November 9, 2016

BY HAND & BY E-FILE Honorable Barry R. Ostrager New York County Supreme Court 60 Center Street, Room 341 New York, NY 10007

Re: Sybron Canada Holdings, Inc. et al. v. Niznick et al., Index No. 650908/2014

Dear Justice Ostrager:

We write on behalf of Plaintiffs, in advance of the November 10 conference, to oppose Defendants’ requests to adjourn the January 30, 2017 trial date for three months and to re-open fact discovery. We also address four outstanding and ripe discovery disputes that we hope can be resolved Thursday: (1) Defendants’ untimely and improper contention interrogatories; (2) Defendants’ improper invocation of attorney-client privilege at the depositions of Dr. Gerald Niznick and his son-in-law and occasional attorney Jon Konheim; (3) Defendants’ refusal to produce the portion of Dr. Niznick’s personal financial statements that concerns the value of the Joint Venture Companies (“JVCs”) and/or his interest therein; and (4) Defendants’ refusal to enter into an adequate protective order to govern the exchange of confidential information in this litigation.1 It is Plaintiffs’ hope that, with fact discovery having closed on October 31, this conference will resolve these final outstanding discovery issues and confirm the long-set trial date, so that the parties can move to expert discovery and continue their preparations for trial.

1 In their November 4 submission, Defendants inaccurately claim that Plaintiffs refused to meet

and confer about their untimely and improper contention interrogatories. On November 3, Plaintiffs attempted several times to schedule a conference regarding Defendants’ contention interrogatories, along with three other disputes that have been pending for longer. Plaintiffs offered to meet and confer in every e-mail exchanged with Defendants that day—which Defendants did not mention or include in their submission. Ex. A. Defendants refused to discuss those issues and instead rushed to Court in an attempt to raise the contention interrogatory issue to the exclusion of the other pending issues.

Justice Ostrager November 9, 2016 Page 2 I. Discovery Disputes

1. Defendants’ Untimely and Improper Contention Interrogatories

Without Court permission, Defendants attempted to serve Plaintiffs with contention interrogatories nearly two weeks after the New York Commercial Division deadline. Pursuant to Rule 11-a(d), a party may only serve contention interrogatories “[a]t the conclusion of other discovery, and at least 30 days prior to the discovery cut-off date,” “unless the Court has ordered otherwise.” 22 NYCRR § 202.70(g), Rule 11-a(d) (emphasis added). This Rule is clear that parties must serve contention interrogatories at least thirty days before the close of fact discovery. See, e.g., Erchonia Corp. v. Bissoon, 2011 WL 3904600, at *8 (S.D.N.Y. Aug. 26, 2011), aff’d 458 Fed. Appx. 58 (2d Cir. 2012) (contention interrogatories must “be served at least thirty days before the end of discovery” (interpreting identical S.D.N.Y. Local Rule 33.3(c)).

Because the discovery cut-off date here was October 31, see Dkt. 747, the deadline to serve contention interrogatories was September 30. Plaintiffs served their contention interrogatories by that date; Defendants did not. Rather than communicate with Plaintiffs about their missed deadline or petition the Court for additional time, Defendants served a document titled “Defendants’ Second Set of Interrogatories to Plaintiffs” on the last day to serve ordinary interrogatories, October 11. While the face of the document was titled as if it contained ordinary interrogatories, the PDF file Defendants sent was called “Contention Interrogatories,” and each interrogatory asked for Plaintiffs’ “contentions” on various topics. Plaintiffs informed Defendants that their contention interrogatories were, among other things, untimely and Plaintiffs therefore had no obligation to answer them.

In response, Defendants conceded that their “Second Set of Interrogatories” were, indeed, contention interrogatories. They argued, however, that those interrogatories were timely. The requirement that contention interrogatories must be served “at least 30 days prior to the discovery cut-off date,” Defendants insisted, means that they must be served “no sooner than 30 days prior to discovery cutoff.” That interpretation re-writes the text of the rule and defies logic. Defendants cannot avoid the consequences of their inaction either by mislabeling their contention interrogatories (as they initially attempted to do) or by re-writing the rule (as they try to do now). To force Plaintiffs to respond now—at a time dominated by expert discovery and final preparations for trial—would punish Plaintiffs for Defendants’ tardiness.

Finally, Defendants’ claim that they are unaware of Plaintiffs’ contentions on key issues is not credible. Fact discovery has spanned more than two years, and the litigation has involved detailed pleadings and motions, including a motion for partial summary judgment filed by Defendants this year that covered many of the issues in Defendants’ contention interrogatories. Plaintiffs’ major claims and defenses and the principal bases for them have been fully aired.

2. Defendants’ Improper Invocation of Attorney-Client Privilege

During the depositions of Dr. Niznick and Mr. Konheim, Defendants improperly invoked the attorney-client privilege. First, during Dr. Niznick’s deposition, Defendants clawed back a document that Dr. Niznick testified was a draft of a letter he ultimately sent to his son-in-law and

Justice Ostrager November 9, 2016 Page 3 sometime lawyer, Mr. Konheim. A document is privileged only if it contains legal advice, or a request for legal advice, from an attorney. United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011). “The burden of presenting sufficient facts to establish the privilege rests with the party claiming it.” Zelaya v. UNICCO Serv. Co., 682 F. Supp. 2d 28, 38 (D.D.C. 2010) (internal quotation marks omitted); accord Mejia, 655 F.3d at 132. There was no indication that Dr. Niznick actually sent the letter Defendants clawed back to Mr. Konheim, or that the letter reflected Mr. Konheim’s legal advice. When Plaintiffs attempted to ask foundational questions that would have established—or undermined—Defendants’ privilege claim, Defendants’ counsel instructed Dr. Niznick not to answer on privilege grounds and shut down that entire line of examination. Defendants cannot substantiate their claim of privilege and the document should not have been clawed back.

Second, during Mr. Konheim’s deposition, Defense counsel prevented Plaintiffs from questioning Mr. Konheim about such foundational matters as when and whether privileged communications between Dr. Niznick and Mr. Konheim took place. It is well settled that the attorney-client privilege does not apply to the kind of “foundational facts” that a party ordinarily would include on a privilege log. 1 Edna Selan Epstein, The Attorney-Client Privilege and the Work-Product Doctrine 94 (5th ed. 2007) (“Epstein”) (quoting Amco Ins. Co. v. Madera Quality Nut LLC, 2006 U.S. Dist. LEXIS 2105, at *57 (E.D. Cal. Apr. 10, 2006)). “[T]he fact of a conversation with counsel,” for example, “is not privileged.” Gavrity v. City of New York, No. 12-CV-6004 KAM VMS, 2014 WL 4678027, at *3 (E.D.N.Y. Sept. 19, 2014) (collecting cases); see also Matter of Vanderbilt (Rosner-Hickey), 57 N.Y.2d 66, 74 (1982) (“The privilege falls only when the substance of a communication, and not the mere fact of its occurrence, is revealed to third parties.”). The same is true of “[s]uch . . . questions [as] who was present, when did the communication take place, [and] where did it take place.” Epstein 93. Nor is the general subject-matter of an attorney-client communication privileged, unless revealing the subject matter of the communication also would reveal the substance of the attorney’s legal advice. Id. at 91; Church of Scientology of California v. Cooper, 90 F.R.D. 442, 443 (S.D.N.Y. 1981) (granting motion to compel answer to deposition questions because the questions did “not ask for the substance of any communications . . . . [r]ather they ask whether discussions concerning various subjects were had”); accord In re Estate of Seelig, 302 A.D.2d 721, 724 (3d Dep’t 2003) (“[W]hen a party objects to a disclosure of requested documents, it must detail both the legal basis for withholding such documents along with their distinguishing features, unless such information would cause the disclosure of the privileged information.”); Alpha Beta Co. v. Superior Court, 157 Cal. App. 3d 818, 829 (Cal. App. 1984).

Plaintiffs attempted to question Mr. Konheim about foundational facts underlying his and Dr. Niznick’s claims of privilege over a series of communications in the October-December 2013 time period that is relevant to Plaintiffs’ fraudulent inducement claims. Plaintiffs asked, for example, whether Mr. Konheim had “any discussion with Dr. Niznick on or before December 7, 2013, regarding causes of action against . . . the Implant Direct companies or Danaher.” Konheim Tr. 404–05; cf. Gavrity, 2014 WL 4678027, at *3 (“the fact of a conversation with counsel is not privileged”); Matter of Vanderbilt, 57 N.Y.2d at 74. Defendants would not allow him to answer that basic question. Nor would Defendants allow Mr. Konheim to testify whether communications over which Defendants claimed work-product protection on their privilege log from that time period were made “in anticipation of litigation”—a showing Defendants would

Justice Ostrager November 9, 2016 Page 4 have to make in order to maintain their work-product claim under New York law.2 Tr. 417–19, 425; cf. ACE Securities Corp. v. DB Structured Products, 2016 N.Y. Slip Op. 26337, 2016 WL 6079170, at *4 (Sup. Ct., N.Y. Cnty. Oct. 12, 2016) (party claiming work product “must demonstrate that the documents were primarily prepared in anticipation of litigation and are, thus, privileged matter.” (internal quotation marks omitted)). Nor even would Defendants allow Mr. Konheim to answer whether he had any verbal discussions with Dr. Niznick concerning precisely the same subject matter associated with a document on Defendants’ own privilege log. Tr. 409–10. Those assertions of privilege, like Defendants’ clawback during Dr. Niznick’s deposition, was improper.

3. Defendants’ Refusal To Produce Dr. Niznick’s Personal Financial Statements from 2011-2014

For months, Plaintiffs have requested that Defendants produce the relevant portion of Dr. Niznick’s personal financial statements and related documents from 2011 to the present that contain information pertaining to the value of the Joint Venture Companies and/or Dr. Niznick’s interest therein (“PFSs”). See Ex. B. Defendants produced portions of Dr. Niznick’s PFSs from October 26, 2015 and February 4, 2016, but they refused to produce earlier versions, even though they conceded that those PFSs also contain relevant information about his estimate of the JVCs’ value and his interest. Ex. C; Ex. D. In pressing Defendants to produce these responsive documents, Defendants have taken the position that documents evidencing Dr. Niznick’s estimate of the JVCs’ value is somehow not relevant. This position, however, contradicts others that Defendants have taken in the case. Defendants have put the valuation of the JVCs at issue in arguments related to Plaintiffs’ claims under the Cause Call Option and Employment Call Option, they have produced other documents on this topic, they have requested documents from Plaintiffs regarding JVC valuation, they have designated an expert on the subject of valuation, and they have spent significant time in depositions questioning Plaintiffs’ witnesses about pricing and valuation. Defendants cannot square their refusal to produce these documents with their conduct in the litigation. Defendants should produce those documents immediately.

4. Defendants’ Refusal To Agree to an Adequate Protective Order

Since September 19, 2016, Plaintiffs have attempted to negotiate a suitable protective order with Defendants that will ensure the protection of confidential information that has been and will be produced in discovery and at trial. Plaintiffs’ initial proposal tracked the standard form that is widely used by New York courts, but Defendants requested certain modifications. Over the last two months, in an effort to compromise, Plaintiffs have accepted a number of Defendants’ requested changes. Plaintiffs made their most recent proposal on November 1, but have yet to hear from Defendants. Ex. E. Plaintiffs remain hopeful that Defendants will confirm their agreement to our final proposal, but in the event that the parties are not able to reach

2 “Because the [attorney-work-product] doctrine is procedural in nature, the rules of the forum

court apply and it is therefore not subject to a choice of law analysis.” Gucci Am., Inc. v. Guess?, Inc., 271 F.R.D. 58, 73 (S.D.N.Y. 2010).

Justice Ostrager November 9, 2016 Page 5 agreement before the November 10 Conference, we would request that the Court direct the parties to enter into the protective order attached as Exhibit F.

II. Defendants’ Requests To Delay The Trial And Re-Open Fact Discovery

On November 7—one week after fact discovery closed—Defendants informed Plaintiffs that they plan to petition the Court for a ninety-day adjournment and to re-open fact discovery. Plaintiffs oppose Defendants’ transparent attempt to delay this case and perpetuate a never-ending cycle of discovery.

Discovery began long ago in 2014. Document production was largely complete in 2015, but Defendants’ unsuccessful motion to add eleven additional counterclaims put discovery on hold while those issues were litigated. Notwithstanding, in December 2015, Plaintiffs asked Defendants to identify the custodians that they would like Plaintiffs to include for purposes of supplementing document discovery. Defendants refused. Having received no response from Defendants, Plaintiffs, on January 22, 2016, proposed to collect from the fourteen custodians who were most likely to possess relevant documents from October 2014 to the present. Ex G.

Rather than agree to Plaintiffs’ proposal or seek targeted discovery on discrete topics, Defendants cast a wide net. When they finally did respond to Plaintiffs’ proposal more than a month later on February 25, Defendants demanded that Plaintiffs collect from 57 custodians—more than four times the number that Plaintiffs proposed, and 22 of whom were entirely new to the litigation. Ex. H. Defendants raised that number to 63 custodians on April 8, and increased it again to 64 custodians on April 22. Exs. I (Appendices A & B to Defs.’ Apr. 8, 2015 Ltr.) & J. Plaintiffs opposed Defendants’ broad demands and raised the supplemental-production issues with the Court at the June 29 hearing. The Court instructed the parties to resolve their supplementation issues. One month after that conference, on July 29, Defendants made their last proposal, asking that Plaintiffs collect and produce documents from 30 custodians—still more than double the number that Plaintiffs originally proposed. Ex. K. Defendants also insisted that Plaintiffs run hundreds of search terms over the custodians’ documents.

Although Plaintiffs objected to the overbreadth of Defendants’ demands, they complied with the vast majority of Defendants’ July 29 requests. Plaintiffs collected documents from 27 supplemental custodians and applied over 500 search terms. Plaintiffs then expended substantial resources to review the documents that Defendants’ demands yielded for relevance, responsiveness, and privilege in a very short time period—the three months between July 29 and October 31. During that review, Plaintiffs warned Defendants that “[b]ecause Defendants have insisted on a supplemental production from a large number of custodians with a very broad set of search terms, the volume of documents for Plaintiffs to collect, review, and process is substantial.” Ex. L at 37. Defendants did not change their demands. Quite the contrary: Defendants demanded even more document discovery as late as October 3. Plaintiffs made rolling document productions throughout October and, consistent with the Court’s discovery schedule, made their final supplemental production on October 31.

Defendants now feign surprise at Plaintiffs’ supplemental production of approximately 26,270 documents, comprising approximately 158,761 pages. They cite the size of that production as an excuse to adjourn this case for ninety days and re-open fact discovery. But

Justice Ostrager November 9, 2016 Page 6 Defendants were well aware of the breadth of material they sought. Indeed, Plaintiffs repeatedly reminded Defendants that their requests were overbroad and would return a substantial number of documents. And Defendants knew that discovery would close on October 31 when they agreed to the January 30, 2017 trial date on June 29, 2016. Still, they sought a huge swath of documents in their final July 29 proposal. Defendants got what they asked for; they have no one but themselves to blame for the size of Plaintiffs’ production. To delay this case further would be to penalize Plaintiffs for being cooperative and accommodating Defendants’ discovery requests.

In their request for delay, Defendants also assert that they could not begin their review until November 7 due to certain technical issues with Plaintiffs’ productions. That is not true. Defendants have not raised a single issue with Plaintiff Sybron’s production, and thus they should have been able to start reviewing those documents immediately on November 1. Defendants’ discovery vendor apparently did have some difficulty accessing files contained in the JVCs’ production. But the JVCs’ vendors checked the integrity of the data before sending the production to Defendants and found no issues. Defendants have produced no evidence that the JVCs were to blame for any technical problems. In any event, Plaintiffs’ inability to open a handful of the thousands of documents Plaintiffs produced is no reason to delay this case.

Defendants’ other claims of prejudice ring similarly hollow. After more than two years of discovery, the issues in this case are well developed. To the extent that Defendants seek new documents to support their “integration” conspiracy theories, they should be able to search for and review them efficiently. And, of course, Defendants will be able to question trial witnesses about any documents they find. Insisting on reviewing these supplemental productions document-by-document would expose Defendants’ supplemental requests as a too-late fishing expedition for new theories and claims.

Defendants’ conduct in another case currently pending between certain of the parties calls their motives further into question. Dr. Niznick and the JVCs are in arbitration over the JVCs’ lease at the Calabasas facility that housed their operations until Dr. Niznick evicted them. That case was scheduled for an arbitration hearing in January. On November 1, the arbitrator in that matter granted a continuance until April 2014 in response to Dr. Niznick’s October 25 argument that he needed the next few months to prepare for the January 30, 2017 trial in the instant case. Just a week later, however, Defendants seek a continuance in this case too. If the Court grants the continuance, this case and the California arbitration will, again, be scheduled to be heard at approximately the same time. Defendants’ in-tandem delay tactics are troubling—and raise the question of why Defendants are attempting to delay the resolution of the parties’ disputes.

In sum, the fact that Plaintiffs made an expected substantial supplemental production provides no grounds for delaying this case, much less re-opening fact discovery. Defendants’ request for an adjournment would create a cycle of endless document and deposition discovery, which would result in further over-litigation of this matter. Plaintiffs therefore respectfully request that the Court keep the existing trial date and enter the proposed amended scheduling order appended to this letter as Exhibit M, which we provided to Defendants on October 31.

Plaintiffs have bent over backward to satisfy Defendants’ requests and to avoid needless litigation of these document discovery issues. Defendants cannot now use their own overbroad

Justice Ostrager November 9, 2016 Page 7 and burdensome requests as an excuse to derail this litigation. This case should proceed to trial without further delay.

Sincerely,

Edward J. Bennett

EXHIBIT A

From: Poteat III, R. KennonTo: "Lerner, Gary I."Cc: Samson, Martin H.; "Don Gottesman"; Joe Tomaselli; Andrew Rima; Przybylko, Eric; Keyko, David G.Subject: RE: Sybron v. NiznickDate: Thursday, November 03, 2016 4:57:39 PM

Gary: You are misstating the record on the outstanding discovery disputes.  With respect to Defendants’failure to produce the relevant portions of Dr. Niznick’s personal financial statements from 2011-2014, we first raised that issue in correspondence on August 10, 2016.  The parties exchangeddetailed letters about it on September 16, September 27, October 3, and finally, on October 21.  Inour October 21 letter to Defendants, we noted on page 2 that “if you do not produce thesedocuments by the close of fact discovery, we intend to seek judicial relief to obtain them.”  The closeof fact discovery came and went, but we do not have these documents.  We would like to discussthat issue with you.  It was raised long before you sent your November 1 letter regarding contentionrogs. With respect to the privilege/clawback issues, we raised them at the deposition of Mr. Konheim onOctober 24 and at the deposition of Dr. Niznick on October 27.  During Mr. Konheim’s deposition, infact, Don requested—and we provided—authority on Defendants’ faulty privilege claims.  Our letterof today’s date simply followed up on those issues. And with respect to the protective order, we have been attempting to reach agreement withDefendants since September 19.  Eric and I have made some progress, but the ball is currently inyour court with our final suggested revisions.  To the extent any issues remain, we should talk aboutthem and if we are unable to agree, that issue should be raised with the Court as well. I do not understand why you will not agree to speak with us about the four outstanding disputes inone meet-and-confer session.  If a discovery conference is going to be held before the Court, itshould cover all outstanding issues.  Addressing those issues seriatim is a waste of the Court’s andthe parties’ time.  It would be improper conduct to raise one discovery issue with the Court to theexclusion of others that have been ongoing for months and are ripe for resolution.  Please let us know if you are able to chat about these issues this afternoon, tomorrow, or Monday.

