Case 1:15-cv-00311-RGA Document 64 Filed 01/26/16 Page 1 of 19 PageID #: 1457
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`
`
`C.A. No. 15-228 (RGA) (MPT)
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`ACTIVISION BLIZZARD, INC.
`
`Defendant.
`
`
`
`
`
`
`
`
`
`C.A. No. 15-282 (RGA) (MPT)
`
`
`
`C.A. No. 15-311 (RGA) (MPT)
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`ELECTRONIC ARTS INC.,
`
`
`
`
`
`Defendant.
`
`
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
`
`
`
`
`
`Defendants.
`
`
`
`NOTICE OF SUBPOENAS
`
`PLEASE TAKE NOTICE that the subpoenas attached hereto as Exhibit 1 will be served
`
`upon RPX Corporation.
`
`

`
`Case 1:15-cv-00311-RGA Document 64 Filed 01/26/16 Page 2 of 19 PageID #: 1458
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`
`
`/s/ Stephen J. Kraftschik
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`
`Attorneys for Defendants
`
`
`
`OF COUNSEL:
`
`Michael A. Tomasulo
`David P. Enzminger
`Gino Chen
`David K. Lin
`WINSTON & STRAWN LLP
`333 S. Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`Daniel K. Webb
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`January 26, 2016
`9799771
`
`
`- 2 -
`
`

`
`Case 1:15-cv-00311-RGA Document 64 Filed 01/26/16 Page 3 of 19 PageID #: 1459
`Case 1:15—cv—OO311—RGA Document 64 Filed 01/26/16 Page 3 of 19 Page|D #: 1459
`
`
`
`EXHIBIT 1
`
`EXHIBIT 1
`
`

`
`Case 1:15-cv-00311-RGA Document 64 Filed 01/26/16 Page 4 of 19 PageID #: 1460
`AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action
`
`UNITED STATES DISTRICT COURT
`for the
`__________ District of __________
`
`Civil Action No.
`
`))))))
`
`Plaintiff
`v.
`
`Defendant
`
`SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
`OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
`
`To:
`
`(Name of person to whom this subpoena is directed)
`’ Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
`documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the
`material:
`
`Place:
`
`Date and Time:
`
`’ Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or
`other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
`may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
`
`Place:
`
`Date and Time:
`
`The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
`Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
`respond to this subpoena and the potential consequences of not doing so.
`
`Date:
`
`CLERK OF COURT
`
`OR
`
`Signature of Clerk or Deputy Clerk
`
`Attorney’s signature
`
`The name, address, e-mail address, and telephone number of the attorney representing (name of party)
`, who issues or requests this subpoena, are:
`
`Notice to the person who issues or requests this subpoena
`A notice and a copy of the subpoena must be served on each party in this case before it is served on the person to whom
`it is directed. Fed. R. Civ. P. 45(a)(4).
`
` District of Delaware
`
`Acceleration Bay LLC
`
`15-228, 15-282, 15-311
`
`Activision Blizzard Inc., Electronic Arts Inc.,
`Take-Two Interactive Software Inc., et al.
`
`RPX Corporation c/o Incorporating Services, Ltd.
`3500 S. DuPont Highway, Dover, DE 19901
`
`4
`
`See Attachment A
`
`Morris, Nichols, Arsht & Tunnell LLP
`c/o Stephen J. Kraftschik
`1201 N. Market St. Wilmington, DE 19801
`
`02/12/2016 9:00 am
`
`01/26/2016
`
`/s/ Stephen J. Kraftschik
`
`Activision Blizzard
`
`Inc., Electronic Arts Inc., Take-Two Interactive Software Inc., et al.
`
`Stephen J. Kraftschik; 1201 N. Market St., Wilmington, DE 19801; skraftschik@mnat.com; (302) 351-9378
`
`

`
`Case 1:15-cv-00311-RGA Document 64 Filed 01/26/16 Page 5 of 19 PageID #: 1461
`AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)
`
`Civil Action No.
