IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`DESTINATION MATERNITY
`
`CORPORATION,
`
`CASE NO. 2:12—cv-05680—AB
`
`'Plaintifi’,
`
`v.
`
`.
`HON. ANITA B. BRODY
`
`TARGET CORPORATION, CHEROKEE
`INC, and ELIZABETH LANGE LLC,
`
`Defendants.
`
`DEFENDANT TARGET’S NOTICE OF THE DEPOSITION OF
`PLAINTIFF DESTINATION MATERNITY CORPORATION
`
`PURSUANT TO FED. R. CIV. P. 30lblléi
`
`Pursuant to Rules 26 and 30 of the Federal Rules of Civil Procedure, counsel for the
`
`defendants will take the deposition of Destination Maternity Corporation (“DMC”), through
`
`those witnesses whom it identifies, on September 23, 2013 at the offices of Lavin, O’Neil, Ricci,
`
`Cedrone & Disipio; 190 North Independence Mall West; 6th and Race Streets, Suite 500;
`
`Philadelphia, Pennsylvania 19106 beginning at 9:00 AM EST and continuing day-to-day until
`
`completed. DMC is required to designate one or more officers, directors, managing agents,
`
`executive officers, or other persons duly authorized and consenting for examination on matters
`
`known or reasonably available pertaining to the subjects and topics set forth in the attached
`
`Exhibit A. The deposition will be taken before an officer authorized to administer oaths and will
`
`be recorded stenographically and by videotape. You are invited to attend and cross-examine.
`
`Dated: September 4, 2013
`
`Respectfully submitted,
`
`/s/ Andrew F. Johnson
`
`EXHIBIT
`
`

`

`Francis J. Grey, Jr.
`Pennsylvania ID. No. 56145
`LAVIN, O’NEIL, RICCI,
`CEDRONE & DISIPIO
`
`190 North Independence Mall West
`6th and Race Streets, Suite 500
`Philadelphia, Pennsylvania 19106
`Telephone: (215) 627—0303
`Facsimile:
`(215) 627—2551
`E—mail: fgrey@lavin-law.com
`
`R. Trevor Carter (pro hac vice)
`Indiana Bar No. 18562—49
`
`Daniel M. Lechleiter (pro hac vice)
`Indiana Bar No. 25675-49
`
`FAEGRE BAKER DANIELS LLP
`
`300 North Meridian Street, Suite 2700
`
`Indianapolis, Indiana 46204-1750
`Telephone: (317) 237-0300
`Facsimile:
`(317) 23 7— 1000
`E—mail: trevor.carter@,faegrebd.eom
`daniel.lechleiter@faegrebd.com
`
`Andrew F. Johnson (pro hac vice)
`Minnesota Bar No. 389331
`
`FAEGRE BAKER DANIELS LLP
`
`2200 Wells Fargo Center
`90 South Seventh Street
`
`Minneapolis, Minnesota 55402-3901
`Telephone: (612) 7667000
`Facsimile:
`(612) 766-1600
`E-mail: andrew.iohnson@faegrebd.com
`
`Counselfor Defendant Target Corporation
`
`dms.us.52720713.02
`
`

`

`CERTIFICATE OF SERVICE
`
`Pursuant to FED. R. CIV. P. 5(a)(l)(C), 5(b)(1), and 5(b)(2)(E), as well as the parties’
`agreement to service by e—mail, see Joint Proposed Discovery Plan, at 3 (ECF No. 30, Jan. 18,
`2013), the undersigned hereby certifies that on the date set forth above, a true and correct copy of
`the foregoing document was served by means of e—rnail, as a PDF file attachment, upon counsel
`of record in this matter as set forth below.
`
`/s/ Andrew F. Johnson
`
`Paul A. Taufer
`Michael L. Burns
`
`DLA PIPER LLP (US)
`One Liberty Place
`1650 Market Street, Suite 4900
`
`Philadelphia, Pennsylvania 19103
`paul.taufer@dlapiper.com
`michaelbums@d1apiper.com
`
`Frank W. Ryan
`Tamar Y. Duvdevani
`Melissa A. Reinckens
`
`DLA PIPER LLP (US)
`1251 Avenue of the Americas
`
`.
`
`New York, New York 10020—1104
`frank.r_yan@,dlapip§r.corn
`tamar.duvdevani dlai
`
`r.com
`
`melissa.reinckens@dlapip§r.com
`
`Counselfor Plaintiff, Destination
`Maternity Corporation
`
`

