Free Motion for Protective Order - District Court of Federal Claims - federal

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Case 1:92-cv-00580-EJD

Document 335

Filed 04/15/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________________________ SPARTON CORPORATION, ) ) Plaintiff, ) ) v. ) No. 92-580C ) Chief Judge Edward Damich THE UNITED STATES, ) ) Defendant. ) PLAINTIFF'S MOTION FOR AN ORDER ENTERING MESSRS. THOMPSON, LINDSEY AND MARTIN AS QUALIFIED PERSONS UNDER THE STIPULATED PROTECTIVE ORDER Sparton Corporation ("Sparton") moves for an order to designate Messrs. Thomas Thompson, Richard Lindsey and Gerald Martin as qualified persons under the May 26, 1993 stipulated protective order. The Declarations of Messrs.

Thomas Thompson and Richard Lindsey submitted to defendant under said protective order are attached as Exhibit A. Messrs.Thompson's and Lindsey's protective order designation is important to Sparton because one or the other of these designees should assist the nearly 82 year old Mr. Boyle in (a) traveling to Ann Arbor, Michigan, to attend the video trial sessions, and (b) removing or replacing voluminous documents from the loose leaf binders to which Mr. Boyle will be testifying. Those binders have already been

supplied to this Court. The Court has requested Sparton to specify which one of these two individuals will assist Mr. Boyle. select Mr. Thompson to assist Mr. Boyle. Sparton will

Both were


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identified, however, because one was ill, and Sparton's counsel has not had an opportunity, after reviewing the Court's April 14, 2008 Order, to determine which one was ill. If Mr. Thompson is ill, then Sparton requests that Mr.

Lindsey be permitted to assist Mr. Boyle. Mr. Thompson or Mr. Lindsey will not review any confidential information contained in documents marked confidential or proprietary under the protective order. In

order to prevent any innocent violation of the protective order, Sparton thought it prudent to designate Mr. Thompson and Mr. Lindsey under the stipulated protective order. Messrs. Thompson and Lindsey are only procedurally assisting Mr. Boyle and are not assisting him on any substantive matter in this litigation. Messrs. Thompson and Lindsey are

attorneys with a local firm in Jackson, Michigan, which represents Sparton. They are neither patent attorneys nor They

knowledgeable of the substantive issues in this case. are not assisting Sparton's counsel. assisting Mr. Boyle. They are only

Sparton sent defendant a letter dated April 8, 2008 requesting that Sparton's expert Gerry Martin be designated under the stipulated protective order. See Exhibit B which includes Mr. Martin's Declaration under the stipulated protective order. On April 10, 2008, defendant objected to

Mr. Martin's designation because, although he is a former


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Sparton employee, he has actively participated in this case for over 10 years, has been closely associated with Sparton during the entirety of this litigation and Sparton now requests two weeks before trial that Mr. Martin be permitted access to protective material. See Exhibit C. All of

defendant's objections raised against Mr. Martin were likewise raised against Mr. Boyle when Sparton sought the latter's designation under the stipulated protective order. Judge Merow overruled these objections on the grounds that (1) Mr. Boyle was not an officer, shareholder or employee of Sparton since 1992, (2) Mr. Boyle was not involved in Sparton competitive decisions, (3) the extent of Mr. Boyle's association with Sparton was in regard to this litigation, (4) the potential for his future involvement in Sparton's competitive decisions was nil, and (5) Mr. Boyle was willing to forego any involvement in Sparton's competitive decisions. See defendant's opposition to Sparton's motion to designate Mr. Boyle under the stipulated protective order, filed December 5, 1997, Docket #101, and Judge Merow's March 30, 1998 Order granting Sparton's motion, Docket #111. Mr. Martin's curriculum vitae is attached as Exhibit D. It establishes that Mr. Martin retired from Sparton in 2001 and is no longer a Sparton employee. He has not been

involved in Sparton's competitive decisions for over 6 years. His sole association with Sparton is as a contracts


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expert to develop the royalty base and rate in regard to the issue of damages. Sparton requests Mr. Gerry Martin's

designation because he then can review Mr. McGavock's expert report, presently marked confidential by defendant, and testify in regard thereto, especially with respect to the royalty base. Mr. McGavock's entire expert report was

marked confidential by defendant even though the royalty base was allegedly determined by a review of nonconfidential government contracts. Sparton's expert Mr.

Gerry Martin is the only expert proferred by Sparton in regard to the royalty base issue. He should be allowed to

review defendant's royalty base contentions advanced by Mr. McGavock. To achieve this end, he must be designated under

the stipulated protective order. In view of the foregoing, Sparton submits that its motion should be granted.


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Respectfully submitted, Sparton Corporation, Plaintiff Dated: April 15, 2008 s/Steven Kreiss Steven Kreiss Attorney for Plaintiff 1120 Connecticut Avenue NW Suite 433 Washington D.C. 20036 Telephone: (202) 347-6382 Facsimile: (202) 347-7711