`
`PROOF OF SERVICE
`(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
`
`I received this subpoena for (name of individual and title, if any)
`.
`
`on (date)
`
`’ I served the subpoena by delivering a copy to the named person as follows:
`
`’ I returned the subpoena unexecuted because:
`
`on (date)
`
`; or
`
`Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
`tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
`$
`.
`
`My fees are $
`
`for travel and $
`
`for services, for a total of $
`
`.
`
`.
`
`I declare under penalty of perjury that this information is true.
`
`Date:
`
`Additional information regarding attempted service, etc.:
`
`Server’s signature
`
`Printed name and title
`
`Server’s address
`
`15-228, 15-282, 15-311
`
`0.00
`
`Print
`
`Save As...
`
`Add Attachment
`
`Reset
`
`

`
`Case 1:15-cv-00311-RGA Document 64 Filed 01/26/16 Page 6 of 19 PageID #: 1462
`AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)
`
`(c) Place of Compliance.
`
`Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
` (ii) disclosing an unretained expert’s opinion or information that does
`not describe specific occurrences in dispute and results from the expert’s
`study that was not requested by a party.
` (C) Specifying Conditions as an Alternative. In the circumstances
`described in Rule 45(d)(3)(B), the court may, instead of quashing or
`modifying a subpoena, order appearance or production under specified
`conditions if the serving party:
` (i) shows a substantial need for the testimony or material that cannot be
`otherwise met without undue hardship; and
` (ii) ensures that the subpoenaed person will be reasonably compensated.
`
` (1) For a Trial, Hearing, or Deposition. A subpoena may command a
`person to attend a trial, hearing, or deposition only as follows:
` (A) within 100 miles of where the person resides, is employed, or
`regularly transacts business in person; or
` (B) within the state where the person resides, is employed, or regularly
`transacts business in person, if the person
` (i) is a party or a party’s officer; or
` (ii) is commanded to attend a trial and would not incur substantial
`expense.
`
` (2) For Other Discovery. A subpoena may command:
` (A) production of documents, electronically stored information, or
`tangible things at a place within 100 miles of where the person resides, is
`employed, or regularly transacts business in person; and
` (B) inspection of premises at the premises to be inspected.
`
`(d) Protecting a Person Subject to a Subpoena; Enforcement.
`
` (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
`responsible for issuing and serving a subpoena must take reasonable steps
`to avoid imposing undue burden or expense on a person subject to the
`subpoena. The court for the district where compliance is required must
`enforce this duty and impose an appropriate sanction—which may include
`lost earnings and reasonable attorney’s fees—on a party or attorney who
`fails to comply.
`
` (2) Command to Produce Materials or Permit Inspection.
` (A) Appearance Not Required. A person commanded to produce
`documents, electronically stored information, or tangible things, or to
`permit the inspection of premises, need not appear in person at the place of
`production or inspection unless also commanded to appear for a deposition,
`hearing, or trial.
` (B) Objections. A person commanded to produce documents or tangible
`things or to permit inspection may serve on the party or attorney designated
`in the subpoena a written objection to inspecting, copying, testing, or
`sampling any or all of the materials or to inspecting the premises—or to
`producing electronically stored information in the form or forms requested.
`The objection must be served before the earlier of the time specified for
`compliance or 14 days after the subpoena is served. If an objection is made,
`the following rules apply:
` (i) At any time, on notice to the commanded person, the serving party
`may move the court for the district where compliance is required for an
`order compelling production or inspection.
` (ii) These acts may be required only as directed in the order, and the
`order must protect a person who is neither a party nor a party’s officer from
`significant expense resulting from compliance.
`
` (3) Quashing or Modifying a Subpoena.
` (A) When Required. On timely motion, the court for the district where
`compliance is required must quash or modify a subpoena that:
` (i) fails to allow a reasonable time to comply;
` (ii) requires a person to comply beyond the geographical limits
`specified in Rule 45(c);
` (iii) requires disclosure of privileged or other protected matter, if no
`exception or waiver applies; or
` (iv) subjects a person to undue burden.