`

`EXHIBIT A
`
`When interpreting any part of this Rule 30(b)(6) Notice or any of the individual Topics
`
`for Examination herein, apply the Constructions set forth in Part 1, below, and the Definitions set
`Iforth in Part II, below.
`
`I.
`
`CONSTRUCTIONS
`
`The following constructions shall apply throughout this Rule 30(b)(6) Notice:
`
`A.
`
`Defined words and terms, and the words that comprise defined phrases, are
`
`capitalized. If a word that would otherwise constitute a defined word or term, or a constituent of
`
`a defined phrase, is not capitalized, then that word should be accorded its ordinary meaning in
`
`view of the context in which it is used. All other words, whether or not capitalized, should be
`
`accorded their ordinary meaning in View of the context in which they are used.
`
`B.
`
`All definitions pertain equally to the singular, plural, and possessive forms of the
`
`defined words, terms, and phrases.
`
`C.
`
`The words “and” and “or” shall be construed conjunctively or disjunctively as
`
`necessary in order to bring within the scope of Any request herein Any responses that might
`
`otherwise be construed to be outside the scope of such request.
`
`II.
`
`DEFINITIONS
`
`The following definitions shall apply throughout this Discovery Request:
`
`A.
`
`The words “Any” and “All” may be used interchangeably herein and mean “any,”
`
`“all,” “each and every,” as well as “any one.”
`
`B.
`
`The terms “Relate to,” “Related to,” “Relating to,” “in Relation to,” “Relate,” and
`
`“Related” mean comprising, mentioning, describing, underlying, containing, enumerating,
`
`involving, regarding, or in Any way concerning, identified in, pertaining, corresponding, or
`
`dms.us.52720713.02
`
`

`

`referring to, being connected with, reflecting on or resulting from, in whole or in part, directly or
`
`indirectly, the stated subject matter.
`
`C.
`
`The terms “This Matter,” “This Lawsuit,” and “This Action” are used
`
`interchangeably herein and mean and Relate to the case in which this Discovery Request is being
`
`served, Destination Maternity Corporation v. Target Corporation, Cherokee Inc., and Elizabeth
`
`Lange LLC, No. 2:12~cv-5680—AB (ED. Pa filed Oct. 4, 2012).
`
`D.
`
`The terms “Destination Maternity Corporation,” “DMC,” “Plaintiff,” “You,”
`
`“Your,” and “Yours” mean and Relate to the plaintiff in This Matter, Destination Maternity
`
`Corporation, and include Mothers Work, Inc. and Cave Springs Inc., as well as Destination
`
`Maternity Corporation’s present and former divisions; subsidiaries; affiliates; parents;
`
`predecessors, successors, and assigns (by operation of law or otherwise); officers; directors;
`
`principals; employees; representatives; investors; sureties; indemnitors; insurers; inspectors;
`
`agents; attorneys; auditors; accountants; consultants; advisors; investigators; and Any other
`
`Person acting or purporting to act on its behalf, presently or in the past.
`
`E.
`
`The terms “Target Corporation,” “Target,” “Defendant,” and “Requesting Party”
`
`are used interchangeably herein and mean and Relate to defendant Target Corporation, the
`
`defendant in This Matter who has served this Deposition Notice on You.
`
`F.
`
`The term “Cherokee” means and refer to defendant Cherokee, Inc, a defendant in
`
`This Matter.
`
`G.
`
`The term “ELL” means defendant, Elizabeth Lange LLC, a defendant in This
`
`Matter.
`
`dms.us.52720713.02
`
`

