Petition for Writ of Certiorari — David Grober, et al., Petitioners v. Mako Products, Inc.
Supreme Court briefJun 4, 2019
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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Note: This disposition is nonprecedential.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NOTE: This order is nonprecedential.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.