` (B) When Permitted. To protect a person subject to or affected by a
`subpoena, the court for the district where compliance is required may, on
`motion, quash or modify the subpoena if it requires:
`(i) disclosing a trade secret or other confidential research,
`development, or commercial information; or
`
`(e) Duties in Responding to a Subpoena.
`
` (1) Producing Documents or Electronically Stored Information. These
`procedures apply to producing documents or electronically stored
`information:
` (A) Documents. A person responding to a subpoena to produce documents
`must produce them as they are kept in the ordinary course of business or
`must organize and label them to correspond to the categories in the demand.
` (B) Form for Producing Electronically Stored Information Not Specified.
`If a subpoena does not specify a form for producing electronically stored
`information, the person responding must produce it in a form or forms in
`which it is ordinarily maintained or in a reasonably usable form or forms.
` (C) Electronically Stored Information Produced in Only One Form. The
`person responding need not produce the same electronically stored
`information in more than one form.
` (D) Inaccessible Electronically Stored Information. The person
`responding need not provide discovery of electronically stored information
`from sources that the person identifies as not reasonably accessible because
`of undue burden or cost. On motion to compel discovery or for a protective
`order, the person responding must show that the information is not
`reasonably accessible because of undue burden or cost. If that showing is
`made, the court may nonetheless order discovery from such sources if the
`requesting party shows good cause, considering the limitations of Rule
`26(b)(2)(C). The court may specify conditions for the discovery.
`
`(2) Claiming Privilege or Protection.
` (A) Information Withheld. A person withholding subpoenaed information
`under a claim that it is privileged or subject to protection as trial-preparation
`material must:
` (i) expressly make the claim; and
` (ii) describe the nature of the withheld documents, communications, or
`tangible things in a manner that, without revealing information itself
`privileged or protected, will enable the parties to assess the claim.
` (B) Information Produced. If information produced in response to a
`subpoena is subject to a claim of privilege or of protection as
`trial-preparation material, the person making the claim may notify any party
`that received the information of the claim and the basis for it. After being
`notified, a party must promptly return, sequester, or destroy the specified
`information and any copies it has; must not use or disclose the information
`until the claim is resolved; must take reasonable steps to retrieve the
`information if the party disclosed it before being notified; and may promptly
`present the information under seal to the court for the district where
`compliance is required for a determination of the claim. The person who
`produced the information must preserve the information until the claim is
`resolved.
`
`(g) Contempt.
`The court for the district where compliance is required—and also, after a
`motion is transferred, the issuing court—may hold in contempt a person
`who, having been served, fails without adequate excuse to obey the
`subpoena or an order related to it.
`
`For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
`
`

`
`Case 1:15-cv-00311-RGA Document 64 Filed 01/26/16 Page 7 of 19 PageID #: 1463
`AO 88A (Rev. 12/13) Subpoena to Testify at a Deposition in a Civil Action
`
`UNITED STATES DISTRICT COURT
`for the
`__________ District of __________
`
`Civil Action No.
`
`))))))
`
`Plaintiff
`v.
`
`Defendant
`
`SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION
`
`To:
`
`(Name of person to whom this subpoena is directed)
`’ Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a
`deposition to be taken in this civil action. If you are an organization, you must designate one or more officers, directors,
`or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or
`those set forth in an attachment:
`
`
`
`Place:
`
`Date and Time:
`
`The deposition will be recorded by this method:
`
`’ Production: You, or your representatives, must also bring with you to the deposition the following documents,
`electronically stored information, or objects, and must permit inspection, copying, testing, or sampling of the
`material:
`
`The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
`Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
`respond to this subpoena and the potential consequences of not doing so.
`
`Date:
`
`CLERK OF COURT
`
`OR
`
`Signature of Clerk or Deputy Clerk
`
`Attorney’s signature
`
`The name, address, e-mail address, and telephone number of the attorney representing (name of party)
`, who issues or requests this subpoena, are:
`
`Notice to the person who issues or requests this subpoena
`If this subpoena commands the production of documents, electronically stored information, or tangible things, a notice
`and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is
`directed. Fed. R. Civ. P. 45(a)(4).
