1 DON HOWARTH, Bar No. 53783 JOHN B. SGANGA, JR., Bar No. 116211 dhowarth@howarth-smith.com john.sganga@knobbe.com 2 PADRAIC J. GLASPY, Bar No. 259563 SHEILA N. SWAROOP, Bar No. 203476 pglaspy@howarth-smith.com sheila.swaroop@knobbe.com 3 HOWARTH & SMITH KNOBBE, MARTENS, OLSON & BEAR, 523 West Sixth Street, Suite 728 LLP 4 Los Angeles, California 90014 2040 Main Street, Fourteenth Floor Telephone: (213) 955-9400 Irvine, California 92614 5 Facsimile: (213) 622-0791 Telephone: (949) 760-0404 Facsimile: (949) 760-9502 6 Attorneys for Plaintiff SPITZ TECHNOLOGIES Attorneys for Defendant 7 CORPORATION NOBEL BIOCARE USA LLC
9 IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 Case No. 8:17-cv-00660-JVS-JCG 11 SPITZ TECHNOLOGIES CORPORATION, Hon. James V. Selna 12 Plaintiff, 13 STIPULATION AND [PROPOSED] v. ORDER TO MODIFY 14 PROTECTIVE ORDER NOBEL BIOCARE USA, LLC, 15 Defendant. 16
17 AND RELATED COUNTER-ACTION
19 20 21 1 NOBEL BIOCARE USA, LLC (“Nobel”), on the one hand, and SPITZ 2 TECHNOLOGIES CORPORATION (“Spitz”), on the other hand, by and through 3 their counsel below, hereby stipulate as follows:
4 WHEREAS, on or about April 11, 2017, Spitz filed a lawsuit in this Court 5 against Nobel as the above-entitled action (the “Nobel Action”); 6 WHEREAS, Spitz was represented in the Nobel Action by the law firm
7 Michelman & Robinson, LLP (“Michelman”) and by the Quinn Emanuel law firm 8 (“Quinn”); 9 WHEREAS, this Court entered a Protective Order in this case on or about July 10 6, 2017, at Docket No. 28 (the “Protective Order”), which is incorporated by
11 reference herein; 12 WHEREAS, the Protective Order governed, in part, the protection of certain 13 documents produced in the course of the Nobel Action that were designated by the
14 parties as “CONFIDENTIAL BUSINESS INFORMATION”, and the use and 15 disclosure of documents and information so designated (“Protected Material”) was 16 restricted, including the restriction that said documents could only be used or 17 disclosed “only for prosecuting, defending, or attempting to settle this Action” and
18 that such documents “may be disclosed only to the categories of persons and under 19 the conditions described in this Order” [Dkt. 28 at ¶ 7.1]; 20 WHEREAS, in the course of the Nobel Action, the parties did in fact produce
21 documents that were designated by the party producing them as “CONFIDENTIAL 1 BUSINESS INFORMATION” under the Protective Order; 2 WHEREAS, the Nobel Action was dismissed on or about September 6, 2019; 3 WHEREAS, after the resolution of the Nobel Action, Spitz has advised that a
4 potential dispute arose between Spitz and Michelman relating to this litigation; 5 WHEREAS, Spitz has advised that, in the course of assessing its potential 6 claims against Michelman, Spitz made a request for, and Michelman purported to
7 produce its client file for the Nobel Action, which file included documents produced 8 under and subject to the protections of the Protective Order entered by the Court in 9 this litigation; 10 WHEREAS, the terms of the Protective Order remain in full force and effect as
11 to the documents and information that were produced pursuant to it; 12 WHEREAS, Spitz has advised that it is represented in assessing its potential 13 claims by the law firm Howarth & Smith;
14 WHEREAS, under the terms of the Court’s Protective Order, neither Howarth 15 & Smith, nor any experts retained thereby, nor any mediator, arbitrator, or Court who 16 may preside over the litigation of the dispute between Spitz and Michelman are 17 permitted to obtain and review the documents designated under the Protective Order
18 because any disclosure or use of the documents would not be in connection with the 19 Nobel Action, and because such parties do not fit into the categories of individuals 20 permitted to view such documents under the Protective Order;
21 WHEREAS, Spitz has advised that documents designated by Nobel as 1 Protected Material are part of the client file owned by Spitz and are relevant to 2 assessment of the Spitz claims and to the issues in the dispute between Spitz and 3 Michelman;
4 WHEREAS, in order to minimize burden to Nobel, the parties to the Court’s 5 Protective Order and their respective counsel, agree that the terms of the prior 6 Protective Order should be modified to permit the use of documents designated by
7 Nobel as Protected Material in connection with Spitz’s potential claims against 8 Michelman; 9 WHEREAS, federal courts have jurisdiction to modify protective orders that 10 they issue where they are still in force and effect, even after a judgment is final on a
11 case. See, e.g., Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 782–783 (1st Cir. 12 1988) (“we find that, because the protective order was still in effect, the district court 13 had the power to make postjudgment modifications to the protective order”); FDIC v.
