AO 88B (Rev. 06/09) 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 __________
` o“•‰ † “ eŠ” •“Š„ • ‡ p‰ Š
`ROY-G-BIV Corporation
`Plaintiff
`v.
`ABB, Ltd., ABB, Inc., MeadWestvaco Texas, LP, and
`MeadWestvaco Corporation
`Defendant
`
`Civil Action No.
`
`6:11-cv-00622
`
`))))))
`
`(If the action is pending in another district, state where:
`__________ District of __________
`)
` f‚ ”•† “ eŠ” •“Š„ • ‡ u† ™ ‚ ”
`
`SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
`OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
`Robert J. Clark, Senior Counsel, Parker Hannifin Corporation
`6035 Parkland Blvd., Cleveland, OH 44124
`
`To:
`
`4
`" Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
`documents, electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of the
`material:
`Please see attached Exhibit A
`
`Place:
`
`Squire Sanders (US) LLP
`4900 Key Tower, 127 Public Square
`Cleveland, OH 44114
`
`Date and Time:
`
`02/22/2013 4:00 pm
`
`" 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 provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule
`45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of not doing so, are
`attached.
`
`Date:
`
`02/08/2013
`
`CLERK OF COURT
`
`Signature of Clerk or Deputy Clerk
`
`OR
`
`/s/ Steven M. Auvil
`Attorney’s signature
`
`The name, address, e-mail, and telephone number of the attorney representing (name of party)
`ABB Inc.,
`, who issues or requests this subpoena, are:
`MeadWestvaco Texas, LP and MeadWestvaco Corporation
`
`Steven M. Auvil, Squire Sanders (US) LLP, 4900 Key Tower, 127 Public Square, Cleveland, OH 44114
`Tele: (216) 479-8023 Email: steven.auvil@squiresanders.com
`
`

`
`AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)
`
`Civil Action No.
`
`6:11-cv-00622
`
`PROOF OF SERVICE
`(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
`
`This subpoena for (name of individual and title, if any)
`was received by me 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 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
`
`

