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`EXHIBIT 5
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`Dustin J. Edwards (pro hac vice)
`dedwards@winston.com
`WINSTON & STRAWN LLP
`800 Capital St., Suite 2400
`Houston, TX 77002-2925
`Telephone: (713) 651-2600
`Facsimile:
`(713) 651-2700
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`Michael A. Tomasulo (SBN: 179389)
`mtomasulo@winston.com
`Diana Hughes Leiden (SBN: 267606)
`dhleiden@winston.com
`WINSTON & STRAWN LLP
`333 S. Grand Avenue, 38th Floor
`Los Angeles, CA 90071-1543
`Telephone: (213) 615-1700
`Facsimile:
`(213) 615-1750
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`George C. Lombardi (pro hac vice)
`glombardi@winston.com
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601-9703
`Telephone: (312) 558-5600
`Facsimile:
`(312) 558-5700
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`E. Danielle T. Williams (pro hac vice)
`dwilliams@winston.com
`WINSTON & STRAWN LLP
`300 South Tryon Street, 16th Floor
`Charlotte, NC 28202
`Telephone: (704) 350-7700
`Facsimile:
`(704) 350-7800
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`Michael S. Elkin (pro hac vice)
`melkin@winston.com
`WINSTON & STRAWN LLP
`200 Park Avenue
`New York, NY 10166
`Telephone: (212) 294-6700
`Facsimile: (212) 294-4700
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`Attorneys for Defendants
`BANK OF AMERICA CORPORATION
`and BANK OF AMERICA, N.A.
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`UNITED STATES DISTRICT COURT
`FOR THE CENTRAL DISTRICT OF CALIFORNIA
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`NANTWORKS, LLC, a Delaware
`limited liability company, and
`NANT HOLDINGS IP, LLC, a
`Delaware limited liability company,
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`Plaintiffs,
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`vs.
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`BANK OF AMERICA
`CORPORATION, a Delaware
`corporation, and BANK OF
`AMERICA, N.A., a national banking
`association,
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`Defendants.
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`Case No. 2:20-CV-7872-GW-PVC
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`DEFENDANTS BANK OF AMERICA
`CORPORATION AND BANK OF
`AMERICA, N.A.’S FIFTH SET OF
`INTERROGATORIES TO PLAINTIFFS
`(NO. 29)
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`DEFENDANTS’ FIFTH SET OF INTERROGATORIES
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`Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure and Local
`Rule 26, Defendants Bank of America Corporation and Bank of America, N.A.
`(collectively, “Defendants”), by their undersigned attorneys, request that Plaintiffs
`NantWorks, LLC and Nant Holdings IP, LLC (collectively, “NantWorks” or
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`“Plaintiffs”) answer the following interrogatories within thirty (30) days of service.
`GENERAL DEFINITIONS AND RULES OF CONSTRUCTION
`Notwithstanding any definition below, each word, term, or phrase used in these
`Requests is intended to have the broadest meaning permitted under the Federal Rules
`of Civil Procedure.
`1.
`“Plaintiffs,” “NantWorks,” “You,” or “Your” shall mean any or all of
`NantWorks, LLC; Nant Holdings IP, LLC; and/or any of its or their representatives, all
`past and present predecessors, successors, subsidiaries, affiliates, and parent companies,
`and all past and present directors, officers, partners, employees, agents, representatives,
`or persons acting on behalf of the forgoing entities.
`2.
`“Defendant(s)” or “Bank of America” shall refer to Defendants Bank of
`America Corporation and/or Bank of America, N. A.
`3.
`“NantWorks Patent(s)-in-Suit” shall refer, individually and collectively, to
`U.S. Patent No. 7,881,529, U.S. Patent No. 7,899,252, U.S. Patent No. 8,326,038, U.S.
`Patent No. 8,463,030, U.S. Patent No. 8,478,036, U.S. Patent No. 8,520,897, U.S.
`Patent No. 9,031,278, and U.S. Patent No. 9,324,004, as well as any patents asserted in
`this lawsuit at a later date.
`4.