Best,Kennon R. Kennon Poteat IIIWilliams & Connolly LLP725 Twelfth Street, N.W., Washington, DC 20005(P) 202-434-5699 | (F) 202-434-5029kpoteat@wc.com | www.wc.com  

From: Lerner, Gary I. [mailto:gil@dhclegal.com] Sent: Thursday, November 03, 2016 3:31 PMTo: Poteat III, R. Kennon <kpoteat@wc.com>Cc: Samson, Martin H. <mhs@dhclegal.com>; 'Don Gottesman' <dgottesman@kgswlaw.com>; JoeTomaselli <JTomaselli@goldmanismail.com>; Andrew Rima <arima@goldmanismail.com>; Przybylko,Eric <ep@dhclegal.com>; Keyko, David G. <david.keyko@pillsburylaw.com>Subject: RE: Sybron v. Niznick Kennon,                 The other issues were first raised in correspondence sent by you today, in an obviousattempt to distract the court from Plaintiffs’ wrongful refusal to answer the contentioninterrogatories served by defendants.  The contention interrogatory issue is fully teed up, the othersare not.  Of course we will meet and confer with you on those issues in due course.  However, thereis no reason to hold off on attempting to resolve the contention interrogatory issue today.  Pleaseadvise if plaintiffs will make themselves available for a call today.  If not, I have told you how weintend to proceed. Gary__________________________________

Gary I. Lerner, Esq.Davidoff Hutcher & Citron LLP605 Third Avenue, New York, NY 10158Firm: 212.557.7200 Direct: 646.428.3217Fax: 212.286.1884 Email: gil@dhclegal.comWebsite   

From: Poteat III, R. Kennon [mailto:kpoteat@wc.com] Sent: Thursday, November 03, 2016 3:13 PMTo: Lerner, Gary I.Cc: Samson, Martin H.; 'Don Gottesman'; Joe Tomaselli; Andrew Rima; Przybylko, Eric; Keyko, David G.Subject: RE: Sybron v. Niznick Gary: Are you refusing to meet on these four discovery issues this afternoon, tomorrow, or Monday?  Itappears to us that you are intent on trying to raise a single issue with the Court to the exclusion ofother issues, which have been pending longer and are equally (if not more) ripe for resolution. Best,Kennon R. Kennon Poteat IIIWilliams & Connolly LLP

725 Twelfth Street, N.W., Washington, DC 20005(P) 202-434-5699 | (F) 202-434-5029kpoteat@wc.com | www.wc.com  

From: Lerner, Gary I. [mailto:gil@dhclegal.com] Sent: Thursday, November 03, 2016 3:07 PMTo: Poteat III, R. Kennon <kpoteat@wc.com>Cc: Samson, Martin H. <mhs@dhclegal.com>; 'Don Gottesman' <dgottesman@kgswlaw.com>; JoeTomaselli <JTomaselli@goldmanismail.com>; Andrew Rima <arima@goldmanismail.com>; Przybylko,Eric <ep@dhclegal.com>; Keyko, David G. <david.keyko@pillsburylaw.com>Subject: RE: Sybron v. Niznick Kennon,                 This is not acceptable.  This issue is teed up and ready for resolution.  Please advise us ofyour availability to speak today.  If you do not agree to speak today, we will understand that to meanthat, having read our five-page letter and the authorities cited therein, you nonetheless stand onyour objections and Plaintiffs will not voluntarily answer the contention interrogatories served uponthem.  We will then raise this issue with the court and seek appropriate relief as outlined in my priorcorrespondence. Gary__________________________________

Gary I. Lerner, Esq.Davidoff Hutcher & Citron LLP605 Third Avenue, New York, NY 10158Firm: 212.557.7200 Direct: 646.428.3217Fax: 212.286.1884 Email: gil@dhclegal.comWebsite   

From: Poteat III, R. Kennon [mailto:kpoteat@wc.com] Sent: Thursday, November 03, 2016 2:44 PMTo: Lerner, Gary I.Cc: Samson, Martin H.; 'Don Gottesman'; Joe Tomaselli; Andrew Rima; Przybylko, Eric; Keyko, David G.Subject: RE: Sybron v. Niznick Gary, We’d prefer to cover the outstanding issues in one call.  To be most efficient, if the issues are goingto be headed to the Court, we should have a comprehensive meet-and-confer conference coveringthe contention rogs, the privilege/clawback issues, your refusal to produce Dr. Niznick’s personalfinancial statements from 2011-2014, and the protective order.  We’re happy to talk about all of

them this afternoon or tomorrow or Monday.  But having piecemeal discussions about issues thatwill eventually be heard at one time does not seem efficient. Best,Kennon R. Kennon Poteat IIIWilliams & Connolly LLP725 Twelfth Street, N.W., Washington, DC 20005(P) 202-434-5699 | (F) 202-434-5029kpoteat@wc.com | www.wc.com  

From: Lerner, Gary I. [mailto:gil@dhclegal.com] Sent: Thursday, November 03, 2016 2:38 PMTo: Poteat III, R. Kennon <kpoteat@wc.com>Cc: Samson, Martin H. <mhs@dhclegal.com>; 'Don Gottesman' <dgottesman@kgswlaw.com>Subject: RE: Sybron v. Niznick Kennon,                 Thank you for your letters.  Let’s have a call today at 4:00 to meet and confer on thecontention interrogatory issue.  We will review your other letter and the authorities cited thereinand will set up a separate meet and confer telephone conference with you on those subjects.  We donot believe it is appropriate to delay attempting to resolve the contention interrogatory issue, whichwith our exchange of letters is now fully teed up and should not be delayed.                 Please confirm availability at 4:00 and I will circulate call-in information.  Thank you. Gary 

From: Poteat III, R. Kennon [mailto:kpoteat@wc.com] Sent: Thursday, November 03, 2016 1:52 PMTo: Lerner, Gary I.Cc: Samson, Martin H.; 'Don Gottesman'Subject: RE: Sybron v. Niznick Gary, We’re happy to talk, as I explained yesterday.  But there’s more to talk about than just thecontention rogs.  To that end, I am attaching correspondence on both issues.  We can makeourselves available this afternoon or tomorrow for a comprehensive call.  Please let us know whatworks for you and your team. Best,Kennon

 R. Kennon Poteat IIIWilliams & Connolly LLP725 Twelfth Street, N.W., Washington, DC 20005(P) 202-434-5699 | (F) 202-434-5029kpoteat@wc.com | www.wc.com  

From: Lerner, Gary I. [mailto:gil@dhclegal.com] Sent: Thursday, November 03, 2016 1:37 PMTo: Poteat III, R. Kennon <kpoteat@wc.com>Cc: Samson, Martin H. <mhs@dhclegal.com>Subject: FW: Sybron v. Niznick Kennon,                 I reached out to you early yesterday with the expectation that we would have this meet andconfer yesterday.  You said your side could not be available yesterday because Mr. Bennett’spresence was required and he was out of the office.  You promised to get back to me with a timethat we could have the meet and confer today.  Despite following up with you this morning (seebelow), we have heard nothing from you.  It is imperative that we have this meet and confer today. If you refuse to meet and confer, we will have no choice but to request a conference with the Court. Gary 

From: Lerner, Gary I. Sent: Thursday, November 03, 2016 10:56 AMTo: Poteat III, R. KennonSubject: Sybron v. Niznick Kennon,                 Please advise what time your side is available for a telephonic meet and confer todayconcerning Plaintiffs’ failure to respond to Defendants’ contention interrogatories and our exchangeof letters on that subject.  Thanks,

Gary__________________________________

Gary I. Lerner, Esq.Davidoff Hutcher & Citron LLP605 Third Avenue, New York, NY 10158Firm: 212.557.7200 Direct: 646.428.3217Fax: 212.286.1884 Email: gil@dhclegal.comWebsite 

***********************************************************************STATEMENT OF CONFIDENTIALITYThe information contained in this electronic message and any attachments to this message are intended for the exclusive use of the addressee(s) and may contain confidential or privileged information. If you are not the intended recipient, please notify us immediately by email reply to sender or by telephone to Davidoff Hutcher & Citron LLP at (800) 793-2843, ext. 3281, and destroy all copies of this message and any attachments.

IRS DISCLOSURE NOTICEIn accordance with Internal Revenue Service Circular 230, we informyou that any discussion of a federal tax issue contained in this communication (including any attachments) is not intended or writtento be used, and it cannot be used, by any recipient for the purpose of(i) avoiding penalties that may be imposed on the recipient under United States federal tax laws, or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.***********************************************************************

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***********************************************************************STATEMENT OF CONFIDENTIALITYThe information contained in this electronic message and any attachments to this message are intended for the exclusive use of the addressee(s) and may contain confidential or privileged information. If you are not the intended recipient, please notify us immediately by email reply to sender or by telephone to Davidoff Hutcher & Citron LLP at (800) 793-2843, ext. 3281, and destroy all copies of this message and any attachments.

IRS DISCLOSURE NOTICEIn accordance with Internal Revenue Service Circular 230, we informyou that any discussion of a federal tax issue contained in this communication (including any attachments) is not intended or writtento be used, and it cannot be used, by any recipient for the purpose of(i) avoiding penalties that may be imposed on the recipient under United States federal tax laws, or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.***********************************************************************

***********************************************************************STATEMENT OF CONFIDENTIALITYThe information contained in this electronic message and any

attachments to this message are intended for the exclusive use of the addressee(s) and may contain confidential or privileged information. If you are not the intended recipient, please notify us immediately by email reply to sender or by telephone to Davidoff Hutcher & Citron LLP at (800) 793-2843, ext. 3281, and destroy all copies of this message and any attachments.

IRS DISCLOSURE NOTICEIn accordance with Internal Revenue Service Circular 230, we informyou that any discussion of a federal tax issue contained in this communication (including any attachments) is not intended or writtento be used, and it cannot be used, by any recipient for the purpose of(i) avoiding penalties that may be imposed on the recipient under United States federal tax laws, or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.***********************************************************************

***********************************************************************STATEMENT OF CONFIDENTIALITYThe information contained in this electronic message and any attachments to this message are intended for the exclusive use of the addressee(s) and may contain confidential or privileged information. If you are not the intended recipient, please notify us immediately by email reply to sender or by telephone to Davidoff Hutcher & Citron LLP at (800) 793-2843, ext. 3281, and destroy all copies of this message and any attachments.

IRS DISCLOSURE NOTICEIn accordance with Internal Revenue Service Circular 230, we informyou that any discussion of a federal tax issue contained in this communication (including any attachments) is not intended or writtento be used, and it cannot be used, by any recipient for the purpose of(i) avoiding penalties that may be imposed on the recipient under United States federal tax laws, or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.***********************************************************************

EXHIBIT B

R. KENNON POTEAT III (202) 434-5699

kpoteat@wc.com

August 10, 2016

Via E-mail

Eric Przybylko, Esq. Davidoff Hutcher & Citron LLP 605 Third Avenue New York, NY 10158

Re: Sybron Canada Holdings, Inc., et al. v. Niznick, et al. Index No. 650908/2014

Dear Eric:

I write in response to Defendants’ July 29, 2016 production, which consisted of documents that Defendants previously withheld or redacted based on claims of attorney-client privilege but were ordered to produce pursuant to the Court’s rulings on Plaintiffs’ motions to compel (Mot. Nos. 25 and 26).

In this most recent production, as well as certain prior productions, Defendants have

produced documents regarding the value of the JVCs and/or Dr. Niznick’s interest therein, which reference Dr. Niznick’s personal financial statement or “PFS,” but Defendants have failed to produce the referenced PFSs. See, e.g., D122462-64; D108594-95. The documents that Defendants have produced, however, confirm that Dr. Niznick’s PFSs are relevant to the valuation of Dr. Niznick’s share of the JVCs, which Defendants claim is an important issue in the case. To the extent that Dr. Niznick’s PFSs or any related documents from the years 2011 to the present contain information pertaining to the value of the JVCs and/or Dr. Niznick’s interest therein, they should be produced as soon as possible. Plaintiffs are aware of no basis for Defendants to continue to withhold those relevant documents from production.

Accordingly, please produce the documents that contain the information described above,

including the attachments to the email chains in D122464 and D108594-95 that Defendants are continuing to withhold. If information is included in these documents that does not relate in any way to the JVCs or Dr. Niznick’s interests therein, we do not object to the redaction of such irrelevant information.

August 10, 2016 Page 2

Sincerely,

R. Kennon Poteat, III cc: Martin Samson Don Gottesman Edward Bennett Andrew Goldman Joe Tomaselli Andrew Rima

EXHIBIT C

DAVIDOFF HUTCHER & CITRON LLP ATIORNEYS AT LAW

605 THIRD AVENUE NEW YORK, NEW YORK I 0 I 58

By Email R. Kennon Poteat 111, Esq. Williams & Connolly LLP 725 Twelfth Street, N.W. Washington, D.C. 20005-5901

TEL: (2 I 2) 557-7200 FAX: (2 I 2) 286- I 884

WWW. DHCLEGAL. COM

September 16, 2016

FIRM OFFICES

GARDEN CflY ATIORNE.YS AT LAW

200 GARDEN CflY PLAZA GARDEN CITY, NY I I 530

(5 I 6) 248-6400

ALBANY GOVERNMENT REL.AllONS

I 50 STATE STREIT ALBANY. NY I 2207

(5 I 8) 465-8230

WASHINGTON, D.C. GOVERNMENT REL.AllONS

I 2 I I CONNECTICUT AVENUE, N.W. WASHINGTON, D.C. 20036

(202)347-1117

Re: Sybron Canada Holdings, Inc., et al. v. Niznick, et al. (Index No. 650908/2014)

Dear Kennon:

We write in response to your August 10, 2016 letter which requests that Defendants produce Dr. Niznick's personal financial statement, or "PFS," for the years 2011 through the present.

In your letter, you broadly suggest that Dr. Niznick's PFSs are relevant because they "contain information pertaining to the value of the JVCs and/or Dr. Niznick's interest therein." The Court, however, has rejected that very proposition. In connection with Plaintiffs' recent motion to compel (Mot. Seq. 026), we submitted several documents relating to the valuation of the JVCs for other purposes (including D122464, one of the examples cited in your letter) for in camera inspection by the Court. The Court held that "these documents are entirely irrelevant and need not be produced." See Order dated July 28, 2016 (D.E. 773).

Furthermore, apart from the exceptions noted below, the PFSs requested do not contain an estimate of valuation for the JVCs or Dr. Niznick's interest therein. The PFSs prepared prior to 2015 did not break out the value of Dr. Niznick's interest in the JVCs but merely contained a single line-item estimating the total value of all "lnvestment(s) in closely held businesses" without identifying the portion of the estimate attributable to an interest in the JVCs. In addition, Defendants have already produced documents evidencing the value of the interest in the JVCs incorporated in those PFSs. See D122462-D122464.

554975v.1

DAVIDOFF HUTCHER & CITRON LLP R. Kennon Poteat Ill, Esq. September 16, 2016 Page 2

In light of the above, Plaintiffs' demand that we produce all PFSs and all documents "relat[ing] in any way to the JVCS or Dr. Niznick's interest therein" is overbroad, unduly burdensome and contrary to the Court's prior order. In the interest of compromise, however, we propose the following. Unlike the earlier short-form PFSs referenced above, PFSs dated October 26, 2015 and February 4, 2016 each contain a note which describes the estimate of the "Investment in Implant Direct Sybron Companies" used in the PFSs. Pursuant to your suggestion that Defendants produce PFSs while redacting any information unrelated to the valuation of the JVCs or Dr. Niznick's interest therein, we are willing to produce the PFSs dated October 26, 2015 and February 4, 2016 in a form redacted to disclose only the "Investment in Implant Direct Sybron Companies." Please let us know if Plaintiffs will agree to this compromise.

Attachment cc: Edward Bennett, Esq.

Lauren Uhlig, Esq. Joe Tomaselli, Esq. Andrew Goldman, Esq. Andrew Rima, Esq. Martin Samson, Esq. Don Gottesman, Esq. Gary Lerner, Esq.

554975v.l

Be. ~t re. ga.rdz;}/"'1

11 1 /J / j ·fl· 1i/ . I . I I I /'' V I 1 JY

L' Eric Przybylko

EXHIBIT D

R. KENNON POTEAT III (202) 434-5699

kpoteat@wc.com

September 27, 2016 VIA Email

Eric Przybylko, Esq. Davidoff Hutcher & Citron LLP 605 Third Avenue New York, NY 10158

Re: Sybron Canada Holdings, Inc., et al. v. Gerald A. Niznick, et al.

Index No. 650908/2014

Dear Eric:

I write in response to your letter of September 16, 2016, which responded to my letter of August 10, concerning Dr. Niznick’s personal financial statements (“PFSs”) and related responsive documents that Defendants have not yet produced in this litigation. We appreciate your offer to produce—“[i]n the interest of compromise”—Dr. Niznick’s personal financial statements dated October 26, 2015 and February 4, 2016, which you admit “contain a note which describes the estimate of the ‘Investment in Implant Direct Sybron Companies’ used in the PFSs.” We do not believe, however, that a “compromise” is necessary or appropriate in this instance. Defendants have a legal obligation to produce those documents, and you should do so immediately. They are concededly relevant to the claims and defenses in this action and should have been produced long ago. Indeed, Defendants have produced certain documents on this very issue in prior productions. Defendants have no basis for withholding them from their supplemental production. Please produce those two PFSs by the end of the week, along with any unproduced work papers or other materials that underlie the computation of Dr. Niznick’s “Investment in Implant Direct Sybron Companies.” In addition to the October 2015 and February 2016 personal financial statements, Defendants also should produce the earlier versions because there is no basis for shielding them from discovery. Defendants concede that the line item “investment(s) in closely held businesses” contains Dr. Niznick’s estimate of the value of his interest in the JVCs, but Defendants apparently refuse to produce them because that line item may include other investments. Even taking your assertion at face value, you do not provide a basis for refusing to produce the entire documents (redacting out irrelevant parts). They are still relevant and responsive and would provide information that would aid in further discovery concerning Dr.

September 27, 2016 Page 2

Niznick’s estimates of his interest in the JVCs. For example, if Defendants produce the earlier PFSs, Plaintiffs would be able to question Dr. Niznick or others about them to ascertain what portion of that line item is attributable to the JVCs. Moreover, in conjunction with Defendants’ production of the earlier PFSs, Defendants should produce any work papers or other materials that describe or underlie the computation of Dr. Niznick’s “investment(s) in closely held businesses” regarding the JVCs. We would expect such documents to exist, which would be relevant and responsive as well.

In your letter, you seem to take the position that documents evidencing Dr. Niznick’s estimate of the value of the JVCs and his interest therein is somehow not relevant to the litigation, despite the fact that you produced documents on that very issue in prior productions. You try to hinge that point on Justice Ostrager’s July 28, 2016 Order, but we disagree with your characterization of it. Contrary to what you suggested, Justice Ostrager’s Order does not address Defendants’ obligation to produce such materials; it certainly does not excuse Defendants from complying with their discovery obligations. Though we would prefer not to burden the Court with needless litigation over this issue, we will be forced to do so if you do not produce the requested documents that you admit exist and are within Dr. Niznick’s possession. As I said in my August 10, 2016 letter, Plaintiffs do not seek information unrelated to the JVCs or Dr. Niznick’s interest in those companies. We are happy for Defendants to produce appropriately redacted valuation documents so that we only obtain materials that relate to the value of the JVCs. Plaintiffs, however, insist that Defendants honor their obligations and produce Dr. Niznick’s personal financial statements and other materials regarding this issue. Please confirm that you intend to produce appropriately redacted versions of Dr. Niznick’s personal financial statement by the end of the week.

