The opinion
Janine K. Jeffery, Esq. CBN 112639
1 Jjeffery@reilyjeffery.com
REILY & JEFFERY, INC.
2 5900 Canoga Avenue, Suite 350
Woodland Hills, CA 91367
3 Telephone: (818) 350-6282
Fax No.: (818) 350-6283
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Attorneys for Defendant, D. Tabak
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7 UNITED STATE DISTRICT COURT
8 CENTRAL DISTRICT OF CALIFORNIA
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10 ANTOINE LEBLANC, ) CASE NO. 2:16-cv-03270 JLS (AFM)
11 ) )
) [PROPOSED] PROTECTIVE
12 Plaintiff, ) ORDER1
)
13 vs. )
D. TABAK, et al., )
14 ) )
Defendants. )
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17 1. A. PURPOSES AND LIMITATIONS
18 Discovery in this action is likely to involve production of confidential,
19 proprietary or private information for which special protection from public disclosure
20 and from use for any purpose other than prosecuting this litigation may be warranted.
21 Accordingly, Defendant petitions the Court to enter the following Protective Order.
22 This Order does not confer blanket protections on all disclosures or responses to
23 discovery and the protection it affords from public disclosure and use extends only to
24 the limited information or items that are entitled to confidential treatment under the
25 applicable legal principles.
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27 1 This Protective Order is based substantially on the model protective order provided
1 B. GOOD CAUSE STATEMENT
2 This action is likely to involve information that falls within the definition of
3 Official Information Privilege and is likely to involve the privacy of third parties for
4 which special protection from public disclosure and from use for any purpose other than
5 prosecution of this action is warranted. Such confidential materials and information
6 consist of, among other things, confidential investigative information (including
7 information implicating privacy rights of third parties), information otherwise generally
8 unavailable to the public, and/or information which may be privileged or otherwise
9 protected from disclosure under state or federal statutes, court rules, case decisions, or
10 common law. Accordingly, to expedite the flow of information, to facilitate the prompt
11 resolution of disputes over confidentiality of discovery materials, to adequately protect
12 information the parties are entitled to keep confidential, to ensure that the parties are
13 permitted reasonable necessary uses of such material in preparation for and in the
14 conduct of trial, to address their handling at the end of the litigation, and serve the ends
15 of justice, a protective order for such information is justified in this matter. It is the
16 intent of this Order that information will not be designated as confidential for tactical
17 reasons and that nothing be so designated without a good faith belief that it has been
18 maintained in a confidential, non-public manner, and there is good cause why it should
19 not be part of the public record of this case.
20 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
21 This Protective Order does not entitle the parties to file confidential information
22 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed and
23 the standards that will be applied when a party seeks permission from the court to file
24 material under seal.
25 There is a strong presumption that the public has a right of access to judicial
26 proceedings and records in civil cases. In connection with non-dispositive motions,
27 good cause must be shown to support a filing under seal. See Kamakana v. City and
1 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
2 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics,
3 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require
4 good cause showing), and a specific showing of good cause or compelling reasons with
5 proper evidentiary support and legal justification, must be made with respect to
6 Protected Material that a party seeks to file under seal. The parties’ mere designation of
7 Disclosure or Discovery Material as CONFIDENTIAL does not—without the
8 submission of competent evidence by declaration, establishing that the material sought
9 to be filed under seal qualifies as confidential, privileged, or otherwise protectable—
10 constitute good cause.
11 Further, if a party requests sealing related to a dispositive motion or trial, then
12 compelling reasons, not only good cause, for the sealing must be shown, and the relief
13 sought shall be narrowly tailored to serve the specific interest to be protected. See
14 Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For each item
15 or type of information, document, or thing sought to be filed or introduced under seal in
16 connection with a dispositive motion or trial, the party seeking protection must
17 articulate compelling reasons, supported by specific facts and legal justification, for the
18 requested sealing order. Again, competent evidence supporting the application to file
19 documents under seal must be provided by declaration.