`Related Patent(s)” means:
`a. Any patent or patent application in the genealogical chain through
`which a Patent-in-Suit claims priority:
`b. Any patent or patent application which claims priority through
`genealogical chain that includes a Patent-in-Suit
`c. Any foreign counterpart of a Patent-in-Suit or otherwise Related
`Patent.
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`5.
`"Any” and “all” shall mean one or more.
`6.
`“Accused Instrumentality(ies)” shall mean and refer to those accused
`instrumentalities NantWorks identifies in accordance with C.D. Cal. S.P.R. 2.1.
`7.
`“Advanced Mobile Deposit Software” shall refer to the “source code,
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`object code, and libraries for the mobile check deposit software” NantWorks refers in
`paragraph 179 of its Complaint.
`8.
`“And” and “or” shall be construed conjunctively or disjunctively as
`necessary to bring within the scope of the discovery request all responses that might
`otherwise be construed to be outside of its scope, and the use of the singular form of
`any word includes the plural and vice versa.
`9.
`“Asserted Claim” means and includes each and every claim of the Patents-
`in-Suit that NantWorks contends is infringed in accordance with C.D. Cal. S.P.R. 2.1.
`10.
`“Communication(s)” means any transmission of information, including
`drafts.
`11.
`“Complaint” shall refer to Plaintiffs’ live complaint, which as of January
`25, 2021, was Plaintiffs’ First Amended Complaint filed on or about November 11,
`2020, in the above-captioned matter.
`12.
`"Constituting” or “relating to” is used in its broadest sense to include any
`connection, relation, or relevance.
`13.
`“Date” means the exact day, month and year, if ascertainable; and if not
`ascertainable, the closest approximation that can be made by means of relationship to
`other events, locations or matters.
`14.
` “Document(s)” shall include all writings, recordings, photographs, or
`other documents within the scope of Rule 1001 of the Federal Rules of Evidence or
`Rule 34 of the Federal Rules of Civil Procedure, including without limitation written,
`printed, typed, electronically stored, magnetically stored, optically stored, and visually
`or aurally reproduced material of any kind. The term “document” shall include both
`the original of a document and all distinct copies thereof, including, without limitation,
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`DEFENDANTS’ FIFTH SET OF INTERROGATORIES
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`copies that are distinct due to the presence of notes made on or attached to the document.
`15.
`“Including” shall mean without limitation.
`16.
`“Person” or “Entity” and their plural forms include, without limitation,
`natural persons, law firms, partnerships, corporations, associations, and other legal
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`entities and divisions, departments, or other units thereof.
`17.
`“Present Litigation,” “this lawsuit,” “this litigation,” and “this case” refers
`to the above-referenced action, NantWorks, LLC v. Bank of America Corp., Case No.
`2:20-CV-7872-GW-PVC (C.D. Cal).
`18.
`“Prior Art” means anything that constitutes prior art under any subsection
`of 35 U.S.C. § 102 or § 103, including without limitation any publication, patent, use,
`sale, offer for sale, prior invention, knowledge, or other activity.
`19.
`“Reflecting,” “referring,” “relating to,” “concerning” or any derivation
`thereof shall mean, without limitation, consisting of, constituting, containing,
`mentioning, describing, summarizing, evidencing, listing, indicating, analyzing,
`explaining, supporting, undermining, contradicting, concerning, pertaining to, prepared
`in connection with, used in preparation for, or being in any way legally, logically, or
`factually connected with the matter discussed.
`20.
`“Related Patent(s)” means any patent or patent application related to the
`Asserted Patents genealogically and/or by common subject matter or inventorship,
`including but not limited to, any U.S. patent applications, such as continuation
`applications, continuation-in-part applications, and divisional applications, and all
`foreign counterpart applications, whether pending, allowed, issued, expired, or
`abandoned.
`21.
`“Thing” shall include all tangible objects of any type, composition,
`construction, or nature.
`22.
`to be
`“Writings,” “recordings,” and “photographs” are defined
`synonymous in meaning and equal in scope to the usage of those terms in Fed. R. Evid.
`1001..
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`23. Unless the interrogatory specifically states otherwise, references to the
`singular shall include the plural and vice versa; references to one gender shall include
`the other gender; references to the past include the present and vice versa; and
`disjunctive terms include the conjunctive and vice versa.
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`INSTRUCTIONS
`1.