Sincerely,

R. Kennon Poteat III

September 27, 2016 Page 3

cc: via email

Edward J. Bennett A. Joshua Podoll Lauren Uhlig E. Leo Milonas Joe Tomaselli Andrew Goldman Andrew Rima Martin Samson Gary Lerner Don Gottesman

EXHIBIT E

1

From: Poteat III, R. KennonSent: Tuesday, November 01, 2016 3:08 PMTo: 'Przybylko, Eric'Subject: Sybron v. Niznick - Draft POAttachments: 2016.11.01 - Draft PO.docx

Eric,   Further to our phone conversation today, please find attached a revised draft of the PO.  Please let me know if these redline edits are acceptable.  This revised draft is still subject to client review.  Best, Kennon  R. Kennon Poteat III Williams & Connolly LLP 725 Twelfth Street, N.W., Washington, DC 20005 (P) 202‐434‐5699 | (F) 202‐434‐5029 kpoteat@wc.com | www.wc.com  

 

4834-3613-0103.v1 556316v.2

any non-party in the course of discovery in this matter to the extent set forth below; and the

parties, by, between and among their respective counsel, having stipulated and agreed to the

terms set forth herein, and good cause having been shown;

IT IS hereby ORDERED that:

1. This Stipulation is being entered into to facilitate the production, exchange and

discovery of documents and information that the Parties and, as appropriate, non-parties, agree

merit confidential treatment (hereinafter the “Documents” or “Testimony”).

2. Any Party or, as appropriate, non-party, may designate Documents produced, or

Testimony given, in connection with this action as “confidential,” either by notation on each

page of the Document so designated, statement on the record of the deposition, or written advice

to the respective undersigned counsel for the Parties hereto, or by other appropriate means.

3. As used herein:

(a) “Confidential Information” shall mean all Documents and Testimony, and all

information contained therein, and other information designated as confidential, if such

Documents or Testimony contain trade secrets, proprietary business information, competitively

sensitive information or other information the disclosure of which would, in the good faith

judgment of the Party or, as appropriate, non-party designating the material as confidential, be

detrimental to the conduct of that Party’s or non-party’s business or the business of any of that

Party’s or non-party’s customers or clients.

(b) “Producing Party” shall mean the parties to this action and any non-parties

producing “Confidential Information” in connection with depositions, document production or

otherwise, or the Party or non-party asserting the confidentiality privilege, as the case may be.

 

4834-3613-0103.v1 556316v.2

(c) “Receiving Party” shall mean the Parties to this action and/or any nonparty

receiving “Confidential Information” in connection with depositions, document production,

subpoenas or otherwise.

4. The Receiving Party may, at any time, notify the Producing Party that the

Receiving Party does not concur in the designation of a document or other material as

Confidential Information. If the Producing Party does not agree to declassify such document or

material within seven (7) days of the written request, the Receiving Party may request a

conference before the Court in accordance with the Practice Rules for Part 61 to declassify those

documents or materials. If such a conference is requested, the documents or other materials shall

be deemed Confidential Information unless and until the Court rules otherwise. Notwithstanding

anything herein to the contrary, the Producing Party bears the burden of establishing the

propriety of its designation of documents or information as Confidential Information.

5. Except with the prior written consent of the Producing Party or by Order of the

Court, Confidential Information shall not be furnished, shown or disclosed to any person or

entity except to:

(a) personnel of the Parties actually engaged in assisting in the preparation of this

action (including any subsequent related actions between the Parties, collectively the “Action”)

for trial or other proceeding herein and who have been advised of their obligations hereunder;

(b) counsel for the Parties to this action and their associated attorneys, paralegals and

other professional and non-professional personnel (including support staff and outside copying

services) who are directly assisting such counsel in the preparation of this action the Action for

trial or other proceeding herein, are under the supervision or control of such counsel, and who

have been advised by such counsel of their obligations hereunder;

 

4834-3613-0103.v1 556316v.2

(c) actual or potential expert witnesses or consultants retained by the Parties or their

counsel to furnish technical or expert services in connection with this action or to give testimony

with respect to the subject matter of this action the Action at the trial of this action or other

proceeding herein; provided, however, that such Confidential Information is furnished, shown or

disclosed in accordance with paragraph 7 hereof;

(d) the Court and court personnel;

(e) any person who authored or received, outside the context of this litigation, the

particular material sought to be disclosed to that person (provided that the document has not been

altered since that person authored or received the material);

(f) an officer before whom a deposition is taken, including stenographic reporters and

any necessary secretarial, clerical or other personnel of such officer;

(fg) actual or potential trial and deposition witnesses identified by the parties, if

furnished, shown or disclosed in accordance with paragraphs 9 and 10, respectively, hereof; and

(gh) any other person agreed to by the Producing Party.

6. Confidential Information shall be utilized by the Receiving Party and its counsel

only for purposes of this litigation and for no other purposes.

7. Before any disclosure of Confidential Information is made to an expert witness or

consultant pursuant to paragraph 5(c) hereof, counsel for the Receiving Party making such

disclosure shall provide to the expert witness or consultant a copy of this Stipulation and obtain

the expert’s or consultant’s written agreement, in the form of Exhibit A attached hereto, to

comply with and be bound by its terms. Counsel for the Receiving Party obtaining the certificate

shall supply a copy to counsel for the other Parties at the time designated for expert disclosure,

 

4834-3613-0103.v1 556316v.2

except that any certificate signed by an expert or consultant who is not expected to be called as a

witness at trial is not required to be supplied.

8. All depositions shall presumptively be treated as Confidential Information and

subject to this Stipulation during the deposition and for a period of fifteen (15) days after a

transcript of said deposition is received by counsel for each of the Parties. At or before the end

of such fifteen day period, the deposition shall be classified appropriately.

9. Should the need arise for any Party or, as appropriate, non-party, to disclose

Confidential Information during any hearing or trial before the Court, including through

argument or the presentation of evidence, such Party or, as appropriate, non-party may do so

only after taking such steps as the Court, upon motion of the Producing Party, shall deem

necessary to preserve the confidentiality of such Confidential Information.

10. This Stipulation shall not preclude counsel for any Party from using during any

deposition in this action any Documents or Testimony which has been designated as

“Confidential Information” under the terms hereof. Any deposition witness who is given access

to Confidential Information shall, prior thereto, be provided with a copy of this Stipulation and

shall execute a written agreement, in the form of Exhibit A attached hereto, to comply with and

be bound by its terms. Counsel for the Party obtaining the certificate shall supply a copy to

counsel for the other Parties and, as appropriate, a non-party that is a Producing Party. In the

event that, upon being presented with a copy of the Stipulation, a witness refuses to execute the

agreement to be bound by this Stipulation, the Court shall, upon application, enter an order

directing the witness’s compliance with the Stipulation.

11. A Party may designate as Confidential Information subject to this Stipulation any

document, information, or deposition testimony produced or given by any nonparty to this case,

 

4834-3613-0103.v1 556316v.2

or any portion thereof. In the case of Documents, produced by a non-party, designation shall be

made by notifying all counsel in writing of those documents which are to be stamped and treated

as such at any time up to fifteen (15) days after actual receipt of copies of those documents by

counsel for the Party asserting the confidentiality privilege. In the case of deposition Testimony,

designation shall be made by notifying all counsel in writing of those portions which are to be

stamped or otherwise treated as such at any time up to fifteen (15) days after the transcript is

received by counsel for the Party (or, as appropriate, non-party) asserting the confidentiality.

Prior to the expiration of such fifteen (15) day period (or until a designation is made by counsel,

if such a designation is made in a shorter period of time), all such Documents and Testimony

shall be treated as Confidential Information.

12. (a) A Party or, as appropriate, non-party, who seeks to file with the Court

(i) any deposition transcripts, exhibits, answers to interrogatories, or other documents which

have previously been designated as comprising or containing Confidential Information, or

(ii) any pleading, brief or memorandum which reproduces, paraphrases or discloses Confidential

Information shall file the document, pleading, brief, or memorandum on the NYSCEF system in

redacted form until the Court renders a decision on any motion to seal (the “Redacted Filing”).

If the Producing Party fails to move to seal within seven (7) days of the Redacted Filing, the

Party (or, as appropriate, non-party) making the filing shall take steps to replace the Redacted

Filing with its corresponding unredacted version.

(b) In the event that the Party’s (or, as appropriate, non-party’s) filing includes

Confidential Information produced by a Producing Party that is a non-party, the filing Party shall

so notify that Producing Party within twenty-four (24) hours after the Redacted Filing by

 

4834-3613-0103.v1 556316v.2

providing the Producing Party with a copy of the Redacted Filing as well as a version of the

filing with the relevant Producing Party’s Confidential Information unredacted.

(c) If the Producing Party makes a timely motion to seal, and the motion is granted,

the filing Party (or, as appropriate, non-party) shall ensure that all documents (or, if directed by

the court, portions of documents) that are the subject of the order to seal are filed in accordance

with the procedures that govern the filing of sealed documents on the NYSCEF system. If the

Producing Party’s timely motion to seal is denied, then the Party (or, as appropriate, non-party)

making the filing shall take steps to replace the Redacted Filing with its corresponding

unredacted version.

(d) Any Party filing a Redacted Filing in accordance with the procedure set forth in

this paragraph 12 shall, contemporaneously with or prior to making the Redacted Filing, provide

the other Parties and the Court with a complete and unredacted version of the filing.

(e) All pleadings, briefs or memoranda which reproduce, paraphrase or disclose any

materials which have previously been designated by a party as comprising or containing

Confidential Information shall identify such documents by the production number ascribed to

them at the time of production.

134. Any person receiving Confidential Information shall not reveal or discuss such

information to or with any person not entitled to receive such information under the terms hereof

and shall use reasonable measures to store and maintain the Confidential Information so as to

prevent unauthorized disclosure.

145. Any document or information that may contain Confidential Information that has

been inadvertently produced without identification as to its “confidential” nature as provided in

paragraphs 2 and/or 11 of this Stipulation, may be so designated by the party asserting the

 

4834-3613-0103.v1 556316v.2

confidentiality privilege by written notice to the undersigned counsel for the Receiving Party

identifying the document or information as “confidential'” within a reasonable time following the

discovery that the document or information has been produced without such designation.

156. Extracts and summaries of Confidential Information shall also be treated as

confidential in accordance with the provisions of this Stipulation.

167. The production or disclosure of Confidential Information shall in no way

constitute a waiver of each Producing Party’s right to object to the production or disclosure of

other information in this action or in any other action. Nothing in this Stipulation shall operate

as an admission by any Party or non-party that any particular document or information is, or is

not, confidential. Failure to challenge a Confidential Information designation shall not preclude

a subsequent challenge thereto.

178. This Stipulation is entered into without prejudice to the right of any Party or non-

party to seek relief from, or modification of, this Stipulation or any provisions thereof by

properly noticed motion to the Court or to challenge any designation of confidentiality as

inappropriate under the Civil Practice Law and Rules or other applicable law.

189. This Stipulation shall continue to be binding after the conclusion of this litigation

except that: (a) there shall be no restriction on documents that are used as exhibits in Court

(unless such exhibits were filed under seal); and (b) that a Receiving Party may seek the written

permission of the Producing Party or further order of the Court with respect to dissolution or

modification of the Stipulation. The provisions of this Stipulation shall, absent prior written

consent of the parties, continue to be binding after the conclusion of this action.

 

4834-3613-0103.v1 556316v.2

1920. Nothing herein shall be deemed to waive any privilege recognized by law, or shall

be deemed an admission as to the admissibility in evidence of any facts or documents revealed in

the course of disclosure.

201. Within sixty (60) days after the final termination of this litigation by settlement or

exhaustion of all appeals, all Confidential Information produced or designated and all

reproductions thereof shall be returned to the Producing Party or, at the Receiving Party’s option,

shall be destroyed. In the event that any Receiving Party chooses to destroy physical objects and

documents, such Party shall certify in writing within sixty (60) days of the final termination of

this litigation that it has undertaken its best efforts to destroy such physical objects and

documents, and that such physical objects and documents have been destroyed to the best of its

knowledge. Notwithstanding anything to the contrary, counsel of record for the Parties may

retain one copy of documents constituting work product, a copy of pleadings, motion papers,

discovery responses, deposition transcripts and deposition and trial exhibits. This Stipulation

shall not be interpreted in a manner that would violate any applicable rules of professional

conduct. Nothing in this Stipulation shall prohibit or interfere with the ability of counsel for any

Receiving Party, or of experts specially retained for this case, to represent any individual,

corporation or other entity adverse to any Party or non-party or their affiliate(s) in connection

with any other matter.

212. If a Receiving Party is called upon to produce Confidential Information in order

to comply with a court order, subpoena, or other direction by a court, administrative agency, or

legislative body, the Receiving Party from which the Confidential Information is sought shall

(a) give written notice by overnight mail and either email or facsimile to the counsel for the

Producing Party within five (5) business days of receipt of such order, subpoena, or direction,

 

4834-3613-0103.v1 556316v.2

and (b) give the Producing Party five ( 5) business days to object to the production of such

Confidential Information, if the Producing Party so desires. Notwithstanding the foregoing,

nothing in this paragraph shall be construed as requiring any party to this Stipulation to subject

itself to any penalties for noncompliance with any court order, subpoena, or other direction by a

court, administrative agency, or legislative body.

223. This Stipulation may be changed by further order of this Court, and is without

prejudice to the rights of a Party to move for relief from any of its provisions, or to seek or agree

to different or additional protection for any particular material or information.

234. Notwithstanding the foregoing, nothing in this Stipulation and Order shall bar a

party from making any use of, or disclose to any person, its own Confidential Information. any

material it has produced, other than material the party possesses only as a result of its current or

prior role as an employee, officer, or Manager of an opposing party.

245. Nothing in this agreement shall impair or limit the Receiving Party’s right or

ability to use any Confidential Information it has obtained outside the discovery process, via

public sources or otherwise or any other legally proper sources.

256. If the Producing Party intentionally shall cause its Confidential Information to be

publicly disclosed, such publicly disclosed Confidential Information shall cease to be

confidential for purposes of this Order, except if such information is designated as confidential

by a party other than the party making the public disclosure.

27. Notwithstanding anything to the contrary herein, this agreement does not

supersede or diminish any pre existing confidentiality obligations of the parties, and all pre

existing confidentiality obligations of the parties remain in full force and effect.

 

4834-3613-0103.v1 556316v.2

26. Notwithstanding anything to the contrary herein, this agreement does not

supersede or diminish any pre-existing confidentiality obligations of the Parties contained in the

Transaction Agreement, dated November 17, 2010; the Amended and Restated Limited Liability

Company Operating Agreements, dated December 30, 2010; and the Employment Agreements

for Gerald A. Niznick dated November 17, 2010, April 15, 2011, and October 20, 2011.

278. This Stipulation may be signed in counterparts, which, when fully executed, shall

constitute a single original, and electronic signatures shall be deemed original signatures.

2928. Subject to the statement in the preamble to this Stipulation that this Stiptulation

applies to all documents previously produced in this Actionaction, the terms of this Stipulation

otherwise became effective as of September 30, 2016, by agreement of the parties and supplants

the prior confidentiality agreement of the parties dated December 23, 2014.

Dated: New York, New York September November __, 2016 DAVIDOFF HUTCHER & CITRON LLP By: Martin H. Samson Gary I. Lerner Eric Przybylko 605 Third Avenue New York, NY 10158 Tel: (212) 557-7200

Dated: New York, New York September November __, 2016 PILLSBURY WINTHROP SHAW PITTMAN LLP By: E. Leo Milonas David G. Keyko 1540 Broadway New York, NY 10036 Tel: (212) 858-1604 eleo.milonas@pillsburylaw.com david.keyko@pillsburylaw.com Attorneys for Plaintiffs

KULIK GOTTESMAN & SIEGEL LLP Don Gottesman Comerica Bank Building 15303 Ventura Boulevard, Suite 1400 Sherman Oaks, CA 91403 Tel: (818) 817-3600

WILLIAMS & CONNOLLY LLP Dane H. Butswinkas R. Hackney Wiegmann Edward J. Bennett Kenneth J. Brown R. Kennon Poteat III 725 Twelfth Street, N. W.

 

4834-3613-0103.v1 556316v.2

Attorneys for Defendants Washington, DC 20005 Tel: (202) 434-5000 Attorneys for Plaintiff Sybron Canada Holdings, Inc.

GOLDMAN ISMAIL TOMASELLI BRENNAN & BAUM LLP Andrew L. Goldman Joe W. Tomaselli, Jr. Andrew J. Rima 564 West Randolph Street, Suite 400 Chicago, IL 60661 Tel: (312) 681-6000 Attorneys for the Joint Venture Companies

Dated:

SO ORDERED

J.S.C.

 

4834-3613-0103.v1 556316v.2

6. I will hold in confidence, will not disclose to anyone not qualified under the

Stipulation, and will use only for purposes of this action, any Confidential Information that is

disclosed to me.

7. I will return all Confidential Information that comes into my possession, and

documents or things that I have prepared relating thereto, to counsel for the party by whom I am

employed or retained, or to counsel from whom I received the Confidential Information.

8. I hereby submit to the jurisdiction of this court for the purpose of enforcement of

the Stipulation in this action.

Dated:

EXHIBIT F

 

4834-3613-0103.v1 556316v.2

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SYBRON CANADA HOLDINGS, INC., Implant Direct Sybron International, LLC, Implant Direct Sybron Manufacturing, LLC, Implant Direct Sybron Administration, LLC, Plaintiffs, v. GERALD A. NIZNICK, Implant Direct Int’l, Inc., Implant Direct Mfg., LLC, Mikana Manufacturing Company Inc., Defendants.

Index No. 650908/2014 IAS Part 61 (Ostrager, J.)

IMPLANT DIRECT INT’L, INC., Implant Direct Mfg., LLC, Mikana Manufacturing Company Inc., Defendants and Counterclaim Plaintiffs, v. SYBRON CANADA HOLDINGS, INC., Implant Direct Sybron International, LLC, Implant Direct Sybron Manufacturing, LLC, Implant Direct Sybron Administration, LLC, Plaintiffs and Counterclaim Defendants.

STIPULATION AND ORDER FOR THE PRODUCTION AND EXCHANGE OF CONFIDENTIAL INFORMATION

This matter having come before the Court by stipulation of Plaintiffs/Counterclaim

Defendants, Sybron Canada Holdings, Inc., Implant Direct Sybron International, LLC, Implant

Direct Sybron Manufacturing, LLC, and Implant Direct Sybron Administration, LLC, and

Defendant, Gerald A. Niznick, and Defendants/Counterclaim Plaintiffs Implant Direct Int’l, Inc.,

Implant Direct Mfg., LLC, and Mikana Manufacturing Company Inc. (individually “Party” and

collectively “Parties”) for the entry of a protective order pursuant to CPLR 3103(a), limiting the

review, copying, dissemination and filing of confidential and/or proprietary documents and

information that have been or will be produced by either party and their respective counsel or by

 

4834-3613-0103.v1 556316v.2

any non-party in the course of discovery in this matter to the extent set forth below; and the

parties, by, between and among their respective counsel, having stipulated and agreed to the

terms set forth herein, and good cause having been shown;

IT IS hereby ORDERED that:

1. This Stipulation is being entered into to facilitate the production, exchange and

discovery of documents and information that the Parties and, as appropriate, non-parties, agree

merit confidential treatment (hereinafter the “Documents” or “Testimony”).