`
` District of Delaware
`
`Acceleration Bay LLC
`
`15-228, 15-282, 15-311
`
`Activision Blizzard Inc., Electronic Arts Inc.,
`Take-Two Interactive Software Inc., et al.
`
`RPX Corporation c/o Incorporating Services, Ltd.
`3500 S. DuPont Highway, Dover, DE 19901
`
`4
`
`See Attachment B
`
`Morris, Nichols, Arsht & Tunnell LLP
`1201 N. Market St.
`Wilmington, DE 19801
`
`02/19/2016 9:00 am
`
`01/26/2016
`
`/s/ Stephen J. Kraftschik
`
`Activision Blizzard
`
`Inc., Electronic Arts Inc., Take-Two Interactive Software Inc., et al.
`
`Stephen J. Kraftschik; 1201 N. Market St., Wilmington, DE 19801; skraftschik@mnat.com; (302) 351-9378
`
`

`
`Case 1:15-cv-00311-RGA Document 64 Filed 01/26/16 Page 8 of 19 PageID #: 1464
`AO 88A (Rev. 12/13) Subpoena to Testify at a Deposition in a Civil Action (Page 2)
`
`Civil Action No.
`
`PROOF OF SERVICE
`(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
`
`I received this subpoena for (name of individual and title, if any)
`.
`
`on (date)
`
`’ I served the subpoena by delivering a copy to the named individual as follows:
`
`’ I returned the subpoena unexecuted because:
`
`on (date)
`
`; or
`
`Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
`tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
`$
`.
`
`
`
`My fees are $
`
`for travel and $
`
`I declare under penalty of perjury that this information is true.
`
`Date:
`
`Additional information regarding attempted service, etc.:
`
`for services, for a total of $
`
`Server’s signature
`
`Printed name and title
`
`Server’s address
`
`.
`
`.
`
`15-228, 15-282, 15-311
`
`0.00
`
`Print
`
`Save As...
`
`Add Attachment
`
`Reset
`
`

`
`Case 1:15-cv-00311-RGA Document 64 Filed 01/26/16 Page 9 of 19 PageID #: 1465
`
`AO 88A (Rev. 12/13) Subpoena to Testify at a Deposition in a Civil Action (Page 3)
`Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
`(i) disclosing a trade secret or other confidential research, development,
`or commercial information; or
` (ii) disclosing an unretained expert’s opinion or information that does
`not describe specific occurrences in dispute and results from the expert’s
`study that was not requested by a party.
` (C) Specifying Conditions as an Alternative. In the circumstances
`described in Rule 45(d)(3)(B), the court may, instead of quashing or
`modifying a subpoena, order appearance or production under specified
`conditions if the serving party:
` (i) shows a substantial need for the testimony or material that cannot be
`otherwise met without undue hardship; and
` (ii) ensures that the subpoenaed person will be reasonably compensated.
`
`(c) Place of Compliance.
`
` (1) For a Trial, Hearing, or Deposition. A subpoena may command a
`person to attend a trial, hearing, or deposition only as follows:
` (A) within 100 miles of where the person resides, is employed, or
`regularly transacts business in person; or
` (B) within the state where the person resides, is employed, or regularly
`transacts business in person, if the person
` (i) is a party or a party’s officer; or
` (ii) is commanded to attend a trial and would not incur substantial
`expense.
`
` (2) For Other Discovery. A subpoena may command:
` (A) production of documents, electronically stored information, or
`tangible things at a place within 100 miles of where the person resides, is
`employed, or regularly transacts business in person; and
` (B) inspection of premises at the premises to be inspected.
`
`(d) Protecting a Person Subject to a Subpoena; Enforcement.
`
` (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
`responsible for issuing and serving a subpoena must take reasonable steps
`to avoid imposing undue burden or expense on a person subject to the
`subpoena. The court for the district where compliance is required must
`enforce this duty and impose an appropriate sanction—which may include
`lost earnings and reasonable attorney’s fees—on a party or attorney who
`fails to comply.