14 Ernst & Ernst, 677 F.2d 230 232 (2d Cir.1982); Krause v. Rhodes, 671 F.2d 212 (6th 15 Cir.), cert. denied, 459 U.S. 823, 103 S.Ct. 54 (1982); United States v. GAF Corp., 16 596 F.2d 10, 16 (2d Cir.1979); American Telephone & Telegraph Co. v. Grady, 594 17 F.2d 594, 596–97 (7th Cir.1978), cert. denied, 440 U.S. 971, 99 S.Ct. 1533 (1979);
18 Olympic Refining Co. v. Carter, 332 F.2d 260, 265–66 (9th Cir.), cert. denied, 379 19 U.S. 900 (1964); Marcus, Myth and Reality in Protective Order Litigation, 69 Cornell 20 L. Rev. 1, 41–53 (1983); Note, Nonparty Access to Discovery Materials in Federal
21 Court, 94 Harv. L. Rev. 1085, 1091–96 (1981); and 1 WHEREAS, good cause exists for this Court to enter the modifications to the 2 Protective Order [Dkt. 28], incorporated herein. 3 NOW, THEREFORE THE UNDERSIGNED COUNSEL AND PARTIES
4 HEREBY STIPULATE AS FOLLOWS: 5 1. The July 6, 2017 Protective Order entered by this Court in the Nobel 6 Action [Dkt. 28] shall be amended and modified as provided herein below to allow
7 for the use of documents designated by Nobel as containing Protected Material and 8 produced thereunder in connection with the dispute between Spitz and Michelman, 9 provided that Nobel is provided with notice of and has the ability to approve of 10 disclosure of its Protected Material prior to such disclosure being made, as set forth
11 below. 12 2. All provisions of the Court’s prior Protective Order not amended, 13 modified, or inconsistent with the provisions herein shall remain in full force and
14 effect. 15 3. Information and/or documents that were designated by Nobel under the 16 Protective Order as “CONFIDENTIAL BUSINESS INFORMATION” may be used 17 for the limited purpose of evaluating, assessing, prosecuting, defending, or attempting
18 to settle the dispute between Spitz and Michelman. Such use of Protected Material 19 designated by Nobel shall be limited to the categories of persons and under the 20 conditions described in the Protective Order and this Stipulation and Modification.
21 / / / 1 4. Information and/or Documents that were designated under the Protective 2 Order as “CONFIDENTIAL BUSINESS INFORMATION” may be disclosed to the 3 following persons:
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1 DON HOWARTH, Bar No. 53783 JOHN B. SGANGA, JR., Bar No. 116211 dhowarth@howarth-smith.com john.sganga@knobbe.com 2 PADRAIC J. GLASPY, Bar No. 259563 SHEILA N. SWAROOP, Bar No. 203476 pglaspy@howarth-smith.com sheila.swaroop@knobbe.com 3 HOWARTH & SMITH KNOBBE, MARTENS, OLSON & BEAR, 523 West Sixth Street, Suite 728 LLP 4 Los Angeles, California 90014 2040 Main Street, Fourteenth Floor Telephone: (213) 955-9400 Irvine, California 92614 5 Facsimile: (213) 622-0791 Telephone: (949) 760-0404 Facsimile: (949) 760-9502 6 Attorneys for Plaintiff SPITZ TECHNOLOGIES Attorneys for Defendant 7 CORPORATION NOBEL BIOCARE USA LLC
9 IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 Case No. 8:17-cv-00660-JVS-JCG 11 SPITZ TECHNOLOGIES CORPORATION, Hon. James V. Selna 12 Plaintiff, 13 STIPULATION AND [PROPOSED] v. ORDER TO MODIFY 14 PROTECTIVE ORDER NOBEL BIOCARE USA, LLC, 15 Defendant. 16
17 AND RELATED COUNTER-ACTION
19 20 21 1 NOBEL BIOCARE USA, LLC (“Nobel”), on the one hand, and SPITZ 2 TECHNOLOGIES CORPORATION (“Spitz”), on the other hand, by and through 3 their counsel below, hereby stipulate as follows:
4 WHEREAS, on or about April 11, 2017, Spitz filed a lawsuit in this Court 5 against Nobel as the above-entitled action (the “Nobel Action”); 6 WHEREAS, Spitz was represented in the Nobel Action by the law firm
7 Michelman & Robinson, LLP (“Michelman”) and by the Quinn Emanuel law firm 8 (“Quinn”); 9 WHEREAS, this Court entered a Protective Order in this case on or about July 10 6, 2017, at Docket No. 28 (the “Protective Order”), which is incorporated by
11 reference herein; 12 WHEREAS, the Protective Order governed, in part, the protection of certain 13 documents produced in the course of the Nobel Action that were designated by the
14 parties as “CONFIDENTIAL BUSINESS INFORMATION”, and the use and 15 disclosure of documents and information so designated (“Protected Material”) was 16 restricted, including the restriction that said documents could only be used or 17 disclosed “only for prosecuting, defending, or attempting to settle this Action” and
18 that such documents “may be disclosed only to the categories of persons and under 19 the conditions described in this Order” [Dkt. 28 at ¶ 7.1]; 20 WHEREAS, in the course of the Nobel Action, the parties did in fact produce
