Petition for Writ of Certiorari — David Grober, et al., Petitioners v. Mako Products, Inc.

Supreme Court briefJun 4, 2019

Ask Donna

What actually matters in this document.

Text

I

<r

App. 1 - Appendix A

Case: 17-1507 Doc: 106

Filed: 12/06/2018

Note: This disposition is nonprecedential.

United States Court of Appeals For the Federal

Circuit

David Grober, Voice International, Inc.,

Plaintiff-Appellants

v.

Mako Products, Inc.,

Defendant-Appellee

AIR SEA LAND PRODUCTION, INC.,

CINEVIDEOTECH, INC. SPECTRUM EFFECTS,

INC., BLUE SKY AERIALS, INC. DOES 1-10

Defendants

2017-1507

Appeal from the United States District Court for the

Central District of California in No. 2:04-cv-08604

JZ-DTB, Judge Jack Zouhary.

JUDGMENT

Robert J. Lauson & Tarver, LLP, El Segundo, CA,

argued for plaintiffs-appellants. Voice International,

Inc. also represented by JON HOKANSON, Lewis

Brisbois Bisgaard & Smith LLP, Los Angeles, CA.

App. 2 - Appendix A

David Lietz, Varnell & Warwick, PA, Lady

Lake, FL, argued for defendant-appellee. Also

represented by BRIAN W. WARWICK.

THIS CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

PER CURIAM (PROST, Chief Judge, MOORE

and WALLACH, Circuit Judges).

AFFIRMED, See Fed. Cir. R. 36.

ENTERED BY ORDER OF THE COURT

December 6, 2018

Date

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

App. 3 - Appendix B

Case: 17-1507 Doc: 111 Page: 1 Filed: 01/15/2019

NOTE: This order is nonprecedential.

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

DAVID GROBER, VOICE

INTERNATIONAL, INC.,

Plaintiffs-Appellants

v.

MAKO PRODUCTS, INC.,

Defendant-Appellee

AIR SEA LAND PRODUCTIONS,

INC., CINEVIDEOTECH, INC.,

SPECTRUM EFFECTS, INC.,

BLUE SKY AERIALS, INC., DOES

1-10,

Defendants

2017-1507

App. 4 - Appendix B

Appeal from the United

States District Court for the

Central District of California in

No. 2:04-cv-08604-JZ- DTB,

Judge Jack Zouhary.

ON PETITION FOR PANEL REHEARING

Before PROST, Chief Judge, MOORE and

WALLACH, Circuit Judges.

PER CURIAM.

ORDER

App. 5 - Appendix B

GROBER v. MAKO PRODUCTS, INC.

Appellant David Grober filed a petition for panel

rehearing.

Upon consideration thereof,

IT IS ORDERED THAT:

The petition for panel rehearing is denied.

The mandate of the court will issue on January 22,

2019.

FOR THE COURT

January 15. 2019

Date

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

App. 6 - Appendix C

Case 2:04-cv-08604 Doc. 186 Filed 04/15/08 Page 1 of 26

Page ID #: 1162

STANLEY P. LIEBER (57628)

LAW OFFICES OF STANLEY P. LIEBER 6351

Owensniouth Ave. Suite 100

Woodland Hills, CA 91367

tel: 818-888-1811

fax: 818-888-1912

Email: stan@lieberlaw.com

JANET R. VARNELL

BRIANW. WARWICK

VARNELL&WARWICK, P.A.

20 La Grande Boulevard

The Villages, FL 32159

Telephone: (352) 753-8600

Facsimile: (352) 753-8606

Email: bwwarwick@aol.com

Attorneys for Defendants

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA- EASTERN

DIVISION

DAVID GROBER and

Case No. CV 04-08604 SGL

VOICE INTERNATIONAL, INC.

A California Corporation

Plaintiffs,

&

App. 7 - Appendix C

DEFENDANTS ANSWER

TO SECOND AMENDED,

CONSOLIDATED

COMPLAINT FOR PATENT

INFRINGEMENT,

DECLARATORY

JUDGEMENT, AND

COUNTER-CLAIM OF

MAKO PRODUCTS, INC.

vs.

MAKO PRODUCTS, INC.,

AIR SEA LAND PRODUCTIONS,

INC.,CINEVIDEOTECH, INC.,

SPECTRUM EFFECTS, INC.,

DOES 1-10, OPPENHEIMER CINE

RENTAL, LLC, BLUE SKY

AERIALS, INC., JORDAN KLEIN,

SR., and JORDAN KLEIN, JR.

Defendants.

For its Answer to Plaintiffs David Grober and VOICE

INTERNATIONAL, INC., (hereafter “Plaintiffs”)

Second

Amended

Consolidated

Complaint,

Defendants MAKO PRODUCTS, INC., AIR SEA

LAND PRODUCTIONS, INC., CINEVIDEOTECH,

INC. SPECTRUM EFFECTS, INC., OPPENHEIMER

CINE RENTAL, LLC, BLUE SKY AERIALS, INC.,

JORDAN KLEIN, SR., JORDAN KLEIN, JR., and

DOES 1-10 hereafter, (“Defendant) admit, deny and

allege as follows:

i

—-

App. 8 - Appendix C

ANSWER

JURISDICTION AND VENUE

1.

Defendants admit that this action purports to

be one for patent infringement arising under the 35

U.S.C. §§271 et seq., and admit that this Court has

subject matter jurisdiction over this patent

infringement action under 28 U.S.C Sections 1331

and 1338(a). Defendants deny that this Court has

personal jurisdiction over all defendants named in

the Second Amended Complaint and demands strict

proof thereof.

2.

Defendants admit that this action purports to

be one seeking declaratory relief under 28 U.S.C. 28

U.S.C. §§ 2201 and 2202 and admit that this Court

has subject matter jurisdiction over this patent

infringement action under 28 U.S.C. § 1332(a).

Defendants deny that this Court has personal

jurisdiction over all defendants named in the Second

Amended Complaint and demands strict proof

thereof. Defendants admit that Venue is proper in

this district as to Defendant Mako Products, Inc.;

as to Defendant Spectrum Effects, Inc. and as to

Defendant Blue Sky Aerials, Inc. but not for the

remaining defendants and further denies that any

Defendant has committed any acts of infringement.

3.

4.

Defendants deny that any infringement

occurred in this or any other district and thus denied

the allegations of paragraph 4.

5.

Defendants admit the first sentence of

Paragraph 5, but are without personal knowledge or

App. 9 - Appendix C

information sufficient to form a belief as to the truth

of the remaining allegations of this Paragraph and on

that basis, deny those allegations.

THE PARTIES

Defendants are without personal knowledge or

information sufficient to form a belief as to the truth

of the allegations in Paragraph 6 and on that basis,

denies those allegations.

6.

Defendants admit that Plaintiff Grober is

listed as the inventor and owner of U.S. Pat. No.

6,611,662, but specifically denies that Plaintiff

Grober is actually the sole inventor of the device at

issue and denies the remaining allegations of

Paragraph 7, as well as denies the validity of the '662

patent itself.

7.

8.

Defendants admit to the allegations contained

in the first sentence of Paragraph 8, but deny the

remaining allegations of Paragraph 8.

9.

Defendants admit the allegations of Paragraph 9

10.

Defendants admit the allegations of Paragraph 10

11.

Defendants admit the allegations of Paragraph 11

12.

Defendants admit the allegations of Paragraph 12

13.

Defendants admit the allegations of Paragraph 13

14.

Defendants admit the allegations in Paragraph 14

15.

Defendants admit the allegations of Paragraph 15

App. 10 - Appendix C

FIRST CAUSE OF ACTION

Infringement of the *662 Patent, 35 USC

Sec. 271 (Plaintiffs Against All Defendants)

16.

Defendants hereby re-allege and incorporate

all previous responses.

17.

Defendants admit that Plaintiff Grober is

listed as inventor and owner on the '662 patent but

denies that Plaintiff Grober is the sole inventor of the

device set forth in the '662 patent and therefore

denies that the patent was either "duly" or "lawfully"

issued. Defendants are without information sufficient

ELEVENTH AFFIRMATIVE DEFENSE

50.

Under the provisions of 35 U.S.C §287,

Plaintiffs are precluded from recovering damages for

any alleged infringement occurring prior to providing

actual notice to Defendants of the alleged to form a

belief as to the remaining allegations of Paragraph

17.

18.

Defendants are without information sufficient

to form a belief as to whether Plaintiff Grober's

products are "marked" and denies that his device

embodies the apparatus claimed in the "662 patent".

19.

Defendants admit that Defendant Mako

Products, Inc. manufactures rents and sells the

MakoHead. Defendants deny that Jordan IClein, Sr.

and/or Jordan Klein Jr. are the manufacturers of

the MakoHead or that they make it publically

available. Defendants admit that Mako uses, sells,

rents and offers for use, sale a device known as

App. 11 - Appendix C

MakoHead. Defendants deny that the MakoHead

infringes any claims of the '662 patent.

20.

Defendants admit that Mako was

an

exhibitor at the 2004 CineGearExpo and that Jordan

Klein, Sr. appeared in his capacity as shareholder of

Mako Products. The remaining allegations of this

paragraph are not specific enough for Defendants to

admit or deny.

21.

Defendants admit that ASL is a New York

rental house that rents, among many other items, the

MakoHead to third parties for use in New York.

Defendants deny the remaining allegations in

Paragraph 21.

22.

Defendants deny the allegations in Paragraph 22.

23.

Defendants admit that CVT is a Florida rental

house that rents, among many other items, the

MakoHead to third parties for use in Florida

and the Caribbean. Defendants deny the remaining

allegations in Paragraph 23.

24.