`
`
`
` (2) Command to Produce Materials or Permit Inspection.
` (A) Appearance Not Required. A person commanded to produce
`documents, electronically stored information, or tangible things, or to
`permit the inspection of premises, need not appear in person at the place of
`production or inspection unless also commanded to appear for a deposition,
`hearing, or trial.
` (B) Objections. A person commanded to produce documents or tangible
`things or to permit inspection may serve on the party or attorney designated
`in the subpoena a written objection to inspecting, copying, testing, or
`sampling any or all of the materials or to inspecting the premises—or to
`producing electronically stored information in the form or forms requested.
`The objection must be served before the earlier of the time specified for
`compliance or 14 days after the subpoena is served. If an objection is made,
`the following rules apply:
` (i) At any time, on notice to the commanded person, the serving party
`may move the court for the district where compliance is required for an
`order compelling production or inspection.
` (ii) These acts may be required only as directed in the order, and the
`order must protect a person who is neither a party nor a party’s officer from
`significant expense resulting from compliance.
`
` (3) Quashing or Modifying a Subpoena.
`
` (A) When Required. On timely motion, the court for the district where
`compliance is required must quash or modify a subpoena that:
`
` (i) fails to allow a reasonable time to comply;
` (ii) requires a person to comply beyond the geographical limits
`specified in Rule 45(c);
` (iii) requires disclosure of privileged or other protected matter, if no
`exception or waiver applies; or
` (iv) subjects a person to undue burden.
` (B) When Permitted. To protect a person subject to or affected by a
`subpoena, the court for the district where compliance is required may, on
`motion, quash or modify the subpoena if it requires:
`
`(e) Duties in Responding to a Subpoena.
`
` (1) Producing Documents or Electronically Stored Information. These
`procedures apply to producing documents or electronically stored
`information:
` (A) Documents. A person responding to a subpoena to produce documents
`must produce them as they are kept in the ordinary course of business or
`must organize and label them to correspond to the categories in the demand.
` (B) Form for Producing Electronically Stored Information Not Specified.
`If a subpoena does not specify a form for producing electronically stored
`information, the person responding must produce it in a form or forms in
`which it is ordinarily maintained or in a reasonably usable form or forms.
` (C) Electronically Stored Information Produced in Only One Form. The
`person responding need not produce the same electronically stored
`information in more than one form.
` (D) Inaccessible Electronically Stored Information. The person
`responding need not provide discovery of electronically stored information
`from sources that the person identifies as not reasonably accessible because
`of undue burden or cost. On motion to compel discovery or for a protective
`order, the person responding must show that the information is not
`reasonably accessible because of undue burden or cost. If that showing is
`made, the court may nonetheless order discovery from such sources if the
`requesting party shows good cause, considering the limitations of Rule
`26(b)(2)(C). The court may specify conditions for the discovery.
`
`(2) Claiming Privilege or Protection.
` (A) Information Withheld. A person withholding subpoenaed information
`under a claim that it is privileged or subject to protection as trial-preparation
`material must:
` (i) expressly make the claim; and
` (ii) describe the nature of the withheld documents, communications, or
`tangible things in a manner that, without revealing information itself
`privileged or protected, will enable the parties to assess the claim.
` (B) Information Produced. If information produced in response to a
`subpoena is subject to a claim of privilege or of protection as
`trial-preparation material, the person making the claim may notify any party
`that received the information of the claim and the basis for it. After being
`notified, a party must promptly return, sequester, or destroy the specified
`information and any copies it has; must not use or disclose the information
`until the claim is resolved; must take reasonable steps to retrieve the
`information if the party disclosed it before being notified; and may promptly
`present the information under seal to the court for the district where
`compliance is required for a determination of the claim. The person who
`produced the information must preserve the information until the claim is
`resolved.
`
`(g) Contempt.