21 documents that were designated by the party producing them as “CONFIDENTIAL 1 BUSINESS INFORMATION” under the Protective Order; 2 WHEREAS, the Nobel Action was dismissed on or about September 6, 2019; 3 WHEREAS, after the resolution of the Nobel Action, Spitz has advised that a
4 potential dispute arose between Spitz and Michelman relating to this litigation; 5 WHEREAS, Spitz has advised that, in the course of assessing its potential 6 claims against Michelman, Spitz made a request for, and Michelman purported to
7 produce its client file for the Nobel Action, which file included documents produced 8 under and subject to the protections of the Protective Order entered by the Court in 9 this litigation; 10 WHEREAS, the terms of the Protective Order remain in full force and effect as
11 to the documents and information that were produced pursuant to it; 12 WHEREAS, Spitz has advised that it is represented in assessing its potential 13 claims by the law firm Howarth & Smith;
14 WHEREAS, under the terms of the Court’s Protective Order, neither Howarth 15 & Smith, nor any experts retained thereby, nor any mediator, arbitrator, or Court who 16 may preside over the litigation of the dispute between Spitz and Michelman are 17 permitted to obtain and review the documents designated under the Protective Order
18 because any disclosure or use of the documents would not be in connection with the 19 Nobel Action, and because such parties do not fit into the categories of individuals 20 permitted to view such documents under the Protective Order;
21 WHEREAS, Spitz has advised that documents designated by Nobel as 1 Protected Material are part of the client file owned by Spitz and are relevant to 2 assessment of the Spitz claims and to the issues in the dispute between Spitz and 3 Michelman;
4 WHEREAS, in order to minimize burden to Nobel, the parties to the Court’s 5 Protective Order and their respective counsel, agree that the terms of the prior 6 Protective Order should be modified to permit the use of documents designated by
7 Nobel as Protected Material in connection with Spitz’s potential claims against 8 Michelman; 9 WHEREAS, federal courts have jurisdiction to modify protective orders that 10 they issue where they are still in force and effect, even after a judgment is final on a
11 case. See, e.g., Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 782–783 (1st Cir. 12 1988) (“we find that, because the protective order was still in effect, the district court 13 had the power to make postjudgment modifications to the protective order”); FDIC v.
14 Ernst & Ernst, 677 F.2d 230 232 (2d Cir.1982); Krause v. Rhodes, 671 F.2d 212 (6th 15 Cir.), cert. denied, 459 U.S. 823, 103 S.Ct. 54 (1982); United States v. GAF Corp., 16 596 F.2d 10, 16 (2d Cir.1979); American Telephone & Telegraph Co. v. Grady, 594 17 F.2d 594, 596–97 (7th Cir.1978), cert. denied, 440 U.S. 971, 99 S.Ct. 1533 (1979);
18 Olympic Refining Co. v. Carter, 332 F.2d 260, 265–66 (9th Cir.), cert. denied, 379 19 U.S. 900 (1964); Marcus, Myth and Reality in Protective Order Litigation, 69 Cornell 20 L. Rev. 1, 41–53 (1983); Note, Nonparty Access to Discovery Materials in Federal
21 Court, 94 Harv. L. Rev. 1085, 1091–96 (1981); and 1 WHEREAS, good cause exists for this Court to enter the modifications to the 2 Protective Order [Dkt. 28], incorporated herein. 3 NOW, THEREFORE THE UNDERSIGNED COUNSEL AND PARTIES
4 HEREBY STIPULATE AS FOLLOWS: 5 1. The July 6, 2017 Protective Order entered by this Court in the Nobel 6 Action [Dkt. 28] shall be amended and modified as provided herein below to allow
7 for the use of documents designated by Nobel as containing Protected Material and 8 produced thereunder in connection with the dispute between Spitz and Michelman, 9 provided that Nobel is provided with notice of and has the ability to approve of 10 disclosure of its Protected Material prior to such disclosure being made, as set forth
11 below. 12 2. All provisions of the Court’s prior Protective Order not amended, 13 modified, or inconsistent with the provisions herein shall remain in full force and
14 effect. 15 3. Information and/or documents that were designated by Nobel under the 16 Protective Order as “CONFIDENTIAL BUSINESS INFORMATION” may be used 17 for the limited purpose of evaluating, assessing, prosecuting, defending, or attempting
18 to settle the dispute between Spitz and Michelman. Such use of Protected Material 19 designated by Nobel shall be limited to the categories of persons and under the 20 conditions described in the Protective Order and this Stipulation and Modification.
