Kierra Thomas v. Nissan North America, Inc.

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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KIERRA THOMAS, an individual, ) CASE NO.: 8:23-cv-00164 FWS (JDEx)

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12 Plaintiff, )

) STIPULATED PROTECTIVE ORDER

13 vs. )

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NISSAN NORTH AMERICA, INC., )

15 a California Corporation, and DOES 1 )

through 10, inclusive, )

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Defendants. )

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19 1. PURPOSES AND LIMITATIONS

20 Discovery in this action is likely to involve production of confidential,

21 proprietary or private information for which special protection from public

22 disclosure and from use for any purpose other than pursuing this litigation may be

23 warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter

24 the following Stipulated Protective Order. The parties acknowledge that this Order

25 does not confer blanket protections on all disclosures or responses to discovery and

26 that the protection it affords from public disclosure and use extends only to the

27 limited information or items that are entitled to confidential treatment under the

28 applicable legal principles.

1 2. GOOD CAUSE STATEMENT

2 This action is likely to involve other valuable research, development,

3 commercial, financial, technical and/or proprietary information for which special

4 protection from public disclosure and from use for any purpose other than

5 prosecution of this action is warranted. Such confidential and proprietary materials

6 and information consist of, among other things, confidential business or financial

7 information, information regarding confidential business practices, or other

8 confidential research, development, or commercial information (including

9 information implicating privacy rights of third parties), information otherwise

10 generally unavailable to the public, or which may be privileged or otherwise

11 protected from disclosure under state or federal statutes, court rules, case decisions,

12 or common law. Accordingly, to expedite the flow of information, to facilitate the

13 prompt resolution of disputes over confidentiality of discovery materials, to

14 adequately protect information the parties are entitled to keep confidential, to ensure

15 that the parties are permitted reasonable necessary uses of such material in

16 preparation for and in the conduct of trial, to address their handling at the end of the

17 litigation, and serve the ends of justice, a protective order for such information is

18 justified in this matter. It is the intent of the parties that information will not be

19 designated as confidential for tactical reasons and that nothing be so designated

20 without a good faith belief that it has been maintained in a confidential, non-public

21 manner, and there is good cause why it should not be part of the public record of this

22 case.

23 3. ACKNOWLEDGMENT OF UNDER SEAL FILING

24 PROCEDURE

25 The parties further acknowledge, as set forth in Section 14.3, below, that this

26 Stipulated Protective Order does not entitle them to file confidential information

27 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed

28 and the standards that will be applied when a party seeks permission from the court

1 to file material under seal. There is a strong presumption that the public has a right

2 of access to judicial proceedings and records in civil cases. In connection with non-

3 dispositive motions, good cause must be shown to support a filing under seal. See

4 Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006),

5 Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-

6 Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even

7 stipulated protective orders require good cause showing), and a specific showing of

8 good cause or compelling reasons with proper evidentiary support and legal

9 justification, must be made with respect to Protected Material that a party seeks to

10 file under seal. The parties’ mere designation of Disclosure or Discovery Material

11 as CONFIDENTIAL does not— without the submission of competent evidence by

12 declaration, establishing that the material sought to be filed under seal qualifies as

13 confidential, privileged, or otherwise protectable—constitute good cause.

14 Further, if a party requests sealing related to a dispositive motion or trial, then

15 compelling reasons, not only good cause, for the sealing must be shown, and the

16 relief sought shall be narrowly tailored to serve the specific interest to be protected.

17 See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 2010). For

18 each item or type of information, document, or thing sought to be filed or introduced

19 under seal, the party seeking protection must articulate compelling reasons,

20 supported by specific facts and legal justification, for the requested sealing order.

21 Again, competent evidence supporting the application to file documents under seal

22 must be provided by declaration.

23 Any document that is not confidential, privileged, or otherwise protectable in

24 its entirety will not be filed under seal if the confidential portions can be redacted. If

25 documents can be redacted, then a redacted version for public viewing, omitting only

26 the confidential, privileged, or otherwise protectable portions of the document, shall

27 be filed. Any application that seeks to file documents under seal in their entirety

28 should include an explanation of why redaction is not feasible.

1 4. DEFINITIONS

2 4.1 Action: this pending federal lawsuit.

3 4.2 Challenging Party: a Party or Non-Party that challenges the

4 designation of information or items under this Order.

5 4.3 “CONFIDENTIAL” Information or Items: information (regardless of

6 how it is generated, stored or maintained) or tangible things that qualify for

7 protection under Federal Rule of Civil Procedure 26(c), and as specified above in

8 the Good Cause Statement.

9 4.4 Counsel: Outside Counsel of Record and House Counsel (as well as

10 their support staff).

11 4.5 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 4.6 Disclosure or Discovery Material: all items or information, regardless

15 of the medium or manner in which it is generated, stored, or maintained (including,

16 among other things, testimony, transcripts, and tangible things), that are produced or

17 generated in disclosures or responses to discovery.