20 Any document that is not confidential, privileged, or otherwise protectable in its
21 entirety will not be filed under seal if the confidential portions can be redacted. If
22 documents can be redacted, then a redacted version for public viewing, omitting only
23 the confidential, privileged, or otherwise protectable portions of the document, shall be
24 filed. Any application that seeks to file documents under seal in their entirety should
25 include an explanation of why redaction is not feasible.
26 2. DEFINITIONS
27 2.1 Action: LeBlanc v. Tabak, Case No. 2:16-cv-03270 JLS (AFM).
1 2.2 Challenging Party: a Party or Non-Party that challenges the designation of
2 information or items under this Order.
3 2.3 “CONFIDENTIAL” Information or Items: information (regardless of how
4 it is generated, stored or maintained) or tangible things that qualify for protection under
5 Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause
6 Statement.
7 2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their
8 support staff).
9 2.5 Designating Party: a Party or Non-Party that designates information or
10 items that it produces in disclosures or in responses to discovery as
11 “CONFIDENTIAL.”
12 2.6 Disclosure or Discovery Material: all items or information, regardless of
13 the medium or manner in which it is generated, stored, or maintained (including, among
14 other things, testimony, transcripts, and tangible things), that are produced or generated
15 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 an
18 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 party to
25 this Action but are retained to represent or advise a party to this Action and have
26 appeared in this Action on behalf of that party or are affiliated with a law firm that has
27 appeared on behalf of that party, and includes support staff.
1 2.11 Party: any party to this Action, including all of its officers, directors,
2 employees, consultants, retained experts, and Outside Counsel of Record (and their
3 support staffs).
4 2.12 Producing Party: a Party or Non-Party that produces Disclosure or
5 Discovery Material in this Action.
6 2.13 Professional Vendors: persons or entities that provide litigation support
7 services (e.g., photocopying, videotaping, translating, preparing exhibits or
8 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
9 their employees and subcontractors.
10 2.14 Protected Material: any Disclosure or Discovery Material that is
11 designated as “CONFIDENTIAL.”
12 2.15 Receiving Party: a Party that receives Disclosure or Discovery Material
13 from a Producing Party.
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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.
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24 4. DURATION
25 Once a case proceeds to trial, information that was designated as
26 CONFIDENTIAL or maintained pursuant to this protective order used or introduced as
27 an exhibit at trial becomes public and will be presumptively available to all members of
1 the public, including the press, unless compelling reasons supported by specific factual
2 findings to proceed otherwise are made to the trial judge in advance of the trial. See
3 Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause” showing for sealing
4 documents produced in discovery from “compelling reasons” standard when merits-
5 related documents are part of court record). Accordingly, the terms of this protective
6 order do not extend beyond the commencement of the trial.
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8 5. DESIGNATING PROTECTED MATERIAL
9 5.1 Exercise of Restraint and Care in Designating Material for Protection.
10 Each Party or Non-Party that designates information or items for protection under
11 this Order must take care to limit any such designation to specific material that qualifies
12 under the appropriate standards. The Designating Party must designate for protection
13 only those parts of material, documents, items or oral or written communications that
14 qualify so that other portions of the material, documents, items or communications for
15 which protection is not warranted are not swept unjustifiably within the ambit of this
16 Order.
17 Mass, indiscriminate or routinized designations are prohibited. Designations that
18 are shown to be clearly unjustified or that have been made for an improper purpose
19 (e.g., to unnecessarily encumber the case development process or to impose
20 unnecessary expenses and burdens on other parties) may expose the Designating Party
21 to sanctions.
22 If it comes to a Designating Party’s attention that information or items that it
23 designated for protection do not qualify for protection, the Designating Party must
24 promptly notify all other Parties that it is withdrawing the inapplicable designation.
25 5.2 Manner and Timing of Designations. Except as otherwise provided in this
26 Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
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1 ordered, Disclosure or Discovery Material that qualifies for protection under this Order
2 must be clearly so designated before the material is disclosed or produced.