21 / / / 1 4. Information and/or Documents that were designated under the Protective 2 Order as “CONFIDENTIAL BUSINESS INFORMATION” may be disclosed to the 3 following persons:
4 (a) outside counsel representing Spitz (the Howarth & Smith firm), 5 Michelman, and any insurers thereof, including all paralegal assistants, 6 secretarial and stenographic and clerical employees working under the
7 supervision of such counsel, which outside counsel (with the exception 8 of the Howarth & Smith firm identified above) shall be identified to 9 Nobel prior to the disclosure of any CONFIDENTIAL BUSINESS 10 INFORMATION, and provided such outside counsel that has not signed
11 this Amendment executes an Agreement attached hereto as Exhibit A; 12 (b) court reporters, interpreters, translators, copy services, graphic support 13 services, document imaging services, and database/coding services
14 retained by such counsel, provided these individuals or an appropriate 15 company official with authority to do so on behalf of the company 16 executes an Agreement attached hereto as Exhibit A; 17 (c) experts or consultants (i) retained by any attorney described in Paragraph
18 4(a) to assist in connection with the dispute between Spitz and 19 Michelman, (ii) who is not a current employee of Spitz or Michelman, 20 (iii) who has no current or prior relationship with any competitor in the
21 dental implant industry; and (iv) provided such expert or consultant 1 executes an Agreement attached to the Protective Order as Exhibit A and 2 provides to Nobel a copy of his or her current CV, business address, 3 business title, business or profession, the existence of any previous or
4 current relationship (personal or professional) with Nobel or any of its 5 competitors, and all companies for which the expert or consultant has 6 consulted, advised, been employed by, or been a member of any
7 advisory or governing body for, within last four (4) years, and receives 8 confirmation that Nobel has no objection to disclosure of its Protected 9 Material to such expert or consultant prior to any such disclosure being 10 made;
11 (d) a person who prepared, received, or reviewed the Protected Material 12 prior to, or independent from, its production in the Nobel Action; 13 (e) a person, such as an attorney from the Michelman firm, who was
14 authorized to view the Protected Material in the course of pursuing or 15 defending the claims in the Nobel Action, provided that, prior to viewing 16 any Protected Material in connection with the dispute between Spitz and 17 Michelman, such an individual is identified to the opposing party and to
18 Nobel and executes an Agreement attached to the Protective Order as 19 Exhibit A; 20 (f) during depositions and preparation for depositions, a deposition witness
21 who is a current or former employee, officer, agent, contractor and/or 1 consultant of the party that produced the applicable document(s) or who 2 appears to have knowledge of the contents of the document designated 3 “CONFIDENTIAL BUSINESS INFORMATION” or the specific
4 events, transactions, discussions, or date reflected in the document, 5 provided such witness executes an Agreement attached to the Protective 6 Order as Exhibit A;
7 (g) any private mediators employed by the parties in connection with the 8 dispute, provided any such person executes the Agreement attached to 9 the Protective Order as Exhibit A; and 10 (h) any Court and/or arbitrator that presides over any proceedings in
11 connection with the dispute between Spitz and Michelman, and their 12 respective staff. 13 5. Within sixty (60) days of the resolution of the dispute between Spitz and
14 Michelman, and subject to the exceptions in paragraph 13 of the Protective Order, 15 Spitz and Michelman will provide written confirmation to Nobel that all Protected 16 Material exchanged in connection with the dispute has been destroyed. Final 17 disposition shall be deemed to be the later of (1) the last payment made pursuant to
18 any settlement between Spitz and Michelman of all claims by Spitz relating to 19 Michelman’s representation in the Nobel Action; (2) the dismissal of all claims and 20 defenses in any formal lawsuit filed by Spitz; (3) final judgment and completion or
21 exhaustion of all appeals, rehearings, remands, trials, or reviews in any formal lawsuit 1 filed by Spitz; and (4) the expiration of the statute of limitations on any claims 2 belonging to Spitz against Michelman. 3 6. Without written permission from the designating party or a court order
4 secured after appropriate notice to all interested persons, a party may not file any 5 Protected Material in any public forum or record prior to the trial of any dispute 6 between Spitz and Michelman, without first giving reasonable notice to the
7 designating party and attempting to file such material under seal. A Party that seeks 8 to file under seal in any action brought by Spitz against Michelman any Protected 9 Material must comply with the applicable rules and procedures as govern any such 10 action. If the request to file any Nobel Protected Material under seal is denied by the
11 court in any such action, then the Party shall immediately notify Nobel and shall not 12 file the Protected Material in the public record until Nobel has had the opportunity to 13 pursue appropriate relief. Nobel shall have thirty (30) days to apply to the relevant
14 court for relief. If no such application or motion is brought in that time, the Nobel 15 Protected Material may be filed in the public record. If Nobel does apply to the 16 relevant court in that time period, no Nobel Protected Material shall be filed in the 17 public record until the court rules on any application or motion brought by Nobel.