2. Any Party or, as appropriate, non-party, may designate Documents produced, or

Testimony given, in connection with this action as “confidential,” either by notation on each

page of the Document so designated, statement on the record of the deposition, or written advice

to the respective undersigned counsel for the Parties hereto, or by other appropriate means.

3. As used herein:

(a) “Confidential Information” shall mean all Documents and Testimony, and all

information contained therein, and other information designated as confidential, if such

Documents or Testimony contain trade secrets, proprietary business information, competitively

sensitive information or other information the disclosure of which would, in the good faith

judgment of the Party or, as appropriate, non-party designating the material as confidential, be

detrimental to the conduct of that Party’s or non-party’s business or the business of any of that

Party’s or non-party’s customers or clients.

(b) “Producing Party” shall mean the parties to this action and any non-parties

producing “Confidential Information” in connection with depositions, document production or

otherwise, or the Party or non-party asserting the confidentiality privilege, as the case may be.

 

4834-3613-0103.v1 556316v.2

(c) “Receiving Party” shall mean the Parties to this action and/or any nonparty

receiving “Confidential Information” in connection with depositions, document production,

subpoenas or otherwise.

4. The Receiving Party may, at any time, notify the Producing Party that the

Receiving Party does not concur in the designation of a document or other material as

Confidential Information. If the Producing Party does not agree to declassify such document or

material within seven (7) days of the written request, the Receiving Party may request a

conference before the Court in accordance with the Practice Rules for Part 61 to declassify those

documents or materials. If such a conference is requested, the documents or other materials shall

be deemed Confidential Information unless and until the Court rules otherwise. Notwithstanding

anything herein to the contrary, the Producing Party bears the burden of establishing the

propriety of its designation of documents or information as Confidential Information.

5. Except with the prior written consent of the Producing Party or by Order of the

Court, Confidential Information shall not be furnished, shown or disclosed to any person or

entity except to:

(a) personnel of the Parties actually engaged in assisting in the preparation of this

action for trial or other proceeding herein and who have been advised of their obligations

hereunder;

(b) counsel for the Parties to this action and their associated attorneys, paralegals and

other professional and non-professional personnel (including support staff and outside copying

services) who are directly assisting such counsel in the preparation of this action for trial or other

proceeding herein, are under the supervision or control of such counsel, and who have been

advised by such counsel of their obligations hereunder;

 

4834-3613-0103.v1 556316v.2

(c) expert witnesses or consultants retained by the Parties or their counsel to furnish

technical or expert services in connection with this action or to give testimony with respect to the

subject matter of this action at the trial of this action or other proceeding herein; provided,

however, that such Confidential Information is furnished, shown or disclosed in accordance with

paragraph 7 hereof;

(d) the Court and court personnel;

(e) any person who authored or received, outside the context of this litigation, the

particular material sought to be disclosed to that person (provided that the document has not been

altered since that person authored or received the material);

(f) an officer before whom a deposition is taken, including stenographic reporters and

any necessary secretarial, clerical or other personnel of such officer;

(g) trial and deposition witnesses identified by the parties, if furnished, shown or

disclosed in accordance with paragraphs 9 and 10, respectively, hereof; and

(h) any other person agreed to by the Producing Party.

6. Confidential Information shall be utilized by the Receiving Party and its counsel

only for purposes of this litigation and for no other purposes.

7. Before any disclosure of Confidential Information is made to an expert witness or

consultant pursuant to paragraph 5(c) hereof, counsel for the Receiving Party making such

disclosure shall provide to the expert witness or consultant a copy of this Stipulation and obtain

the expert’s or consultant’s written agreement, in the form of Exhibit A attached hereto, to

comply with and be bound by its terms. Counsel for the Receiving Party obtaining the certificate

shall supply a copy to counsel for the other Parties at the time designated for expert disclosure,

 

4834-3613-0103.v1 556316v.2

except that any certificate signed by an expert or consultant who is not expected to be called as a

witness at trial is not required to be supplied.

8. All depositions shall presumptively be treated as Confidential Information and

subject to this Stipulation during the deposition and for a period of fifteen (15) days after a

transcript of said deposition is received by counsel for each of the Parties. At or before the end

of such fifteen day period, the deposition shall be classified appropriately.

9. Should the need arise for any Party or, as appropriate, non-party, to disclose

Confidential Information during any hearing or trial before the Court, including through

argument or the presentation of evidence, such Party or, as appropriate, non-party may do so

only after taking such steps as the Court, upon motion of the Producing Party, shall deem

necessary to preserve the confidentiality of such Confidential Information.

10. This Stipulation shall not preclude counsel for any Party from using during any

deposition in this action any Documents or Testimony which has been designated as

“Confidential Information” under the terms hereof. Any deposition witness who is given access

to Confidential Information shall, prior thereto, be provided with a copy of this Stipulation and

shall execute a written agreement, in the form of Exhibit A attached hereto, to comply with and

be bound by its terms. Counsel for the Party obtaining the certificate shall supply a copy to

counsel for the other Parties and, as appropriate, a non-party that is a Producing Party. In the

event that, upon being presented with a copy of the Stipulation, a witness refuses to execute the

agreement to be bound by this Stipulation, the Court shall, upon application, enter an order

directing the witness’s compliance with the Stipulation.

11. A Party may designate as Confidential Information subject to this Stipulation any

document, information, or deposition testimony produced or given by any nonparty to this case,

 

4834-3613-0103.v1 556316v.2

or any portion thereof. In the case of Documents, produced by a non-party, designation shall be

made by notifying all counsel in writing of those documents which are to be stamped and treated

as such at any time up to fifteen (15) days after actual receipt of copies of those documents by

counsel for the Party asserting the confidentiality privilege. In the case of deposition Testimony,

designation shall be made by notifying all counsel in writing of those portions which are to be

stamped or otherwise treated as such at any time up to fifteen (15) days after the transcript is

received by counsel for the Party (or, as appropriate, non-party) asserting the confidentiality.

Prior to the expiration of such fifteen (15) day period (or until a designation is made by counsel,

if such a designation is made in a shorter period of time), all such Documents and Testimony

shall be treated as Confidential Information.

12. (a) A Party or, as appropriate, non-party, who seeks to file with the Court

(i) any deposition transcripts, exhibits, answers to interrogatories, or other documents which

have previously been designated as comprising or containing Confidential Information, or

(ii) any pleading, brief or memorandum which reproduces, paraphrases or discloses Confidential

Information shall file the document, pleading, brief, or memorandum on the NYSCEF system in

redacted form until the Court renders a decision on any motion to seal (the “Redacted Filing”).

If the Producing Party fails to move to seal within seven (7) days of the Redacted Filing, the

Party (or, as appropriate, non-party) making the filing shall take steps to replace the Redacted

Filing with its corresponding unredacted version.

(b) In the event that the Party’s (or, as appropriate, non-party’s) filing includes

Confidential Information produced by a Producing Party that is a non-party, the filing Party shall

so notify that Producing Party within twenty-four (24) hours after the Redacted Filing by

 

4834-3613-0103.v1 556316v.2

providing the Producing Party with a copy of the Redacted Filing as well as a version of the

filing with the relevant Producing Party’s Confidential Information unredacted.

(c) If the Producing Party makes a timely motion to seal, and the motion is granted,

the filing Party (or, as appropriate, non-party) shall ensure that all documents (or, if directed by

the court, portions of documents) that are the subject of the order to seal are filed in accordance

with the procedures that govern the filing of sealed documents on the NYSCEF system. If the

Producing Party’s timely motion to seal is denied, then the Party (or, as appropriate, non-party)

making the filing shall take steps to replace the Redacted Filing with its corresponding

unredacted version.

(d) Any Party filing a Redacted Filing in accordance with the procedure set forth in

this paragraph 12 shall, contemporaneously with or prior to making the Redacted Filing, provide

the other Parties and the Court with a complete and unredacted version of the filing.

(e) All pleadings, briefs or memoranda which reproduce, paraphrase or disclose any

materials which have previously been designated by a party as comprising or containing

Confidential Information shall identify such documents by the production number ascribed to

them at the time of production.

13. Any person receiving Confidential Information shall not reveal or discuss such

information to or with any person not entitled to receive such information under the terms hereof

and shall use reasonable measures to store and maintain the Confidential Information so as to

prevent unauthorized disclosure.

14. Any document or information that may contain Confidential Information that has

been inadvertently produced without identification as to its “confidential” nature as provided in

paragraphs 2 and/or 11 of this Stipulation, may be so designated by the party asserting the

 

4834-3613-0103.v1 556316v.2

confidentiality privilege by written notice to the undersigned counsel for the Receiving Party

identifying the document or information as “confidential'” within a reasonable time following the

discovery that the document or information has been produced without such designation.

15. Extracts and summaries of Confidential Information shall also be treated as

confidential in accordance with the provisions of this Stipulation.

16. The production or disclosure of Confidential Information shall in no way

constitute a waiver of each Producing Party’s right to object to the production or disclosure of

other information in this action or in any other action. Nothing in this Stipulation shall operate

as an admission by any Party or non-party that any particular document or information is, or is

not, confidential. Failure to challenge a Confidential Information designation shall not preclude

a subsequent challenge thereto.

17. This Stipulation is entered into without prejudice to the right of any Party or non-

party to seek relief from, or modification of, this Stipulation or any provisions thereof by

properly noticed motion to the Court or to challenge any designation of confidentiality as

inappropriate under the Civil Practice Law and Rules or other applicable law.

18. This Stipulation shall continue to be binding after the conclusion of this litigation

except that: (a) there shall be no restriction on documents that are used as exhibits in Court

(unless such exhibits were filed under seal); and (b) that a Receiving Party may seek the written

permission of the Producing Party or further order of the Court with respect to dissolution or

modification of the Stipulation. The provisions of this Stipulation shall, absent prior written

consent of the parties, continue to be binding after the conclusion of this action.

 

4834-3613-0103.v1 556316v.2

19. Nothing herein shall be deemed to waive any privilege recognized by law, or shall

be deemed an admission as to the admissibility in evidence of any facts or documents revealed in

the course of disclosure.

20. Within sixty (60) days after the final termination of this litigation by settlement or

exhaustion of all appeals, all Confidential Information produced or designated and all

reproductions thereof shall be returned to the Producing Party or, at the Receiving Party’s option,

shall be destroyed. In the event that any Receiving Party chooses to destroy physical objects and

documents, such Party shall certify in writing within sixty (60) days of the final termination of

this litigation that it has undertaken its best efforts to destroy such physical objects and

documents, and that such physical objects and documents have been destroyed to the best of its

knowledge. Notwithstanding anything to the contrary, counsel of record for the Parties may

retain one copy of documents constituting work product, a copy of pleadings, motion papers,

discovery responses, deposition transcripts and deposition and trial exhibits. This Stipulation

shall not be interpreted in a manner that would violate any applicable rules of professional

conduct. Nothing in this Stipulation shall prohibit or interfere with the ability of counsel for any

Receiving Party, or of experts specially retained for this case, to represent any individual,

corporation or other entity adverse to any Party or non-party or their affiliate(s) in connection

with any other matter.

21. If a Receiving Party is called upon to produce Confidential Information in order

to comply with a court order, subpoena, or other direction by a court, administrative agency, or

legislative body, the Receiving Party from which the Confidential Information is sought shall

(a) give written notice by overnight mail and either email or facsimile to the counsel for the

Producing Party within five (5) business days of receipt of such order, subpoena, or direction,

 

4834-3613-0103.v1 556316v.2

and (b) give the Producing Party five ( 5) business days to object to the production of such

Confidential Information, if the Producing Party so desires. Notwithstanding the foregoing,

nothing in this paragraph shall be construed as requiring any party to this Stipulation to subject

itself to any penalties for noncompliance with any court order, subpoena, or other direction by a

court, administrative agency, or legislative body.

22. This Stipulation may be changed by further order of this Court, and is without

prejudice to the rights of a Party to move for relief from any of its provisions, or to seek or agree

to different or additional protection for any particular material or information.

23. Notwithstanding the foregoing, nothing in this Stipulation and Order shall bar a

party from making any use of, or disclose to any person, its own Confidential Information.

24. Nothing in this agreement shall impair or limit the Receiving Party’s right or

ability to use any Confidential Information it has obtained outside the discovery process via

public sources or any other legally proper sources.

25. If the Producing Party intentionally shall cause its Confidential Information to be

publicly disclosed, such publicly disclosed Confidential Information shall cease to be

confidential for purposes of this Order, except if such information is designated as confidential

by a party other than the party making the public disclosure.

26. Notwithstanding anything to the contrary herein, this agreement does not

supersede or diminish any pre-existing confidentiality obligations of the Parties contained in the

Transaction Agreement, dated November 17, 2010; the Amended and Restated Limited Liability

Company Operating Agreements, dated December 30, 2010; and the Employment Agreements

for Gerald A. Niznick dated November 17, 2010, April 15, 2011, and October 20, 2011.

 

4834-3613-0103.v1 556316v.2

27. This Stipulation may be signed in counterparts, which, when fully executed, shall

constitute a single original, and electronic signatures shall be deemed original signatures.

28. Subject to the statement in the preamble to this Stipulation that this Stipulation

applies to all documents previously produced in this action, the terms of this Stipulation

otherwise became effective as of September 30, 2016, by agreement of the parties and supplants

the prior confidentiality agreement of the parties dated December 23, 2014.

Dated: New York, New York November __, 2016 DAVIDOFF HUTCHER & CITRON LLP By: Martin H. Samson Gary I. Lerner Eric Przybylko 605 Third Avenue New York, NY 10158 Tel: (212) 557-7200

Dated: New York, New York November __, 2016 PILLSBURY WINTHROP SHAW PITTMAN LLP By: E. Leo Milonas David G. Keyko 1540 Broadway New York, NY 10036 Tel: (212) 858-1604 eleo.milonas@pillsburylaw.com david.keyko@pillsburylaw.com Attorneys for Plaintiffs

KULIK GOTTESMAN & SIEGEL LLP Don Gottesman Comerica Bank Building 15303 Ventura Boulevard, Suite 1400 Sherman Oaks, CA 91403 Tel: (818) 817-3600 Attorneys for Defendants

WILLIAMS & CONNOLLY LLP Dane H. Butswinkas R. Hackney Wiegmann Edward J. Bennett Kenneth J. Brown R. Kennon Poteat III 725 Twelfth Street, N. W. Washington, DC 20005 Tel: (202) 434-5000 Attorneys for Plaintiff Sybron Canada Holdings, Inc.

GOLDMAN ISMAIL TOMASELLI BRENNAN & BAUM LLP Andrew L. Goldman Joe W. Tomaselli, Jr. Andrew J. Rima

 

4834-3613-0103.v1 556316v.2

564 West Randolph Street, Suite 400 Chicago, IL 60661 Tel: (312) 681-6000 Attorneys for the Joint Venture Companies

Dated:

SO ORDERED

J.S.C.

 

4834-3613-0103.v1 556316v.2

Exhibit A

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SYBRON CANADA HOLDINGS, INC., Implant Direct Sybron International, LLC, Implant Direct Sybron Manufacturing, LLC, Implant Direct Sybron Administration, LLC, Plaintiffs, v. GERALD A. NIZNICK, Implant Direct Int’l, Inc., Implant Direct Mfg., LLC, Mikana Manufacturing Company Inc., Defendants.

Index No. 650908/2014 IAS Part 61 (Ostrager, J.)

IMPLANT DIRECT INT’L, INC., Implant Direct Mfg., LLC, Mikana Manufacturing Company Inc., Defendants and Counterclaim Plaintiffs, v. SYBRON CANADA HOLDINGS, INC., Implant Direct Sybron International, LLC, Implant Direct Sybron Manufacturing, LLC, Implant Direct Sybron Administration, LLC, Plaintiffs and Counterclaim Defendants.

AGREEMENT WITH RESPECT TO CONFIDENTIAL MATERIAL

I, state that:

1. My address is

2. My present occupation or job description is

3. I have received a copy of the Stipulation for the Production and Exchange of

Confidential Information (the “Stipulation”) entered in the above-entitled action on

4. I have carefully read and understand the provisions of the Stipulation.

5. I will comply with all of the provisions of the Stipulation.

 

4834-3613-0103.v1 556316v.2

6. I will hold in confidence, will not disclose to anyone not qualified under the

Stipulation, and will use only for purposes of this action, any Confidential Information that is

disclosed to me.

7. I will return all Confidential Information that comes into my possession, and

documents or things that I have prepared relating thereto, to counsel for the party by whom I am

employed or retained, or to counsel from whom I received the Confidential Information.

8. I hereby submit to the jurisdiction of this court for the purpose of enforcement of

the Stipulation in this action.

Dated:

EXHIBIT G

R. KENNON POTEAT III (202) 434-5699

kpoteat@wc.com

January 22, 2016

Via E-mail

Martin Samson, Esq. Davidoff Hutcher & Citron LLP 605 Third Avenue New York, NY 10158

Re: Sybron Canada Holdings, Inc., et al. v. Niznick, et al. Index No. 650908/2014

Dear Martin:

We write on behalf of Plaintiffs concerning the parties’ supplemental document productions, which will include documents created after the original collection dates. We set forth below what we propose in terms of collecting, reviewing, and producing documents from the supplemental period—generally October 2014 to the present. We also address what you have proposed for Defendants’ supplemental production.

Plaintiffs’ Supplemental Production Plaintiffs propose to produce supplemental documents from fourteen custodians.

Plaintiffs have endeavored to include the most relevant custodians who likely will possess relevant documents, while also balancing the tremendous burden associated with the review and production of documents created during this litigation. The proposed custodians include not only those persons who are likely to possess documents relevant to Defendants’ current counterclaims, but also to the proposed supplemental counterclaims that are the subject of Defendants’ pending motion to amend:

1. Chang, Roy 2. Franke, Carsten 3. Garrett, Matt 4. Impieri, Filippo 5. Korves, Chris 6. Rashidi, Ahmad 7. Raskas, Daniel 8. Reck, Robin 9. Reis, Mischa

January 22, 2016 Page 2

10. Reynal, Vicente 11. Smirl, Stephen 12. Stratton, Tom 13. Tomassi, Steve 14. van Duijnhoven, Henk As you will note, Plaintiffs have proposed to add two new custodians—Filippo Impieri

and Stephen Smirl—whose involvement in the relevant issues occurred after Plaintiffs’ original collection date.

Plaintiffs believe that this fulsome proposal more than satisfies our discovery obligations

under the New York rules and will provide Defendants with the requisite discovery from the supplemental period. As we have done in the past, after we collect documents and test potential search terms, we will let you know the specific terms that we intend to employ to capture relevant documents.

Please let us know if our proposal is acceptable to you. Defendants’ Supplemental Production Plaintiffs understand that Defendants are willing to make supplemental productions for

the following nine custodians, all of whom were part of your original productions: 1. Davis, Phil 2. Jurcoane, Josie 3. Kennedy, Michael 4. Kent, Brenda 5. Konheim, Jon 6. McLaughlin, John 7. Niznick, Gerald 8. Smith, Wayne 9. Kehr, Schiff & Crane LLP Before we are able to fully evaluate your proposal, however, please confirm that

Defendants have preserved and will produce, for the original and supplemental period, (1) all documents and communications sent to or received from any person who, at the time of the document or communication, worked for or on behalf of Plaintiffs relating to employment opportunities other than with the JVCs; (2) all documents and communications relating to negative comments, criticisms, or false, disparaging, or derogatory statements by Niznick relating to the JVCs, Danaher, or any of Danaher’s corporate parents or affiliates, or any of the current or former employees of any of these entities; and (3) all documents and communications

January 22, 2016 Page 3

relating to the actual or potential employment or hiring, in any capacity, of any current or former JVC employee by any person other than the JVCs. See Pls. Reqs. for Prod. 30, 36, 63.