`
`AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)
`
`Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 12/1/07)
`(c) Protecting a Person Subject to a Subpoena.
`(d) Duties in Responding to a Subpoena.
`(1) Avoiding Undue Burden or Expense; Sanctions. A party or
`(1) Producing Documents or Electronically Stored Information.
`These procedures apply to producing documents or electronically
`attorney responsible for issuing and serving a subpoena must take
`stored information:
`reasonable steps to avoid imposing undue burden or expense on a
`(A) Documents. A person responding to a subpoena to produce
`person subject to the subpoena. The issuing court must enforce this
`duty and impose an appropriate sanction — which may include lost
`documents must produce them as they are kept in the ordinary
`earnings and reasonable attorney’s fees — on a party or attorney
`course of business or must organize and label them to correspond to
`who fails to comply.
`the categories in the demand.
`(2) Command to Produce Materials or Permit Inspection.
`(B) Form for Producing Electronically Stored Information Not
`(A) Appearance Not Required. A person commanded to produce
`Specified. If a subpoena does not specify a form for producing
`documents, electronically stored information, or tangible things, or
`electronically stored information, the person responding must
`to permit the inspection of premises, need not appear in person at the
`produce it in a form or forms in which it is ordinarily maintained or
`place of production or inspection unless also commanded to appear
`in a reasonably usable form or forms.
`for a deposition, hearing, or trial.
`(C) Electronically Stored Information Produced in Only One
`(B) Objections. A person commanded to produce documents or
`Form. The person responding need not produce the same
`tangible things or to permit inspection may serve on the party or
`electronically stored information in more than one form.
`(D) Inaccessible Electronically Stored Information. The person
`attorney designated in the subpoena a written objection to
`inspecting, copying, testing or sampling any or all of the materials or
`responding need not provide discovery of electronically stored
`to inspecting the premises — or to producing electronically stored
`information from sources that the person identifies as not reasonably
`information in the form or forms requested. The objection must be
`accessible because of undue burden or cost. On motion to compel
`served before the earlier of the time specified for compliance or 14
`discovery or for a protective order, the person responding must show
`days after the subpoena is served. If an objection is made, the
`that the information is not reasonably accessible because of undue
`following rules apply:
`burden or cost. If that showing is made, the court may nonetheless
`(i) At any time, on notice to the commanded person, the serving
`order discovery from such sources if the requesting party shows
`party may move the issuing court for an order compelling production
`good cause, considering the limitations of Rule 26(b)(2)(C). The
`or inspection.
`court may specify conditions for the discovery.
`(2) Claiming Privilege or Protection.
`(ii) These acts may be required only as directed in the order, and
`(A) Information Withheld. A person withholding subpoenaed
`the order must protect a person who is neither a party nor a party’s
`officer from significant expense resulting from compliance.
`information under a claim that it is privileged or subject to
`(3) Quashing or Modifying a Subpoena.
`protection as trial-preparation material must:
`(A) When Required. On timely motion, the issuing court must
`(i) expressly make the claim; and
`(ii) describe the nature of the withheld documents,
`quash or modify a subpoena that:
`(i) fails to allow a reasonable time to comply;
`communications, or tangible things in a manner that, without
`revealing information itself privileged or protected, will enable the
`(ii) requires a person who is neither a party nor a party’s officer
`parties to assess the claim.
`to travel more than 100 miles from where that person resides, is
`(B) Information Produced. If information produced in response to a
`employed, or regularly transacts business in person — except that,
`subject to Rule 45(c)(3)(B)(iii), the person may be commanded to
`subpoena is subject to a claim of privilege or of protection as trial-
`attend a trial by traveling from any such place within the state where
`preparation material, the person making the claim may notify any
`the trial is held;
`party that received the information of the claim and the basis for it.
`(iii) requires disclosure of privileged or other protected matter, if
`After being notified, a party must promptly return, sequester, or
`destroy the specified information and any copies it has; must not use
`no exception or waiver applies; or
`or disclose the information until the claim is resolved; must take
`(iv) subjects a person to undue burden.
`reasonable steps to retrieve the information if the party disclosed it
`(B) When Permitted. To protect a person subject to or affected by
`before being notified; and may promptly present the information to
`a subpoena, the issuing court may, on motion, quash or modify the
`the court under seal for a determination of the claim. The person
`subpoena if it requires:
`who produced the information must preserve the information until
`(i) disclosing a trade secret or other confidential research,
`the claim is resolved.
`development, or commercial information;
`(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; or
`(iii) a person who is neither a party nor a party’s officer to incur
`substantial expense to travel more than 100 miles to attend trial.
`(C) Specifying Conditions as an Alternative. In the circumstances
`described in Rule 45(c)(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.
`
`(e) Contempt. The issuing court may hold in contempt a person
`who, having been served, fails without adequate excuse to obey the
`subpoena. A nonparty’s failure to obey must be excused if the
`subpoena purports to require the nonparty to attend or produce at a
`place outside the limits of Rule 45(c)(3)(A)(ii).
`
`

`
`Exhibit A
`
`DEFINITIONS AND INSTRUCTIONS
`
`1.
`
`The terms defined herein are incorporated by reference into each request listed
`
`below, and consequently, the definition of each term listed herein is to be read into each request
`
`as if each definition is listed herein.
`
`2.
`
`The terms “you,” “your,” “Parker,” or “Parker Hannifin” mean and refer to Parker
`
`Hannifin Corporation, and any of its parents, subsidiaries, affiliates, divisions, agents, officers,
`
`directors, employees, shareholders, attorneys, assigns,
`
`representatives, predecessors, and
`
`successors, past, present, or future, in their individual or representative capacities
`
`3.
`
`The term “Compumotor” means and refers to Compumotor, and any of its
`
`parents, subsidiaries, affiliates, divisions, agents, officers, directors, employees, shareholders,
`
`attorneys, assigns, representatives, predecessors, and successors, past, present, or future, in their
`
`individual or representative capacities.
`
`4.
`
`The terms “Roy-G-Biv,” “Roy G Biv,” “RGB,” and “Plaintiff” mean and refer to
`
`Roy-G-Biv Corp. and any of its parents, subsidiaries, affiliates, divisions, agents, officers,
`
`directors, employees, shareholders, attorneys, assigns,
`
`representatives, predecessors, and
`
`successors, past, present, or future, in their individual or representative capacities.
`
`5.
`
`The term “ABB” means and refers to ABB Inc. and any of its parents,
`
`subsidiaries, affiliates, divisions, agents, officers, directors, employees, shareholders, attorneys,
`
`assigns, representatives, predecessors, and successors, past, present, or future, in their individual
`
`or representative capacities.
`
`CLEVELAND/1329083.2
`
`