3 Designation in conformity with this Order requires:
4 (a) for information in documentary form (e.g., paper or electronic
5 documents, but excluding transcripts of depositions or other pretrial or trial proceedings),
6 that the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter
7 “CONFIDENTIAL legend”), to each page that contains protected material. If only a
8 portion of the material on a page qualifies for protection, the Producing Party also must
9 clearly identify the protected portion(s) (e.g., by making appropriate markings in the
10 margins).
11 A Party or Non-Party that makes original documents available for inspection
12 need not designate them for protection until after the inspecting Party has indicated
13 which documents it would like copied and produced. During the inspection and before
14 the designation, all of the material made available for inspection shall be deemed
15 CONFIDENTIAL.” After the inspecting Party has identified the documents it wants
16 copied and produced, the Producing Party must determine which documents, or
17 portions thereof, qualify for protection under this Order. Then, before producing the
18 specified documents, the Producing Party must affix the “CONFIDENTIAL legend” to
19 each page that contains Protected Material. If only a portion of the material on a page
20 qualifies for protection, the Producing Party also must clearly identify the protected
21 portion(s) (e.g., by making appropriate markings in the margins).
22 (b) for testimony given in depositions that the Designating Party
23 identifies the Disclosure or Discovery Material on the record, before the close of the
24 deposition all protected testimony.
25 (c) for information produced in some form other than documentary and
26 for any other tangible items, that the Producing Party affix in a prominent place on the
27 exterior of the container or containers in which the information is stored the legend
1 “CONFIDENTIAL.” If only a portion or portions of the information warrants
2 protection, the Producing Party, to the extent practicable, shall identify the protected
3 portion(s).
4 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
5 failure to designate qualified information or items does not, standing alone, waive the
6 Designating Party’s right to secure protection under this Order for such material. Upon
7 timely correction of a designation, the Receiving Party must make reasonable efforts to
8 assure that the material is treated in accordance with the provisions of this Order.
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10 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
11 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
12 designation of confidentiality at any time that is consistent with the Court’s Scheduling
13 Order.
14 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
15 resolution process under Local Rule 37-1 et seq.
16 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint
17 stipulation pursuant to Local Rule 37-2.
18 6.4 The burden of persuasion in any such challenge proceeding shall be on the
19 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g.,
20 to harass or impose unnecessary expenses and burdens on other parties) may expose the
21 Challenging Party to sanctions. Unless the Designating Party has waived or withdrawn
22 the confidentiality designation, all parties shall continue to afford the material in
23 question the level of protection to which it is entitled under the Producing Party’s
24 designation until the Court rules on the challenge.
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26 7. ACCESS TO AND USE OF PROTECTED MATERIAL
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1 7.1 Basic Principles. A Receiving Party may use Protected Material that is
2 disclosed or produced by another Party or by a Non-Party in connection with this
3 Action only for prosecuting, defending or attempting to settle this Action. Such
4 Protected Material may be disclosed only to the categories of persons and under the
5 conditions described in this Order. When the Action has been terminated, a Receiving
6 Party must comply with the provisions of section 13 below (FINAL DISPOSITION).
7 Protected Material must be stored and maintained by a Receiving Party at a
8 location and in a secure manner that ensures that access is limited to the persons
9 authorized under this Order.
