`Case 1:16-cv-00455-RGA Document 214-1 Filed 07/31/17 Page 1 of 34 PagelD #: 17926
`
`
`
`
`
`
`
`
`
`EXHIBIT A
`EXHIBIT A
`
`
`
`Case 1:16-cv-00455-RGA Document 214-1 Filed 07/31/17 Page 2 of 34 PageID #: 17927
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`AO 88B (Rev. 02/14) 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 Delaware
`__________ District of __________
`
`Civil Action No.
`
`16-455-RGA
`
`))))))
`
`Acceleration Bay LLC
`Plaintiff
`v.
`Take-Two Interactive Software, Inc. et al.
`
`Defendant
`
`SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
`OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
`Reed Smith LLP, 1201 Market St., Suite 1500, Wilmington, DE 19801
`
`To:
`
`(Name of person to whom this subpoena is directed)
`✔
`(cid:117) 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:
`See Attachment A
`
`Place:
`
`Morris, Nichols, Arsht & Tunnell LLP
`1201 N. Market St., Wilmington DE 19801
`
`Date and Time:
`
`08/07/2017 5:00 pm
`
`(cid:117) 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.
`07/31/2017
`Date:
`
`CLERK OF COURT
`
`Signature of Clerk or Deputy Clerk
`
`OR
`
`/s/ Stephen J. Kraftschik
`Attorney’s signature
`
`Take-Two
`The name, address, e-mail address, and telephone number of the attorney representing (name of party)
`, who issues or requests this subpoena, are:
`Interactive Software, Inc. et al.
`Stephen Kraftschik; 1201 N. Market St., Wilmington DE 19801; skraftschik@mnat.com; (302) 351-9378
`Notice to the person who issues or requests this subpoena
`If this subpoena commands the production of documents, electronically stored information, or tangible things or the
`inspection of premises before trial, 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).
`
`
`
`Case 1:16-cv-00455-RGA Document 214-1 Filed 07/31/17 Page 3 of 34 PageID #: 17928
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`AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)
`
`Civil Action No.
`
`16-455-RGA
`
`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)
`.
`07/31/2017
`
`on (date)
`
`Reed Smith LLP
`
`✔
`(cid:117) I served the subpoena by delivering a copy to the named person as follows:
`Street, Suite 1500, Wilmington, DE 19801
`
`Reed Smith LLP, 1201 Market
`
`on (date)
`
`07/31/2017
`
`; or
`
`(cid:117) I returned the subpoena unexecuted because:
`
`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 $
`
`0.00
`
`.
`
`.
`
`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
`
`
`
`Case 1:16-cv-00455-RGA Document 214-1 Filed 07/31/17 Page 4 of 34 PageID #: 17929
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`AO 88B (Rev. 02/14) 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 1:16-cv-00455-RGA Document 214-1 Filed 07/31/17 Page 5 of 34 PageID #: 17930
`
`AO 88A (Rev. 02/14) 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 before
`trial, 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).
`
`
`
`Case 1:16-cv-00455-RGA Document 214-1 Filed 07/31/17 Page 6 of 34 PageID #: 17931
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`AO 88A (Rev. 02/14) 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 $
`
`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
`
`
`
`Case 1:16-cv-00455-RGA Document 214-1 Filed 07/31/17 Page 7 of 34 PageID #: 17932
`
`AO 88A (Rev. 02/14) 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 1:16-cv-00455-RGA Document 214-1 Filed 07/31/17 Page 8 of 34 PageID #: 17933
`
`ATTACHMENT A
`
`DEFINITIONS
`
`1.
`
`“Take-Two” shall mean 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.
`
`4.
`
`“You,” “your,” and “Reed Smith” means Reed Smith LLP.
`
`“Hamilton Capital” mean, collectively and/or individually, Hamilton Capital XII
`
`LLC, and/or its present and former officers, directors, employees, partners, corporate parent,
`
`subsidiaries, or affiliates, including Hamilton Capital LLC and its subsidiaries, as described in ¶
`
`8 of Exhibit 1.
`
`5.
`
`“Platinum” shall mean shall mean Platinum Partners Credit Opportunities Master
`
`Fund, LP, Platinum Management (NY) LLC, Platinum Credit Management, L.P. (as described in
`
`¶¶ 1-2 of Exhibit 1), and Platinum Partners Masterfund (as described in Exhibit A of Exhibit 1).
`
`6.
`
`7.
`
` “Kramer Levin” shall mean Kramer Levin Naftalis & Frankel LLP.
`
` “Boeing” means and includes The Boeing Company together with each of its
`
`respective departments, divisions, subsidiaries, predecessors, and affiliates, past and present,
`
`
`
`
`1
`
`
`
`Case 1:16-cv-00455-RGA Document 214-1 Filed 07/31/17 Page 9 of 34 PageID #: 17934
`
`including Panthesis, Inc. (“Panthesis”), and all employees, representatives, and/or agents acting
`
`or purporting to act on any or all of their respective behalves.
`
`8.
`
` “Accused Products” shall mean any product or service manufactured, used, sold,
`
`offered for sale or imported into the United States by or on behalf of any Defendants that
`
`Acceleration Bay alleges infringes the Asserted Patents.
`
`9.