Defendants admit that Spectrum is a

California rental house that rents, among many

other items, the MakoHead to third parties for use in

California. Defendants deny the remaining

allegations in Paragraph 24.

25.

Defendants admit that Blue Sky Aerials,

Inc. is a California rental house that rents, among

many other items, the MakoHead to third parties

for use in California. Defendants deny the remaining

allegations of Paragraph 25.

26.

Defendants admit that Oppenheimer Camera

is a Washington rental house that rents, among

App. 12 - Appendix C

many other items, the MakoHead to third parties for

use in business located in Washington. Defendants

deny the remaining allegations of Paragraph 26.

27.

Defendants deny the allegations of Paragraph 27

28.

Defendants deny the allegations of Paragraph 28

29.

Defendants deny the allegations of Paragraph 29

30.

Defendants deny the allegations of Paragraph 30

31.

Defendants deny the allegations of Paragraph 31

SECOND CAUSE OF ACTION

For Declaratory Relief (Plaintiff Grober

Against Defendants Mako Products, Jordan

Klein Sr. and Jordan Klein Jr.)

32.

Defendants hereby re-allege and incorporate

all previous responses.

33.

Defendants admit that Plaintiffs filed a patent

infringement lawsuit against them in 2004.

34.

Defendants admit that Plaintiff Grober has

made slanderous statements regarding

Mako

Products, Klein, Jr. and Klein, Sr. but deny

the remaining allegations set forth in paragraph 34.

35.

Defendants admit that Plaintiffs attached a

Florida Complaint

to their Second Amended

Complaint. However, the details of Defendants'

Slander Claim are set forth below under Defendant's

counterclaim.

36.

Defendants deny the allegations set forth in

Paragraph 36.

App. 13 - Appendix C

37.

Defendants admit that an actual controversy

exists regarding Plaintiff Grober's slanderous

statements, but denies that those statements were

privileged, lawful, or that any claims are barred by

the limitations period.

38.

Defendants deny the allegations set forth in

Paragraph 38.

PRAYER FOR RELIEF

39.

Defendants deny that Plaintiffs are entitled to

the relief enumerated in Paragraphs 1 through 18 of

the Prayer for Relief.

AFFIRMATIVE DEFENSES

FIRST AFFIRMATIVE DEFENSE

40.

Plaintiffs' Second Amended Consolidated

Complaint fails to state a claim upon which relief

may be granted.

SECOND AFFIRMATIVE DEFENSE

41.

The claims of the '662 Patent (referred to as

the Patent in Suit) is invalid for failing to comply

with the provisions of the patent laws, Title 35,

U.S.C., including, without limitation, 35 U.S.C.

§§ 102, 103, 112, 115 and/or 116.

THIRD AFFIRMATIVE DEFENSE

42.

The prior art restricts possible scope of

construction of the Patent-In-Suit to such an extent

that Plaintiffs are estopped from asserting that any

claim of the Patent-In-Suit encompasses the accused

product.

App. 14 - Appendix C

FOURTH AFFIRMATIVE DEFENSE

43.

Defendants allege on information and belief

that the claims of the Patent-In-Suit cannot be

construed to cover any product manufactured, used,

sold or offered for sale by Defendants because of false

statements made and/or improper positions taken by

or on behalf of the applicant for the Patent-In-Suit

during the prosecution of the applications that

matured into that Patent.

FIFTH AFFIRMATIVE DEFENSE

44.

Defendants do not make, use, sell, or offer to

sell, and has not made, used, sold or offered for sale

in the United .States any product which infringes,

either literally or under the doctrine of equivalents,

any valid and enforceable claim of the Patent-In-Suit

either directly or indirectly, contributory or

otherwise, and has not induced any others to infringe

said patent.

SIXTH AFFIRMATIVE DEFENSE

45.

Plaintiffs' claim for relief is barred by the

doctrines of laches and estoppel.

Moreover, the

Plaintiffs' claim is barred for failing to comply with

the statutory notice requirements of the Patent

Statute.

SEVENTH AFFIRMATIVE DEFENSE

46.

Plaintiffs' claim for relief is barred by the

doctrine of unclean hands.

EIGHTH AFFIRMATIVE DEFENSE

47.

Plaintiffs' claim for relief is barred due to

Inequitable Conduct committed by the Plaintiffs

App. 15 - Appendix C

and/or its agents before the U.S. Patent and

Trademark Office, including but not limited to failing

to incorporate the best use of the device and final

improvements into the patent; failing to identify

the co-inventors of the '662 device; failing to identify

prior art; and improperly describing the device.

NINTH AFFIRMATIVE DEFENSE

48.

Plaintiffs' claim for relief is barred in whole or

in part under the doctrine of patent misuse.

TENTH AFFIRMATIVE DEFENSE

49.

Plaintiffs' claim is not subject to equitable

relief because it can be adequately compensated in

damages.

ELEVENTH AFFIRMATIVE DEFENSE

50.

Under the provisions of 35 U.S.C. §287,

Plaintiffs are precluded from recovering damages for

any alleged infringement occurring prior to providing

actual notice to Defendants of the alleged

infringement of the Patent-In-Suit.

COUNTERCLAIMS

MAKO'S FIRST COUNTERCLAIM

FOR DECLARATORY RELIEF

51.

Defendant

and

Counterplaintiff Mako

(hereafter "Mako") brings this counterclaim against

Plaintiff (hereafter "Grober") pursuant to Rule 13 of

the Federal Rules of Civil Procedure and states:

52.

Mako is a Florida corporation, having its

principal place of business at Summerfield, Florida.

App. 16 - Appendix C

53.

Mako alleges on information and belief that

Grober is a resident of the State of California.

54.

This Counterclaim is for declaratory judgment

of

non-infringement,

invalidity

and/or

unenforceability pursuant to the Declaratory

Judgment Act, 28 U.S.C. §§2201(a) and 2202, and

arises under the Acts of Congress relating to patents,

Title 35 of the United States Code. This

Court

has subject matter jurisdiction over this

Counterclaim pursuant to 28 U.S.C. §§ 1331 and

1338(a).

55.

Grober alleges in his Complaint that the

'662 Patent was duly and legally issued to him.

Grober further alleges that Mako has infringed and

continues to infringe the '662 Patent.

56.

Mako has not infringed and is not now

infringing any valid or existing claim of the '662

Patent.

57.

Mako alleges on information and belief that all

claims of the '662 patent are invalid for fading to

comply with the requirements of the patent laws,

Title 35 U.S.C., §§102, 103, 112,115 and/or 116,

including but not limited to; failing to incorporate the

best use of the device and final improvements into

the patent; failing to identify the co-inventors of the

'662 device; fading to identify prior art; and

improperly describing the device.

58.

On one or more of the grounds set forth above,

Grober cannot enforce the '662 Patent against Mako

due to Inequitable Conduct.

59.

An actual controversy has arisen

Grober and Mako. Mako

desires

a

between

judicial

App. 17 - Appendix C

determination and declaration of the respective

Such a

rights and duties of the parties herein,

determination and declaration is necessary and

appropriate in order that the parties may ascertain

their respective rights and duties regarding the

validity, enforceability and infringement of the '662

Patent.

MAKO'S SECOND COUNTERCLAIM

FOR ANTITRUST VIOLATIONS

60.

Defendant

and

Counterplaintiff Mako

(hereafter "Mako") brings this counterclaim against

Plaintiff (hereafter "Grober") pursuant to Rule 13

of the Federal Rules of Civil Procedure and states:

61.

Mako is a Florida corporation, having its

principal place of business at Summerfield, Florida.

62.

Mako alleges on information and belief that

Grober is a resident of the State of California.

63.

This Counterclaim is for violation of the 15

U.S.C §2 ("The Sherman Act") on the basis of an

attempt to eliminate competition in the relevant

market. and monopolize the relevant market by

misusing the patent.

64.

Mako alleges that the relevant market is

properly defined as stabilization system for television

and film cameras called for in the language of the

patent claims.

65.

Mako alleges that Grober intends to eliminate

competition in the relevant market and monopolize

the relevant market by requesting an injunction

beyond the scope and the term of any valid patent

Brr.

App. 18 - Appendix C

and by demanding improper damages from multiple

companies, including Mako.

66. Mako alleges that Grober engaged in

predatory or anti-competitive conduct by requesting

an injunction beyond the scope and the term of any

valid patent and by demanding improper damages

from multiple companies, including Mako.

67.

Mako alleges that Grober has a dangerous

probability of attaining monopoly power through

predatory and anti-competitive conduct, and in

particular by requesting an injunction beyond the

scope and the term of any valid patent and

demanding improper damages from multiple

companies, including Mako.

68.

Mako alleges that Grober's actions have

proximately caused injury to competition in the

relevant market, to consumers, and to the Defendant.

MAKO'S THIRD COUNTERCLAIM

FOR VIOLATION OF CALIFORNIA’S UNFAIR

PRACTICES ACT

(Cal Bus. & Prof. Code 17500 et seq.)

AND UNFAIR COMPETITION LAW

(Cal. Bug. & Prof.Code § 17200 et seq.)

69.

Defendant/Counterclaimplaintiff,

Mako,

hereby incorporates all preceding paragraphs of this

Counterclaim as if fully set forth herein.

70.

From approximately 1998 to the present,

Grober has enjoyed a monopoly over the television

and movie camera stabilization market. Mako is

presently Grober's primary competition. More

importantly, Grober obtained the subject patent by

App. 19 - Appendix C

intentionally making knowingly false statements and

improper omissions to the U.S. Patent Office through

documents submitted thereto.

71.

From approximately 1998 to 2003, Grober

enjoyed his monopoly without a patent. At some

point during this period of time, Grober prepared a

patent application requesting the patent which

ultimately resulted in the '662 Patent.