Sincerely,

R. Kennon Poteat, III

cc: Eric Przybylko Gary Lerner Don Gottesman Edward Bennett Benjamin Vaughn E. Leo Milonas Andrew Goldman Joe Tomaselli Andrew Rima

EXHIBIT H

DAVIDOFF HUTCHER & CITRON LLP ATTORNEYS AT LAW

By Email Kennon Poteat Ill, Esq. Williams & Connolly LLP 725 Twelfth Street, N.W. Washington, D.C. 20005-5901

605 THIRD AVENUE NEW YORK, NY I 0 I 58

TEL: (2 I 2) 557-7200 FAX: (2 I 2) 286· I 884

WWW.OHCLEGAL.COM

February 25, 2016

FIRM OFFICES

GARDEN CrrY ATTORNEYS AT LAW

200 GARDEN CrrY PLAZA GARDEN CITY. NY I I 530

(5 16) 248-6400

ALBANY GOVERNMENT RELATIONS

I 50 STATE STREET ALBANY, NY I 2207

(51 8) 465·8230

WASHINGTON, D.C. GOVERNMENT RELAllONS

121 I CONNECTiCUT AVENUE, N.W WASHINGTON, D.C. 20036

(202) 347·1 I I 7

Re: Sybron Canada Holdings, Inc., et al. v. Niznick, et al. (Index No. 650908/2014)

Dear Kennon:

We write in response to your January 22, 2016 letter in which you set forth both plaintiffs' proposal for the scope of the supplementation of their document productions and your understanding of the scope of defendants' supplementation.

As a preliminary matter, your January 22 letter describes plaintiffs' anticipated supplemental production as being comprised of "documents created or altered after the original collection dates." In our September 8, 2015 letter requesting supplementation, however, we specifically requested that plaintiffs supplement their productions by producing: "(i) documents concerning relevant events that occurred after the date on which plaintiffs collected documents for use in their initial document productions ("Collection Date"); (ii) relevant documents concerning the claims at issue created after the Collection Date; and (iii) the numerous documents plaintiffs should have, but have not produced to date." Please advise us whether plaintiffs intend to limit their supplemental productions to the first and second categories of information described in our September 8 letter.

Plaintiffs' Proposed Custodians

In response to our request for a description of how plaintiffs plan to supplement their document productions, you have proposed that plaintiffs collect supplemental documents from only 14 custodians, compared to the 53 custodians included in

539441v.6

DAVIDOFF HUTCHER & CITRON LLP

Kennon Poteat Ill, Esq. February 25, 2016 Page 2

plaintiffs' original productions.1 We cannot agree that such a limited universe of custodians is remotely sufficient to collect supplemental documents.

As we explained in detail in our September 8, 2015 letter, the parties are obligated to supplement their original productions, and this obligation includes the responsibility to collect and produce both documents relating to relevant events occurring after the Collection Date and documents relating to pre-Collection Date events but created after that date. By identifying 53 custodians in the course of your original production, you recognized that those custodians were in possession of responsive documents. At a minimum, those same custodians must remain the starting point for your supplemental production, unless there is some specific and demonstrable reason why supplemental collection from such custodians would be futile. Your failure to address why the large majority of your original custodians would not have additional documents makes it impossible for us to meaningfully comment on your proposal.2

We are certainly mindful that there may be some concrete reasons for eliminating some of plaintiffs' original custodians. For example, we acknowledge that a number of your original custodians left plaintiffs' employ prior to the Collection Date -- Sh9.:., Brian Banton, Barry Britzman, Ed Buthusiem, Michael Doerle, Phil Davis, Dr. Niznick, Josephine Jurcoane, Michael Kennedy, Brenda Kent, Jon Konheim, John Mclachlan, and Wayne Smith-- and, as a result, would agree that there is no purpose in continuing to use those individuals as custodians. In addition, we recognize that there may be other original custodians whose substantive involvement in the relevant issues was limited and ended before the Collection Date -- Sh9.:., the Skadden attorneys (Aipaslan Basaran, Joseph Coco, Thomas Greenberg) involved with the transaction in which Danaher acquired its interest in the JVCs -- and similarly understand why they will not be used as custodians for plaintiffs' supplemental collection. We are certainly willing to hear from plaintiffs why specific individual custodians are not likely to have additional responsive documents after the Collection Date but, short of such an explanation, we cannot agree that the extremely limited universe of custodians identified in your letter would satisfy plaintiffs' duty to supplement under CPLR § 3101.

Furthermore, even if plaintiffs had correctly used their original custodian list as a starting point for their proposed supplementation protocol, a complete supplemental collection would involve expanding, not limiting, that list. Shockingly, plaintiffs have not proposed a single custodian who was not used in their original collection, despite the

The metadata for plaintiffs' original productions indicates that in addition to the 46 custodians identified in plaintiffs' January 27, 2015 letter, plaintiffs produced documents on behalf of 7 additional custodians (Joseph Coco, Filippo lmpieri, Gina Nese, Terry Sanchez, Stephen Smirl, Josh Tanner and Williams & Connolly), in part due to specific demands from defendants.

2 For example, your proposed list of custodians would eliminate, without explanation, numerous custodians from whom a large volume of documents was produced in plaintiffs' original production, such as Attila Bodi (730 documents), Henry Carroll (1,243), Julie Coletti (1,830), Larry Culp (613), Carlos Moran (861), Sean Stapleton (979), lnes Aravena (869), Esther Augustson (503), Joseph Campbell (1,221), Thomas Creighton (1,425), Dawn Heilman (520), Scott Henkel (880) and David Wing (979).

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DAVIDOFF HUTCHER & CITRON LLP

Kennon Poteat Ill, Esq. February 25, 2016 Page 3

fact that there are numerous individuals who clearly have responsive documents and were not used in the original collection. For example, plaintiffs now propose to use three of the JVCs' four current board members as custodians (Tom Stratton, Steve Tomassi and Henk van Duijnhoven) while eliminating the fourth member, Henrik Roos. 3

Plaintiffs also failed to include numerous KKG custodians whose prior productions show are intimately involved with the MIM project and the use of Implant Direct's customer data, such as Tony Feole, Michelle Jackson and Jessica Kachmar. Most troublingly, although defendants' proposed amended counterclaims assert that the JVCs are being operated to benefit Nobel (and Danaher's interests therein), you have not included a single Nobel custodian on your list.4 These obvious failings make it evident that plaintiffs have not attempted to compile a list which will truly result in a complete supplemental collection.

We attach as Appendix A a list of potential custodians for plaintiffs' supplemental collection. While we believe that it is plaintiffs' responsibility to investigate its own documents and compile a list of its representatives in possession of responsive documents, we provide this list as a starting point so that we can move forward as quickly as possible with the supplementation of discovery.

Plaintiffs' Proposed Search Terms

Although plaintiffs had agreed to present their proposal for supplemental document collection and production by January 22, 2016, your January 22 letter merely "punts" on the critical issue of search terms, stating "[a]fter [plaintiffs] collect documents and the Court rules on Defendants' motion to amend pleadings, we will test potential search terms and will let you know the specific terms that we intend to employ for which custodians to most efficiently capture potentially relevant documents." This response in patently insufficient.

Again, at a minimum, plaintiffs must begin by using the search terms they employed for their original collection, with those terms applied to the custodians listed on Appendix A (including new custodians such as the Nobel custodians). As one of the goals of supplemental production is to collect responsive documents generated after the

As noted in our proposed list of custodians (Appendix A), the JVCs' Board members should be treated as JVC custodians and their documents should be searched using the more extensive list of search terms plaintiffs applied to JVC custodians.

4 In prior conferences before the Court, plaintiffs have suggested that they should not be required to produce documents from Nobel, presumably because it is not technically a party. We do not believe Danaher could credibly refuse to produce Nobel documents, as Nobel is now a wholly-owned subsidiary of Danaher. See Bank of Tokyo-Mitsubishi, Ltd. v. Kvaerner, 175 Misc.2d 408, 410 (Sup. Ct. N.Y. Cty. 1998} ("'n general a parent has been required to produce documents of its wholly owned subsidiary"). In any event, plaintiffs' original production included custodians within KKG, and recent public statements of Nobel's president Hans Geiselhoringer demonstrate that Nobel is now "joining forces" with KKG. See http:/ /www.dental­tribune.com/articles/news/europe/27618_interview_challenges_will_soon_become_successes.html.

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DAVIDOFF HUTCHER & CITRON LLP

Kennon Poteat Ill, Esq. February 25, 2016 Page 4

Collection Date, common sense dictates that plaintiffs will use their original search terms as a starting point.

In addition to their original terms, plaintiffs will need to propose search terms that will capture both documents that should have been captured originally, as well as documents relating to defendants' proposed amended counterclaims. For example, given the centrality of the Nobel acquisition to defendants' proposed counterclaims, plaintiffs should devise search terms to capture Danaher and KKG communications with Nobel concerning both the acquisition itself and with the JVCs concerning marketing of Nobel-competitive products. Plaintiffs will also need to create search terms to collect documents concerning Nobel's participation in the MIM project, and the provision of any Implant Direct customer data to Nobel.

While we recognize that the search terms may need to be expanded once the Court ultimately rules on defendants' motion to amend, it is simply not practical to forestall discussions on search terms until that time. Plaintiffs have had our proposed expanded pleading for months, and we ask that plaintiffs disclose their proposed search terms as soon as possible so that we can begin productive meet-and-confer discussions on the scope of those terms. In order to move your creation of search terms forward, we attach as Appendix B a list of search terms plaintiffs, at a minimum, should run in addition to its original search terms.

Defendants' Proposed Supplementation Protocol

With respect to defendants' proposed supplementation protocol, defendants intend to run searches of defendants' electronic documents for documents created or generated since our original collection date, using the search terms used in our original collection (i.e., the terms set forth in Ted Bennett's April 2, 2015 letter). Of course, we remain amenable to running additional search terms based on plaintiffs' proposed supplemental search terms, which is why we should begin substantive discussions on those terms as soon as possible.

We do need to clarify one important point regarding defendants' custodians. In your letter, you state plaintiffs' "understanding" that defendants intend to make supplemental productions for nine defendant "custodians" -- Phil Davis, Josephine Jurcoane, Michael Kennedy, Brenda Kent, Jon Konheim, John Mclachlan, Dr. Niznick, Wayne Smith and Kerr Schiff & Crane llP ("KSC") -- who you claim were used for defendants' original production. Contrary to your understanding, six of the seven non­party individuals you name -- Jurcoane, Kennedy, Kent, Konheim, Mclachlan and Smith -- were not custodians for defendants' production. 5 As you will recall, plaintiffs served third-party subpoenas on those individuals and those non-parties' documents were produced to plaintiffs in response to those subpoenas; the documents produced on behalf of those individuals were not produced on behalf of defendants. As a result, New

5 Niznick Enterprises, Inc., Mr. Davis' employer, was listed as the custodian of the defendants' documents you apparently reference.

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DAVIDOFF HUTCHER & CITRON LLP

Kennon Poteat Ill, Esq. February 25, 2016 Page 5

York procedure does not require automatic supplementation, as the supplementation obligation of CPLR 3101 only applies to "part[ies]." Given the relatively central role played by Konheim, however, we will agree to produce supplemental documents for him. Similarly, we will continue to treat Niznick Enterprises and KSC as defense custodians, though we expect any supplementation of KSC documents to be minimal. As you know, at plaintiffs' request, we only recently recollected KSC's electronic documents and just finished a supplemental production of those documents last month.

Finally, your letter asks us to confirm that defendants' custodians have preserved certain categories of documents, namely: ( 1) documents sent or received from any person who, at the time of the communication, worked for or on behalf of plaintiffs relating to employment opportunities other than with the JVCs; (2) documents relating to negative comments, criticisms, or false, disparaging or derogatory statements by Dr. Niznick relating to the JVCs, Danaher or any of Danaher's corporate partners or affiliates, or any of the current or former employees of these entities; (3) documents relating to the actual or potential employment or hiring, in any capacity, of any current or former JVC employee by any person other than the JVCs; ( 4) documents relating to Nobel; and (5) documents relating to the Zest litigation. Defendants' custodians have confirmed that they have preserved such documents but, as stated above, the subpoenaed non-parties are not defendants' custodians, and we cannot speak to their preservation efforts following their responses to plaintiffs' subpoenas.

As always, we look forward to plaintiffs' response and will make ourselves available to meet-and-confer on the above issues at plaintiffs' convenience.

EP/ep None cc: Edward Bennett, Esq.

E. Leo Milonas, Esq. Joe Tomaselli, Esq. Andrew Goldman, Esq. Andrew Rima, Esq. Martin Samson, Esq. Don Gottesman, Esq. Gary Lerner, Esq.

539441v.6

set'efPt Eric P~ylko

Appendix A

Affiliation Custodian . Danaher/KKG Bodi, Attila

Byrnes, Larry Carroll, Henry Carter, Thais Chang, Roy Coletti, Julie Culp, Larry Feole, Tony Frank, Andreas Franke, Carsten Garrett, Matt Geiselhoringer, Hans Impieri, Filippo Jackson, Michelle Joyce, Thomas Kachmar, Jessica Kim, Patricia Korves, Chris Lalor, Angie Laube, Richard Moran, Carlos Nese, Gina Nilsson, Melker Olsen, Tom Pfeifer, Brian Pratt, Dave Raskas, Daniel Reis, Mischa Reynal, Vicente Sass, Michael Smirl, Stephen Stapleton, Sean VandenKolk, Michael Williams, 1 effrey

JVCs Aravena, Ines Augustson, Esther Barber, Nora Campbell, Joseph Choi, Jay Corcoran, Kevin Creighton, Thomas Gallinari, Raffaella

539441v.6

Affiliation Custodian ·.· .. • . ·. ·. > .••

JVCs (cont'd) Heilman, Dawn Henkel, Scott Hurley, Ted Luger, Manuella Morales, Joe Painter, David Rashidi, Ahmad Reck, Robin Roos, Henrik" Stratton, Tom "

Tanner, Josh Tomassi, Steve "

van Duijnhoven, Henk "' Weber, Stephan Wing, Davis

Although the Danaher-appointed JVC Board members may technically be "Danaher" custodians, all four of the JVCs' Board members-- Roos, Stratton, Tomassi and van Duijnhoven --should be treated as JVC custodians and their electronic documents should be searched using the more extensive list of search terms applied to JVC custodians.

539441v.6

Appendix B

. Searcb..Terh1 •.·. Cust6dian(s)•i: .• ,.··.·.· :;',:~;.> .... :•.· (·>;;: .········!···; . < ; • (anticompetitive or Danaher/KKG anticompetitive or antitrust or anti-trust) and Danaher and Nobel* back /2 order* JVCs backorder* JVCs "burning building" JVCs ceo Danaher/KKG (excluding Nobel)

JVCs consult* and Niznick Danaher/KKG (excluding Nobel)

JVCs "data warehouse" JVCs dust* /5 off!' /5 resume JVCs ECO Danaher/KKG (excluding Nobel)

JVCs "excess cash" JVCs (FTC or "Federal Trade") and Danaher/KKG Danaher and Nobel* GPS and (abutment* or No attachment* or remov* or complaint*) Hillcrest JVCs ("Implant Direct" or JVCs) and All (autonomous* or independent* or separate* or distinct*) and (Danaher or KavoKerr* or KKG) InterActive All "marketing intelligence matrix" JVCs "marketing intelligence matrix" Danaher/KKG (excluding Nobel) and "Implant Direct" "marketing intelligence matrix" Danaher/KKG (excluding Nobel) and Nobel MIM JVCs MIM and "Implant Direct" Danaher/KKG (excluding Nobel) MIM and Nobel Danaher/KKG (excluding Nobel) mountless JVCs Nobel/10 acqui* Danaher/KKG (excluding Nobel) Nobel* JVCs "North Pole" Danaher/KKG RePlant* All "sinking ship" JVCs "smart pack" strat* /5 plan JVCs

539441v.6

Search Term ·' '· .. Custodian(s) . .... .. ·

Stratton and (bonus* or salar* or JVCs compensat* or review*) Swish* Danaher/KKG (excluding Nobel)

JVCs (terminat* resign* fire* dismiss* (terminat* resign* fire* dismiss*) and suspend*) and (Campbell or Choi (Campbell or Choi Henkel or Weber) Henkel or Weber) Zest JVCs

Nobel Zest and settl * Danaher/KKG (excluding Nobel)

539441v.6

EXHIBIT I

DAVIDOFF HUTCHER & CITRON LLP Kennon Poteat Ill, Esq. April 8, 2016 Page 10

Appendix A

Affiliation Custodian Danaher/KKG Althoff, Lud2er

Bodi, Attila Byrnes, Larry Carroll, Henry Carter, Thais Chang, Roy Coletti, Julie Culp, Larry Davis, Jason Feole, Tony Frank, Andreas Garrett, Matt Geiselhoringer, Hans Impieri, Filippo Jackson, Michelle Joyce, Thomas Kachmar, Jessica Kim, Patricia Korves, Chris Kuhn, Mark Lalor, Angie Laube, Richard Moran, Carlos Nese, Gina Nilsson, Melker Olsen, Tom Pensa, Mark Perry, Vicki Pfeifer, Brian Pratt, Dave Raskas, Daniel Reis, Mischa Reynal, Vicente Sass, Michael Smirl, Stephen Stapleton, Sean VandenKolk, Michael Williams, Jeffrey

JV Cs Ames, Todd f--·

Aravena, Ines

543840v.5

DAVIDOFF HUTCHER & CITRON LLP Kennon Poteat Ill, Esq. April 8, 2016 Page 11

Affiliation Custodian JVCs (cont'd) Augustson, Esther

Barber, Nora Campbell, Joseph Choi, Jay (and any individual replacing Choi as Vice President of Marketing) Corcoran, Kevin Covell, Justin Creighton, Thomas Gallinari, Raffaella Heilman, Dawn Henkel, Scott Hurley, Ted Luger, Manuella Morales, Joe Painter, David Rashidi, Ahmad Reck, Robin Roos, Henrik Stratton, Tom Tanner, Josh Tomassi, Steve van Duijnhoven, Henk Weber, Stephan Wing, Davis

543840v.5

DAVIDOFF HUTCHER & CITRON LLP Kennon Poteat 111, Esq. April 8, 2016 Page 12

Search Term abutment blanks Althoff /5 Ludger (anticompetitive or anticompetitive or antitrust or anti-trust) and Danaher and Nobel* back /2 order* backorder* "burning building" cco

consult* and (Niznick or Gerald or Gerry or Jerry or Niz*) "Danaher Business System" "data warehouse" Davis /5 Jason DBS "dental platform" "dental platform" and (launch* or form* or creat* or incorp* or integrat* or manage* or member* or merge*or operat* or or~aniz*) digital scanner dust* 15 off* 15 resume ECO

"excess cash" "funnel management" (FTC or "Federal Trade") and Danaher and Nobel* GPS and (abutment* or attachment* or remov* or complaint*) Hillcrest i-CAT i-CA T and ("Implant Direct" or JVC* or MIM or "marketing intelligence matrix" or "data warehouse")