`

`H.
`
`The term “Parties” means and Relates to any named party in This Matter,
`
`including, but not limited to, Destination Maternity Corporation, Target Corporation, Cherokee
`
`Inc., and Elizabeth Lange LLC.
`
`I.
`
`J.
`
`The term “Third Party” means a Person other than the Parties.
`
`The tem'r “Complaint” means and Relates to the most current filed document
`
`containing Plaintiff 3 claims against Target in This Matter, which, as of the date of this
`
`Discovery Request, is Plaintiff‘s Complaint (Doc. No. I, filed Oct. 4, 2012).
`
`K.
`
`The term “Answer” means and Relates to the most current filed document
`
`containing Target’s defenses in This Matter, which, as of the date of this Discovery Request, is ‘
`
`Defendant’s Answer and Defenses to Plaintiffs Complaint (Doc. No. 17, filed Dec. 3, 2012).
`
`L.
`
`The term f“575 Patent” means and Relates to US. Patent No. 7,814,575 issued
`
`October 19, 2010 and surrendered on July 24, 2012. The term “‘276 Patent” means and Relates
`
`to US. Patent No. 7,900,276 issued March 8, 2011 and surrendered on August 7, 2012. The
`
`term “‘531 Patent” means and Relates to US. Patent No. RE43,531 issued on July 24, 2012. The
`
`term “‘563 Patent” means and Relates to US. Patent No. RE43,563 issued on August 7, 2012.
`
`M.
`
`The term “Patents-in-Suit” means and Relates to both the ‘563 Patent and the
`
`‘531 Patent entitled “Belly Covering Garment”
`
`N.
`
`The Term “Related Patents” means and relates to both the ‘575 Patent and the
`
`‘276 Patent as well as Any parent, grandparent, or predecessor applications, Whether pending,
`
`issued, or abandoned, and Any divisional, continuation, or continuation-impart applications, and
`
`Any surrendered or foreign patents and patent applications disclosing or claiming subject matter
`
`which is substantially the same as that claimed in either the Related Patents or the Patents-in-
`
`Suit.
`
`dms.us.52720713 .02
`
`

`

`0.
`
`The term “Accused Product(s)” means and Relates to All product(s) of Target that
`
`You believe Infringe Any claim of the Patents—in—Suit.
`P.
`The term “Pertinent Maternity Product(s)” means and includes, but is not limited
`
`.
`
`to, All of Your current or past maternity products that are similar to the Accused Product(s) or
`
`that are similar to, or that embody, the subject matter disclosed and/or claimed in the Patents-in-
`Sult For example, the term “Pertinent Maternity Product(s)” means and Relates to All maternity
`
`pants, trousers, jeans, shorts, and skirts of any style, material, or length that have a flexible panel
`
`(I) at, near, and/or above the waist line, and (2) that encircles all or part of the wearer’s waist,
`
`stomach, and/or torso. For purposes of this definition, the articles of clothing described above——
`
`pants, trousers, jeans, shorts, and skirts—should be considered “maternity” wear if You have
`
`ever advertised, sold, or otherwise identified them “maternity” wear.
`
`Q.
`
`The term “U.S.” means and Relates to The United States of America and its
`
`territories.
`
`R.
`
`The term “Foreign” means and Relates to Any nation or territory outside of the
`
`U.S., and includes Any governmental, quasi-governmental, trade—Related, or treaty-Related
`
`organization, or Any other such organization that is not controlled exclusively by the U.S.
`
`S.
`
`The term “Person” means and Relates to each of the Parties, as well as Any other
`
`natural person or entity, including, but not limited to, and regardless of whether “not-for-profit,”
`
`Any proprietorships; partnerships; firms; corporations; limited liability companies; trusts; joint
`
`ventures; independent establishments; public, municipal, or government agencies or corporations
`
`(federal, state, local, Foreign, or otherwise) and Any departments and agencies thereof;
`
`governments (federal, state, local, Foreign, or otherwise) and Any departments and agencies
`
`thereof; Any other governmental agencies, political subdivisions, groups, associations,
`
`dms.us.52720713.02
`
`

