCK
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By: /s/ Jerry L. Steering
9 JERRY L. STEERING
Attorneys for Plaintiff,
10 GILBERT NORIEGA, individually and
as successor-in-interest to JASON
11 NORIEGA
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DATED: January 16, 2025_______ LYNBERG & WATKINS
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A Professional Corporation
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By: /s/ Amy R. Margolies
SHANNON L. GUSTAFSON
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AMY R. MARGOLIES
ANITA K. CLARKE
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Attorneys for Defendant,
COUNTY OF SAN BERNARDINO
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All signatories listed, and in whose behalf the filing is submitted, concur in the
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filing’s content, and have authorized filing.
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DATED: January 16, 2025_________ LYNBERG & WATKINS
A Professional Corporation
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By: /s/ Amy R. Margolies
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SHANNON L. GUSTAFSON
AMY R. MARGOLIES
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ANITA K. CLARKE
Attorneys for Defendant,
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COUNTY OF SAN BERNARDINO
1 |{FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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4 DATED: January 17, 2025
2 Wil, Hate
5 Y /. !
6 United States Ma rate Judge
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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3 I, _____________________________ [print or type full name], of
_________________ [print or type full address], declare under penalty of perjury that I
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have read in its entirety and understand the Stipulated Protective Order that was issued
5 by the United States District Court for the Central District of California on [date] in the
case of ___________ [insert formal name of the case and the number and initials
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assigned to it by the court]. I agree to comply with and to be bound by all the terms of
7 this Stipulated Protective Order and I understand and acknowledge that failure to so
8 comply could expose me to sanctions and punishment in the nature of contempt. I
solemnly promise that I will not disclose in any manner any information or item that is
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subject to this Stipulated Protective Order to any person or entity except in strict
10 compliance with the provisions of this Order.
11 I further agree to submit to the jurisdiction of the United States District Court for the
12 Central District of California for the purpose of enforcing the terms of this Stipulated
Protective Order, even if such enforcement proceedings occur after termination of this
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action. I hereby appoint __________________________ [print or type full name] of
14 _______________________________________ [print or type full address and
telephone number] as my California agent for service of process in connection with this
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action or any proceedings related to enforcement of this Stipulated Protective Order.
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Date: ______________________________________
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City and State where sworn and signed: _________________________________
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Printed name: _______________________________
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Signature: __________________________________
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