`
`6.
`
`The term “XMC” means and refers to products, or a line of products, marketed
`
`and sold by Roy-G-Biv under the XMC name, including without limitation, WOSA/XMC, XMC
`
`for OPC, XMC for Visual Studio, and XMC Machine Interface.
`
`7.
`
`The term “person” means natural persons as well as corporate or other business
`
`entities (including partnerships, groups, associations, governmental entities, and organizations).
`
`8.
`
`The terms “documents,” “things,” and “electronically stored information” (“ESI”)
`
`as used herein include all matter and things contemplated by those terms under Fed. R. Civ. P.
`
`34.
`
`9.
`
`As used herein, “and” as well as “or” shall be construed either disjunctively or
`
`conjunctively as necessary in order to bring within the scope of the interrogatory or request all
`
`information, documents, and things which might otherwise be construed to be outside its scope.
`
`10.
`
`As used herein, the singular shall always include the plural, and the present tense
`
`shall always include the past tense.
`
`11.
`
`The term “communication” includes any contact or act by which any information
`
`or knowledge is transmitted or conveyed between two or more persons, by whatever means
`
`accomplished,
`
`and includes written contact
`
`such as
`
`correspondence,
`
`letters, notes,
`
`advertisements, proposals, solicitations, memoranda, telegrams, facsimiles, emails, or electronic
`
`file transfers, and oral transmission and conveyance of information, including face-to-face
`
`meetings, telephone conversations, and video conferences.
`
`CLEVELAND/1329083.2
`
`

`
`12.
`
`The term “control” means possession, custody, or control, and includes
`
`constructive possession, provided that you, your attorneys, agents, or representatives have a right
`
`to compel production of the document or communication from a source with possession thereof.
`
`13.
`
`The term “relating to” means concerning, constituting, describing, evidencing,
`
`consisting of, referring to, pertaining to, reflecting, or in any way logically or factually connected
`
`with the matter discussed, in whole or part, directly or indirectly.
`
`14.
`
`To the extent that a document request requests the production of a document,
`
`thing, ESI, and the responding party is asserting a privilege or other protection, identify in a
`
`privilege log for each document, thing, or ESI: (a) the date of the document, thing, or ESI; (b) the
`
`kind of document, thing, or ESI (e.g., letter, memorandum, e-mail); (c) the location of the
`
`document, thing, or ESI; (d) the author(s) and/or originator(s) of the document, thing, or ESI; (e)
`
`the addressee(s) and other recipient(s) of the document, thing, or ESI; (f) the subject matter of
`
`the document, thing, or ESI; and (g) the privilege or protection claimed (e.g., attorney-client
`
`privilege or work product immunity).
`
`15.
`
`If you contend that a portion of a document contains information that is immune
`
`from discovery, then produce the document with the immune portion redacted therefrom and
`
`describe the redacted portion in a privilege log pursuant to the instructions in paragraph 13
`
`above.
`
`16.
`
`To the extent that a document, thing, or ESI is produced in electronic format, the
`
`electronic documents should be produce in native format if the documents include spreadsheets
`
`or workbooks, but otherwise converted to Summation load files comprised of .tiff images of the
`
`native documents, plus searchable text and meta data files.
`
`CLEVELAND/1329083.2
`
`

`
`DOCUMENT REQUESTS
`
`1.
`
`2.
`
`3.
`
`4.
`
`Any and all communications between Parker Hannifin and/or Compumotor, on the one
`hand, and Roy-G-Biv on the other,
`including without
`limitation, any and all
`communications between Stuart Goodnick, Marc McClung, Kevin Holloway, and/or
`Robert Cook of Compumotor and David W. Brown and/or Jay S. Clark of Roy-G-Biv for
`the time period of January 1, 1993 through December 31, 1996.
`
`Any and all contracts and/or agreements relating to the business relationship between
`Parker Hannifin and Roy-G-Biv, including without limitation any and all non-disclosure,
`licensing, marketing, and joint development agreements between Compumotor and Roy-
`G-Biv for the time period of January 1, 1993 through December 31, 1996.
`
`Any and all documents, things, and ESI relating to XMC, including without limitation
`any meeting notes, draft specifications, business proposals, and communications relating
`to the design, development, marketing and/or sales of XMC for the time period of
`January 1, 1993 through December 31, 1996.
`
`Any and all documents, things, and ESI relating to any and all Roy-G-Biv specifications,
`patent applications, or patents.
`
`CLEVELAND/1329083.2