`

`organizations, boards, firms, funds, or bodies ofAny kind; Any divisions or subsidiaries of Any
`
`group or a combination acting as an entity; and Any other legally recognized entity of Any
`
`description whatsoever. Unless otherwise stated, the term “Person” also includes Any
`
`individuals and/or entities which are separately defined in these Definitions. Any reference to
`
`Any Person that is not a natural person, including the Parties, shall also include that Person’s
`present and former divisions; subsidiaries; affiliates; parents; predecessors, successors, assigns,
`and heirs (by operation of law or otherwise); officers; directors; principals; employees;
`
`representatives; investors; sureties; indemnitors; insurers; inspectors; agents; attorneys; auditors;
`
`accountants; consultants; advisors; investigators; and Any other Person acting or purporting to
`
`act on its behalf, presently or in the past.
`
`T.
`
`The term “Communication” means and Relates to Any transmission, conveyance,
`
`or exchange of information, whether by oral, written, printed, recorded, filmed, electronic, or
`
`other means.
`
`U.
`
`The term “Document” is used in the broadest sense permissible under the Federal
`
`Rules of Civil Procedure, and includes, but is not limited to, documents and electronically stored
`
`information—including writings, drawings, graphs, charts, photographs, sound recordings,
`
`images, and other data or data compilations stored in Any medium fiom which information can
`
`be obtained—and translations thereof, and means and Relates to Any written, printed, recorded,
`
`filmed, or electronically stored words, data, or information of Any type or description, whether
`
`so written, printed, recorded, filmed, or electronically stored using mechanical, electronic,
`
`electromagnetic, or stenographic means, or by hand, and whether or not created, produced, or
`
`reproduced by one of the Parties, and includes, without limitation and regardless of whether
`
`incomplete, partially complete, or complete, Any originals, duplicates, drafts, versions, abstracts,
`
`dms.us.527207l3.02
`
`

`

`compilations, summaries, and Any transcriptions thereof or amendments thereto, and Any copies
`
`differing in Any way from Any original, of the following: Any letters; e-mails; voice-mails;
`
`correspondence; facsimiles; teletypes; telefaxes; cablegrams; radiograms; telegrams; tickets;
`
`coupons; certificates; memoranda; notes; records, including statistical, financial, and sales
`
`records; reports; prospectuses; financial statements; purchase orders; invoices; receipts; checks;
`
`minutes; envelopes; inter— and intra-office Communications; microfilm; microfiche; films, tapes,
`
`cassettes, disks, and drives (containing audio, video, analog, electronic, magnetic, or other data);
`
`drawings; sketches; specifications; flowcharts; photographs; phonorecords; bulletins; circulars;
`
`studies; plans; analyses; notices; computer records, Source Code, runs, programs, software, and
`
`Any codes or data necessary to comprehend such records, Source Code, runs, programs, or
`
`software; books; publications; pamphlets; illustrations; lists; forecasts; brochures; periodicals;
`
`catalogs and catalog sheets; advertisements; press, publicity, and trade releases; charts; graphs;
`
`indices; labels; bills; statements; files; agreements; contracts; sub-contracts; forms; schedules;
`
`work sheets; data compilations; policies; manuals, including policy, employment, training,
`
`safety, operator’ 3, user’ 5, and how-to manuals; calendars; diaries; test results; notebooks;
`
`handbooks; opinions or reports of consultants, advisors, investigators, insurers, inspectors,
`
`auditors, and accountants; evidence of intellectual property ownership, including patents, patent
`
`applications, trademark registrations and applications therefor, and copyright registrations and
`
`applications therefor; notices or minutes of, or notes, records, memoranda, or summaries created
`
`before, during, after, or Relating to, meetings, telephone, personal, or face-to—face conversations,
`
`conferences, interviews, investigations, consultations, negotiations, or other Comrhunications,
`
`including lists of Any participants therein; Any electronically stored information of Any type or
`
`description that can be printed on paper or tape or transferred, downloaded, or copied to one or
`
`drm.us.52720713.02
`
`

