3:05-cv-01398 | N.D. Cal. | Nov 21, 2005
Wmstou & Strawn LL?
333 S€N.¥th Grtmd Aw:mlc` 38{11 kar
Los Ange¥es. CA 966?1-1543
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Case 3:05-cv-01398-.]SW Document 25 Filed 11/21/05 Page 1 of 14
Case 3:05-c:v-01398-JSW Document24 Filed11/17/2005
WINSTON &. STRAWN LLP
LEE T. PATERSON (SBN: 41004)
AMANDA C. SOMMBRPELD (SBN: 185052)
NICOLE M. DENOW (SBN: 231'722)
333 South Grand Avenue, 38th F]oor
Los Angeles, CA 90071»1.543
Tel,: (213) 615-1700; Pax: (213) 615-1750
E~mail: Ip_aterso@Winston.com
asmrnnerf@winston.com
Attomeys For Defendants
BLACK & DECKER (U.S.) lNC. and
PORTER-CABLB CORPORATION
LAW OFFICES OF LUCI'US A. COOPER
BETH W. MORA (SBN: 208859)
18 Crow Canyon Court, Suite 145
San Ramon, CA 94583
'I`el.: (925) 820-»8949; Fax: (925) 820~0273
E~mail: bmora@cooperlawoffice.com
Attomeys for Plaintiff ROGER WORKING
UN'ITED STA'I`ES DISTR.ICT COURT
Page 1 of 15
NORTHERN I)ISTRICT OF CALIFORNTA
ROGER WORKING, ) Case No. CO$-OIBQB JSW
- ) I~ION. JEFFREY S. WI-IITE
Plaintit`f, )
) STIPULATED PROTECTIVE
vs. ) ORDER
)
BLACK & DECKER. (`U.S.) INC.; )
POR’I`ER-CABLE CORPORATION; )
and PENTAIR TOOL AND )
EQUIPMENT SALES CO., )
Def`endants. §
STIPULA'I`ED PROTECTIVE OR.DER
Winston & Strawn LLI’
333 South Grami Avenue, 3801 Floor
has Angeles, CA 90071-1543
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Case 3:05-cv-01398-.]SW Document 25 Filed 11/21/05 Page 2 of 14
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l. PUR.POSES ANI) LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production
of contidential, proprietary, or private information for which special protection from
public disclosure and from use for any purpose other than prosecuting this litigation
would be warranted Accordingly, the parties hereby stipulate to and petition the
court to enter the following Stipulated Protective Order. The parties acknowledge
that this Order does not confer blanket protections on all disclosures or responses to
discovery and that the protection it affords extends only to the limited information or
items that are entitled under the applicable legal principles to treatment as
confidential The parties further acknowledge, as set forth in Section 10, beiow, that
this Stipulated Protective Order creates no entitlement to tile confidential
information under seal; Civil Local Rule 79»~5 sets forth the procedures that must he
followed and reflects the standards that will be applied when a party seeks
permission from the court to file material under seal.
2. DEFINITIONS
2.1 E§.Lty_:_ any party to this action, including all of its officers,
directors, employees, consultants, retained experts, and outside counsel (and
their support staff).
2.2 Disclosure or Discovery Material: all items or information,
regardless of the medium or manner generated, stored, or maintained (including,
among other things, testimony, transcripts, or tangible things) that are produced or
generated in disclosures or responses to discovery in this matter.
2.3 “Confidential" Infonnation or lterns: information (rega.rdless of
how generated, stored or maintained) or tangible things that qualify for protection
under standards developed under F.R.Civ.P. 26(0).