`The court for the district where compliance is required—and also, after a
`motion is transferred, the issuing court—may hold in contempt a person
`who, having been served, fails without adequate excuse to obey the
`subpoena or an order related to it.
`
`For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
`
`

`
`Case 1:15-cv-00311-RGA Document 64 Filed 01/26/16 Page 10 of 19 PageID #: 1466
`
`ATTACHMENT A
`
`DEFINITIONS
`
`1.
`
`“Defendants” shall mean Activision|Blizzard, Inc., Electronic Arts Inc., Take-
`
`Two Interactive Software, Inc., Rockstar Games, Inc., and 2K Sports, Inc., including but not
`
`limited to their predecessors, all parent companies, partners, wholly or partially owned
`
`subsidiaries, divisions, past or present affiliated corporations, and each of their present and
`
`former employees, agents, officers, directors, representatives, consultants, accountants, and
`
`attorneys.
`
`2.
`
`“Acceleration Bay” or “Plaintiff” means and includes Acceleration Bay LLC
`
`together with each of its respective departments, divisions, subsidiaries, predecessors, and
`
`affiliates, past and present, and all employees, representatives, and/or agents acting or purporting
`
`to act on any or all of their respective behalves.
`
`3.
`
`“You,” “your”, and “RPX” means you, the recipient of the subpoena and includes
`
`RPX Corporation, together with each of its respective departments, divisions, subsidiaries,
`
`predecessors, and affiliates, past and present, and all employees, representatives, and/or agents
`
`acting or purporting to act on any or all of their respective behalves.
`
`4.
`
`“Boeing” means and includes The Boeing Company together with each of its
`
`respective departments, divisions, subsidiaries, predecessors, and affiliates, past and present,
`
`including Panthesis, Inc. (“Panthesis”), and all employees, representatives, and/or agents acting
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`or purporting to act on any or all of their respective behalves.
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`5.
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`“Accused Products” shall mean any product or service manufactured, used, sold,
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`offered for sale or imported into the United States by or on behalf of any Defendants that
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`Acceleration Bay alleges infringes the Asserted Patents.
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`Case 1:15-cv-00311-RGA Document 64 Filed 01/26/16 Page 11 of 19 PageID #: 1467
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`6.
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`“Asserted Patents” shall mean United States Patent Nos. 6,701,344; 6,714,966;
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`6,732,147; 6,829,634; 6,910,069; and 6,920,497.
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`7.
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`The term “Related Application(s)” of a referenced patent or patents means any
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`patent or patent application, filed anywhere in the world, that: (a) is a parent, child, or other
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`ancestral application related in any way to the referenced patent; (b) is a continuation
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`application, continuation-in-part application, divisional application, file-wrapper continuation,
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`reexamination proceeding, reissue application, provisional application, or abandoned application
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`of such referenced patent or the application that led to such referenced patent; (c) claims priority
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`in whole or in part from such referenced patent or the application that led to such referenced
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`patent; (d) is the basis for a claim of priority in whole or in part (including claims of benefits
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`under 35 U.S.C. §§ 119(e) or 120) for such referenced patent; (e) was contemporaneously filed
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`with and/or incorporated by reference within the application for the referenced patent or (f)
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`shares subject matter with such referenced patent.
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`8.
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`9.
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`“Named Inventor(s)” means and includes Fred B. Holt, and/or Virgil E. Bourassa.
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`“This Case/these Cases” shall mean the lawsuit(s) filed by Acceleration Bay in
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`the District of Delaware, C.A. Nos. 15-228 (RGA), 15-282 (RGA), 15-311 (RGA).
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`10.
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`“Communication,” “communications,” or “communicated” shall mean and shall
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`include any oral or written expression, statements, or utterance of any nature whatsoever,
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`including but not limited to, correspondence, conversations, memoranda, notes, computer or
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`electronic expressions and statements and telecommunications.
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`11.