72.

Grober intentionally sought and obtained the

subject patent through fraudulent statements and

omissions for the purpose of preventing lawful

competition. As a result of Grober's intentional

fraud on the Patent Office, he caused a fraudulent

patent to be issued and published.

73.

Grober's conduct in obtaining and attempting

to enforce the '662 Patent through fraud on the U.S.

Patent Office constitutes an unfair and unlawful

business act or practice in violation of the California

Unfair Practices Act and in violation of the Unfair

Competition Law. This practice gives Grober an

unfair and unlawful competitive advantage over

Mako as an honest and fair competitor. Grober's

fraudulent conduct has cost Mako and its coDefendants substantial income through rental of the

MakoHead. Mako and its co-Defendants seek treble

damages and attorney fees available under the

Unfair Practices Act as well as injunctive relief and

restitution under the Unfair Competition Law.

74.

Grober's fraudulent conduct is also unfair to

consumers because

Grober's

system

costs

substantially more than the Mako system to rent. As

a result, consumers in California and across the

App. 20 - Appendix C

county are being forced to pay substantially more to

rent Grober's more costly and less effective system.

MAKO'S FOURTH COUNTERCLAIM

DEFAMATION

75.

Grober and Mako are competitors in the

movie and television film industry. Grober owns a

company that rents a camera stabilization device

known as the Perfect Horizon. Mako has developed

and rents a competing camera stabilization device

known as the MakoHead. The MakoHead is a far

superior device and rents for approximately half the

cost of the Perfect Horizon. Angry about losing

business to the MakoHead, Grober has continuously

engaged in defamatory conduct against Mako by

asserting that Mako did not invent the MakoHead

themselves but conspired with one of Grober's former

employees to "copy the design of the Perfect Horizon"

and "steal his technology."

Jordan Klein, Sr. and Jordan Klein, Jr. are

residents of Summerfield, Florida and are in the

movie and television film industry. Jordan Klein, Sr.

has been in the movie industry for over fifty years

and has worked on hundreds of well known films

such as Splash, Cocoon, Thunderball, Never Say

Never Again, to name a few of the 75 feature films

and 150 commercials. Mr. Klein, Sr. is also known

for starting one of the first dive shop in the United

States, out of Miami, Florida in the 1950's. Mr. Klein,

Sr. has been inducted into the Scuba Diving Hall of

Fame for his dedication and devotion. 1991 he was

inducted into the Underwater Hall of Fame with the

NOGI Award. In 2004, Mr. Klein Sr. received an

Academy Award for Technical Achievement for his

76.

App. 21 - Appendix C

Underwater

dedication and Advancements in

Cinematography. Mr. Klein, Sr. is known as a

pioneer in the underwater film industry. He has

been contracted to work with the U.S. Navy on

classified Navy Submarine projects requiring a

security clearance of "Secret". He is well known for

his early work on television shows such as the

Flipper series and the Jaws films. He also holds two

design patents.

77.

Jordan Klein Jr., followed in his father's

footsteps and began working for his father as a

technician, assistant, and eventually a camera

operator. Jordan Klein, Jr. now owns and operates a

business known as Jordan Klein Film and Video,

which is a full scale production company operating

out of Summerfield, Florida. Like his father, Jordan

Klein, Jr. specializes in underwater filming and

fast-action video.

78.

Mako Products, Inc. is a corporate entity

owned by the Kleins. Mako Products owns and rents

a device to the film industry known as the

MakoHead. The MakoHead is a camera stabilization

device developed by the Kleins and others which uses

cutting edge technology to keep a camera steady and

focused on the horizon despite unstable conditions,

such as when filming at sea or underwater.

79. As stated above, Grober has developed and

rents a movie camera stabilization device known as

the Perfect Horizon. Mr. Grober received a patent on

his device.

Sometime in 2001, Plaintiff Jordan Klein

80.

Jr. contacted Defendant David Grober about renting

his device, for use in an underwater film sequence.

App. 22 - Appendix C

Mr. Grober informed Mr. Klein that the Perfect

Horizon was not waterproof and was not capable of

handling the heavy cameras and equipment used in

such a setting.

81. After seeing a need for a camera stabilizer

in such conditions, the Kleins set out to create a

device that could stabilize a camera both above and

under water, and which could handle cameras of

substantial weight. Inventors by nature, the Kleins

contacted an engineer and stabilization expert, Mr.

Tom Smith, to assist them in designing their new

stabilization device, known as the MakoHead. The

Kleins also contacted Steve Waterford, who had

previously worked with Grober on the design of the

Perfect Horizon to design the mechanical portion of

the device. Waterford expressed his interest in

working with Mako Products, the Kleins and Smith

to develop the MakoHead. Waterford's primary role

on the design team was to assist in the mechanical

design of the MakoHead. Smith and the Kleins

designed the MakoHead electronics and

other

mechanics of the device, without any

knowledge of the Perfect Horizon. Waterford

continuously made refinements to the MakoHead and

continuously stated to Mako and the Kleins that the

MakoHead was being designed by Waterford to be

different from the Perfect Horizon to avoid.

82. After leaving Grober's employ, Waterford

relocated to South Florida where he was visited in

his office by David Grober in July of 2004. Waterford

explained to Grober that the MakoHead had been

developed based on technology familiar to Smith

and that the electronics in the MakoHead were far

more advanced than those used in the Perfect

h—

App. 23 - Appendix C

Horizon and that the systems were vastly

different from one another and there were no

infringement issues.

83.

Once the MakoHead became available For

rent, David Grober concocted a completely untrue

and defamatory story regarding the development of

the MakoHead. Grober began telling anyone that

would listen that after renting his device on several

occasions in the late 1990's, the Kleins conspired

with Grober's former employee, Steve Waterford, to

"copy" his device and "steal" his technology, and that

the MakoHead was the result of these deliberate

illicit activities.

84.

Despite this story having no factual basis, Mr.

Grober accused Mako and the Kleins of conspiring

with Waterford to "copy his device" and "steal his

technology" in conversations with several individuals

in the motion picture industry including potential

business partners of Mako, Mako Customers, and

representatives of the Academy of Motion Pictures as

follows:

On or about August of 2004, Grober contacted

and personally met with Anthony Lento and Michael

Warner of Air Sea Land, Inc. ("ASL") regarding its

rental of the MakoHead. This meeting took place in

New York City, New York. ASL is a rental house

located in New York City, New York which rents

camera equipment to the movie and television

industry when filming in that area. One of the many

products that ASL rents is the MakoHead. During

his conversation with ASL, Grober falsely stated that

the Kleins had rented his device and then conspired

with Steve Waterford, to "copy the design of the

85.

App. 24 - Appendix C

Perfect Horizon"

technology."

and

"intentionally

steal

his

86. About the same time, Grober relayed this

same defamatory story to Egon Stephan, Jr., Jack

Gary, and Rocardo Porven of Cine Video Tech

("CVT"), which is a rental house located in Miami,

Florida which also offers the MakoHead for rent..

Grober made these defamatory statements to

these individuals by telephone.

87.

On or about June 2005, both Grober and Mako

were exhibitors at the CineGearExpo which is a

trade show for the movie and television

industry.

Potential customers would come and

examine the MakoHead either before or after they

examined the Perfect Horizon. Whenever a customer

would ask Grober how his device compared with the

MakoHead, or asked some question that alerted

Grober that the customer was comparing the two

devices, Grober would launch into the defamatory

story of Mako and the Kleins copying his device and

intentionally stealing his technology. Grober

told

this story many times a day to many individuals

connected with the movie and television industry,

including but not limited to, Bob Beverlin and Billy

McConnell, Jr. Beverlin and McConnell are both

involved in the film industry and work as

cameramen for various production companies.

From 2004 to date, Grober has told his

defamatory tale to other individuals such as Ed

Gutentag, Andy Romanoff, Erik Curtis, Mathew

O'Connor, Dan Malone, and Mike McGowan, who

are all heavily involved in the Motion Picture

industry.

88.

App. 25 - Appendix C

89.

Most damagingly, Grober told this same

defamatory story to the Academy' of Motion Pictures

when the MakoHead and the Perfect Horizon were

both under consideration for an Academy Award in

2006. Early in 2005, Grober explained to several

individuals connected to the Academy, including

but not limited to Pete Romano and Daryn Okata,

that Mako and the Klein had "copied" his device and

had "stolen" his technology. Grober again conveyed

his false story that Mako and Waterford conspired to

copy his device.

90.

Mako did not receive the Academy Award.

Mako believes that despite the MakoHead's superior

performance, the award went to Grober rather than

Mako as a result of Grober's false and defamatory

statements to the Academy.

91.

On or about June 23, 2007, Grober contacted

Marty Oppenheimer, of Oppenheimer Camera, after

learning that Oppenheimer had agreed to carry the

MakoHead as part of its rental inventory.

Oppenheimer Camera is a rental house that rents

movie equipment to the television and movie

industry in Washington State,

During

this

conversation, Grober told Marty Oppenheimer,

President of Oppenheimer Camera, the above

defamatory tale including Mako's alleged copying of

his device and stealing of his technology.

92.

In 2004, Grober sued Mako and several

rental houses for patent infringement. The claims

in that case are limited to patent infringement and

do not affect the defamatory statements complained

of herein. While Grober may have had the right to

contact potential defendants in a patent suit

App. 26 - Appendix C

regarding

allegations

of patent infringement,

Grober crossed the line when he stated that the

Kleins and Waterford had conspired to intentionally

copy his device and to intentionally steal his

technology. These statements are false and not

related to the patent claims at issue in that case and

are defamatory per se. Even if the MakoHead

inadvertently infringed Grober's Patent, Grober's

claims of intentional copying and stealing are

defamatory statements that have caused substantial

damage to the Plaintiffs' business reputation.