18 7. The use at trial of any Protected Material produced and designated 19 pursuant to the Protective Order shall be governed by a separate order from the court 20 that hears the dispute between Spitz and Michelman. Spitz shall immediately notify
21 Nobel if it initiates an action in any court regarding its dispute with Michelman. Any 1 party seeking to restrict the use of any Protected Material at the trial of any such 2 action shall apply to the court to apply whatever protection it deems necessary. In 3 order to give any designating party the opportunity to apply for protection of its
4 Protected Material at trial, any party seeking to introduce such Protected Material 5 shall notify the relevant designating party by email no later than fifteen calendar days 6 prior to the anticipated use of the Protected Material and provide notice to the
7 designating party of its intent to use the Protected Material. Notice to Nobel shall be 8 provided to the following: 9 Robert Schwimmer: Robert.Schwimmer@envistaco.com 10 Gail Katz: Gail.Katz@envistaco.com
11 John Sganga: John.Sganga@knobbe.com 12 Sheila Swaroop: Sheila.Swaroop@knobbe.com 13 IT IS SO STIPULATED.
14 Dated: March 19, 2021 HOWARTH & SMITH 15 By: /s/ Don Howarth Don Howarth 16 Attorneys for SPITZ TECHNOLOGIES 17 CORPORATION
Dated: March 19, 2021 KNOBBE MARTENS 18
By: /s/ Sheila Swaroop 19 Sheila Swaroop
20 Attorneys for NOBEL BIOCARE USA, LLC 21 1 Attestation of Filing 2 I, Don Howarth, am the ECF User whose ID and password are being used to
3 | file this Stipulation and [Proposed] Order to Modify Protective Order. In compliance 4 || with Local Rule 5-4.3.4, I hereby attest that the above signatories have concurred in
5 | this filing’s content and have authorized this filing. 6 Stipulated Protective Order 7 Good cause appearing therefore, the Court hereby Orders that the Above 8 Modifications to the Protective Order issued in the above-entitled case are granted. 9 All provisions not inconsistent with the above modifications shall remain in full force 10 and effect. 11 | IT IS SO ORDERED. 12 fy 4 Lt) UV 7 □ | 13) Dated: March 25, 1— / 14 Honorable James V. Selna United States District Judge 15 16 17 18 19 20 21
1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I,_____________________, of ______________________, declare under
4 penalty of perjury that I have read in its entirety and understand the Stipulated 5 Protective Order that was issued by the United States District Court for the Central 6 District of California on in the case of Spitz Technologies Corp., v. Nobel Biocare
7 USA LLC et al., Case No. 8:17-cv-00660-JVS-JCG, and the modification thereto. I 8 agree to comply with and to be bound by all the terms of this Stipulated Protective 9 Order, as modified, and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt.
11 I solemnly promise that I will not disclose in any manner any information or 12 item that is subject to this Stipulated Protective Order to any person or entity except 13 in strict compliance with the provisions of this Order.
14 I further agree to submit to the jurisdiction of the United States District Court 15 for the Central District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. I hereby appoint _____________________ of
18 ___________________ as my California agent for service of process in connection 19 with this action or any proceedings related to enforcement of this Stipulated 20 Protective Order, and its modifications.
21 / / / 1 Date: ____________________________________________ 2 City and State where sworn and signed: 3 __________________________________________________
4 Printed name: ____________________________________ 5 Signature: _______________________________________ 6
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