10 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
11 ordered by the court or permitted in writing by the Designating Party, a Receiving Party
12 may disclose any information or item designated “CONFIDENTIAL” only to:
13 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
14 well as employees of said Outside Counsel of Record to whom it is reasonably
15 necessary to disclose the information for this Action;
16 (b) the officers, directors, and employees (including House Counsel) of
17 the Receiving Party to whom disclosure is reasonably necessary for this Action;
18 (c) Experts (as defined in this Order) of the Receiving Party to whom
19 disclosure is reasonably necessary for this Action and who have signed the
20 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
21 (d) the court and its personnel;
22 (e) court reporters and their staff;
23 (f) professional jury or trial consultants, mock jurors, and Professional
24 Vendors to whom disclosure is reasonably necessary for this Action and who have
25 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
26 (g) the author or recipient of a document containing the information or a
27 custodian or other person who otherwise possessed or knew the information;
1 (h) during their depositions, witnesses, and attorneys for witnesses, in
2 the Action to whom disclosure is reasonably necessary provided: (1) the deposing party
3 requests that the witness sign the form attached as Exhibit A hereto; and (2) they will
4 not be permitted to keep any confidential information unless they sign the
5 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed
6 by the Designating Party or ordered by the court. Pages of transcribed deposition
7 testimony or exhibits to depositions that reveal Protected Material may be separately
8 bound by the court reporter and may not be disclosed to anyone except as permitted
9 under this Protective Order; and
10 (i) any mediator or settlement officer, and their supporting personnel,
11 mutually agreed upon by any of the parties engaged in settlement discussions.
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13 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
14 OTHER LITIGATION
15 If a Party is served with a subpoena or a court order issued in other litigation that
16 compels disclosure of any information or items designated in this Action as
17 “CONFIDENTIAL,” that Party must:
18 (a) Promptly notify in writing the Designating Party. Such notification
19 shall include a copy of the subpoena or court order;
20 (b) Promptly notify in writing the party who caused the subpoena or
21 order to issue in the other litigation that some or all of the material covered by the
22 subpoena or order is subject to this Protective Order. Such notification shall include a
23 copy of this Protective Order; and
24 (c) Cooperate with respect to all reasonable procedures sought to be
25 pursued by the Designating Party whose Protected Material may be affected.
26 If the Designating Party timely seeks a protective order, the Party served with the
27 subpoena or court order shall not produce any information designated in this action as
1 “CONFIDENTIAL” before a determination by the court from which the subpoena or
2 order issued, unless the Party has obtained the Designating Party’s permission. The
3 Designating Party shall bear the burden and expense of seeking protection in that court
4 of its confidential material and nothing in these provisions should be construed as
5 authorizing or encouraging a Receiving Party in this Action to disobey a lawful
6 directive from another court.
7 ///
8 ///
9 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
10 IN THIS LITIGATION
11 (a) The terms of this Order are applicable to information produced by a Non-
12 Party in this Action and designated as “CONFIDENTIAL.” Such information produced
13 by Non-Parties in connection with this litigation is protected by the remedies and relief
14 provided by this Order. Nothing in these provisions should be construed as prohibiting
15 a Non-Party from seeking additional protections.
16 (b) In the event that a Party is required, by a valid discovery request, to
17 produce a Non-Party’s confidential information in its possession, and the Party is
18 subject to an agreement with the Non-Party not to produce the Non-Party’s confidential
19 information, then the Party shall:
20 (1) Promptly notify in writing the Requesting Party and the Non-Party
21 that some or all of the information requested is subject to a confidentiality agreement
22 with a Non-Party;
23 (2) Promptly provide the Non-Party with a copy of the Protective Order
24 in this Action, the relevant discovery request(s), and a reasonably specific description of
25 the information requested; and
26 (3) Make the information requested available for inspection by the Non-
27 Party, if requested.
1 (c) If the Non-Party fails to seek a protective order from this court within 14
2 days of receiving the notice and accompanying information, the Receiving Party may
3 produce the Non-Party’s confidential information responsive to the discovery request.
4 If the Non-Party timely seeks a protective order, the Receiving Party shall not produce
5 any information in its possession or control that is subject to the confidentiality
6 agreement with the Non-Party before a determination by the court. Absent a court
7 order to the contrary, the Non-Party shall bear the burden and expense of seeking
8 protection in this court of its Protected Material.