2.4 'Highly Coniidential -- Attorneys' Eyes Onlv" Information or
Lten;s_: extremely sensitive "Confidential lnformation or Items" whose disclosure to
another Party or non~palty would create a substantial risk of serious injury that
l _
S’I'IPULATED PROTECTI_VE ORDER
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333 South Gr:nd A\'ecme1 38¥!2 Floer
Los Angefes, CA 909'71-1543
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Case 3:05-cv-01398-.]SW Document 25 Filed 11/21/05 Page 3 of 14
Case 3:05-cv-01398-JSW Document 24 Filad 11/17/2005 F’age 3 of 15
could not be avoided by less restrictive means
2,.‘5 _I§e_p_e_iyii_i_g_l`-‘_z_i_i_ty:_ a Party that receives Disclosure or Discovery
Material from a Producing Party.
2.6 Producing Partyf: a Party or non-party that produces Disclosure or
Discovery Material in this action
2.7 Desig_nating Part_'y: a Party or non-party that designates
information or items that it produces in disclosures or in responses to discovery as
"Contidential" or "Highly Confidential Attorneys‘ Eyes Only."
2.8 Protected Material: any Disclosure or Discovery Material that is
designated as "Contidcntial" or as "Highly Contidenti.al ~ Attorneys' Eyes Only."
2.9 Outside Counsel: attorneys Who are not employees of a Party
but who are retained to represent or advise a Party in this actionl
2. 10 House Counsel: attorneys Who are employees of a Party.
2.11 Attorneys: Outside Counsel and House Counsel (as well as their
support staffs),
2. 12 133pr a person with specialized knowledge or experience in a
matter pertinent to the litigation who has been retained by a Party or its counsel to
serve as an expert witness or as a consultant in this action and Who is not a past or a
current employee of a Party or of a competitor cfa Party's and who, at the time ot`
retention, is not anticipated to become an employee of a Party or a competitor cfa
Party's. This definition includes a professional jury or trial consultant retained in
connection with this litigationn
2.13 Professional Vendors: persons or entities that provide
litigation support services (e.g., photocopying videotaping; translating;
preparing exhibits or demonstrations; organizing, storing, retrieving data in
any form or mediurn; etc.) and their employees and subcontractors
3. SCOPE
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The protections conferred by this Stipulation and Order cover not only
Protected Material (as defined above), but also any information copied or
extracted there from, as well as all copies, excerpts, summaries or compilations
thereof, plus testimony, conversations, or presentations by parties or counsel to or
in court or in other settings that might reveal Protected Material.
4. DURATION
Even after the termination of this litigation, the confidentiality obligations
imposed by this Order - shall remain in effect until a Designating Party agrees
otherwise in writing or a court order otherwise directs
5. DESIGNATING PRQTECTED MATER]AL
5.1 Exercise of Restraint and Care in Desiant'ljina Material for
Protection. Each Party or non-party that designates information or items for
protection under this Order must take care to limit any such designation to specific
material that qualities under the appropriate standards A Designating Party must
take care to designate for protection only those parts of material, documents items, or
oral or written communications that qualify - so that other portions of the material,
documents, items, or communications for which protection is not warranted are not
swept unjustifiably within the ambit of this Order.
Mass, indiscriminate or routinized designations are prohibited
Designations that are shown to be clearly unjustified, or that have been made for an
improper purpose (e.g., to unnecessarily encumber or retard the case development
process, or to impose umiecessary expenses and burdens on other parties), expose
the Designating Party to sanctions
If it comes to a Party's or a non-party`s attention that information or
items that it designated for protection do not qualify for protection at all, or do
not qualify for the level of protection initially asserted, that Party or non-party
must promptly notify all other parties that it is withdrawing the mistaken
designation
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333 Snnfh Grand Avenue, 38th Floor
Lus Angeles., CA 90071-1543
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5.2 Manner and 'l`iming of Designations. Except as otherwise
provided in this Order (see, e.g., second paragraph of section 5.2(a), below), or as
otherwise stipulated or ordered, material that qualifies i`or protection under this
Order must be clearly so designated before the material is disclosed or produced
Designation in conformity With this Order requires:
tel fol'irlf<)m___nn__wafi.€minssemnerna_rr_f_cnn taped fme transcripts
of depositions or other pretrial or trial proceedings), that the Producing Party affth
the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS'
EYES ONLY" at the top of each page that contains protected material If only a
portion or portions of the material on a page qualifies for protection, the Producing
Party also must clearly identify the protected portion(s) (e.g., by making
appropriate markings in the margins) and must speeify, for each portion, the level ot`
protection being asserted (either "CONFIDENTIAL“ or "HIGI-ILY
CONFIDENTIAL - A'I‘TORNEYS‘ EYES ONLY").