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`“Documents” shall have the meaning ascribed to that term in Rule 34 of the
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`Federal Rules of Civil Procedure, and shall also include, without limitation, all writings,
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`printouts, graphical material, and recordings as defined by Rule 1001 of the Federal Rules of
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`Case 1:15-cv-00311-RGA Document 64 Filed 01/26/16 Page 12 of 19 PageID #: 1468
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`Evidence, drawings, graphs, charts, photographs, film, audio or video recordings, facsimile
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`transmissions, computer files, and electronic mail messages, and all data compilations from
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`which information can be obtained, translated, if necessary, through detection devices into
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`reasonably useable form. “Documents” also includes, without limitation, anything that can be
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`classified as a “writing,” “original,” or “duplicate. “Documents” also include all drafts, all
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`attachments to Documents, and all copies of Documents that are not identical duplicates of the
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`original (for example, because handwriting, marginalia, or notes appear on the duplicate or are
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`attached to it), whether or not the originals are in Acceleration Bay’s possession, custody or
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`control.
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`12.
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`“Entity” or “entities” include natural persons, proprietorships, partnerships, firms,
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`private corporations, public corporations, municipal corporations, governments (including
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`foreign national governments, the government of the United States or any state or local
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`government), all departments and agencies thereof, and any governmental agencies of any
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`country, political subdivisions, groups, associations, or organizations.
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`13.
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`“Person” or “persons” shall mean any natural person, legal entity, business or
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`other entities, including but not limited to any corporation, partnership, unincorporated
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`association, joint venture, sole proprietorship, government agency, business trusts, or any and/or
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`all other organization or group of individuals; as well as any officer, director, employee, partner,
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`corporate parent, subsidiary, affiliate, agent, representative, attorney, or principal thereof.
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`14.
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`“Thing” or “things” shall mean any tangible object other than a document as
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`defined herein, and includes objects of every kind and nature.
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`15.
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`“Relating to,” “related to” or “concerning” shall mean anything pertaining to,
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`comprising, evidencing, alluding to, responding to, connected with, commenting on, with respect
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`Case 1:15-cv-00311-RGA Document 64 Filed 01/26/16 Page 13 of 19 PageID #: 1469
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`to, about, regarding, resulting from, embodying, explaining, supporting, discussing, showing,
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`describing, reflecting, analyzing, constituting, setting forth, in respect of, or having any direct or
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`indirect logical or factual connection with the subject matter in question.
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`16.
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`“Including” shall not be construed as limiting any request, and shall mean the
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`same as “including, but not limited to.”
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`17.
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`The use of the term “the” shall not be construed as limiting the scope of any
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`document request.
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`18.
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` “Any” or “each” shall be understood to include and encompass “all;” “or” shall
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`be understood to encompass “and;” “and” shall be understood to include and encompass “OR.”
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`19.
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` “And,” “or,” and “and/or” shall be construed conjunctively or disjunctively as
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`necessary to make the request inclusive rather than exclusive.
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`20.
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`The plural of any word shall be construed as the singular, and vice versa, as
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`necessary, in order to bring within the scope of these requests any information, documents, or
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`things that might otherwise be construed to be outside their scope.
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`
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`Case 1:15-cv-00311-RGA Document 64 Filed 01/26/16 Page 14 of 19 PageID #: 1470
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`INSTRUCTIONS
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`1.
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`You are to search all documents and things within your possession, custody or
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`control or within the possession, custody or control of your attorneys, accountants, or other
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`agents or representatives, wherever located, including but not limited to documents and things
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`placed in storage facilities and documents and things in the possession of any employee, agent,
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`representative, or person acting or purporting to act on your behalf whether located at his or her
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`residence(s) and/or place(s) of business(es).
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`2.
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`Pursuant to Fed. R. Civ. P. 34(b), you are instructed to produce documents as they
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`are kept in the usual course of business or the documents shall be organized and labeled to
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`correspond to the categories for each Request. In addition, documents are to be produced in full
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`and unexpurgated form; redacted documents will not constitute compliance with a Request.
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`3.
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`Different versions of the same documents, handwritten notes or notations in any
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`form, draft documents an