543840v.5

Appendix B

Custodian(s) JV Cs JV Cs Danaher/KKG

JV Cs JV Cs JV Cs Danaher/KKG (excluding Nobel) JV Cs Danaher/KKG (excluding Nobel) JV Cs JV Cs JV Cs JV Cs JV Cs JV Cs Danaher/KKG

JV Cs JV Cs Danaher/KKG (excluding Nobel) JV Cs JV Cs JV Cs Danaher/KKG

---·---·

JV Cs

JV Cs --JV Cs Danaher/KKG (excluding Nobel)

DAVIDOFF HUTCHER & CITRON LLP Kennon Poteat Ill, Esq. April 8, 2016 Page 13

("Implant Direct" or JVCs) and (autonomous* or independent* or separate* or distinct*) and (Danaher or KavoKerr* or KKG) Inter Active Kaizen ("Ka Vo Kerr" or KKG) and (launch* or form* or creat* or incorp* or integrat* or manage* or member* or merge*or operat* or organiz*) ("Ka Vo Kerr" or KKG) and (newsletter or update or "organization announcement") Kuhn /5 Mark "marketing intelligence matrix" "marketing intelligence matrix" and "Implant Direct" "marketing intelligence matrix" and Nobel MIM MIM and "Implant Direct" MIM and Nobel mountless Nobel /10 acqui* Nobel* "North Pole" Pensa /5 Mark Perry /5 Vicki Pratt /5 David RePlant* "sinking ship" "smart pack" strat* /5 plan Stratton and (bonus* or salar* or compensat* or review*) Swish*

(terminat* resign* fire* dismiss* suspend*) and (Campbell or Choi Henkel or Weber) "transformative marketing" Tx Studio 5.3

543840v.5

All

All JV Cs Danaher/KKG

Danaher/JV Cs

JV Cs JV Cs Danaher/KKG (excluding Nobel)

Danaher/KKG (excluding Nobel)

JV Cs Danaher/KKG (excluding Nobel) Danaher/KKG (excluding Nobel) JV Cs Danaher/KKG (excluding Nobel) JV Cs Danaher/KKG JV Cs JV Cs JV Cs All JV Cs

--·-~----

JV Cs JV Cs

Danaher/KKG (excluding Nobel) JV Cs (terminat* resign* fire* dismiss*) and (Campbell or Choi Henkel or Weber)

JV Cs JV Cs

DAVIDOFF HUTCHER & CITRON LLP Kennon Poteat 111, Esq. April 8, 2016 Page 14

Tx Studio 5.3 and ("Implant Direct" or JVC* or MIM or "marketing intelligence matrix" or "data warehouse") Zest

Zest and settl *

543840v.5

Danaher/KKG (excluding Nobel)

JV Cs Nobel Danaher/KKG (excluding Nobel)

EXHIBIT J

 

 

From: Przybylko, Eric Sent: Friday, April 22, 2016 12:56:02 PM To: Poteat III, R. Kennon Cc: Bennett, Edward; Andrew Goldman; Joe Tomaselli; Andrew Rima; Samson, Martin H.; Lerner, Gary I.; Don Gottesman Subject: RE: Sybron v. Niznick

Kennon,   In light of the board minutes provided by plaintiffs last week, indicating that Damien McDonald has replaced Henk van Duijnhoven as the chairman of the JVCs’ board, we ask that McDonald be added to the list of custodians in our April 8 letter. __________________________________ 

 Eric Przybylko Davidoff Hutcher & Citron LLP 605 Third Avenue, New York, NY 10158 Firm: 212.557.7200 Direct: 646.428.3222 Fax: 212.286.1884 Email: ep@dhclegal.com Website       From: Przybylko, Eric Sent: Friday, April 08, 2016 2:20 PM To: 'Poteat III, R. Kennon' Cc: Bennett, Edward; Andrew Goldman; Joe Tomaselli; Andrew Rima; Samson, Martin H.; Lerner, Gary I.; Don Gottesman Subject: RE: Sybron v. Niznick   Kennon,    Please see the attached. __________________________________ 

 Eric Przybylko Davidoff Hutcher & Citron LLP 605 Third Avenue, New York, NY 10158 Firm: 212.557.7200 Direct: 646.428.3222 Fax: 212.286.1884 Email: ep@dhclegal.com Website       From: Poteat III, R. Kennon [mailto:kpoteat@wc.com] Sent: Thursday, March 31, 2016 9:34 PM To: Przybylko, Eric Cc: Bennett, Edward; Andrew Goldman; Joe Tomaselli; Andrew Rima; Samson, Martin H.; Lerner, Gary

 

 

I.; Don Gottesman; E.Leo Milonas Subject: Sybron v. Niznick   Eric:   Please see the attached.   Best, Kennon   R. Kennon Poteat III Williams & Connolly LLP 725 Twelfth Street, N.W., Washington, DC 20005 (P) 202‐434‐5699 | (F) 202‐434‐5029 kpoteat@wc.com | www.wc.com   

 

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EXHIBIT K

DAVIDOFF HUTCHER & CITRON LLP ATTORNEYS AT LAW

605 11-ilRD AVENUE NEW YORK, NEW YORK I 0 I 58

By Email Kennon Poteat Ill, Esq. Williams & Connolly LLP 725 Twelfth Street, N.W. Washington, D.C. 20005-5901

TEL: (2 I 2) 557-7200 FAX: (2 I 2) 286- I 884

WWW. DHCLEGAL.COM

July 29, 2016

FIRM OFFICES

GARDEN CnY ATTORNEYS AT LAW

200 GARDEN CnY PLAZA GARDEN CITY, NY I I 530

(5 I 6) 248-6400

ALBANY GOVERNMENT RELA110NS

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(5 I 8) 465-8230

WASHINGTON, D.C. GOVERNMENT RELA110NS

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(202) 347-1 I I 7

Re: Sybron Canada Holdings, Inc., et al. v. Niznick, et al. (Index No. 650908/2014)

Dear Kennon:

We write with respect to the parties' mutual obligations to supplement their document productions, in the hopes that we can resolve our remaining issues without the need to burden the Court.

Plaintiffs' Supplemental Custodians

Plaintiffs have taken the position that they can meet their obligations to supplement by searching the records of 15 individuals: Roy Chang, Carsten Franke, Matt Garrett, Filippo lmpieri, Chris Korves, Ahmad Rashidi, Daniel Raskas, Robin Reck, Mischa Reis, Vicente Reynal, Henrik Roos, Stephen Smirl, Tom Stratton, Steve Tomassi and Henk van Duijnohoven (the "Agreed Custodians").

In the hopes of amicably resolving these issues, we suggest a compromise in which Plaintiffs will in addition search the records of the following additional custodians in supplementing their production:

JVCs: 1. 2. 3. 4. 5. 6.

552042v.3

Aravena, Ines Augustson, Esther Barber, Nora Campbell, Joseph Choi, Jay Creighton, Thomas

DAVIDOFF HUTCHER & CITRON LLP Kennon Poteat Ill, Esq. July 29, 2016 Page 2

7. Heilman, Dawn 8. Henkel, Scott 9. McDonald, Damien 1

10. Moran, Carlos 11. Page, Ginger

Danaher/KKG:

12. Byrnes, Larry 13. Carroll, Henry 14. Culp, Larry 15. Feole, Tony

Notably, 11 of the 15 additional individuals proposed above were selected by Plaintiffs as custodians during their original document production, conceding their relevance for purpose of collection.

Although Plaintiffs have indicated that they would not agree to any additional custodians unless Defendants articulate the specific participation the proposed custodian had in events occurring after Plaintiffs' original October 2014 collection date (the "Collection Date"), we have explained in prior correspondence that Plaintiffs' supplementation obligations include the obligation to produce documents concerning not only such events that occurred after the Collection Date but also documents concerning events occurring before the Collection Date but created after the Collection Date.2

Furthermore, the majority of them are individuals involved in the day-to-day operations of the JVCs after the Collection Date. As we explained in our April 8, 2016 letter, Defendants' allege both that Danaher and KKG have effectively co-opted management of the JVCs' ongoing operations, marketing, sales, manufacturing, product development and human resource functions and that this conduct continues to this day. As a result, Defendants are entitled to documents in the custody of those JVC employees showing the extent to which their decisions are being directed by Danaher

1 Although not included in our prior proposed supplemental custodians, we have added Damien McDonald based on our understanding that he has recently become the Chair of the JVCs' Board. For the reasons set forth in our February 25, 2016 letter, we believe that documents in the custody of the JVCs' board managers should be collected using the more extensive list of terms employed by the Plaintiffs for JVC custodians. Please note that in terms of custodians we have also added Ginger Page as she was inadvertently omitted from our prior correspondence.

2 For example, if Dawn Heilman (one of Plaintiffs' original custodians) wrote emails in 2016 concerning Plaintiffs' allegation that Dr. Niznick attempted to entice Heilman to leave the JVCs in 2013, Defendants are entitled to discovery of such emails.

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DAVIDOFF HUTCHER & CITRON LLP Kennon Poteat Ill, Esq. July 29, 2016 Page 3

and KKG.3 Additional reasons why the records of these custodians should be searched are set forth in our prior correspondence dated February 25 and April 8, 2016. As you are aware, a number of the events pertinent to this litigation occurred after the Collection Date, including decisions pertaining to the distribution of excess cash.

Plaintiffs' Search Terms

In addition to agreeing on custodians, we must also resolve the issue of the search terms Plaintiffs intend to use for their supplemental collection. To date, Plaintiffs have not advised which search terms they will use, claiming discussion of search terms is premature. Given the October 31 discovery cut-off, we can no longer delay this discussion.

As we have stated in our prior correspondence, we believe it is Plaintiffs' responsibility to craft search terms sufficient to collect responsive documents, with the starting point being Plaintiffs' original search terms. Defendants again provide herewith some suggested search terms, which should be used in addition to the search terms Plaintiffs originally used, in an effort to aid Plaintiffs' collection efforts.4 See Appendix A. We reiterate our request that Plaintiffs advise us of the search terms they intend to use as soon as possible.

cc: Edward Bennett, Esq. Lauren Uhlig, Esq. Joe Tomaselli, Esq. Andrew Goldman, Esq. Andrew Rima, Esq. Martin Samson, Esq. Don Gottesman, Esq. Gary Lerner, Esq.

3 Although we continue to believe Plaintiffs should be required to supplement their document productions using a much broader list of custodians, including most of the custodians Plaintiffs used in their original collection, we propose the more streamlined list above, which eliminates 38 previously proposed supplemental custodians. We hope that this substantial compromise will stir Plaintiffs to similarly compromise in agreeing to expand the extremely limited list of 15 supplemental custodians included in your prior offer.

4 As discussed, Defendants intend to supplement their custodians' productions using the same search terms that Plaintiffs suggested and which we employed in our supplemental collection of Dr. Niznick's electronic documents in April 2015.

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DAVIDOFF HUTCHER & CITRON LLP Kennon Poteat Ill, Esq. July 29, 2016 Page 4

Search Term 5% w/5 (buyout or buy-out) 9.04 abutment blanks Althoff /5 Ludger "anticipated working capital expenses" or "capital expenditures" or "reasonable reserves" audit* w/l 0 (financial) back /2 order* backorder* "balance sheet" "balance sheet" and ("Implant Direct" or JV or JVC) Board and (nationally w/3 recognized w/3 accounting w/3 firm) (bonus* or salar* or compensat* or review*) and (Aravena or Augustson or Creighton or Heilman or Page or Rashidi or Stratton or Tanner) budget budget and ("Implant Direct" or JV or JVC) budget and Implant and OpCo "burning building" "Capital Appropriations Request" "Capital Appropriations Request" and ("Implant Direct" or JV or JVC) "capital expenditures" and ("Implant Direct" or JV or JVC) "Cap X" "Cap X" and ("Implant Direct" or JV or JVC) CAR CAR and ("Implant Direct" or JV or JVC) "cash flow" "cash flow" and ("Implant Direct"

552042v.3

Appendix A

Custodian(s) All JV Cs JV Cs JV Cs JV Cs

JV Cs JV Cs JV Cs JV Cs Danaher/KKG

JV Cs

JV Cs

JV Cs Danaher/KKG

All JV Cs JV Cs Danaher/KKG

Danaher/KKG

JV Cs Danaher/KKG

JV Cs Danaher/KKG

JV Cs Danaher/KKG

DAVIDOFF HUTCHER & CITRON LLP Kennon Poteat Ill, Esq. July 29, 2016 Page 5

Search Term or JVC or JV) cco Coletti consult* and (Niznick or Gerald or Gerry or Jerry or Niz*) contingent w/2 liabil* (contingent w/2 liabil*) and ("Implant Direct" or JV or JVC) "Danaher Business System" "data warehouse" Davis /5 Jason DBS "dental platform" "dental platform" and (launch* or form* or creat* or incorp* or integrat* or manage* or member* or merge*or operat* or organiz*) digital scanner Distribution* and (7.01 * or board or excess or cash or "Implant Direct" or JVC or member or Niznick or quarterly or "retained earnings" or scenario* or tax*) dust* /5 off* /5 resume EBITDA EBITDA and ("Implant Direct" or JV or JVC) ECO entice* Ernst & Young "excess cash" expenditure* and (capacity or "new products" or safety or environmental or facility or "cost reduction" or "information technology") expenditure* and (capacity or "new products" or safety or environmental or facility or "cost reduction" or "information technology") and ("Implant Direct" or JV or JVC) "funnel management"

552042v.3

Custodian(s)

All JV Cs All

JV Cs Danaher/KKG

JV Cs JV Cs JV Cs JV Cs JV Cs Danaher/KKG

JV Cs All

JV Cs JV Cs Danaher/KKG

All JV Cs JV Cs JV Cs JV Cs

Danaher/KKG

JV Cs

DAVIDOFF HUTCHER & CITRON LLP Kennon Poteat Ill, Esq. July 29, 2016 Page 6

Search Term GPS and (abutment* or attachment* or remov* or complaint*) "gross sales" "gross sales" and ("Implant Direct" or JV or JVC) Henk w/2 "van Duijnhoven" Henry w/2 Carroll Hillcrest i-CAT i-CAT and ("Implant Direct" or JV C * or MIM or "marketing intelligence matrix" or "data warehouse") "ID Financials" ("Implant Direct" or JVCs) and (autonomous* or independent* or separate* or distinct*) and (Danaher or KavoKerr* or KKG) Inter Active Larry w/2 Byrnes Legacy litigation and (pending or threatened or anticipated or asserted) litigation and (pending or threatened or anticipated or asserted) and ("Implant Direct" or JVC) kaizen ("Ka Vo Kerr" or KKG) and (launch* or form* or creat* or incorp* or integrat* or manage* or member* or merge*or operat* or organiz*) John w/2 McLachlan Jurcoane ("Ka Vo Kerr" or KKG) and (newsletter or update or "organization announcement") Konheim Kuhn /5 Mark mandatory w/2 (buyout or buy-out

552042v.3

Custodian(s) JV Cs

JV Cs Danaher/KKG

JV Cs JV Cs All JV Cs Danaher/KKG

All All

All JV Cs JV Cs JV Cs

Danaher/KKG

JV Cs Danaher/KKG

All Danaher/KKG Danaher/KKG

All JV Cs All

DAVIDOFF HUTCHER & CITRON LLP Kennon Poteat Ill, Esq. July 29, 2016 Page 7

Search Term or buy out) "marketing intelligence matrix" "marketing intelligence matrix" and "Implant Direct" "marketing intelligence matrix" and Nobel MIM MIM and "Implant Direct" MIM and Nobel Mischa w/2 Reis mountless Niznick Nobel /10 acqui* Nobel* "North Pole" "Operating Agreement" and (1.01 or 3.03 or 4.02 or 7.01 or 8.01 or 8.02 or 8.03 or 8.05 or 9.04 or 10.01 or 10.02 or 10.03 or 11.01 or 12.04 or 15.03 or 15.05 or 15.07 or 15.10 or 15.15) Penza /5 Mark Perry 15 Vicki Pratt 15 David recall* RePlant* Reserve* w/10 (warranty or environmental or restructure or inventory or litigation) (Reserve* w/10 (warranty or environmental or restructure or inventory or litigation)) and ("Implant Direct" or JV or JVC) "retained earnings" "retained earnings" and ("Implant Direct" or JV or JVC) "sinking ship" "smart pack" strat* /5 plan Swish*

(terminat* resign* fire* firing dismiss* suspend* leave*) and

552042v.3

Custodian(s)

JV Cs Danaher/KKG

Danaher/KKG

JV Cs Danaher/KKG Danaher/KKG JV Cs JV Cs All Danaher/KKG JV Cs Danaher/KKG All

JV Cs JV Cs JV Cs JVC All JV Cs

Danaher/ JV Cs

JV Cs Danaher/KKG

JV Cs All JV Cs Danaher/KKG JV Cs All

DAVIDOFF HUTCHER & CITRON LLP Kennon Poteat Ill, Esq. July 29, 2016 Page 8

Search Term (Banton or Britzman or Campbell or Choi or Creighton or Doerle or Henkel or Kent or Kennedy or McLachlan or Moran or Smith or Stratton or Tanner or Weber) Transaction Agreement and (2.29 or 5.3 or 10.6 or 10.7 or 10.13 or 10.14) "transformati ve marketing" Tx Studio 5.3 Tx Studio 5.3 and ("Implant Direct" or JVC* or MIM or "marketing intelligence matrix" or "data warehouse") veto and (Creighton or Henkel or McLachlan or Stratton) Vincente w/2 Reynal WCT or DSO or "Inventory Turns" or DPO or "Deferred Revenue" (WCT or DSO or "Inventory Turns" or DPO or "Deferred Revenue") and ("Implant Direct" or JV or JVC) "working capital" "working capital" and ("Implant Direct" or JV or JVCs)

552042v.3

Custodian(s)

All

JV Cs JV Cs Danaher/KKG

Danaher/KKG

JV Cs JV Cs

Danaher/KKG

JV Cs Danaher/KKG

EXHIBIT L

R. KENNON POTEAT III (202) 434-5699

kpoteat@wc.com

September 14, 2016 VIA E-MAIL

Eric Przybylko Davidoff Hutcher & Citron LLP 605 Third Avenue New York, NY 10158

Re: Sybron Canada Holdings, Inc., et al. v. Gerald A. Niznick, et al.

Index No. 650908/2014

Dear Eric: I write in response to your letters of April 8 and July 29, 2016 concerning Plaintiffs’ supplemental document collection and production.

While Plaintiffs still have problems with the breadth of what Defendants have requested, out of our willingness to compromise and to avoid needlessly litigating these issues before the Court, we have accepted almost everything you proposed in your July 29 letter. As discussed in further detail below, we only declined to run search terms that were grossly overbroad for a given custodian; and we only declined to collect from custodians who played no material role in events related to this suit after the date of their original document collections.

All told, we have processed documents from 27 custodians, utilized more than 500 search

terms, and are in the process of reviewing more than one million additional documents for relevance and responsiveness. We set forth the specifics of our discovery protocol below. Plaintiffs hope that Defendants will reciprocate by providing the parameters of their own supplemental production.

September 14, 2016 Page 2

I. Danaher & KKG Custodians

Counsel for Sybron has collected, or conducted a second collection of, documents from the 14 Danaher & KKG custodians below. For custodians whose documents we did not already collect, we collected documents dated June 1, 2009 or later.