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10 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
11 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
12 Protected Material to any person or in any circumstance not authorized under this
13 Protective Order, the Receiving Party must immediately (a) notify in writing the
14 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all
15 unauthorized copies of the Protected Material, (c) inform the person or persons to
16 whom unauthorized disclosures were made of all the terms of this Order, and (d)
17 request such person or persons to execute the “Acknowledgment and Agreement to Be
18 Bound” that is attached hereto as Exhibit A.
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20 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
21 PROTECTED MATERIAL
22 When a Producing Party gives notice to Receiving Parties that certain
23 inadvertently produced material is subject to a claim of privilege or other protection, the
24 obligations of the Receiving Parties are those set forth in Federal Rule of Civil
25 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
26 may be established in an e-discovery order that provides for production without prior
27 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
1 parties reach an agreement on the effect of disclosure of a communication or
2 information covered by the attorney-client privilege or work product protection, the
3 parties may incorporate their agreement in the protective order submitted to the court.
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5 12. MISCELLANEOUS
6 12.1 Right to Further Relief. Nothing in this Order abridges the right of any
7 person to seek its modification by the Court in the future.
8 12.2 Right to Assert Other Objections. No Party waives any right it otherwise
9 would have to object to disclosing or producing any information or item on any ground
10 not addressed in this Protective Order. Similarly, no Party waives any right to object on
11 any ground to use in evidence of any of the material covered by this Protective Order.
12 12.3 Filing Protected Material. A Party that seeks to file under seal any
13 Protected Material must comply with Local Civil Rule 79-5. Protected Material may
14 only be filed under seal pursuant to a court order authorizing the sealing of the specific
15 Protected Material at issue. If a Party’s request to file Protected Material under seal is
16 denied by the court, then the Receiving Party may file the information in the public
17 record unless otherwise instructed by the court.
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19 13. FINAL DISPOSITION
20 After the final disposition of this Action, as defined in paragraph 4, within 60
21 days of a written request by the Designating Party, each Receiving Party must return all
22 Protected Material to the Producing Party or destroy such material. As used in this
23 subdivision, “all Protected Material” includes all copies, abstracts, compilations,
24 summaries, and any other format reproducing or capturing any of the Protected
25 Material. Whether the Protected Material is returned or destroyed, the Receiving Party
26 must submit a written certification to the Producing Party (and, if not the same person
27 or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
1|| category, where appropriate) all the Protected Material that was returned or destroyed
2}| and (2) affirms that the Receiving Party has not retained any copies, abstracts,
3|| compilations, summaries or any other format reproducing or capturing any of the
4|| Protected Material. Notwithstanding this provision, Counsel are entitled to retain an
5|| archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
6|| legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
7|| work product, and consultant and expert work product, even if such materials contain
8|| Protected Material. Any such archival copies that contain or constitute Protected
9|| Material remain subject to this Protective Order as set forth in Section 4 (DURATION).
10]| ///
VIOLATION
12 Any violation of this Order may be punished by appropriate measures including,
13 || without limitation, contempt proceedings and/or monetary sanctions.
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FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
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DATED: 1/31/2018
18 .
19 (ily Mx f<—_~
ALEXANDER F.MacKINNON
United States Magistrate Judge
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EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, ____________________ [print or type full name], of __________________________
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[print or type full address], declare under penalty of perjury that I have read in its
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entirety and understand the Protective Order that was issued by the United States
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District Court for the Central District of California on ___________ in the case of
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LeBlanc v. Tabak, Case No. 2:16-cv-03270 JLS (AFM). I agree to comply with and to
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be bound by all the terms of this Protective Order and I understand and acknowledge
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that failure to so comply could expose me to sanctions and punishment in the nature of
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contempt. I solemnly promise that I will not disclose in any manner any information or
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item that is subject to this Protective Order to any person or entity except in strict
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compliance with the provisions of this Order. I further agree to submit to the
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jurisdiction of the United States District Court for the Central District of California for
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enforcing the terms of this Protective Order, even if such enforcement proceedings
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occur after termination of this action.
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I hereby appoint __________________________ [print or type full name] of
1 _______________________________________ [print or type full address and
2 telephone number] as my California agent for service of process in connection with this
3 action or any proceedings related to enforcement of this Protective Order.
Date: ______________________________________
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5 City and State where sworn and signed: _________________________________
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7 Printed name: _______________________________
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9 Signature: __________________________________
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