`

`more other devices for storing electronically stored information (e.g., fihns, tapes, cassettes,
`
`disks, or drives), including Any such information accessible, either presently or in the past, on
`
`Any Website Relating to You; and Any other written, printed, recorded, filmed, or electronically
`
`stored words, data, or information of Any type or description, whether so written, printed,
`
`recorded, filmed, or electronically stored using mechanical, electronic, electromagnetic, or
`
`stenographic means, or by hand, and whether or not created, produced, or reproduced by one of
`
`the Parties, including, Without limitation and regardless of whether incomplete, partially
`
`complete, or complete, Any originals, duplicates, drafts, versions, abstracts, compilations,
`
`summaries, and Any transcriptions thereof or amendments thereto, and Any copies differing in
`
`Any way from Any original.
`
`V.
`
`The term “ESI” means and Relates to Electronically Stored Information as that
`
`term is used and defined in Rules 26 and 34 of the Federal Rules of Civil Procedure and the
`
`official notes and comments thereto.
`
`W.
`
`The term “Thing” includes, but is not limited to, Any tangible thing that is not a
`
`Document, including Any product, model, machine, device, apparatus, tool, component part,
`
`assembly or subassembly, and Any portion thereof.
`X.
`The term “Prior Art” encompasses, without-limitation, the subject matter
`
`described in every subpart, subsection, and/or subdivision of 35 U.S.C. §§ 102 and 103 relative
`
`to the Patents-in—Suit, and may include, but is not limited to, products, events, actions,
`
`Documents, Things, and ESL For purposes of this Discovery Request, the term “Prior Art”
`
`further includes All products, events, actions, Documents, Things, and E81 believed or suspected
`
`to fall within the subject matter described in Any subpart, subsection, and/or subdivision of
`
`dms.us.52720713.02
`
`-1 0-
`
`

`

`35 U.S.C. §§ 102 and 103, without regard for whether such belief or suspicion is a correct legal
`
`or factual conclusion.
`
`Y.
`
`The terms “Infringe” and “Infringement” encompass, without limitation, each and
`
`every type of patent infringement described in every subpart, subsection, and/or subdivision of
`
`35 U.S.C. § 271.
`
`Z.
`
`The term “PTO” means and Relates to the US. Patent & Trademark Office.
`
`AA.
`
`The term “License Agreement” means and Relates to Any agreement, whether
`
`executory or executed, and whether or not expired, which, upon its execution and prior to its
`
`expiration, gives at least one of the parties to the agreement the right to make, have made, use,
`
`practice, copy, sell, offer to sell, import, or export Any technology, know—how, or intellectual
`
`property rights; and includes, but is not limited to, license agreements, cross-license agreements,
`
`settlement agreements, covenants not to sue, letters of intent, purchase agreements, technology
`
`transfer agreements, and joint development agreements.
`
`BB.
`
`The term “Identify” (including Any form of that word) and Any phrases
`
`requesting that You state, or provide Documents Relating to, “the Identity of” or “the
`
`Identification of” certain subject matter means:
`
`1.
`
`In the case of a natural person, to state, or provide Documents that set
`
`forth, the Person’s (i) full name, (ii) present or last known business affiliation or employer; (iii)
`
`job title or position; (iv) present or last known business address, telephone number, and e—mail
`
`address; and (v) present or last known residential address and telephone number;
`
`2.
`
`In the case of a Person other than a natural person (i.e., an entity), to state,
`
`or provide Documents that set forth, (i) the entity’s full name, address, and telephone number;
`
`and (ii) the nature of the entity (e.g., partnership, corporation, etc.);
`
`dms.us.52720713.02
`
`-1 1-
`
`