Carroll, Henry Chang, Roy Feole, Tony

Filippo, Impieri Franke, Carsten Garrett, Matt Korves, Christopher Raskas, Daniel Reis, Mischa Reynal, Vicente Roos, Henrik Smirl, Stephen Tomassi, Steve

van Duijnhoven, Henk In response to your July 29 letter, we added Henry Carroll and Tony Feole to our initial list. We, however, do not intend to undertake a second collection for Larry Byrnes or Larry Culp because neither person played a material, relevant role in events connected to this litigation after the date of our first collection on October 14, 2014 and September 24, 2014, respectively. II. Danaher & KKG Search Terms

We are utilizing the following search terms, which reflect a combination of those that are described in Ted Bennett’s letter of January 27, 2015—as relevant to the custodians in Plaintiffs’ supplemental collection—and all of the search terms that you requested in your letters of April 8 and July 29, 2016. The only exception is that, as noted below, we excluded certain custodians from certain terms, when the custodian’s results for that particular term were overbroad.

A. Relevant Terms from First Collection

Danaher & KKG Search I Scope: ALL CUSTODIANS Date: 1/1/2010 or date of original collection - Present

“Implant Direct” (Excluding Roy Chang)

Implant and KKG (Excluding Roy Chang)

Implant and “Kavo Kerr” (Excluding Roy Chang)

September 14, 2016 Page 3

Implant and “GN” (Excluding Roy Chang)

Implant and IMPACT (Excluding Roy Chang)

Implant and Transaction (Excluding Roy Chang)

Implant and “ID” (Excluding Roy Chang)

Implant and President* (Excluding Roy Chang)

Implant and “Strat Plan” (Excluding Roy Chang)

“Niz*”

“Joint Venture Compan*”

“JVC*”

Jerry and KKG

Jerry and ID

Jerry and “Kavo Kerr”

Jerry and Dr. Jerry

Jerry and JV

Jerry and “Joint Venture”

Jerry and “Non Compete”

Jerry and impact

Jerry and POV

Jerry and retire*

Jerry and quit*

Jerry and resign*

Jerry and terminat*

Gerry and KKG

Gerry and ID

Gerry and “Kavo Kerr”

Gerry and Dr. Jerry

Gerry and JV

Gerry and “Joint Venture”

Gerry and “Non Compete”

Gerry and impact

September 14, 2016 Page 4

Gerry and POV

Gerry and retire*

Gerry and quit*

Gerry and resign*

Gerry and terminat*

“JVC”

“Operating Agreement*”

“Transaction Agreement*”

“Call Option”

“employment call”

“cause call”

“Good Reason”

“Cause” w/3 “act’

“Cause” w/3 “constit*”

“Cause” w/3 “consider*”

“Cause” w/3 “amount*”

“cause” w/3 “commit*”

“Entice*”

“veto”

“Road map”

*Kehr*

“Manager” w/10 “board”

“Project Impact”

“ID Companies”

Affair

guarantee* w/10 Niznick

guarantee* w/10 Gerry

guarantee* w/10 jerry

“JV Companies”

Merge* w/10 JVC*

September 14, 2016 Page 5

Merge* w/10 “Joint Venture*”

Merge* w/10 Implant

Merge* w/10 “Implant Direct”

Merge* w/10 Danaher

Merge* w/10 “Kavo Kerr”

Merge* w/10 KKG

Integrat* w/10 JVC*

Integrat* w/10 “Joint Venture*”

Integrat* w/10 Implant

Integrat* w/10 “Implant Direct”

Integrat* w/10 Danaher

Integrat* w/10 “Kavo Kerr”

Integrat* w/10 KKG

*Konheim*

*Gottesman*

*Niznick*

Danaher & KKG Search II Scope: Carroll, Henry; Chang, Roy; Reis, Mischa; Roos, Henrik; Reynal, Vicente; Tomassi, Steve; van Duijnhoven, Henk Date: Date of original collection - Present Date (Roos): 6/1/2009 - Present

Jurcoane AND suspen*

Jurcoane AND Terminat*

Jurcoane AND Fire*

Jurcoane AND Report

Jurcoane AND President

Jurcoane AND Stratton

Jurcoane AND remov*

Jurcoane AND *Niznick*

Jurcoane AND resign*

Jurcoane AND quit*

September 14, 2016 Page 6

Kent AND suspen*

Kent AND Terminat*

Kent AND Fire*

Kent AND Report

Kent AND President

Kent AND Stratton

Kent AND remov*

Kent AND *Niznick*

Kent AND resign*

Kent AND quit*

Kennedy AND suspen*

Kennedy AND Terminat*

Kennedy AND Fire*

Kennedy AND Report

Kennedy AND President

Kennedy AND Stratton

Kennedy AND remov*

Kennedy AND *Niznick*

Kennedy AND resign*

Kennedy AND quit*

Britzman AND suspen*

Britzman AND Terminat*

Britzman AND Fire*

Britzman AND Report

Britzman AND President

Britzman AND Stratton

Britzman AND remov*

Britzman AND *Niznick*

Britzman AND resign*

Britzman AND quit*

September 14, 2016 Page 7

Doerle AND suspen*

Doerle AND Terminat*

Doerle AND Fire*

Doerle AND Report

Doerle AND President

Doerle AND Stratton

Doerle AND remov*

Doerle AND *Niznick*

Doerle AND resign*

Doerle AND quit*

Banton AND suspen*

Banton AND Terminat*

Banton AND Fire*

Banton AND Report

Banton AND President

Banton AND Stratton

Banton AND remov*

Banton AND *Niznick*

Banton AND resign*

Banton AND quit*

McLachlan AND Text

McLachlan AND Moran

McLachlan AND suspen*

McLachlan AND Terminat*

McLachlan AND Fire*

McLachlan AND Report

McLachlan AND President

McLachlan AND Stratton

McLachlan AND remov*

McLachlan AND *Niznick*

September 14, 2016 Page 8

(“Smith” W/3 “Wayne”) AND “suspen*”

(“Smith” W/3 “Wayne”) AND “Terminat*”

(“Smith” W/3 “Wayne”) AND “Fire*”

(“Smith” W/3 “Wayne”) AND “Report”

(“Smith” W/3 “Wayne”) AND “President”

(“Smith” W/3 “Wayne”) AND “Stratton”

(“Smith” W/3 “Wayne”) AND “remov*”

(“Smith” W/3 “Wayne”) AND “resign*”

(“Smith” W/3 “Wayne”) AND “quit*”

(“Smith” W/3 “Wayne”) AND “*Niznick*”

(Henkel AND promot*)

(Henkel AND appoint*)

(Henkel AND “Digital Platform”)

(Henkel AND NSM)

(Henkel AND “National Sales Meeting”)

Danaher & KKG Search IV Scope: Matt Garrett Date: Date of original collection – Present

launch* W/10 KKG

launch* W/10 “Kavo Kerr”

Form* W/10 KKG

Form* W/10 “Kavo Kerr”

Creat* W/10 KKG

Creat* W/10 “Kavo Kerr”

Incorp* W/10 KKG

Incorp* W/10 “Kavo Kerr”

Found* W/10 KKG

Found* W/10 “Kavo Kerr”

Develop* W/10 KKG

Develop* W/10 “Kavo Kerr”

Project* W/10 KKG

September 14, 2016 Page 9

Project* W/10 “Kavo Kerr”

“Mid winter” AND Chicago

“mid-winter” AND Chicago

midwinter AND Chicago

“Kavo Kerr Group” w/10 brand*

“Kavo Kerr Group” w/10 event*

mosaic w/5 event

“Implant Direct”

Implant w/10 KKG

Implant w/10 “Kavo Kerr”

“ID Companies”

“Joint Venture Compan*”

JVC*

*Niznick*

Merge* w/10 JVC*

Merge* w/10 “Joint Venture*”

Merge* w/10 Implant

Merge* w/10 “Implant Direct”

Merge* w/10 Danaher

Merge* w/10 “Kavo Kerr”

Merge* w/10 KKG

Integrat* w/10 JVC*

Integrat* w/10 “Joint Venture*”

Integrat* w/10 Implant

Integrat* w/10 “Implant Direct”

Integrat* w/10 Danaher

Integrat* w/10 “Kavo Kerr”

Integrat* w/10 KKG

September 14, 2016 Page 10

Danaher & KKG Search V Scope: Carsten Franke, Filippo Impieri, Stephen Smirl, Tony Feole Date (Franke): Date of original collection - Present Date (Impieri, Smirl, Feole): 6/1/2009 – Present

“Mid winter” and Chicago

“mid-winter” and Chicago

“midwinter” and Chicago

“Implant Direct”

Implant w/10 KKG

Implant w/10 “Kavo Kerr”

“ID Companies”

“Joint Venture Compan*”

“JVC*”

*Niznick*

Merge* w/10 JVC*

Merge* w/10 “Joint Venture*”

Merge* w/10 Implant

Merge* w/10 “Implant Direct”

Merge* w/10 Danaher

Merge* w/10 “Kavo Kerr”

Merge* w/10 KKG

Integrat* w/10 JVC*

Integrat* w/10 “Joint Venture*”

Integrat* w/10 Implant

Integrat* w/10 “Implant Direct”

Integrat* w/10 Danaher

Integrat* w/10 “Kavo Kerr”

Integrat* w/10 KKG

September 14, 2016 Page 11

B. Defendants’ New Requested Search Terms

“5” W/5 “buyout”

“5” W/5 “buy-out”

“balance sheet” AND “Implant Direct”

“balance sheet” AND “JV”

“balance sheet” AND “JVC”

“budget” AND “Implant Direct”

“budget” AND “Implant” AND “OpCo”

“budget” AND “JV”

“budget” AND “JVC”

“Cap X” AND “Implant Direct”

“Cap X” AND “JV”

“Cap X” AND “JVC”

“Capital Appropriations Request” AND “Implant Direct”

“Capital Appropriations Request” AND “JV”

“Capital Appropriations Request” AND “JVC”

“capital expenditures” AND “Implant Direct”

“capital expenditures” AND “JV”

“capital expenditures” AND “JVC”

“CAR” AND “Implant Direct”

“CAR” AND “JV”

“CAR” AND “JVC”

“cash flow” AND “Implant Direct”

“cash flow” AND “JV”

“cash flow” AND “JVC”

“CCO”

“consult*” AND “Gerald”

“consult*” AND “Gerry”

“consult*” AND “Jerry”

September 14, 2016 Page 12

“consult*” AND “Niz*”

“consult*” AND “Niznick”

“Deferred Revenue” AND “Implant Direct”

“Deferred Revenue” AND “JV”

“Deferred Revenue” AND “JVC”

“dental platform” AND “creat*”

“dental platform” AND “form*”

“dental platform” AND “incorp*”

“dental platform” AND “integrat*”

“dental platform” AND “launch*”

“dental platform” AND “manage*”

“dental platform” AND “member*”

“dental platform” AND “merge*”

“dental platform” AND “operat*”

“dental platform” AND “organiz*”

“dismiss*” AND “Banton”

“dismiss*” AND “Britzman”

“dismiss*” AND “Campbell”

“dismiss*” AND “Choi”

“dismiss*” AND “Creighton”

“dismiss*” AND “Doerle”

“dismiss*” AND “Henkel”

“dismiss*” AND “Kennedy”

“dismiss*” AND “Kent”

“dismiss*” AND “McLachlan”

“dismiss*” AND “Moran”

“dismiss*” AND “Smith”

“dismiss*” AND “Stratton”

“dismiss*” AND “Tanner”

“dismiss*” AND “Weber”

September 14, 2016 Page 13

“Distribution*” AND “7 01*”

“Distribution*” AND “board”

“Distribution*” AND “cash” (Excluding Tony Feole, Stephen Smirl)

“Distribution*” AND “excess”

“Distribution*” AND “Implant Direct” (Excluding Roy Chang)

“Distribution*” AND “JVC”

“Distribution*” AND “member”

“Distribution*” AND “Niznick”

“Distribution*” AND “quarterly”

“Distribution*” AND “retained earnings”

“Distribution*” AND “scenario*”

“Distribution*” AND “tax*”

“DPO” AND “Implant Direct”

“DPO” AND “JV”

“DPO” AND “JVC”

“DSO” AND “Implant Direct”

“DSO” AND “JV”

“DSO” AND “JVC”

“EBITDA” AND “Implant Direct”

“EBITDA” AND “JV”

“EBITDA” AND “JVC”

“ECO”

“expenditure*” AND “capacity” AND “Implant Direct”

“expenditure*” AND “capacity” AND “JV”

“expenditure*” AND “capacity” AND “JVC”

“expenditure*” AND “cost reduction” AND “Implant Direct”

“expenditure*” AND “cost reduction” AND “JV”

“expenditure*” AND “cost reduction” AND “JVC”

“expenditure*” AND “environmental” AND “Implant Direct”

“expenditure*” AND “environmental” AND “JV”

September 14, 2016 Page 14

“expenditure*” AND “environmental” AND “JVC”

“expenditure*” AND “facility” AND “Implant Direct”

“expenditure*” AND “facility” AND “JV”

“expenditure*” AND “facility” AND “JVC”

“expenditure*” AND “information technology” AND “Implant Direct”

“expenditure*” AND “information technology” AND “JV”

“expenditure*” AND “information technology” AND “JVC”

“expenditure*” AND “new products” AND “Implant Direct”

“expenditure*” AND “new products” AND “JV”

“expenditure*” AND “new products” AND “JVC”

“expenditure*” AND “safety” AND “Implant Direct”

“expenditure*” AND “safety” AND “JV”

“expenditure*” AND “safety” AND “JVC”

“fire*” AND “Banton”

“fire*” AND “Britzman”

“fire*” AND “Campbell”

“fire*” AND “Choi”

“fire*” AND “Creighton”

“fire*” AND “Doerle”

“fire*” AND “Henkel”

“fire*” AND “Kennedy”

“fire*” AND “Kent”

“fire*” AND “McLachlan”

“fire*” AND “Moran”

“fire*” AND “Smith”

“fire*” AND “Stratton”

“fire*” AND “Tanner”

“fire*” AND “Weber”

“firing” AND “Banton”

“firing” AND “Britzman”

September 14, 2016 Page 15

“firing” AND “Campbell”

“firing” AND “Choi”

“firing” AND “Creighton”

“firing” AND “Doerle”

“firing” AND “Henkel”

“firing” AND “Kennedy”

“firing” AND “Kent”

“firing” AND “McLachlan”

“firing” AND “Moran”

“firing” AND “Smith”

“firing” AND “Stratton”

“firing” AND “Tanner”

“firing” AND “Weber”

“gross sales” AND “Implant Direct”

“gross sales” AND “JV”

“gross sales” AND “JVC”

“Hillcrest” (Excluding Roy Chang)

“i-CAT” AND “data warehouse”

“i-CAT” AND “Implant Direct”

“i-CAT” AND “JVC*”

“i-CAT” AND “marketing intelligence matrix”

“i-CAT” AND “MIM”

“ID Financials”

“Implant Direct” AND “autonomous*” AND “Danaher”

“Implant Direct” AND “autonomous*” AND “KavoKerr*”

“Implant Direct” AND “autonomous*” AND “KKG”

“Implant Direct” AND “distinct*” AND “Danaher”

“Implant Direct” AND “distinct*” AND “KavoKerr*”

“Implant Direct” AND “distinct*” AND “KKG”

“Implant Direct” AND “independent*” AND “Danaher”

September 14, 2016 Page 16

“Implant Direct” AND “independent*” AND “KavoKerr*”

“Implant Direct” AND “independent*” AND “KKG”

“Implant Direct” AND “separate*” AND “Danaher”

“Implant Direct” AND “separate*” AND “KavoKerr*”

“Implant Direct” AND “separate*” AND “KKG”

“InterActive” (Excluding Roy Chang, Tony Feole, Stephen Smirl)

“Inventory Turns” AND “Implant Direct”

“Inventory Turns” AND “JV”

“Inventory Turns” AND “JVC”

“John” W/2 “McLachlan”

“Jurcoane”

“JVCs” AND “autonomous*” AND “Danaher”

“JVCs” AND “autonomous*” AND “KavoKerr*”

“JVCs” AND “autonomous*” AND “KKG”

“JVCs” AND “distinct*” AND “Danaher”

“JVCs” AND “distinct*” AND “KavoKerr*”

“JVCs” AND “distinct*” AND “KKG”

“JVCs” AND “independent*” AND “Danaher”

“JVCs” AND “independent*” AND “KavoKerr*”

“JVCs” AND “independent*” AND “KKG”

“JVCs” AND “separate*” AND “Danaher”

“JVCs” AND “separate*” AND “KavoKerr*”

“JVCs” AND “separate*” AND “KKG”

“KaVo Kerr” AND “creat*” (Excluding Tony Feole, Stephen Smirl)

“KaVo Kerr” AND “form*”

“KaVo Kerr” AND “incorp*”

“KaVo Kerr” AND “integrat*”

“KaVo Kerr” AND “launch*”

“KaVo Kerr” AND “manage*” (Excluding Tony Feole, Filippo Impieri, Stephen Smirl)

September 14, 2016 Page 17

“KaVo Kerr” AND “member*”

“KaVo Kerr” AND “merge*”

“Kavo Kerr” AND “newsletter”

“KaVo Kerr” AND “operat*”

“KaVo Kerr” AND “organiz*”

“Kavo Kerr” AND “organization announcement”

“Kavo Kerr” AND “update” (Excluding Tony Feole, Stephen Smirl)

“KKG” AND “creat*”

“KKG” AND “form*”

“KKG” AND “incorp*”

“KKG” AND “integrat*”

“KKG” AND “launch*”

“KKG” AND “manage*” (Excluding Filippo Impieri)

“KKG” AND “member*”

“KKG” AND “merge*”

“KKG” AND “newsletter”

“KKG” AND “operat*”

“KKG” AND “organiz*”

“KKG” AND “organization announcement”

“KKG” AND “update”

“Konheim”

“leave*” AND “Banton”

“leave*” AND “Britzman”

“leave*” AND “Campbell”

“leave*” AND “Choi”

“leave*” AND “Creighton”

“leave*” AND “Doerle”

“leave*” AND “Henkel”

“leave*” AND “Kennedy”

“leave*” AND “Kent”

September 14, 2016 Page 18

“leave*” AND “McLachlan”

“leave*” AND “Moran”

“leave*” AND “Smith”

“leave*” AND “Stratton”

“leave*” AND “Tanner”

“leave*” AND “Weber”

“litigation” AND “anticipated” AND “Implant Direct”

“litigation” AND “anticipated” AND “JVC”

“litigation” AND “asserted” AND “Implant Direct”

“litigation” AND “asserted” AND “JVC”

“litigation” AND “pending” AND “Implant Direct”

“litigation” AND “pending” AND “JVC”

“litigation” AND “threatened” AND “Implant Direct”

“litigation” AND “threatened” AND “JVC”

“mandatory” W/2 “buy out”

“mandatory” W/2 “buyout”

“mandatory” W/2 “buy-out”

“marketing intelligence matrix” AND “impact direct”

“marketing intelligence matrix” AND “Implant Direct”

“marketing intelligence matrix” AND “Nobel”

“MIM” AND “Implant Direct”

“MIM” AND “Nobel”

“Niznick”

“Nobel” W/10 “acqui*”

“North Pole”

“Operating Agreement” AND “1.01”

“Operating Agreement” AND “10.01”

“Operating Agreement” AND “10.02”

“Operating Agreement” AND “10.03”

“Operating Agreement” AND “11.01”

September 14, 2016 Page 19

“Operating Agreement” AND “12.04”

“Operating Agreement” AND “15.03”

“Operating Agreement” AND “15.05”

“Operating Agreement” AND “15.07”

“Operating Agreement” AND “15.10”

“Operating Agreement” AND “15.15”

“Operating Agreement” AND “3.03”

“Operating Agreement” AND “4.02”

“Operating Agreement” AND “7.01”