A Party or non»party that makes original documents or materials
available for inspection need not designate them for protection until after the
inspecting Party has indicated which material it would like copied and produced
During the inspection and before the designation all of the material made available
for inspection shall be deemed "HIGHLY CONFIDENTIAL - ATTORNEYS'
EYES ONLY," After the inspecting Party has identified the documents it wants
copied and produced, the Producing Party must determine which documentr~il or
portions thereof, qualify for protection under this Order, then, before producing the
specified documents, the Producing Party must affix the appropriate legend
("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ~ ATTORNEYS' EYES
ONLY") at the top of each page that contains Protected Material. If only a portion or
portions of the material on a page qualities for protection, the Producing Party also
must clearly identify the protected portion(s) (e.g., by making appropriate markings
in the margins) and must specify, for each portion, the level of'protection being
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STIPULATED PROTECI`TVE ORDER
Winston & Stra“¢n LLI’
333 Snuth Grand Avenae., 38th. Fioor
bus Ange!es, CA 906?1-1543
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Case 3:05-cv-01398-.]SW Document 25 Filed 11/21/05 Page 6 of 14
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asserted (either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -
AT'I`ORNEYS' EYES ONLY").
(b) for testimony given in deposition or in other pretrial or
trial proceedings, that the Party or non-party designating the testimony as either
“CONFIDENTIAL” or “HIGI-ILY CONFIDENTIAL,” identify on the record,
before the close of the deposition hearing, or other proceeding, all protected
testimony, and further specify any portions of`tbe testimony that qualify as
"HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY." thhen it is
impractical to identify separately each portion of testimony that is entitled to
protection, and when it appears that substantial portions of the testimony may qualify
for protection, the Party seeking protection may invoke on the record (before the
deposition or proceeding is concluded) a right to have up to 20 days to identify the
specific portions of the testimony as to which protection is sought and to specify the
level of protection being asserted ("CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY"). Only those portions of the
testimony that are appropriately designated for protection within the 20 days shall
be covered by the provisions of this Stipulated Protective Order.
Transcript pages containing Protected Material must be
separately bound by the court reporter, who must affix to the top of each such page
the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS'
EYES ONLY," as instructed by the Party or non~party offering or sponsoring the
witness or presenting the testimony
(e) for information produced in some form other than
documenta;y, and for any other tangl:)le iten'i,§.ma that the Producing Party affix in a
prominent place on the exterior of the container or containers in which the
information or item is stored the legend "CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY." If only portions of the
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information or item warrant protection, the Producing Party, to the extent practicable,
shall identify the protected portions, specifying whether they qualify as
"CONF[DENTIAL" or as "HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYBS
ONLY."
5.3 Inadvertent Failures to Designate. Ii` timely corrected, an
inadvertent failure to designate qualified information or items as
"CONFIDENTIAL" or ”HIGHL`Y CONFIDENTIAL ~ A'TTORNE`YS’ EYES
ONLY" does not, standing alone, waive the Designating Party's right to secure
protection under this Order for such material If` material is appropriately
designated as "CONFIDENTIAL” or “HiGI~lLY CONPIDENTIAL --
ATTORNEYS’ EYES ONLY“ after the material was initially produced, the
Receiving Party, on timely notification of the designation, must make reasonable
efforts to assure that the material is treated in accordance with the provisions of this
Order.