`
`“Asserted Patents” shall mean United States Patent Nos. 6,701,344; 6,714,966;
`
`6,732,147; 6,829,634; 6,910,069; and 6,920,497.
`
`10.
`
`11.
`
`“Named Inventor” means Fred B. Holt, and/or Virgil E. Bourassa.
`
`The term “Related Application(s)” of a referenced patent or patents means any
`
`patent or patent application, filed anywhere in the world, that: (a) is a parent, child, or other
`
`ancestral application related in any way to the referenced patent; (b) is a continuation
`
`application, continuation-in-part application, divisional application, file-wrapper continuation,
`
`reexamination proceeding, reissue application, provisional application, or abandoned application
`
`of such referenced patent or the application that led to such referenced patent; (c) claims priority
`
`in whole or in part from such referenced patent or the application that led to such referenced
`
`patent; (d) is the basis for a claim of priority in whole or in part (including claims of benefits
`
`under 35 U.S.C. §§ 119(e) or 120) for such referenced patent; (e) was contemporaneously filed
`
`with and/or incorporated by reference within the application for the referenced patent or (f)
`
`shares subject matter with such referenced patent.
`
`12.
`
`“This Case” or “These Cases” shall mean the lawsuit(s) filed by Acceleration Bay
`
`in the District of Delaware, C.A. No. 16-455 (RGA), as well as the prior case filed by
`
`Acceleration Bay in 2015 (C.A. No. 15-311).
`
`
`
`
`2
`
`
`
`Case 1:16-cv-00455-RGA Document 214-1 Filed 07/31/17 Page 10 of 34 PageID #: 17935
`
`13.
`
` “Communication,” “communications,” or “communicated” shall mean and shall
`
`include any oral or written expression, statements, or utterance of any nature whatsoever,
`
`including but not limited to, correspondence, conversations, memoranda, notes, computer or
`
`electronic expressions and statements and telecommunications.
`
`14.
`
`“Documents” shall have the meaning ascribed to that term in Rule 34 of the
`
`Federal Rules of Civil Procedure, and shall also include, without limitation, all writings,
`
`printouts, graphical material, and recordings as defined by Rule 1001 of the Federal Rules of
`
`Evidence, drawings, graphs, charts, photographs, film, audio or video recordings, facsimile
`
`transmissions, computer files, and electronic mail messages, and all data compilations from
`
`which information can be obtained, translated, if necessary, through detection devices into
`
`reasonably useable form. “Documents” also includes, without limitation, anything that can be
`
`classified as a “writing,” “original,” or “duplicate. “Documents” also include all drafts, all
`
`attachments to Documents, and all copies of Documents that are not identical duplicates of the
`
`original (for example, because handwriting, marginalia, or notes appear on the duplicate or are
`
`attached to it), whether or not the originals are in Acceleration Bay’s possession, custody or
`
`control.
`
`15.
`
`“Entity” or “entities” include natural persons, proprietorships, partnerships, firms,
`
`private corporations, public corporations, municipal corporations, governments (including
`
`foreign national governments, the government of the United States or any state or local
`
`government), all departments and agencies thereof, and any governmental agencies of any
`
`country, political subdivisions, groups, associations, or organizations.
`
`
`
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`Case 1:16-cv-00455-RGA Document 214-1 Filed 07/31/17 Page 11 of 34 PageID #: 17936
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`16.
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`“Infringe,” “infringes,” “infringed,” or “infringement” shall refer to any form of
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`infringement actionable under United States
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`law,
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`including without
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`limitation, direct
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`infringement, contributory infringement and inducement to infringe.
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`17.
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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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`18.
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`“Prior art” shall mean any reference, document, subject matter, event, or other
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`matter set forth or relevant under 35 U.S.C. § 102 and/or 35 U.S.C. § 103, including, for
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`example, all publications, patents, patent applications, disclosures, presentations, physical
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`specimens, products, devices, uses, sales, offers for sale, or other activities relating to the subject
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`matter of any claim of the Asserted Patents (or that any person has alleged to be related to, the
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`patentability of any claim of the Asserted Patents, any related patent or application, or any
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`foreign counterpart of these patents and applications) and existing or occurring prior to the filing
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`date of the Asserted Patents.
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`19.
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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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`20.
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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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`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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`Case 1:16-cv-00455-RGA Document 214-1 Filed 07/31/17 Page 12 of 34 PageID #: 17937
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`21.
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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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`22.
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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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`23.
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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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`24.
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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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`25.
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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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`5
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`Case 1:16-cv-00455-RGA Document 214-1 Filed 07/31/17 Page 13 of 34 PageID #: 17938
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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 and documents with handwritten notations or marks not found in the
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`original or on other copies are considered to be different documents for the purpose of
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`production in compliance with these requests, and each form should be produced independently.
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`4.
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`Electronic and computerized information must be produced in an intelligible
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`format or together with a description of the system from which it was derived sufficient to permit
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`rendering the materials intelligible.
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`5.
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`All documents produced in response to these Requests shall be produced in toto
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`notwithstanding the fact that portions thereof may contain information not requested.
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`6.
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`The geographic scope of these requests is worldwide.
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`6
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`Case 1:16-cv-00455-RGA Document 214-1 Filed 07/31/17 Page 14 of 34 PageID #: 17939
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`7.
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`All documents produced in response to these Requests shall be produced along
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`with any and/or all attachments and/or enclo