“Operating Agreement” AND “8.01”

“Operating Agreement” AND “8.02”

“Operating Agreement” AND “8.03”

“Operating Agreement” AND “8.05”

“Operating Agreement” AND “9.04”

“RePlant*”

“resign*” AND “Banton”

“resign*” AND “Britzman”

“resign*” AND “Campbell”

“resign*” AND “Choi”

“resign*” AND “Creighton”

“resign*” AND “Doerle”

“resign*” AND “Henkel”

“resign*” AND “Kennedy”

“resign*” AND “Kent”

“resign*” AND “McLachlan”

“resign*” AND “Moran”

“resign*” AND “Smith”

“resign*” AND “Stratton”

“resign*” AND “Tanner”

“resign*” AND “Weber”

September 14, 2016 Page 20

“retained earnings” AND “Implant Direct”

“retained earnings” AND “JV”

“retained earnings” AND “JVC”

“smart pack”

“suspend*” AND “Banton”

“suspend*” AND “Britzman”

“suspend*” AND “Campbell”

“suspend*” AND “Choi”

“suspend*” AND “Creighton”

“suspend*” AND “Doerle”

“suspend*” AND “Henkel”

“suspend*” AND “Kennedy”

“suspend*” AND “Kent”

“suspend*” AND “McLachlan”

“suspend*” AND “Moran”

“suspend*” AND “Smith”

“suspend*” AND “Stratton”

“suspend*” AND “Tanner”

“suspend*” AND “Weber”

“Swish*”

“terminat*” AND “Banton”

“terminat*” AND “Britzman”

“terminat*” AND “Campbell”

“terminat*” AND “Choi”

“terminat*” AND “Creighton”

“terminat*” AND “Doerle”

“terminat*” AND “Henkel”

“terminat*” AND “Kennedy”

“terminat*” AND “Kent”

“terminat*” AND “McLachlan”

September 14, 2016 Page 21

“terminat*” AND “Moran”

“terminat*” AND “Smith”

“terminat*” AND “Stratton”

“terminat*” AND “Tanner”

“terminat*” AND “Weber”

“Transaction Agreement” AND “10.13”

“Transaction Agreement” AND “10.14”

“Transaction Agreement” AND “10.6”

“Transaction Agreement” AND “10.7”

“Transaction Agreement” AND “2.29”

“Transaction Agreement” AND “5.3”

“TX Studio 5.3” AND “data warehouse”

“TX Studio 5.3” AND “implant direct”

“TX Studio 5.3” AND “JVC*”

“TX Studio 5.3” AND “marketing intelligence matrix”

“TX Studio 5.3” AND “MIM”

“veto” AND “Creighton”

“veto” AND “Henkel”

“veto” AND “McLachlan”

“veto” AND “Stratton”

“WCT” AND “Implant Direct”

“WCT” AND “JV”

“WCT” AND “JVC”

“working capital” AND “Implant Direct”

“working capital” AND “JV”

“working capital” AND “JVCs”

(“contingent” W/2 “liabil*”) AND “Implant Direct”

(“contingent” W/2 “liabil*”) AND “JV”

(“contingent W/2 “liabil*”) AND “JVC”

(“Reserve*” W/10 “environmental”) AND “Implant Direct”

September 14, 2016 Page 22

(“Reserve*” W/10 “environmental”) AND “JV”

(“Reserve*” W/10 “environmental”) AND “JVC”

(“Reserve*” W/10 “inventory”) AND “Implant Direct”

(“Reserve*” W/10 “inventory”) AND “JV”

(“Reserve*” W/10 “inventory”) AND “JVC”

(“Reserve*” W/10 “litigation”) AND “Implant Direct”

(“Reserve*” W/10 “litigation”) AND “JV”

(“Reserve*” W/10 “litigation”) AND “JVC”

(“Reserve*” W/10 “restructure”) AND “Implant Direct”

(“Reserve*” W/10 “restructure”) AND “JV”

(“Reserve*” W/10 “restructure”) AND “JVC”

(“Reserve*” W/10 “warranty”) AND “Implant Direct”

(“Reserve*” W/10 “warranty”) AND “JV”

(“Reserve*” W/10 “warranty”) AND “JVC”

III. JVC Custodians

Counsel for the JVCs have collected, or conducted a second collection of, documents from the following 13 custodians:

Aravena, Ines Augustson, Esther Barber, Nora Campbell, Joseph Choi, Jay Creighton, Thomas Heilman, Dawn Henkel, Scott Moran, Carlos Page, Ginger Rashidi, Ahmad Reck, Robin Stratton, Tom

September 14, 2016 Page 23

IV. JVC Search Terms

Counsel for the JVCs have used the following search terms, which include most all of the terms you requested. The specific terms are as follows:

“2nd am”

“2nd amendment”

“3rd am”

“3rd amendment”

“4 02”

“7 01”

“9 04”

“abutment blanks”

“accumulated retained earnings”

“anticipated working capital expenses”

“burning building”

“cap x”

“capital appropriations request”

“capital expenditures”

“consulting agreement” AND niznick

“danaher business system”

“data warehouse”

“deferred revenue”

“dental platform”

“digital platform”

“digital scanner”

“ernst young”

“excess cash”

“funnel management”

“gary o'brien”

“gerald niznick”

September 14, 2016 Page 24

“i cat”

“id financials”

“implant direct” AND autonomous* AND danaher

“implant direct” AND autonomous* AND kavokerr*

“implant direct” AND autonomous* AND kkg

“implant direct” AND distinct* AND danaher

“implant direct” AND distinct* AND kavokerr*

“implant direct” AND distinct* AND kkg

“implant direct” AND independent* AND danaher

“implant direct” AND independent* AND kavokerr*

“implant direct” AND independent* AND kkg

“implant direct” AND separate* AND danaher

“implant direct” AND separate* AND kavokerr*

“implant direct” AND separate* AND kkg

“inventory turns”

“kavo kerr” AND “organization announcement”

“kavo kerr” AND newsletter

“kavo kerr” AND update

“lease extension”

“marketing intelligence matrix”

“mid winter”

“operating agreement”

“organic incompetence”

“ormco digital”

“president s” w/2 letter

“reasonable reserves”

September 14, 2016 Page 25

“retained earnings”

“second am”

“second amendment”

“sinking ship”

“stratton plan”

“third am”

“third amendment”

“transaction agreement”

“transformative marketing”

“tx studio 5 3”

“working capital”

(dust* w/15 off*) w/15 resume

(dust* w/5 off*) w/5 resume

(reserve* w/10 environmental)

(reserve* w/10 environmental) AND “implant direct”

(reserve* w/10 environmental) AND jv

(reserve* w/10 environmental) AND jvc

(reserve* w/10 inventory)

(reserve* w/10 inventory) AND “implant direct”

(reserve* w/10 inventory) AND jv

(reserve* w/10 inventory) AND jvc

(reserve* w/10 litigation) AND jv

(reserve* w/10 litigation) AND jvc

(reserve* w/10 restructure)

(reserve* w/10 restructure) AND “implant direct”

(reserve* w/10 restructure) AND jv

(reserve* w/10 restructure) AND jvc

(reserve* w/10 warranty)

September 14, 2016 Page 26

(reserve* w/10 warranty) AND “implant direct”

(reserve* w/10 warranty) AND jv

(reserve* w/10 warranty) AND jvc

5 w/5 “buy out”

5 w/5 buyout

acqui* w/10 company

acqui* w/10 dental

acqui* w/10 implant

acqui* w/10 nobel

acqui* w/10 strauman

acqui* w/10 zimmer

arctica

audit* w/10 financial

back w/2 order*

backorder*

banton w/5 fired

banton w/5 insubordination

banton w/5 resign

banton w/5 resignation

banton w/5 termination

big w/2 tony

board AND (nationally w/3 recognized w/3 accounting w/3 firm)

board w/15 resignation

board w/2 meeting

bod w/15 resignation

bonus* AND aravena

bonus* AND augustson

bonus* AND creighton

bonus* AND heilman

September 14, 2016 Page 27

bonus* AND page

bonus* AND rashidi

bonus* AND stratton

bonus* AND tanner

botched w/2 launch

breakout w/2 solutions

britzman w/5 fired

britzman w/5 insubordination

britzman w/5 resign

britzman w/5 resignation

britzman w/5 termination

buccola

carsten

cause w/2 call

cco

compensat* AND aravena

compensat* AND augustson

compensat* AND creighton

compensat* AND heilman

compensat* AND rashidi

compensat* AND stratton

compensat* AND tanner

consult* AND gerald

consult* AND gerry

consult* AND jerry

consult* AND niz*

consult* AND niznick

contingent w/2 liabil*

customer w/2 list

danaher

September 14, 2016 Page 28

dbs

dear w/2 valued

delete w/30 destroy*

delete w/30 document*

digital w/2 platform

dismiss* AND “choi”

dismiss* AND “choi henkel”

dismiss* AND “henkel”

dismiss* AND banton

dismiss* AND britzman

dismiss* AND campbell

dismiss* AND creighton

dismiss* AND doerle

dismiss* AND kennedy

dismiss* AND kent

dismiss* AND mclachlan

dismiss* AND moran

dismiss* AND smith

dismiss* AND stratton

dismiss* AND tanner

dismiss* AND weber

distribution* AND “7 01*”

distribution* AND “retained earnings”

distribution* AND board

distribution* AND cash

distribution* AND excess

distribution* AND jvc

distribution* AND member

distribution* AND niznick

distribution* AND quarterly

September 14, 2016 Page 29

distribution* AND scenario*

distribution* AND tax*

doerle w/5 fired

doerle w/5 insubordination

doerle w/5 resign

doerle w/5 resignation

doerle w/5 termination

dpo

eco

entice*

expenditure* AND “cost reduction”

expenditure* AND “information technology”

expenditure* AND “new products”

expenditure* AND capacity

expenditure* AND environmental

expenditure* AND facility

expenditure* AND safety

exten* w/5 lease*

fire* AND “choi henkel”

fire* AND banton

fire* AND britzman

fire* AND campbell

fire* AND choi

fire* AND creighton

fire* AND doerle

fire* AND henkel

fire* AND kennedy

fire* AND kent

fire* AND mclachlan

fire* AND moran

September 14, 2016 Page 30

fire* AND smith

fire* AND stratton

fire* AND tanner

fire* AND weber

firing AND banton

firing AND britzman

firing AND campbell

firing AND choi

firing AND creighton

firing AND doerle

firing AND henkel

firing AND kennedy

firing AND kent

firing AND mclachlan

firing AND moran

firing AND smith

firing AND stratton

firing AND tanner

firing AND weber

franke

gaedicke

garrett

gerry

holiday w/2 party

hostile w/3 environment

hotline

integration

iqity

jerry

john w/2 mclachlan

September 14, 2016 Page 31

josie w/30 “holiday party”

josie w/5 fired

josie w/5 insubordination

josie w/5 leave

josie w/5 resign

josie w/5 resignation

josie w/5 termination

jurcoane

jvcs AND autonomous* AND danaher

jvcs AND autonomous* AND kavokerr*

jvcs AND autonomous* AND kkg

jvcs AND distinct* AND danaher

jvcs AND distinct* AND kavokerr*

jvcs AND distinct* AND kkg

jvcs AND independent* AND danaher

jvcs AND independent* AND kavokerr*

jvcs AND independent* AND kkg

jvcs AND separate* AND danaher

jvcs AND separate* AND kavokerr*

jvcs AND separate* AND kkg

kaizen

kavo w/2 kerr

kehr

kennedy w/5 fired

kennedy w/5 insubordination

kennedy w/5 resign

kennedy w/5 resignation

kennedy w/5 termination

kent w/5 fired

kent w/5 resign

September 14, 2016 Page 32

kent w/5 resignation

kent w/5 termination

kisho

kkg

kkg AND “organization announcement”

kkg AND newsletter

kkg AND update

kkg w/2 products

konheim

leave* AND banton

leave* AND britzman

leave* AND campbell

leave* AND creighton

leave* AND doerle

leave* AND henkel

leave* AND kennedy

leave* AND kent

leave* AND mclachlan

leave* AND moran

leave* AND smith

leave* AND tanner

leave* AND weber

lecture w/2 zurich

logo

lythos

mandatory w/2 “buy out”

mandatory w/2 buyout

matt w/2 garrett

merger

midwinter

September 14, 2016 Page 33

mim

minority w/3 rights

niz*

nobel*

o'brien

offer w/7 president

organization w/2 chart

orthopedic w/2 screw

orthopedic w/30 business

orthopedic w/30 company

penza w/5 mark

presidents w/2 letter

president's w/2 letter

realchoice

rescind*

rescission

resign*

resign* AND "choi henkel"

resign* AND banton

resign* AND britzman

resign* AND campbell

resign* AND choi

resign* AND creighton

resign* AND doerle

resign* AND henkel

resign* AND kennedy

resign* AND kent

resign* AND mclachlan

resign* AND moran

resign* AND smith

September 14, 2016 Page 34

resign* AND stratton

resign* AND tanner

resign* AND weber

review* AND stratton

review* AND tanner

salar* AND aravena

salar* AND augustson

salar* AND creighton

salar* AND heilman

salar* AND page

salar* AND rashidi

salar* AND stratton

salar* AND tanner

screw w/30 business

screw w/30 company

smith w/5 fired

smith w/5 insubordination

smith w/5 resign

smith w/5 resignation

smith w/5 termination

spoliat*

strat

strat* w/5 plan

strategic w/2 plan

stratton AND bonus*

stratton AND compensat*

stratton AND salar*

suspen* AND mclachlan

suspend* AND "choi henkel"

suspend* AND banton

September 14, 2016 Page 35

suspend* AND britzman

suspend* AND campbell

suspend* AND choi

suspend* AND creighton

suspend* AND doerle

suspend* AND henkel

suspend* AND kennedy

suspend* AND kent

suspend* AND mclachlan

suspend* AND moran

suspend* AND smith

suspend* AND stratton

suspend* AND tanner

suspend* AND weber

swish*

tamara

tamy

terminat* AND "choi henkel"

terminat* AND banton

terminat* AND britzman

terminat* AND campbell

terminat* AND choi

terminat* AND creighton

terminat* AND doerle

terminat* AND henkel

terminat* AND kennedy

terminat* AND kent

terminat* AND mclachlan

terminat* AND moran

terminat* AND smith

September 14, 2016 Page 36

terminat* AND stratton

terminat* AND tanner

terminat* AND weber

tgaedicke

thais

vegas w/2 lecture

veto

vincente w/2 reynal

wct

* * * * Because Defendants have insisted on a supplemental production from a large number of custodians with a very broad set of search terms, the volume of documents for Plaintiffs to collect, review, and process is substantial. Plaintiffs have been diligently working for months to review these documents, and we will begin to produce responsive, non-privileged documents on a rolling basis very soon. Plaintiffs have expended substantial time and resources regarding our supplemental productions. Defendants, however, have provided no information about theirs, despite Plaintiffs’ repeated requests since January 2016. Please inform us immediately which custodians’ documents you have searched for your supplemental production, which terms you are using to cull those documents, and when you plan to begin your production.

Sincerely,

R. Kennon Poteat III

cc: Martin Samson Gary Lerner

September 14, 2016 Page 37

Don Gottesman Edward Bennett R. Kennon Poteat A. Joshua Podoll Lauren Uhlig E. Leo Milonas Andrew Goldman Joe Tomaselli Andrew Rima

EXHIBIT M

1

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SYBRON CANADA HOLDINGS, INC., Implant Direct Sybron International, LLC, Implant Direct Sybron Manufacturing, LLC, Implant Direct Sybron Administration, LLC, Plaintiffs, v. GERALD A. NIZNICK, Implant Direct Int’l, Inc., Implant Direct Mfg., LLC, Mikana Manufacturing Company Inc., Defendants.

Index No. 650908/2014 IAS Part 61 (Ostrager, J.) PROPOSED FIRST AMENDED CASE MANAGEMENT ORDER

IMPLANT DIRECT INT’L, INC., Implant Direct Mfg., LLC, Mikana Manufacturing Company Inc., Defendants and Counterclaim Plaintiffs, v. SYBRON CANADA HOLDINGS, INC., Implant Direct Sybron International, LLC, Implant Direct Sybron Manufacturing, LLC, Implant Direct Sybron Administration, LLC, Plaintiffs and Counterclaim Defendants.

This First Amended Case Management Order amends the Case Management Order

(Dkt. 747). It is this _____ day of November, 2016, hereby ORDERED that the Case

Management Order be amended to read as follows:

2

Event Deadline Parties file joint or competing proposals for handling of confidential information at trial

November 18, 2016

Exchange of Expert Reports November 21, 2016 Close of Expert Discovery December 15, 2016 Motions to Exclude Expert Testimony December 20, 2016 Oppositions to Motions to Exclude Expert Testimony

January 6, 2017

Replies to Motions to Exclude Expert Testimony January 13, 2017 Hearing on All Expert Motions January 20, 2017 Parties file Notes of Issue December 22, 2016 Parties exchange exhibit lists and deposition designations

November 22, 2016

Parties meet and confer regarding proposed stipulations

November 30, 2016

Parties exchange objections to exhibit lists and objections/counters to deposition designations

December 2, 2016

Parties exchange objections to counter-designations and counters to counter-designations

December 9, 2016

Parties meet and confer regarding exhibit lists and designations

December 9-16, 2016

Deposition designations with objections filed with the Court

December 16, 2016

Joint exhibit list with objections and pre-admissions filed with the Court

December 16, 2016

Trial witness lists filed with the Court December 16, 2016 File proposed binder of key exhibits for Court, stipulations, pre-trial memoranda, proposed facts to be proven at trial, expert reports, and estimated length of trial

December 23, 2016

Motions in Limine January 3, 2017 Oppositions to Motions in Limine January 10, 2017 Replies to Motions in Limine January 17, 2017 Hearing on All Motions in Limine January 20, 2017 Pretrial Hearing and Hearing on confidentiality and other outstanding submissions

January 25, 2017

Bench Trial January 30, 2017 9:30 a.m.

__________________________________________ The Honorable Justice Ostrager

3

Dated: New York, New York November __, 2016 PILLSBURY WINTHROP SHAW

PITTMAN LLP By _____________________________

E. Leo Milonas David G. Keyko

1540 Broadway New York, NY 10036 Tel: (212) 858-1787

Attorneys for Plaintiffs

WILLIAMS & CONNOLLY LLP

Dane H. Butswinkas R. Hackney Wiegmann Edward J. Bennett R. Kennon Poteat III Lauren H. Uhlig

725 Twelfth Street, N.W. Washington, DC 20005 Tel: (202) 434-5000

1330 Avenue of the Americas, Suite 23A New York, NY 10019 Tel: (212) 328-1839

Attorneys for Plaintiff Sybron Canada Holdings, Inc.

GOLDMAN ISMAIL TOMASELLI BRENNAN & BAUM LLP

Andrew L. Goldman Joe W. Tomaselli, Jr. Andrew J. Rima 564 West Randolph Street, Suite 400 Chicago, IL 60661 Tel: (312) 681-6000

Attorneys for the Joint Venture Companies

Dated: New York, New York November __, 2016 DAVIDOFF HUTCHER & CITRON LLP By _____________________________

Martin H. Samson Gary I. Lerner Eric Przybylko

605 Third Avenue New York, NY 10158 Tel: (212) 557-7200 KULIK GOTTESMAN & SIEGEL LLP Don Gottesman Comerica Bank Building 15303 Ventura Boulevard, Suite 1400 Sherman Oaks, CA 91403 Tel: (818) 817-3600 Attorneys for Defendants