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Unless a prompt challenge to a Designating
Party's confidentiality designation is necessary to avoid foreseeable substantial
unfaimess, unnecessary economic burdens, or a later significant disruption or delay
of the litigation, a Party does not waive its right to challenge a conndentiality
designation by electing not to mount a challenge promptly after the original
designation is disclosed
6.2 Meet and Cont`er. A Party that elects to initiate a challenge to a
Designating Party*s confidentiality designation must do so in good faith and must
begin the process by conferring directly (in voice to voice dialogue; other forms of`
conununication are not sufficient) with counsel for the Designating Party. In
conferring the challenging Party must explain the basis for its belief that the
confidentiality designation was not proper and must give the Designating Party an
opportunity to review the designated material, to reconsider the circumstances, and, if
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333 Sotlth Grand Avenne, 38£§1 Flonr
Los Ang¢lt$. CA 9&971-1543
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no change in designation is offered, to explain the basis for the chosen designation
A challenging Party may proceed to the next stage of the challenge process only ii` it
has engaged in this meet and confer process iirst.
6.3 Judicial Intervention, A Party that elects to press a challenge to a
confidentiality designation after considering the justification offered by the
Designating Party may file and serve a motion under Civil Local Rule 7 (and in
compliance with Civil Local R.ule 79-5,, if applicable) that identities the challenged
material and sets forth in detail the basis for the challenge Each such motion must
be accompanied by a competent declaration that affirms that the movant has
complied with the meet and confer requirements imposed in the preceding
paragraph and that sets forth with specificity the justification for the confidentiality
designation that was given by the Designating Party in the meet and confer dialogue
The burden of persuasion in any such challenge proceeding shall be on the
Desi.gnating Party. Until the court rules on the challenge, all parties shall continue to
afford the material in question the level of protection to which it is entitled under the
Producing Party's designation
7. ACCBSS TO AND USE OF PROTECTE__D MATM
7,1 Basic Principles. A Receiving Party may use Protected Material
that is disclosed or produced by another Party or by a non-party in connection with
this case only for prosecuting defending or attempting to settle this litigation Such
Protected Material maybe disclosed only to the categories of persons and under the
conditions described in this Order. 'When the litigation has been terrninated., a
Receiving Party must comply with the provisions of section l l, below (FINAL
DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party
at a location and in a secure manner that ensures that access is limited to the persons
authorized under this Order.
7.2 Disclosure of "CONFIDENTIAL" Information or items Unless
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Los Angefes. CA 900?1-1543
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Case 3:05-cv-01398-.]SW Document 25 Filed 11/21/05 Page 9 of 14
Case 3:05-cv-01398-JSW Document 24 Fi|ad 11/17/2005 Page 9 0f15
otherwise ordered by the court or permitted in writing by the Designating Party, a
Receiving Party may disclose any information or item designated CONFIDENTIAL
only to:
(a) the Receiving Party's Outside Counsel of record in this
action, as well as employees of said Counsel to whom it is reasonably necessary to
disclose the information for this litigation and who have signed the "Agreetnent to
Be Bound by Protective Order" that is attached hereto as Exhibit A;
{b) the officers, directors and employees (including House
Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this
litigation and Who have signed the "Agreement to Be Bound by Protective Order"
(Exhibit A);
(c) experts (as defined in this Order) of the Receiving
Party to whom disclosure is reasonably necessary for this litigation and Who
have signed the "Agreement to Be Bound by Protective Order" (Exhibit A);
(d) the Conrt and its personnel;
(e) court reporters, their staffs, and professional Vendors to
whom disclosure is reasonably necessary fir this litigation and Who have signed the
"Agreeinent to Be Bound by Protective Order" (Exhibit A);
(t) during their depositions, witnesses in the action to
whom disclosure is reasonably necessary and who have signed the
"Agreement to Be Bound by Protective Order" (Exhibit A). Pages of
transcribed deposition testimony or exhibits to depositions that reveal
Protected Material must be separately bound by the court reporter and may not
be disclosed to anyone except as permitted under this Stipnlated Protective
Order.