18 4.7 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

20 an expert witness or as a consultant in this Action.

21 4.8 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 4.9 Non-Party: any natural person, partnership, corporation, association or

25 other legal entity not named as a Party to this action.

26 4.10 Outside Counsel of Record: attorneys who are not employees of a party

27 to this Action but are retained to represent a party to this Action and have appeared

28 in this Action on behalf of that party or are affiliated with a law firm that has

1 appeared on behalf of that party, and includes support staff.

2 4.11 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 4.12 Producing Party: a Party or Non-Party that produces Disclosure or

6 Discovery Material in this Action.

7 4.13 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)

10 and their employees and subcontractors.

11 4.14 Protected Material: any Disclosure or Discovery Material that is

12 designated as “CONFIDENTIAL.”

13 4.15 Receiving Party: a Party that receives Disclosure or Discovery

14 Material from a Producing Party.

15 5. 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 and other applicable authorities. This Order does not govern the use of

23 Protected Material at trial.

24 6. 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

27 as an exhibit at trial becomes public and will be presumptively available to all

28 members of the public, including the press, unless compelling reasons supported by

1 specific factual findings to proceed otherwise are made to the trial judge in advance

2 of the trial. See Kamakana, 447 F.3d at 1180-81 (distinguishing “good cause”

3 showing for sealing documents produced in discovery from “compelling reasons”

4 standard when merits-related documents are part of court record). Accordingly, the

5 terms of this protective order do not extend beyond the commencement of the trial.

6 7. DESIGNATING PROTECTED MATERIAL

7 7.1 Exercise of Restraint and Care in Designating Material for

8 Protection. Each Party or Non-Party that designates information or

9 items for protection under this Order must take care to limit any such designation to

10 specific material that qualifies under the appropriate standards. The Designating

11 Party must designate for protection only those parts of material, documents, items

12 or oral or written communications that qualify so that other portions of the material,

13 documents, items or communications for which protection is not warranted are not

14 swept 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 7.2 Manner and Timing of Designations. Except as otherwise provided in

24 this Order, or as otherwise stipulated or ordered, Disclosure of Discovery Material

25 that qualifies for protection under this Order must be clearly so designated before

26 the material is disclosed or produced.

27 Designation in conformity with this Order requires:

28 (a) for information in documentary form (e.g., paper or electronic

1 documents, but excluding transcripts of depositions or other pretrial or trial

2 proceedings), that the Producing Party affix at a minimum, the legend

3 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), to each page that

4 contains protected material. If only a portion of the material on a page qualifies for

5 protection, the Producing Party also must clearly identify the protected portion(s)

6 (e.g., by making appropriate markings in the margins). A Party or Non-Party that

7 makes original documents available for inspection need not designate them for

8 protection until after the inspecting Party has indicated which documents it would

9 like copied and produced. During the inspection and before the designation, all of

10 the material made available for inspection shall be deemed “CONFIDENTIAL.”

11 After the inspecting Party has identified the documents it wants copied and

12 produced, the Producing Party must determine which documents, or portions

13 thereof, qualify for protection under this Order. Then, before producing the specified

14 documents, the Producing Party must affix the “CONFIDENTIAL legend” to each

15 page that contains Protected Material. If only a portion of the material on a page

16 qualifies for protection, the Producing Party also must clearly identify the protected

17 portion(s) (e.g., by making appropriate markings in the margins).

18 (b) for testimony given in depositions that the Designating Party

19 identifies the Disclosure or Discovery Material on the record, before the close of the

20 deposition all protected testimony.

21 (c) for information produced in other than documentary form and for

22 any other tangible items, that the Producing Party affix in a prominent place on the

23 exterior of the container(s) in which the information is stored the legend

24 “CONFIDENTIAL.” If only a portion of the information warrants protection, the

25 Producing Party, to the extent practicable, shall identify the protected portion(s).

26 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

27 failure to designate qualified information or items does not, standing alone, waive

28 the Designating Party’s right to secure protection under this Order for such material.

1 Upon timely correction of a designation, the Receiving Party must make reasonable

2 efforts to assure the material is treated in accordance with this Order.

3 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS

4 8.1. Timing of Challenges. Any Party or Non-Party may challenge a

5 designation of confidentiality at any time that is consistent with the Court’s

6 Scheduling Order.

7 8.2 Meet and Confer. The Challenging Party shall initiate the dispute

8 resolution process under Local Rule 37-1 et seq.

9 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a joint

10 stipulation pursuant to Local Rule 37-2.

11 8.4 The burden of persuasion in any such challenge proceeding shall be on the

12 Designating Party. Frivolous challenges, and those made for an improper purpose

13 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may

14 expose the Challenging Party to sanctions. Unless the Designating Party has waived

15 or withdrawn the confidentiality designation, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the Producing

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Party’s designation until the Court rules on the challenge.