93.

Slander is a form of Defamation. Corporations

as well as individuals can assert a claim for slander

and/or defamation.

94.

To establish a prima facie case for slander,

Mako must demonstrate an oral publication to third

persons of specified false matter that has a natural

tendency to injure or that causes special damage.

95.

Certain statements are deemed to constitute

slander per se, including statements: 1) charging

the commission of a crime, or 2) tending directly to

injure the other party with respect to that party's

business by imputing something with reference to

that business that has a natural tendency to lessen

its profits.

96.

Slander per se is actionable without proof of

special damages.

97.

Grober's statements set forth above are all

patently false and constitute slander per se because

they accuse Mako, the Kleins, and Waterford of

criminal and/or dishonest conduct in "copying his

device" and in "stealing his technology."

App. 27 - Appendix C

98. Allegations of "copying" and "stealing" the

design of mother's device involve intentional

wrongful conduct by Plaintiffs and are therefore

slanderous per se.

99.

The MakoHead was primarily designed by the

Kleins and Tom Smith, a Florida Engineer with

extensive experience in stabilization systems. Steve

Waterford's limited role was with regard to basic

mechanical elements of the MakoHead and did not

involve any copying of Grober's device or the stealing

of his technology.

100. In reality, after renting Grober's device, the

Kleins determined that a better system could and

should be developed and set out to do so. Grober's

device simply did not accomplish the tasks required.

101. Even if the MakoHead

inadvertently

infringes the '662 patent, as Grober alleges, there

is not a scintilla of truth to the story that Mako

conspired with Waterford to "copy his device" and

"steal his technology." These are defamatory

statements that have damaged the Plaintiffs in

their reputation and business. At the time Grober

made these comments, Grober had never seen the

inner workings of the MakoHead and had no actual

knowledge of its design. Further, conversations with

Waterford prior to filing suit informed Grober that

the MakoHead did not infringe his device.

Thus,

his defamatory statements were based on pure

speculation and made with ill intent.

102. Grober's false statements tend to directly

injure Mako and the Kleins in respect to their

business by imputing that they are dishonest

individuals and not the true inventors of their device

)

E

App. 28 - Appendix C

and therefore are not trustworthy, which has a

natural tendency to lessen the profits of Mako.

103. Moreover, Grober's statements improperly

make people believe that the MakoHead and the

Perfect Horizon are the same product, when in

reality, the MakoHead is a much more sophisticated

and better suited piece of equipment. If people

believe that the MakoHead and Grober's device are

the same, then they may not even try or obtain

further information regarding the MakoHead and

therefore Mako's profits will be reduced. As a result,

Plaintiffs have been damaged by Grober's defamatory

statements.

104. A jury trial is demanded on all appropriate

counter-claims.

PRAYER FOR RELIEF

105. WHEREFORE, Mako requests that this Court

enter appropriate Orders: (a) requiring Grober to

cease making said defamatory statements; (b)

awarding compensatory, consequential, and special

damages to Mako; (c) awarding Mako their costs of

suit, such as attorney's fees, expert fees, costs and

interest, and (d) providing such other relief as the

Court may deem just and appropriate.

106. WHEREFORE, Defendants prays

judgment against Plaintiffs as follows:

for

a

107. That Plaintiffs take nothing by their claims for

relief;

108. That Plaintiffs' claims be dismissed with

prejudice;

App. 29 - Appendix C

109. That the Court enters judgment in favor of

Defendants against Plaintiffs in all respects as to the

affirmative defenses and the first through fourth

counterclaims;

110. For a declaration that the Patent-In-Suit is

invalid;

111. For a declaration that the Patent-In-Suit is

unenforceable;

112. For a declaration that Defendant Mako has not

infringed, induced others to infringe or contributed to

the infringement of any of the claims of the PatentIn-Suit;

113. For a determination that this is an exceptional

case under 35 U.S.C. §285 and an award of attorneys'

fees and costs to Defendants in this action;

114. For an award of damages consistent with the

first through fourth counterclaims, treble damages,

and such other relief as the Court deems proper.

DATED: April 15, 2008.

VARNELL & WARWICK, P.A.

By: s/ Brian W. Warwick

BRIANW. WARWICK

Attorney for Defendants

JANET R. VARNELL

BRIANW. WARWICK

VARNELL & WARWICK, P.A.

20 La Grande Boulevard

The Villages, FL 32159

E*L-.

App. 30 - Appendix C

Telephone: (352) 753-8600

Facsimile: (352) 753-8606

Email: bwwarwick@aol.com

STANLEY P. LTEBER

LAW OFFICES OF STANLEY P. LIEBER

6351 Owensmouth Ave. Suite 100

Woodland Hills, CA 91367

tel: 818 888 1811

fax: 818 888 1912

Email: stan@lieberlaw.com

Attorneys for Defendants

f—

App. 31 - Appendix D

Case 2:04-cv-08604-JZ-OP Doc. 371 Filed 11/02/09

Page 1 of 7 Page ID#: 4094

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES-GENERAL

Case No. CV04-8604-SGL(OPx)

Date November 2, 2009

Title DAVID GROBER, ET AL -V- MAKO

PRODUCTIONS, INC., ET AL

MAYNOR GALVEZ

NONE

Deputy Clerk Court Reporter/Recorder

Attorneys for Plaintiffs:

Robert J. Lauson

Proceedings:

NONE

Tape No.

Attorneys for Defendants:

Janet Varnell

(IN CHAMBERS)

1)

Plaintiffs’ Motion to Compel Deposition of

Kleins and Dann in Los Angeles and for Sanctions

Against Defendant Mako (Dkt. No. 227);

2)

Plaintiffs’ Motion to Compel Documents,

Namely Emails, Photographs, and Videos from

Defendant Mako (Dkt. No. 228);

3)

Defendants’ Motion to Strike Plaintiffs

Supplemental Memorandum and Declaration in

Support of Discovery Motions Pending Before District

Judge (Dkt. No. 284);

App. 32 - Appendix D

4)

Defendants’ Motion to Strike Pleadings and

Discovery Signed by Plaintiff Grober (Dkt. No. 285);

5)

Defendants’ Motion for Protective Order for

Terminating Further Paper Discovery (Dkt. No. 295);

Plaintiffs’ Motion for Review of Defendants’

Confidential Attorneys Eyes Only Designations,

Compelling Re-Designations of All Documents, and

For Sanctions For Abuse of Protective Order (Dkt. No.

233).

6)

I.

Background

On April 1, 2009, the aforementioned Motions were

referred to this Court by District Judge Stephen G.

Larson. (Dkt. No. 309.) On June 4, 2009, Judge

Larson issued an order construing the claims of

Plaintiffs’ United States patent, U.S. Patent No.

6,611,662 (“‘662 patent”), following a Markman

hearing. Grober v. Mako Products, Inc., 2009 WL

1587158 (C.D. Cal. June 4, 2009). In that order, Judge

Larson construed the claim term “payload platform” to

mean “the horizontal plate, piece or surface upon

which the device (e.g., a camera) is directly mounted

upon or affixed to.” Id. at *12. The definition resulted

in a finding of non-infringement. Id. On October 21,

2009, Judge Larson issued an order denying Plaintiffs’

motion for reconsideration of the June 4, 2009,

Markman decision and re-affirmed the earlier finding

of non-infringement. (Dkt. No. 368.) Judge Larson

further granted Plaintiff Grober’s motion to discharge

his attorneys and proceed pro se for the remainder of

the litigation regarding the remaining non-

App. 33 - Appendix D

infringement related claims. Finally, Judge Larson

ordered that, before such discharge could be

formalized, the parties were directed to either

stipulate or hold a hearing before this Court to

establish a “no-look list” regarding Plaintiff Grober’s

ability to look at information or other discoverable

evidence that constitutes Defendants’ trade secrets.

Once the “no look” list is approved or ordered by this

Court, present counsel will be officially discharged

from further representing Plaintiff Grober in this

matter.

On October 30, 2009, the Court held a hearing

telephonically to discuss the status of the pending

motions and to consider argument by counsel. Based

on the pleadings filed in relation to these motions and

the arguments presented by counsel, the Court rules

as follows:

1)

Plaintiffs’ Motion to Compel

Deposition of Kleins and Dann (Dkt.

No 2271.

On October 13, 2008, the parties filed a Joint

Stipulation Re: Plaintiffs’ Motion to Compel

Deposition of Kleins and Dann in Los Angeles and for

Sanctions Against Defendant Mako, along with

supporting declarations. (Dkt. Nos. 227, 229.) On

November 4, 2008, Plaintiffs filed a Declaration of Joel

Bennet in Further Support of the Motion to Compel.

(Dkt. No. 254.) On June 16, 2009, the parties filed a

Joint Statement regarding all pending motions,

including discovery motions. (Dkt. No. 333.)

In this Motion, Plaintiffs seek to make-up or complete

certain depositions that were scheduled to take place

in June 2008 in Florida. The depositions were to take

App. 34 - Appendix D

place after the agreed upon inspection of the Mako

Head. Defendants refused to commence with the

inspection of the Mako Head until Plaintiffs provided

Defendants with detailed infringement contentions

from Plaintiffs’ expert, Jim Radford, as supplemental

responses to interrogatories. Over the next several

hours, Plaintiffs’ expert prepared the detailed

infringement contentions and provided them to

Defendants the following day. As a result, Plaintiffs

contend that they were unable to depose the Kleins or

Mr. Dann, were unable to properly depose Mr.