(g) the author of the document or the original source of the
information
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333 Soath Graad Avemue_. 38th Floor
Los Angetes. CA 99071-1543
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7.3 Disclosure of "HIGHLY CONFIDENTIAL - ATTORNEYS’
EYES ONLY" Int`orrnation or Items. Unless otherwise ordered by the court or
permitted in writing by the Designating Party, a Receiving Party may disclose
any information or item designated "HIGI~ILY CONFIDENTIAL ~
ATTORNEYS’ EYES ONLY“ only to:
(a) the Receiving Party's Outside Counsel of record in this
action, as well as employees of said Counsel to whom it is reasonably necessary to
disclose the information for this litigation and who have signed the "Agreernent to
Be Bound by Protective Order" that is attached hereto as E)thibit A;
(b) Experts (as defined in this Order) (l) to whom disclosure
is reasonably necessary for this litigation, (2) who have signed the "Agreement to
Be Bound by Protective Order" (_Exhibit A);
(c) the Court and its personnel;
(d) court reporters, their staffs, and professional vendors to
whom disclosure is reasonably necessary for this litigation and who have signed the
"Agreernent to Be Bound by Protective Order" (Exhibit A); and
(e) the author of the document or the original source of the
information
8 PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
Ii` a Receiving Palty is served with a subpoena or an order issued in other
litigation that would compel disclosure of any information or items designated in
this action as "CONFIDENTIAL" or "HIGI-ILY CONFIDENTIAL ~
ATTORNEYS' EYES ONLY," the R.eceiving Party must so notify the Designating
Party, in writing (by i`ax, ifpossible) immediately and in no event more than three
court days after receiving the subpoena or order. Such notification must include a
copy of` the subpoena or court order.
The Receiving Party also must immediately inform in writing the Party who
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Casa 3:05~cv-O'I398-JSW Document24 Filed 11/17/2005 Page 11 of 15
caused the subpoena or order to issue in the other litigation that some or all the
material covered by the subpoena or order is the subject of this Protective Order.
In addition, the Receiving Party must deliver a copy of this Stipulated Protective
Order promptly to the Party in the other action that caused the subpoena or order to
issue
The purpose of imposing these duties is to alert the interested parties to the
existence of this Protective Order and to afford the Designating Party in this case an
opportunity to try to protect its confidentiality interests in the court from which the
subpoena or order issued The Designating Party shall bear the burdens and the
expenses of seeking protection in that court of its confidential material - and nothing
in these provisions should be construed as authorizing or encouraging a Recciving
Party in this action to disobey a lawful directive from another court.
9. UNAUTHORlZE_D DISCLOSURE OF PROTECTED MATERIAL
lf a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Protected Material to any person or in any circumstance not authorized under this
Stipulated Protective Order, the Receiving Party must immediately (a) notify in
writing the Desiguating Party of the unauthorized disclosures, (b) use its best efforts
to retrieve all copies of the Protected l\/Iaterial, (c) inform the person or persons to
whom unauthorized disclosures were made of all the terms of this Order, and (d)
request such person or persons to execute the "Aclmowledgment and Agreernent to
Be Bound" that is attached hereto as Exhibit A.
10. FILING PROTECTED MATERIAL
Without written permission nom the Designating Party or a court order
secured after appropriate notice to all interested persons, a Party may not tile in the
public record in this action any Protected Material. A Party that seeks to tile under
seal any Protected Material must comply with Civil Local Rule 79-5.