`If any interrogatory, instruction, or definition is ambiguous or unclear to
`You, contact one of the undersigned counsel as soon as possible so that the
`interrogatory, instruction, or definition can be clarified to avoid unnecessary delays in
`discovery.
`2.
`These interrogatories are continuing in nature and should be supplemented
`forthwith whenever new or additional information becomes available.
`3.
`These interrogatories seek responses regardless of whether You believe the
`information sought may be in Bank of America’s possession.
`4.
`As used herein, the term “identify” requires the following information:
`a. When asked to “identify” or to specify the “identity” of a natural
`person, give, to the extent known, the person’s full name; any known
`aliases; present or last known address and contact information
`(including email address and telephone number); present or last
`known place of employment; and title.
`b. When asked to “identify” or to specify the “identity” of a natural
`person who is a past or present director, officer, employee, agent, or
`representative of You, also specify all positions or employments that
`person held with You, and the dates between which that person held
`each position or employment.
`c. When asked to “identify” or to specify the “identity” of an entity
`that is not a natural person, specify its full name; its place of
`incorporation (where appropriate); its principal place of business;
`the identity of all natural persons employed by or acting for it at any
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`time who have knowledge of the matter with respect to which the
`entity is identified, and each such natural person’s full name and
`present or last known address and contact information (including
`email address and telephone number).
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`d. When asked to “identify” or to specify the “identity” of a document,
`produce the document for inspection and copying, or specify the
`document’s
`type; general subject matter; date; author(s);
`addressee(s); recipient(s); format (e.g., a book, PDF file, Access
`database, etc.); and Bates number or range.
`e. When asked to “identify” or to specify the “identity” of a
`communication, specify the form of the communication; if the
`communication was in written form, identify the communication in
`conformity with the preceding paragraph of these Definitions and
`Instructions concerning to “identify” or to specify the “identity” of
`a document; if the communication was not in written form, specify:
`the manner in which the communication was made (telephone,
`personal conversation, etc.), the identity of each person who
`participated in or witnessed the communication, the subject matter
`and content of
`the communication, and
`the date of
`the
`communication.
`f. When asked to “identify” or to specify the “identity” of a tangible
`object or thing, produce the tangible object or thing for inspection
`by Plaintiffs or specify: its general description; its physical
`particulars (size, shape, color, weight, etc.); the date on which it was
`made; the identity of the persons who made it; the identity of the
`persons who asked that it be made; its present condition; its Bates
`number; its present location; and its current custodian.
`If You elect to avail Yourself of the procedure for answering
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`interrogatories authorized by Rule 33(d) of the Federal Rules of Civil Procedure, Bank
`of America requests that, for each interrogatory so answered, You specify the particular
`business records relating to the subject matter of the specific interrogatory, and
`separately for each business record, specify its source (i.e., the identity of the person
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`from whom the business records were obtained or other location from which they were
`taken), its author and date of preparation, if not apparent from the face of the business
`record, and its Bates number or range.
`6. Wherever any interrogatory calls for information, for the identification of
`a document, or an oral communication, or for the production of a document that You
`claim to be privileged or immune from discovery as work product or on any other
`ground, Bank of America requests, in compliance with the Stipulated Protective Order,
`Dkt. No. 102, and pursuant to Rule 26(b)(5) of the Federal Rules of Civil Procedure,
`that You provide within thirty (30) days of service of these interrogatories a list
`identifying each particular interrogatory to which You object, and each specific ground
`on which such objection is based; and specifying each withheld document or
`communication, or portion thereof, as follows:
`a. the type of document or communication (e.g., whether it is a letter,
`chart, pamphlet, memorandum, etc.);
`b. a summary of its contents, or the general subject matter of the
`document or communication;
`c. the date of the document or communication;
`d. the identity of each other document transmitted with or attached to
`that allegedly privileged or discovery-immune document;
`e. its present location and the identity of the document’s current
`custodian;
`f. the identity of each person who authored, prepared, or signed the
`document;
`g. a listing identifying each person, including but not limited to
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`addresses and designated copy recipients, to whom either the
`original or a copy of the document has been disclosed, including the
`date and means of such disclosure and, where not apparent, the
`relationship of the author, addressees, and recipient to each other;
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`and
`h. the identity of each person who participated in or witnessed the
`communication; and
`i. the nature of the privilege, immunity, or other rule of law relied on
`to withhold the information, document, and the facts supporting
`Your asserted reliance.