Waterford, and incurred additional costs involved

with the deposition of Tom Smith. In the Joint

Statement filed regarding the pending discovery

motions and during argument, Defendants have

acknowledged that Plaintiff Grober has additional

claims that do not involve the issue of infringement.

The parties have also acknowledged that the Kleins

and Mr. Dann were never deposed.

The Court finds that, to the extent this Motion seeks

discovery related to the issue of infringement, the

Motion has been rendered moot by Judge Larson’s

finding of non- infringement. However, to the extent

this Motion seeks discovery related to the remaining

non-infringement issues, the Motion has not been

rendered moot by Judge Larson’s finding of non­

infringement. As a result, the Court denies in part and

grants in part Plaintiffs’ Motion to Compel.

Defendants shall make the Kleins and John Dann

available for a make-up deposition limited only to the

remaining non-infringement issues no later than

January 15, 2010, at an agreed upon location. All

other relief sought by Plaintiffs in this Motion is

denied.

&

App. 35 - Appendix D

2)

Plaintiffs’ Motion to Compel

Documents. Namely E-mails.

Photographs, and Videos (Dkt. No. 2281.

On October 13, 2008, the parties -filed a Joint

Stipulations Re: Plaintiffs’ Motion to Compel

documents, namely emails, photographs, and videos

from Defendant Mako, along with supporting

declarations. (Dkt. Nos. 228, 230.) On November 4,

2008, Plaintiffs filed a Declaration of Joel Bennet and

Lee Wheelbarger in Further Support of the Motion to

Compel. (Dkt. Nos. 254, 255.) On June 16, 2009, the

parties filed a Joint Statement regarding all pending

motions, including discovery motions. (Dkt. No. 333.)

In this Motion, Plaintiffs seek to obtain numerous

documents and e-mails, relating to the “design of each

version of the Mako Head,” documents relating to

Defendants

ASL,

CVT,

Spectrum

Effects,

Oppenheimer, and sales and rentals of the Mako

Head, and photographs and videos “showing the

design, development and testing” of each version of the

Mako Head. In the Joint Statement filed regarding the

pending discovery motions and during argument,

Defendants have acknowledged that Plaintiff Grober

has additional claims that do not involve the issue of

infringement.

The Court finds that, to the extent this Motion seeks

discovery related to the issue of infringement, the

Motion has been rendered moot by Judge Larson’s

finding of non- infringement. However, to the extent

this Motion seeks discovery related to the remaining

non-infringement issues, the Motion has not been

rendered moot by Judge Larson’s finding of noninfringement. As a result, the Court denies in part and

App. 36 - Appendix D

grants in part Plaintiffs’ Motion to Compel.

Defendants shall produce all non-privileged

documents and e-mails responsive to the discovery

request limited only to the remaining noninfringement issues, subject to a protective order, no

later than January 15, 2010. All other relief sought by

Plaintiffs in this Motion is denied.

3)

Defendants’ Motion to Strike

Plaintiffs Supplemental Memorandum

and Declaration in Support of Discovery

Motions (Dkt. No. 2841.

On February 9, 2009, Plaintiffs filed a Supplemental

Memorandum in Support of Discovery Motions

Pending Before District Judge, along with a

supplemental declaration. (Dkt. No. 272.) On March

16, 2009, Defendants filed a Motion to Strike

Plaintiffs Supplemental Memorandum, along with

supporting exhibits. (Dkt. No. 284.) On March 23,

2009, Plaintiffs filed an Opposition to Motion to

Strike. (Dkt. No. 288.) On June 16, 2009, the parties

filed a Joint Statement regarding all pending motions,

including discovery motions. (Dkt. No. 333.)

The pleadings filed here are related to the discovery

motions mentioned above regarding certain deposition

testimony (Dkt. No. 227), and the production of

documents, e-mails, photographs, and videos (Dkt. No.

228), as those Motions relate to the issue of

infringement. The Court has denied that aspect of

those Motions as moot due to Judge Larson’s finding

of non-infringement. As a result, this Motion is also

rendered moot. Thus, the Court denies Defendants’

Motion to Strike.

App. 37 - Appendix D

4)

Defendants’ Motion to Strike

Pleadings and Discovery Signed by

Plaintiff Grober (Dkt. No. 285).

On May 27, 2008, Plaintiff David Grober filed a Brief

with the Court. (Dkt. No. 196.) On March 16, 2009,

Defendants filed a Motion to Strike Pleadings and

Discovery signed by Plaintiff Grober. (Dkt. No. 285.)

On March 23, 2009, Plaintiffs filed an Opposition to

the Motion to Strike Pleadings and Discovery. (Dkt.

No. 289.) On June 16, 2009, the parties filed a Joint

Statement regarding all pending motions, including

discovery motions. (Dkt. No. 333.)

In the Joint Statement, the parties agree that this

Motion is moot and can be withdrawn. Thus, the Court

denies Defendants’ Motion to Strike as moot.

5)

Defendants’ Motion for Protective

Order for Terminating Further

Paper Discovery (Dkt. No. 295).

On March 24, 2009, Defendants filed a Motion for

Protective Order for Terminating Further Paper

Discovery, along with supporting exhibits. (Dkt. No.

295.) On May 6, 2009, Defendants filed a Motion to

Supplement Defendants’ Motion for Protective Order.

(Dkt. No. 323.) On May 26, 2009, Defendants filed a

Second Motion to Supplement Defendants’ Motion for

Protective Order. (Dkt. No. 325.) On May 26, 2009,

Plaintiffs filed an Opposition to Motion to Supplement

Defendants’ Motion for Protective Order. (Dkt. No.

326.) On June 1, 2009, Defendants filed a Reply in

Support of the Motion for Protective Order. (Dkt. No.

327.) On June 16, 2009, the parties filed a Joint

Statement regarding all pending motions, including

discovery motions. (Dkt. No. 333.)

App. 38 - Appendix D

The pleadings filed here are related to the discovery

motions mentioned above regarding certain

deposition testimony (Dkt. No. 227), and the

production of documents, e-mails, photographs, and

videos (Dkt. No. 228). The Court finds that, to the

extent this Motion seeks discovery related to the

issue of infringement, the Motion has been rendered

moot by Judge Larson’s finding of non-infringement.

However, to the extent this Motion seeks discovery

related to the remaining non-infringement issues, the

Motion has been not rendered moot by Judge

Larson’s finding of non-infringement. As a result, the

Court grants in part and denies in part Defendants’

Motion for Protective Order. Defendants shall have

until January 15, 2010, to produce the discovery as

ordered above limited only to the remaining non­

infringement issues.

6)

Plaintiffs’ Motion for Review of

Defendants’ Confidential Attorneys

Eves Only Designations. Compelling

Re-Designations of All Documents.

and For Sanctions (Dkt. No. 233).

On October 13, 2008, Plaintiffs filed a Motion for

Review of Defendants’ Confidential Attorneys Eyes

Only Designations, Compelling Re-Designations of All

Documents, and for Sanctions for Abuse of Protective

Order. (Dkt. No. 233.) On February 9, 2009,

Defendants filed an Opposition to the Motion for

Review,, along with supporting declarations and

exhibits (both sealed and unsealed). (Dkt. Nos. 269,

270, 278, 279.) On March 30, 2009, Plaintiffs filed a

Reply to Defendants’ Opposition, along with a

supporting declaration of Robert Lauson (under seal).

E——

App. 39 - Appendix D

(Dkt. Nos. 306, 312.) On June 16, 2009, the parties

filed a Joint Statement regarding all pending motions,

including discovery motions. (Dkt. No. 333.)

The Court believes this Motion deals with discovery

directly related to the issue of infringement and is

rendered moot due to Judge Larson’s finding of non­

infringement. Further, Judge Larson has granted

Plaintiff Grober’s motion to discharge his attorneys

and proceed pro se for the remainder of the litigation

regarding Defendants’ counterclaim for defamation

against him. In so ordering, Judge Larson ordered

that the parties were to either stipulate or hold a

hearing before this Court to establish a “no-look list”

regarding Plaintiff Grober’s ability to look at

information or other discoverable evidence that

constitutes Defendants’ trade secrets. Once the “no

look list” is approved or ordered by this Court, present

counsel will be officially discharged from further

representing Plaintiff Grober in this matter. The

parties have yet to submit such a list to the Court for

approval. Should the parties reach an agreement on

this issue, it could render this Motion moot. Thus, the

Court denies Plaintiffs’ Motion for Review without

prejudice.

II.

Conclusion

Based on the foregoing, the Court rules as follows:

1)

Plaintiffs’ Motion to Compel Deposition

of Kleins and Dann in Los Angeles and

for Sanctions Against Defendant Mako

(Dkt. No. 227) is granted in part and

denied in part;

App. 40 - Appendix D

2)

Plaintiffs’ Motion to Compel Documents,

Namely Emails, Photographs, and

Videos from Defendant Mako (Dkt. No.

228) is granted in part and denied in

part;

3)

Defendants’ Motion to Strike Plaintiffs

Supplemental

Memorandum

and

Declaration in Support of Discovery

Motions Pending Before District Judge

(Dkt. No. 284) is denied as moot;

4)

Defendants’ Motion to Strike Pleadings

and Discovery Signed by Plaintiff Grober

(Dkt. No. 285) is denied as moot;

5)

Defendants’ Motion for Protective Order

for

Terminating

Further

Paper

Discovery (Dkt. No. 295) is granted in

part and denied in part; and

6)

Plaintiffs’ Motion for Review of

Defendants’ Confidential Attorneys Eyes

Only Designations, Compelling ReDesignations of All Documents, and For

Sanctions For Abuse of Protective Order

(Dkt. No. 233) is denied without

prejudice.