`

`3.
`
`In the case of a Document, whether or not such Document is presently in
`
`existence or Your possession, to state (i) the Bates or production number the Document bears if
`
`the Document has already or is being produced; (ii) the date the Document bears or bore or, if
`
`undated, the date on which it was created; (iii) the Identity of Any Person Who authored it or
`
`participated in the creation of it; (iv) the Identity ofAny Person who received the Document or a
`
`copy thereof; (v) a description of the Document, including its type, title, and subject matter;
`
`(vi) the Document’s present location; (vii) the Identity of Any Person having custody of or
`
`access to the original and/or Any copy thereof; (viii) if the Document is not presently in"
`
`’
`
`existence, 3 description of Any basis for the destruction or disposal of the Document, the date of
`
`such destruction or disposal, and the Identity of Any Person who participated in its destruction or
`
`disposal; and (ix) if You do not know whether the Document is presently in existence because
`
`the Document is not presently in Your possession, the Identity of Any Person now in possession
`
`the Document and/or Any copy thereof;
`
`4.
`
`In the case of a Communication, whether or not such Communication
`
`presently exists in recorded form, to state, or provide Documents that set forth, (i) the method by
`
`which the Communication was transmitted, sent, conveyed, exchanged, or received; (ii) the
`
`nature, content, and substance of the Communication; (iii) the date, time, and place when and
`
`where the Communication took place; and (iv) the Identity of Any Person who transmitted, sent,
`
`conveyed, exchanged, received, or participated in the Communication, including Any witness to
`
`the Communication;
`
`5.
`
`In the case ofa Thing, whether or not such Thing is presently in existence
`
`or Your possession, to state, or provide Documents that set forth, (i) a description of the nature
`
`of, type of, and use(s) for the Thing; (ii) the Thing’s model, serial, part, item, product, catalog,
`
`dms,us.52720713.02
`
`-12-
`
`

`

`and/or manufacturer’s number(s); (iii) the date when the Thing came into existence; (iv) the date
`
`when the Thing came into Your Possession; (v) the reason(s) for which You developed,
`
`designed, created, manufactured, purchased, or acquired the Thing; (vi) the Identity of Any
`
`Person who used, developed, designed, created, manufactured, purchased, or acquired, the
`
`Thing; (vii) if the Thing is not presently in existence, a description of Any basis for the
`
`destruction or disposal of the Thing, the date of such destruction or disposal, and the Identity of
`
`Any Person who participated in its destruction or diSposal; and (viii) if You do not know whether
`
`the Thing is presently in existence because the Thing is not presently in Your possession, the
`
`Identity of Any Person now in possession the Thing; and
`
`6.
`
`In Any case not specifically provided for above, to accord the term or
`
`phrase its ordinary meaning in View of the context in which it is used.
`
`HI.
`
`TOPICS FOR EXAMINATION
`
`Your corporate structure and organization, including All fields of business, the
`(1)
`reasons for formation; Any business unit responsible for the development, marketing, sale or
`licensing of DMC Pertinent Maternity Products or the Patents-in—Suit; and the Identity, location,
`and address of All offices, physical plants, and assets.
`
`1 with a
`The identity of Any other person(s) not identified in Category No.
`(2)
`financial interest in Plaintiff, the Patent-in—Suit, or the outcome of Plaintiff’s claims in This
`Lawsuit, and the nature of the interest.
`
`The authenticity of All Documents, EST, and Things provided to Defendants by
`(3)
`DMC in connection with This Litigation.
`
`(4)
`practices.
`
`Your Document and E81 retention, preservation, and/or destruction policies and
`
`Any retention, destruction, preservation, or spoliation of Any Documents, ESI, or
`(5)
`Things relevant or otherwise Related to Any issue in This Litigation.
`
`Any Communications, oral or written, between You and Any Third Party Relating
`(6)
`to any of the Defendants, This Litigation, the Complaint, Pertinent Maternity Products, Accused
`Products, the case Carney, et al. v. Mothers Work, Inc, No. 3:07-cv-01153—JCS (ND. Cal. filed
`Feb. 7, 2007), the Patents-in-Suit, the alleged inventions claimed in the Patents-in—Suit, or Any
`of the Related Patents.
`
`dms.us.52720713.(_32
`
`-13-
`
`