`7.
`information or
`Any purportedly privileged or discovery-immune
`document that contains matter that is not privileged or immune from discovery must be
`produced with the purportedly privileged or discovery-immune portion excised.
`8.
`Your obligation to respond to these Interrogatories is continuing and the
`responses to the following Interrogatories are to be promptly supplemented to include
`subsequently acquired information in accordance with the requirements of Rule 26(e)
`of the Federal Rules of Civil Procedure.
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`FIFTH SET OF INTERROGATORIES
`INTERROGATORY NO. 29
`State fully and with particularity on a claim-by-claim and element-by-element
`basis all facts and reasons upon which NantWorks bases its contentions as to Bank of
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`America’s alleged infringement, describing in detail how Bank of America allegedly
`infringes, literally or through the doctrine of equivalents, each and every element of
`the claims, whether Bank of America allegedly infringes the claims directly or
`indirectly, and all factual and legal basis supporting these contentions; and all
`documents and other evidence supporting your response.
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`Dated: October 18, 2021
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`WINSTON & STRAWN LLP
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`By:/s/ E. Danielle T. Williams
`George C. Lombardi (pro hac vice)
`Michael S. Elkin (pro hac vice)
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`E. Danielle T. Williams (pro hac vice)
`Dustin J. Edwards (pro hac vice)
`Michael A. Tomasulo
`Diana Hughes Leiden
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`Attorneys for Defendants
`BANK OF AMERICA CORPORATION
`and BANK OF AMERICA, N.A.
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`CERTIFICATE OF SERVICE
`United States District Court for the Central District of California
`NantWorks LLC et al. v. Bank of America Corporation, et al.
`Case No. 2:20-cv-7872-GW-PVC
`I am a resident of the State of North Carolina, over the age of eighteen years,
`and not a party to this action. My business address is Winston & Strawn LLP, 300 S.
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`Tryon Street, 16th Floor, Charlotte, NC 28202. On October 18, 2021, I served true
`copies of the following document:
`DEFENDANT BANK OF AMERICA CORPORATION AND
`BANK OF AMERICA, N.A.’S FIFTH SET OF
`INTERROGATORIES TO PLAINTIFFS (NO. 29)
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`by electronically transmitting copies of the document(s) listed above via
`email to the addressees as set forth below, in accordance with the parties’
`agreement to be served electronically pursuant to Fed. R. Civ. P. 5, or Local
`Rule of Court, or court order. No error messages were received after said
`transmission.
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`SEE ATTACHED LIST
`I declare under penalty of perjury under the laws of the United States of
`America that the above is true and correct.
`Signed:/s/ E. Danielle T. Williams
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`Dated: October 18, 2021
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`CERTIFICATE OF SERVICE
`CASE NO. 2:20-CV-7872
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`SERVICE LIST
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`NantWorks LLC et al. v. Bank of America Corporation, et al.
`Case No. 2:20-cv-7872-GW-PVC
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`Kevin P.B. Johnson
`kevinjohnson@quinnemanuel.com
`Todd M. Briggs
`toddbriggs@quinnemanuel.com
`Brice C. Lynch
`bricelynch@quinnemanuel.com
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`555 Twin Dolphin Drive, 5th Floor
`Redwood Shores, California 94065
`Telephone: (650) 801-5000
`Facsimile: (650) 801-5100
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`Eric Huang
`erichuang@quinnemanuel.com
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor
`New York, New York 10010
`Telephone: (212) 849-7000
`Facsimile: (212) 849-7100
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`James R. Asperger
`jimasperger@quinnemanuel.com
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`865 South Figueroa Street, 10th Floor
`Los Angeles, CA 90017-2543
`Telephone: (213) 443-3000
`Facsimile: (213) 443-3100
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`Attorneys for Plaintiffs
`NANTWORKS, LLC and NANT HOLDINGS IP, LLC
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`2
`CERTIFICATE OF SERVICE
`CASE NO. 2:20-CV-7872
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