IT IS SO ORDERED.

Initials of

Preparer

mg

F-rr-

App. 41 - Appendix E

Case 2:04-cv-08604-JZ-OP Document 504 Filed

07/24/15 Page 1 of 2 Page ID #:5607

IN THE UNITED STATES DISTRICT COURT FOR

THE CENTRAL DISTRICT OF CALIFORNIA

EASTERN DIVISION •

David Grober, et al.,

Plaintiffs,

Case No. 2:04 CV 8604 JZ

SHOW CAUSE ORDER

-vsMako Products, Inc., et al.

Defendants.

JUDGE JACK ZOUHARY

Pending before this Court is “Plaintiffs’ Second

Request for the Court to Order the Kleins and John

Dann Produce Documents this Court Twice Previously

Ordered Preserved for this Case.” The Request is

granted in part (Doc. 503).

The Request is in response to a “Motion to

Quash or Modify Subpoena” signed by Jordan Klein

Sr., Jordan Klein Jr., and John Dann which states “We

do not have possession of information requested” in

Plaintiffs’ subpoena because “all assets, including

records of Mako Products Inc. were sold by the trustee

of the bankruptcy court, to Oceanic Production

Equipment, Ltd. (Bahamas)” (Doc. 501-1

App. 42 - Appendix E

at 6). In their capacity as principals of Oceanic

Production or as former parties to this litigation, this

Court has ordered the Kleins and Dann to preserve all

potential evidence (see Docs. 436 & 457), which would

include any document responsive to Plaintiffs’

subpoena.

Accordingly, Jordan Klein Sr., Jordan Klein Jr.,

and John Dann are each ordered to show cause by

August 7, 2015 why this Court should not hold him in

contempt for fading to comply with this Court’s Orders

requiring parties to adhere to their discovery

obligations and to preserve all potential evidence.

It is unclear from the parties’ request whether

Plaintiffs’ subpoena seeks documents already

produced by the Kleins and Dann. To the extent

Plaintiffs’ recent subpoena seeks re-production of

documents already produced by either the Kleins,

Dann, or other parties, this Show Cause Order may be

satisfied by each individual filing a sworn affidavit

stating the basis upon which he has personal

knowledge that all documents responsive to Plaintiffs’

subpoena in his possession, custody, or control have

been produced, by whom they were produced, and the

date(s) of the production.

IT IS SO ORDERED.

/s/

JACK ZOUHARY

U. S. DISTRICT JUDGE

July 24, 2015

App. 43 - Appendix F

Case 2:04-cv-08604-JZ-OP Doc. 506

Filed 08/07/15. Page 1 of 17. Page ID#: 5615

BRIAN W. WARWICK, ESQ. (Pro Hac Vice)

Varnell and Warwick, P.A.

P.O. Box 1870

Lady Lake, Florida 32158 Tel. (352) 753-8600

Email: bwarwick@varnellanwarwick.com

Attorney for John Dann, Jordan Klein, Sr. and

Jordan Klein, Jr.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION

David Grober, et al., Case No.: 2:04 CV 8604 JZ

Plaintiff,

v.

)AFFIDAVITS OF JOHN

)DANN, JORDAN KLEIN,

)SR„ and JORDAN

)KLEIN, JR.

)Judge: HONORABLE

) JACK ZOUHARY

Mako Products, Inc., et al.,

Defendants.

Pursuant to the Court’s Order of July 24, 2015,

(Dkt. 504) JOHN DANN, JORDAN KLEIN, SR.,

and JORDAN KLEIN, JR., submit the following

affidavits showing cause why this Court should not

hold them in contempt for faffing to comply with this

c-

App. 44 - Appendix F

Court’s Orders (Docs. 436 and 457).

Attached are the affidavits of Messrs.

Dann, Klein, Sr., and Klein, Jr., together with

Exhibit A (which is identical for all three affidavits)

and the FedEx confirmation showing the scheduled

pickup for today from John Dann of the package

containing the CD’s (referenced in If 9 of Mr. Dann’s

Affidavit) being sent to Plaintiffs counsel.

Dated: August 7, 2015

VARNELL AND WARWICK, P.A.

By: s/ Brian W. Warwick, Esq.

Brian W. Warwick, Esq. (Pro Hac Vice)

VARNELL & WARWICK, P.A P.O. Box 1870

Lady Lake, FL 32158

Telephone: (352) 753-8600

Email: bwarwick@varnellanwarwick.com

ATTORNEYS FOR JOHN DANN, JORDAN

KLEIN, SR. AND JORDAN KLEIN, JR.

App. 45 - Appendix F

AFFIDAVIT OF JOHN DANN

STATE OF FLORIDA )

COUNTY OF MARION )

Before me, the undersigned authority

personally appeared John Dann who was sworn

and states:

1. I am over eighteen years of age and am

competent to give this testimony.

2. In June 2015,1 was served with a subpoena

from Plaintiffs asking for the extremely production

of any and all documents equipment or otherwise

related to the MakoHead.

3. Because all responsive documents were

already produced through the discovery

process over the pendency of this litigation, I

believed that all documents responsive to the

development of the MakoHead and the rental

history of the device by the Rental House

Defendants had been produced long ago when the

depositions took place in this matter in 2008.

4. Therefore, I misinterpreted the request

as seeking the actual MakoHead devices,

the computer equipment and the records of

Oceanic Production Equipment Ltd. as opposed

To Mako Products, Inc. Because the prior orders

of this Court ordered that we retain "evidence”

and the bankruptcy Court allowed the

“equipment" to be sold through bankruptcy I

believed that there was nothing left to produce

other than the computers and MakoHead

App. 46 - Appendix F

devices themselves and filed a response accordingly.

5. On July 24, 2015 Judge Zouhary entered a

Show Cause Order taking issue with my

previous response. In the last paragraph of its

Order this Court stated: "To the extent

Plaintiffs recent subpoena seeks re-production

of documents already produced by either the

K. leins Dann or other parties, this Show Cause

Order may be satisfied by each individual fifing

a sworn affidavit stating the basis upon which he

has personal knowledge that all documents

responsive to Plaintiffs ' subpoena in his

possession, custody or control have been produced, by

whom they were produced and the date(s) of

the production." This affidavit is filed in

compliance with this statement.

6. This matter was filed in 2004 and

discovery proceeded through the Markman

Hearing and the Appeal to the Federal Circuit

in 2010. Between 2004 and 2009, myself,

Mako Product the Klein Defendants, Fern

Creek Electronics and the Rental House Defendants

all produced discovery at various times. I have no

way of determining, for certain, precisely when which

documents were produced. I do recall producing

everything in my possession responsive to the

requests and there were many.

7. Fortunately recently Mr. Grober issued a

subpoena to Mako's former counsel, Varnell

& Warwick, P.A. and requested that all

documents regarding the MakoHead be

App. 47 - Appendix F

produced. Exhibit A attached hereto

is correspondence from Mr. Warwick asserting

that he produced the following documents

to Plaintiffs on August 3, 2015.

A. Documents Produced by Mako Products, Inc.

bates Nos. 0045 - 2630 •

B. Mako Products Income Statements and

Balance Sheets;

C. Documents Produced by Jordan

Aero Marine/Jordan Klein Sr. bates No. 1-40;

D. Documents Produced by Jordan Klein

Film & Video bates Nos. 1-23;

E. Documents Produced by Fern Creek

Electronics, bates Nos. 1-1498;

F. Documents Produced by Air Sea Land

bates Nos. 1-548;

G. Documents Produced by Blue Sky

, bates Nos. 1-324H. Documents Produced by Cinevideotech,

bates Nos. 1-119;

I.

Documents Produced by Spectrum

Effects, bates Nos. 1-50;

J. Confidential Photos of the MakoHead

bates No. 2611

K. Non-Confidential Photos of the Makohead.

8. These are the only responsive documents

that I am aware of with one exception. In

2008 Plaintiffs sought to copy some emails from

my business computer. There was some

disagreement regarding which emails

were to be copied and which were protected by

the attorney-client privilege.

6

App. 48 - Appendix F

9. Regardless, simultaneous with the filing of

this Affidavit I am producing six(6) CD's

containing approximately 9383 emails. These are

the only documents not fisted above that I know

to exist.

10. The MakoHead units themselves and

other equipment were purchased out of

bankruptcy by Oceanic Production Equipment,

Ltd., and not me personally.

/s/

JOHN DANN

On this 7th day of August, 2015 before me,

the undersigned Notary Public in and for said

state, personally appeared JOHN DANN known

to me to be the person who signed on the

preceding document and acknowledged to me that

he signed it for the purpose therein stated.

/s/

Notary Public

My commission expires: Oct 23, 2015

App. 49 - Appendix F

AFFIDAVIT OF JORDAN KLEIN. SR.

STATE OF FLORIDA )

COUNTY OF MARION )

Before me the undersigned authority personally

appeared Jordan Klein Sr. who was sworn

and states:

1.

I am over eighteen years of age and am

competent to give this testimony.

2.

In June 2015 I was served with a subpoena

from Plaintiffs asking for the extremely production

of any and all documents equipment or otherwise

related to the Makohead.

3.

Because all responsive documents were already

produced through the discovery process over the

pendency of this litigation, I believed that all

documents responsive to the development of the.

MakoHead and the rental history of the device by the

Rental House Defendants had been produced long ago

when the depositions took place in this matter in 2008.

4.

Therefore I misinterpreted the request as

seeking the actual MakoHead devices, the computer

equipment and the records of Oceanic Production

Equipment Ltd., as opposed to Mako Products, Inc.

Because the prior orders of this Court ordered that we

retain “evidence” and the bankruptcy Court allowed

the "equipment" to be sold through bankruptcy, I

believed that there was nothing left to produce other

than the computers and MakoHead devices

themselves and filed a response accordingly.