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9. ACCESS TO AND USE OF PROTECTED MATERIAL

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9.1 Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a Non-Party in connection with this

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Action only for prosecuting, defending or attempting to settle this Action. Such

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Protected Material may be disclosed only to the categories of persons and under the

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conditions described in this Order. When the Action has been terminated, a

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Receiving Party must comply with the provisions of section 15 below (FINAL

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DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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location and in a secure manner that ensures that access is limited to the persons

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authorized under this Order.

1 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless

2 otherwise ordered by the court or permitted in writing by the Designating Party, a

3 Receiving Party may disclose any information or item designated

4 “CONFIDENTIAL” only to:

5 (a) the Receiving Party’s Outside Counsel of Record in this Action, as

6 well as employees of said Outside Counsel of Record to whom it is reasonably

7 necessary to disclose the information for this Action;

8 (b) the officers, directors, and employees (including House Counsel) of

9 the Receiving Party to whom disclosure is reasonably necessary for this Action;

10 (c) Experts (as defined in this Order) of the Receiving Party to whom

11 disclosure is reasonably necessary for this Action and who have signed the

12 “Acknowledgment and Agreement to Be Bound” (Exhibit A);

13 (d) the court and its personnel;

14 (e) court reporters and their staff;

15 (f) professional jury or trial consultants, mock jurors, and Professional

16 Vendors to whom disclosure is reasonably necessary for this Action and who have

17 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

18 (g) the author or recipient of a document containing the information or

19 a custodian or other person who otherwise possessed or knew the information;

20 (h) during their depositions, witnesses, and attorneys for witnesses, in

21 the Action to whom disclosure is reasonably necessary provided: (1) the deposing

22 party requests that the witness sign the form attached as Exhibit A hereto; and (2)

23 they will not be permitted to keep any confidential information unless they sign the

24 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise

25 agreed by the Designating Party or ordered by the court. Pages of transcribed

26 deposition testimony or exhibits to depositions that reveal Protected Material may

27 be separately bound by the court reporter and may not be disclosed to anyone except

28 as permitted under this Stipulated Protective Order; and

1 (i) any mediators or settlement officers and their supporting personnel,

2 mutually agreed upon by any of the parties engaged in settlement discussions.

3 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED

4 PRODUCED IN OTHER LITIGATION

5 If a Party is served with a subpoena or a court order issued in other litigation

6 that compels disclosure of any information or items designated in this Action as

7 “CONFIDENTIAL,” that Party must:

8 (a) promptly notify in writing the Designating Party. Such notification

9 shall include a copy of the subpoena or court order;

10 (b) promptly notify in writing the party who caused the subpoena or

11 order to issue in the other litigation that some or all of the material covered by the

12 subpoena or order is subject to this Protective Order. Such notification shall include

13 a copy of this Stipulated Protective Order; and

14 (c) cooperate with respect to all reasonable procedures sought to be

15 pursued by the Designating Party whose Protected Material may be affected. If the

16 Designating Party timely seeks a protective order, the Party served with the

17 subpoena or court order shall not produce any information designated in this action

18 as “CONFIDENTIAL” before a determination by the court from which the subpoena

19 or order issued, unless the Party has obtained the Designating Party’s permission.

20 The Designating Party shall bear the burden and expense of seeking protection in

21 that court of its confidential material and nothing in these provisions should be

22 construed as authorizing or encouraging a Receiving Party in this Action to disobey

23 a lawful directive from another court.

24 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO

25 BE PRODUCED IN THIS LITIGATION

26 (a) The terms of this Order are applicable to information produced by a

27 Non-Party in this Action and designated as “CONFIDENTIAL.” Such information

28 produced by Non-Parties in connection with this litigation is protected by the

1 remedies and relief provided by this Order. Nothing in these provisions should be

2 construed as prohibiting a Non-Party from seeking additional protections.

3 (b) In the event that a Party is required, by a valid discovery request, to

4 produce a Non-Party’s confidential information in its possession, and the Party is

5 subject to an agreement with the Non-Party not to produce the Non-Party’s

6 confidential information, then the Party shall:

7 (1) promptly notify in writing the Requesting Party and the Non-Party

8 that some or all of the information requested is subject to a confidentiality agreement

9 with a Non-Party;

10 (2) promptly provide the Non-Party with a copy of the Stipulated

11 Protective Order in this Action, the relevant discovery request(s), and a reasonably

12 specific description of the information requested; and

13 (3) make the information requested available for inspection by the Non-

14 Party, if requested.

15 (c) If the Non-Party fails to seek a protective order from this court

16 within 14 days of receiving the notice and accompanying information, the Receiving

17 Party may produce the Non-Party’s confidential information responsive to the

18 discovery request. If the Non-Party timely seeks a protective order, the Receiving

19 Party shall not produce any information in its possession or control that is subject to

20 the confidentiality agreement with the Non-Party before a determination by the

21 court. Absent a court order to the contrary, the Non-Party shall bear the burden and

22 expense of seeking protection in this court of its Protected Material.