1 0
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Los Ange¥e& CA 900? 1-1543
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11. FINAL DISPQM
Unless otherwise ordered or agreed in writing by the Producing Party, within
sixty days after the final termination of this action, each Receiving Party must return
all Protected Material to the Producing Party. As used in this subdivision, "all
Protected l\/Iaterial" includes all copies, abstracts, compilations, summaries or any
other form of reproducing or capturng any of the Protected Material. With
permission in writing from the Designating Party, the Receiving Party may destroy
some or all of the Protected Material instead of returning it. Whether the Protected
Material is returned or destroyed, the Receiving Party must submit a written
certification to the Producing Party (and, if not the same person or entity, to the
Designating Paity) by the sixty day deadline that identities (by category, where
appropriate) all the Protected Material that was returned or destroyed and that
affirms that the Receiving Party has not retained any copies, abstracts, compilations,
summaries or other forms of reproducing or capturing any of the Protected Material.
Notwithstanding this provi.sion, Counsel are entitled to retain an archival copy of all
pleadings, motion papers, transcripts, legal memoranda correspondence or attorney
work product, even if such materials contain Protected Material. Any such archival
copies that contain or constitute Protected Material remain subject to this Protective
Order as set forth in Section 4 (DURATION), above
12. MISCELLANEOUS
12.1 Right to Further Relief. Nothing in this Order abridges the right
ot` any person to seek its modification by the Court in the future
12.2 Right to Assert 0thcr Objections. By stipulating to the entry of
this Protective Order no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in this
Stipulated Protcctive Ordcri Similarly, no Party waives any right to object on any
ground to use in evidence of any of the material covered by this Protective Order.
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333 Snut¥i Gr:md Aveutie. 38th Floor
Los Angeles, CA 9007§-1543
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
fla
Daree: Nevember,a, 2005 wms'roN a sTRAWN LLP
LEE T. PATERSON
AMANDA C. SOMMERFELD
NICOLB M. DENOW mg
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By: c
"Hiii?n"ila . ommer e
Attome s for Defendants
BLACI¥& DECKER U.S. INC. and
PORTER CABLE CO 0 TION
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Dated: ENovernber,Z, 2005 LAW OFFICES OF LUCIUS A.
COOP
BETH W. MORA
By: ` "
e . ora
Attorne s for Plaintiff
ROGE WORKING
ORDER
PUR.SUANT TO STIPULATION, I'I` IS SO ORDERED.
Dated: November 21, 2005
12
srrrui.arso raorscrtvs catrett
Winston & Stratvn LLP
333 Snuth Crnnd Avcnue, 38th Flcor
Lns Aug¢l£$, CA 9657{»1543
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Case 3:05-cv-01398-.]SW Document 25 Filed 11/21/O5 Page 14 of 14
Case 3:05-cv*01398-JSW Document 24 Filed 11/17/2005 F’age 14 of 15
EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I [print or type full name], of
[print or type full address], declare under penalty of perjury that I have read in its
entirety and understand the Stipulated Protcctive Order that was issued by the
United States District Court for the Northern District of California on
in the case of Working v. Blacl<: & Decker (U.S.) Inc., et al,
Case No. CGS~OISQB JSW. l agree to comply with and to be bound by all the terms
of this Stipulated Protective Order and l understand and acknowledge that failure to
so comply could expose nieto sanctions and punishment in the nature of contempt
I solemnly promise that l will not disclose in any manner any information or item
that is subject to this Stipulated Protective Order to any person or entity except in
strict compliance with the provisions of this Order.
l further agree to submit to the jurisdiction of the United States District Court
for the Northern District of Calit`ornia for the purpose of enforcing the terms of this
Stipulated Protective Order, even if such enforcement proceedings occur after
termination of this action.
I hereby appoint [print or type full name] of
[pn'nt or type full address and telephone number] as my Calit`ornia agent for service
of process in connection with this action or any proceedings related to enforcement
of this Stipulated Protcctive Order.
Date: W_
--.-............
City and State where sworn and signed:
Printed namer
Signature:
J.A=isms.z 13
s'rirnt.arso rno‘rscrrvr-: canon