5.

On July 24, 2015 Judge Zouhary entered a

App. 50 - Appendix F

Show Cause Order taking issue with my previous

response. In the last paragraph of its Order, this Court

stated: 'To the extent Plaintiffs' recent subpoena seeks

re-production of documents already produced by

either the Kleins, Dann or other parties, this Show

Cause Order may be satisfied by each individual filing

a sworn affidavit stating the basis upon which he has

personal knowledge that all documents responsive to

Plaintiffs subpoena in his possession custody, or

control have been produced, by whom they were

produced and the date(s) of the production." This

affidavit is filed in compliance with this statement.

6.

This matter was filed in 2004 and discovery

proceeded through the Markman Hearing and the

Appeal to the Federal Circuit in 2010. Between 2004

and 2009 myself, Mako Product the Klein

Defendants, Fern Creek Electronics and the Rental

House Defendants all produced discovery at various

times. I have no way of determining, for certain

precisely when which documents were produced. I do

recall producing everything in my possession

responsive to the requests and there were many.

7.

Fortunately, recently Mr. Grober issued a

subpoena to Mako's former counsel, & Varnell &

Warwick, P.A. and requested that all documents

regarding the MakoHead be produced. Exhibit A

attached hereto is correspondence from Mr. Warwick

asserting that he produced the following documents

to Plaintiffs on August 3, 2015.

A.

Documents Produced by Mako Products , Inc.

bates Nos. 0045 - 2630;

B. Mako Products Income Statements and Balance

Sheets;

App. 51 - Appendix F

C. Documents Produced by Jordan Aero

Marine/Jordan Klein Sr. bates No. 1-40;

D. Documents Produced by Jordan Klein Film &

Video, bates Nos. 1-23;

E. Documents Produced by Fern Creek Electronics

bates Nos. 1-1498;

F. Documents Produced by Air Sea Land, bates Nos.

1-548;

G. Documents Produced by Blue Sky Aerials, bates

Nos. 1-324;

H. Documents Produced by Cine Videotech , bates

Nos. 1-119.

I. Documents Produced by Spectrum Effects, bates

Nos. 1-50;

J. Confidential Photos of the MakoHead bates No.

2611.

K. Non-Confidential Photos of the Makohead.

8. These are the only responsive documents that I

am aware of.

9. The MakoHead units themselves and other

equipment were purchased out of bankruptcy by

Oceanic Production Equipment Ltd.

Is/.

Jordan Klein, Sr.

On this 7^ day of August, 2015, before me, the

undersigned Notary Public, in and for said

state, personally appeared JORDAN KLEIN,

SR., known to me to be the person who signed on

the preceding document, and acknowledged to

me that he signed it for the purpose therein stated.

My commission expires: Oct 23, 2015

AFFIDAVIT OF JORDAN KLEIN. JR.

STATE OF FLORIDA )

s;:.

App. 52 - Appendix F

COUNTY OF MARION )

Before me, the undersigned authority

personally appeared Jordan Klein, Jr., who was

sworn and states:

1.

I am over eighteen years of age and competent

to give this testimony.

2.

In June 2015, I was served with a subpoena

from Plaintiff asking for the extremely production of

any and all documents, equipment of otherwise

related to the MakoHead.

3.

Because all responsive documents were

produced through the discovery produced over the

pendency of this litigation, I believed that all

documents responsive to the development of the

MakoHead and the rental history of the device by the

Rental House Defendants had been produced long ago

when the depositions took place in this matter in 2008.

4.

Therefore, I misinterpreted the request as

seeking the actual MakoHead devices, the computer

equipment and the records of Oceanic Production

Equipment, Ltd., as opposed to Mako Products, Inc.

Because the prior orders of this Court ordered that we

retain “evidence” and the bankruptcy Court allowed

“equipment” to be sold through bankruptcy, I believed

that there was nothing left to produce other than the

computers and MakoHead devices themselves and

filed a responsive accordingly.

5.

On July 24, 2015, Judge Zouhary entered a

Show Cause Order taking issue with my previous

response. In the last paragraph of its Order, this

Court stated: “To the extent Plaintiffs’ recent

App. 53 - Appendix F

subpoena seeks re-production of documents already

produced by either the Kleins, Dann, or other parties,

this Show Cause Order may be satisfied by each

individual filing a sworn affidavit stating the basis

upon which he has personal knowledge that

documents responsive to Plaintiffs’ subpoena in his

possession, custody, or control have been produced, by

whom they were produced, and the date(s) of the

production.” This affidavit is filed in compliance with

this statement.

This matter was filed in 2004 and discovery

proceeded through the Markman Hearing and the

Appeal to the Federal Circuit in 2010. Between 2004

and 2009, myself, Mako Product, the Klein

Defendants, Fern Creek Electronics and the Rental

House Defendants all produced discovery at various

times. I have no way of determining, for certain,

precisely when which documents were produced. I do

recall producing everything in my possession

responsive to the requests and there were many.

6.

' 7.

Fortunately, recently Mr. Grober issued a

subpoena to Mao’s former counsel, Varnell &

Warwick, P.A. and requested that all documents

regarding the MakoHead be produced. Exhibit A

attached hereto is correspondence from Mr. Warwick

asserting that he produced the following documents to

Plaintiff on August 3, 2015.

A.

B.

C.

Documents Produced by Mako Products,

Inc., bates Nos. 004-2630;

Mako Products Income Statement and

Balance Sheets;

Documents Produced by Jordan Aero

Marine/Jordan Klein St., bates No. 1-40;

App. 54 - Appendix F

D.

E.

F.

G.

H.

I.

J.

K.

Documents Produced by Jordan Klein

Film & Video, bates Nos. 1-23;

Documents Produced by Fern Creek

Electronics, bates Nos 1-1498;

Documents Produced by Air Sea Land,

bates Nos. 1-548;

Documents Produced by Blue Sky

Aerials, bates Nos. 1-324;

Documents Produced by Cinevideotech,

bates Nos. 1-119;

Documents Produced by Spectrum

Effects, bates Nos. 1-50;

Confidential Photos of the MakoHead,

bates No. 2611;

Non-Confidential Photos of the

MakoHead.

8.

These are the only responsive documents that

I am aware of.

9.

The MakoHead units themselves and other

equipment were purchased out of bankruptcy by

Oceanic Production Equipment, Ltd., and not me

personally.

/s/

Jordan Klein, Jr.

On this 7th day of August, 2015, before me, the

undersigned Notary Public, in and for said state,

personally appeared JORDAN KLEIN, Jr., known to

me to be the person who signed on the preceding

document, and acknowledged to me that he signed it

for the purpose therein stated.

App. 55 - Appendix F

/s/

Notary Public

My commission expires: Oct. 17, 2017

App. 56 - Appendix F

EXHIBIT A

VARNELL & WARWICK

COMPLEX CONSUMER LITIGATION

August 3, 2015

Edwin P. Tarver, Esq.

Lauson & Tarver LLP

880 Apollo Street

Suite 301

El Segundo, CA 90245

Re: Voice International, Inc. v. Mako

Products, Inc. et al.

Dear Mr. Tarver:

On July 23, 2015, I accepted service of three

subpoenas issued by you in the above referenced

litigation. Pursuant to Fed. R. Civ. Pro. 45(a) the

subpoenas are improper as they state that they are

being issued by the United Stated District Court of

“Colorado,” which is simply untrue. Rule 45(a) (2)

states that “a subpoena must issue from the court

where the action is pending.” The fact that this

information was hand-written on the subpoena

indicates that you are still allowing Mr. Grober to

prepare documents and file them under your name

without review. Despite the facial violation of Rule 45,

I will respond to the subpoenas as follows.

First, the unorthodox form of Exhibit A makes

it extremely difficult to know exactly what is being

requested. Towards the top, it states “Documents to be

produced are those that relate in any way to the

MakoHead, including prototypes or derivatives, and

App. 57 - Appendix F

their development, construction, use, rental, lease, or

sale to any party.” However, then the document goes

on to discuss at length a document review that took

place in May 2008 where Plaintiffs were not permitted

to access attorney-client documents. Exhibit A goes on

to state:

The fact that each of those emails have at

least one or more of the restricted email

addresses means that each of those emails

additionally reside on the email servers of the

individuals owning those addresses, and whom

were stated to be Warwick and Varnell or their

office assistants. This subpoena is specifically

aimed at retrieving those 5,000 emails as well

as any other documents that fall under the

specifications of this subpoena.

Thus, it appears that you are seeking two

categories of documents: All documents that relate in

any way to the Makohead, and emails to my law firm

from my clients. Although I must object to the scope of

both requests, I will provide what I have.

First, at one time or another, I represented

Jordan Klein, Jr., Jordan Klein Sr., Mako Products,

Fern Creek Electronics, Air Sea Land Productions

Inc., Cinevideotech, Spectrum Effects, and Blue Sky

Aerials. “All responsive documents” relating to the

Makohead were previously produced though Mako

Products on one of the other entities fisted above.

Although this firm no longer represents any of these

individuals, the information requested is so broad that

it

would include

attorney-client

privileged

communications. The request is also so broad that it

App. 58 - Appendix F

includes emails and work product which are

privileged.

To the extent that the inner workings of the

MakoHead are at issue, that information has already

been produced prior to the first Markman hearing.

Indeed, there was sufficient evidence that your expert

was able to opine as to the infringing nature of the

device. Therefore, this firm is unable to provide any

documents responsive to the first category of

documents that have not already been produced. In

fact, approximately one year ago, new counsel for the

rental house defendants, Coast Law Group, asked for

a copy of the entire file for the rental house

defendants. At that time, a copy was provided of all

known discovery produced to date. I read this request

as essentially the same.