23 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

24 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

25 Protected Material to any person or in any circumstance not authorized under this

26 Stipulated Protective Order, the Receiving Party must immediately (a) notify in

27 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

28 to retrieve all unauthorized copies of the Protected Material, (c) inform the person

1 or persons to whom unauthorized disclosures were made of all the terms of this

2 Order, and (d) request such person or persons to execute the “Acknowledgment an

3 Agreement to Be Bound” attached hereto as Exhibit A.

4 13. INADVERTENT PRODUCTION OF PRIVILEGED OR

5 OTHERWISE PROTECTED MATERIAL

6 When a Producing Party gives notice to Receiving Parties that certain

7 inadvertently produced material is subject to a claim of privilege or other protection,

8 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil\

9 Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure

10 may be established in an e-discovery order that provides for production without prior

11 privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the

12 parties reach an agreement on the effect of disclosure of a communication or

13 information covered by the attorney-client privilege or work product protection, the

14 parties may incorporate their agreement in the stipulated protective order submitted

15 to the court.

16 14. MISCELLANEOUS

17 14.1 Right to Further Relief. Nothing in this Order abridges the right of any

18 person to seek its modification by the Court in the future.

19 14.2 Right to Assert Other Objections. By stipulating to the entry of this

20 Protective Order, no Party waives any right it otherwise would have to object to

21 disclosing or producing any information or item on any ground not addressed in this

22 Stipulated Protective Order. Similarly, no Party waives any right to object on any

23 ground to use in evidence of any of the material covered by this Protective Order.

24 14.3 Filing Protected Material. A Party that seeks to file under seal any

25 Protected Material must comply with Local Civil Rule 79-5. Protected Material may

26 only be filed under seal pursuant to a court order authorizing the sealing of the

27 specific Protected Material. If a Party’s request to file Protected Material under seal

28 is denied by the court, then the Receiving Party may file the information in the public

1 || record unless otherwise instructed by the court.

2 15. FINAL DISPOSITION

3 After the final disposition of this Action, as defined in paragraph 6, within 60

4 || days of a written request by the Designating Party, each Receiving Party must return

5 || all Protected Material to the Producing Party or destroy such material. As used in

6 || this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

7 || summaries, and any other format reproducing or capturing any of the Protected

8 || Material. Whether the Protected Material is returned or destroyed, the Receiving

9 || Party must submit a written certification to the Producing Party (and, if not the same

10 || person or entity, to the Designating Party) by the 60-day deadline that (1) identifies

11 || (by category, where appropriate) all the Protected Material that was returned or

12 || destroyed and (2) affirms that the Receiving Party has not retained any copies,

13 || abstracts, compilations, summaries or any other format reproducing or capturing any

14 || of the Protected Material. Notwithstanding this provision, Counsel are entitled to

15 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

16 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

17 || reports, attorney work product, and consultant and expert work product, even if such

18 || materials contain Protected Material. Any such archival copies that contain or

19 || constitute Protected Material remain subject to this Protective Order as set forth in

20 || Section 6 (DURATION).

21 16. VIOLATION

22 Any violation of this Order may be punished by appropriate measures

23 || including, without limitation, contempt proceedings and/or monetary sanctions.

4 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

25 || DATED: August 15, 2023 iF dL.

26 Lie OG

27 J D. EARLY

38 nited States Magistrate Judge

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1 EXHIBIT A

2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3 I, [print or type full name], of

4 [print or type full address], declare under penalty

5 of perjury that I have read in its entirety and understand the Stipulated Protective

6 Order that was issued by the United States District Court for the Central District of

7 California in Case No. 8:23-cv-00164 FWS (JDEx). I agree to comply with and to

8 be bound by all the terms of this Stipulated Protective Order and I understand and

9 acknowledge that failure to so comply could expose me to sanctions and punishment

10 in the nature of contempt. I solemnly promise that I will not disclose in any manner

11 any information or item that is subject to this Stipulated Protective Order to any

12 person or entity except in strict compliance with the provisions of this Order.

13 I further agree to submit to the jurisdiction of the United States District Court

14 for the Central District of California for the purpose of enforcing the terms of this

15 Stipulated Protective Order, even if such enforcement proceedings occur after

16 termination of this action. I hereby appoint [print or type full

17 name] of [print or type full address and telephone

18 number] as my California agent for service of process in connection with this action

19 or any proceedings related to enforcement of this Stipulated Protective Order.

20 Date:

21 City and State where sworn and signed:

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23 Printed name:

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25 Signature:

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