In a final effort to finally extricate myself from

this case once again, however, I am producing all the

documents I have in my possession regarding the

Makohead. Enclosed with this letter are 6 CD’s which

include the following documents:

1.

Documents Produced by Mako Products, Inc.,

bates Nos. 0045 - 2630;

2.

Mako Products Income Statements and

Balance Sheets;

3.

Documents Produced by Jordan Aero

Marine/Jordan Klein Sr., bates No. 1-40;

4.

Documents Produced by Jordan Klein Film &

Video, bates Nos. 1-23;

5.

Documents Produced by Fern Creek

Electronics, bates Nos. 1-1498;

App. 59 - Appendix F

6.

Documents Produced by Air Sea Land, bates

Nos. 1-548;

7.

Documents Produced by Blue Sky Aerials,

bates Nos. 1-324;

8.

Documents Produced by Cinevideotech, bates

Nos. 1-119;

9.

Documents Produced by Spectrum Effects,

bates Nos. 1-50;

10.

Confidential Photos of the MakoHead, bates

No. 2611;

11.

Non-Confidential Photos of the Makohead.(

Neither myself nor any other member of my

firm have any other documents related to the

MakoHead or Mako Products.

To the extent you are seeking correspondence

between me and my clients, such documents are

protected by the attorney-client relationship and/or

the work product doctrine. The attorney-client

privilege is the oldest of the privileges for confidential

communications known to the common law. 8 J.

Wigmore, Evidence § 2290 (McNaughton rev. 1961).

Its purpose is to encourage full and frank

communication between attorneys and their clients

and thereby promote broader public interests in the

observance of law and administration of justice. The

privilege recognizes that sound legal advice or

advocacy serves public ends and that such advice or

advocacy depends upon the lawyer's being fully

informed by the client! As we stated last Term in

Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct.

906, 913, 63 L.Ed.2d 186 (1980): “The lawyer-client

App. 60 - Appendix F

privilege rests on the need for the advocate and

counselor to know all that relates to the client's

reasons for seeking representation if the professional

mission is to be carried out.” And in Fisher v. United

States, 425 U.S. 391, 403, 96 S.Ct. 1569, 1577, 48

L.Ed.2d 39 (1976), we recognized the purpose of the

privilege to be “to encourage clients to make full

disclosure to their attorneys.” Upjohn Co. v. United

States, 449 U.S. 383, 389, 101 S. Ct. 677, 682, 66 L.

Ed. 2d 584 (1981). This privilege survives bankruptcy

and even death. See Swidler & Berlin v. United States,

524 U.S. 399, 406, 118 S. Ct. 2081, 2086, 141 L. Ed. 2d

379 (1998).

In addition, to the extent you are seeking emails

sent to my law firm by clients that are referenced in

Exhibit 1 to the Subpoena, those emails also do not

exist. As you know, I have not represented any party

in this litigation for several years. I have reviewed the

file in this matter and discussed the request with my

partner,. Janet Varnell and my former employee, Mary

Arnst. Suffice it to say, we have no emails responsive

to this request. I will endeavor to explain why

although I am not obligated to do so under Federal

Rule 45.

Sometime during the first six months of 2010,

Varnell. & Warwick created a firm website,

varnellandwarwick.com. Along with the website we

created new email accounts for all employees at such

as bwarwick@varnellandwarwick.com. Thereafter, all

firm employees ceased using the prior email accounts

to avoid any confusion. The firm took no steps to copy

or save the former emails as they were not deemed

necessary under our interpretation of Florida Bar

Ethics Rules as attorney emails are generally covered

App. 61 - Appendix F

by either attorney-client privilege, or work product

and it is within the discretion of the attorney whether

or not to keep such items. Downloading thousands of

emails would serve no purpose and saving them on the

server or cloud was deemed to be cost prohibitive.

Upon receipt of your subpoena I endeavored to

determine if I could still access the AOL email account

I used previously. After having to create a new

password, I was able to access the account but there

were no old emails listed. The email account was

completely empty. It appears that if you do not access

the AOL system regularly, the emails are not saved

indefinitely. Ms. Varnell and Ms. Arnst confirmed the

same for their old email accounts. Since none of these

accounts were accessed recently, this is no surprise. As

a result, I do not have access to any of the emails from

John Dann or other Mako employees that are

requested in your subpoenas.

In addition to the fact that the emails are not

available, I must also object to this request as it

appears. that you specifically seek email

correspondence between my law firm and my former

clients at Mako Products. Even if this information was

available, I would still have to object to this request

pursuant to Federal Rule of Civil Procedure 45(e)(2),

as correspondence between a lawyer and his client is

protected by the attorney-client privilege.

Furthermore, I take issue with the form and

improper and unprofessional attack on me in your

subpoena. You infer that I somehow knowingly denied

access to the emails in 2008. To the contrary, I had a

lengthy conversation with Joel Bennett, then attorney

for Mr. Grober, about the attorney-client protected

App. 62 - Appendix F

information. He understood and agreed that such

information could not be copied or downloaded and

that any correspondence between myself, my staff and

Mako was protected by the attorney-client privilege. I

was not contacted by Mr. Wheelbarger or Mr. Bennett

during the inspection at Mako regarding the number

of emails at issue or Mr. Dann’s understanding of our

agreement. I would have been happy to discuss these

issues. As my presence at the beginning of the

inspection and my correspondence with Mr. Bennett

shows, I was willing to allow relevant non-privileged

documents to be copied because I was certain that all

relevant documents had already been produced.

However, Mr. Wheelbarger had been retained by Mr.

Grober and not by an experienced lawyer and, as a

result, he had little to no litigation experience and was

wholly unfamiliar with the process and the work

product doctrine. In fact, he appeared to have virtually

no experience in litigation. An experienced expert

would have been able to discuss and understand the

difference between an email that was originated by

Dann or another and one that was merely forwarded

to me and my staff. If he had contacted Mr. Bennett I

am sure we could have worked something out at that

time. Why Mr. Wheelbarger did not contact Mr.

Bennett in this regard is unknown to me.

Moreover, the email accounts of myself, my

partner and my staff are not and have never been

“evidence” in this case and a court order to “preserve

evidence” does not apply to our email accounts as nonparties. Certainly, any order entered by the

Bankruptcy Court cannot apply to this firm as this

order was entered long after this firm ceased

App. 63 - Appendix F

representing Mako Products. Your reference to these

orders in the subpoena is therefore inappropriate.

Finally, in addition to providing a full copy of

everything in my file to Coast Law Group, my

recollection is that all relevant emails and pertinent

information had already been provided by the time

that the request for a review of Mr. Dann’s computer

came up. The review was simply to make sure that all

responsive documents were produced and to dispel Mr.

Grober’s unfounded belief that there was some scheme

to copy his device. Additional evidence from the

bookkeeping software of Mako shows the very limited

revenue obtained by this venture. Substantial

documentation were also produced by Fern Creek

electronics and the Rental House Defendants.

Together, I am confident that all the relevant

documents were timely produced in this matter and

have been produced again in the above CDs. If your

law firm has not maintained good records of the

discovery produced in this matter, my firm is not

obligated to produce it again. I am copying counsel for

the Rental House defendants so that they are aware of

what is being produced and request a copy of the same.

Sincerely,

/s/

Brian W. Warwick

BWW/kms

Enclosures, cc: Chris Polychron, Esq. Jordan Klein,

Sr. Jordan Klein, Jr. Matt Kutcher, Spectrum

Effects.

App. 64 - Appendix F

FEDERAL EXPRESS SHIPPING RECEIPT

FOR DISKS

From: pickup@fedex.com

Date: August 7, 2015 at 1:39:43 PM EDT

To: id@oceanicproductioneauipment.com

Subject: FedEx Pickup Confirmation

FedEx Pickup Confirmation — FedEx Express

OCFA88

Thank you for shipping with FedEx. Your

pickup request is scheduled. FedEx will pick up your

shipment at the address below.

Company

Contact

Name

Country/

Location

Address

City

State

ZIP code

Phone no.

Select or enter FedEx Express

John Dann Total no. of packages

United States

1

10197 SE 144th PL

Summerfield

Florida

34491

3522667794

Total weight 1 lbs

Pickup Date 08/07/2015

Pickup Time 2:00PM - 6:00PM

Confirmation no. OCFA88

This is a post-only mailing. Please do not reply

to this message.

App. 65 - Appendix G

Case 2:04-cv-08604-JZ-OP Doc. 507 Filed 08/07/15

Page 1 of 1 Page ID #:5632

IN THE UNITED STATES DISTRICT COURT FOR

THE CENTRAL DISTRICT OF CALIFORNIA

EASTERN DIVISION

David Grober, et al.,

Case No. 2:04 CV 8604 JZ

Plaintiffs,

-vsMako Products, Inc., et al.,

Defendants.

ORDER

JUDGE JACK ZOUHARY

This Court has reviewed the Affidavits of John

Dann, Jordan Klein, Sr. and Jordan Klein, Jr. (Doc.

506) in which each represents that all documents

responsive to Plaintiffs’ subpoena were produced by

Mako’s former counsel, Varnell & Warwick, P.A. on

August 3, 2015. In addition, Dann is producing

responsive e-mails that were initially withheld as

potentially protected from disclosure under the

attorney-client privilege. This Court’s Order to Show

Cause (Doc. 504) is now discharged.

IT IS SO ORDERED.

s/ Jack Zouhary

JACK ZOUHARY

U. S. DISTRICT JUDGE

August 7, 2015

Additional material

from this filing is

available in the

Clerk's Office.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.