`

`Any Communications, oral or written, between You and Gregory M. or Elizabeth
`(7)
`_
`Stangle Relating to any of the Defendants, This Litigation, the Complaint, Pertinent Maternity
`Products, Accused Products, the case Carney, et al. v. Mothers Work, Inc, No. 3:07-cv—01153-
`JCS (N.D. Cal. filed Feb. 7, 2007), the Patents—in—Suit, the alleged inventions claimed in the
`Patents—in—Suit, or Any of the Related Patents.
`
`Any involvement on the part of Ronald Masciantonio in or Related to This
`(8)
`Litigation, the Complaint, Pertinent Maternity Products, Accused Products, the case Carney, et
`al. v. Mothers Work, Inc, No. 3:07-cv—Ol lS3-JCS (ND. Cal. filed Feb. 7, 2007), the Patents—in-
`Suit, the alleged inventions claimed in the Patents—in—Suit, or Any of the Related Patents.
`
`(9)
`
`Any study, analysis, or review of Pertinent Maternity Products.
`
`(Please specify if an
`(10) Any study, analysis, or review of the Patents—in~Suit.
`attorney—client privilege is asserted in connection with Any matters included in this topic.)
`
`(11)
`
`Communications, oral or written, between Plaintiff and Target.
`
`(12)
`
`Communications, oral or written, between Plaintifi‘ and Elizabeth Lange LLC.
`
`(13)
`
`Communications, oral or written, between Plaintiff and Cherokee.
`
`Communications, oral or written, between Plaintiff and JC Penney, or Gap, or
`(14)
`Gregory M. Stangle, or Ingrid & Isabel, or anyone You have accused of infringement under the
`Patents-in—Suit or the Related Patents
`
`(15) Your knowledge of Defendants.
`
`(16)
`
`Plaintiff s decision to file suit against Defendants.
`
`(17) When and how DMC first became, aware of each Defendant’s alleged
`infringement of the Patents-in-Suit, including the details of DMC’s first awareness of each
`Accused Product.
`
`(18) Alleged or believed Infringement of the Patents-in-Suit by Defendants.
`
`(19)
`
`Prosecution of the Patents-in—Suit and the Related Patents.
`
`(20)
`
`Prior Art to the Patents-in-Suit and the Related Patents.
`
`(21) Your knowledge of US. Patent Application Publication No. 2004/0049834
`- (“Stangle”).
`
`(22) Your knowledge of US. Patent No. 6,276,175 to Browder (“Browder”).
`
`(23) Your knowledge of Prior Art to the Patents-in-Suit.
`
`(24) All instances in which Plaintiff believed or asserted that the Patents-in—Suit are or
`were infringed
`
`dms.m.52720713.02
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`The terms and conditions of Any license, offer to license, and/or settlement
`(25)
`agreement regarding the Patents—in-Suit and the Related Patents and Applications.
`
`The terms and conditions of Any license, offer to license, and/or settlement
`(26)
`agreement regarding the DMC clothing or appearal.
`’
`
`including All License
`licensing policies, practices, or plans,
`(27) DMC’s patent
`Agreements, settlement agreements, or Any other agreement Relating or referring to the Patents-
`in—Suit or Any of the Related Patents and Applications.
`
`Conception, reduction to practice (Whether actual or constructive), and diligence
`(28)
`between conception and reduction to practice regarding the alleged inventions claimed in the
`Patents-in-Suit and the Related Patents and Applications.
`'
`
`(29)
`Products.
`
`Communications between You and Any manufacturer of Pertinent Maternity
`
`(30)
`
`Inventorship of the Patents—in-Suit and the Related Patents and Applications.
`
`(31) Ownership of the Patents-in—Suit and the Related Patents and Applications.
`
`(32) Advantages and benefits of the subject matter claimed in the Patents-in-Suit.
`
`(33) Secondary considerations of nonobviousness Related to the subject matter
`claimed in the Patents—in—Suit.
`
`The differences and similarities between the designs claimed in the Patent~in-Suit
`(34)
`and Any other Pertinent Maternity Products or Prior Art.
`
`(35) All agreements and Communications between DMC and the named inventors of
`the Patents-in—Suit.
`
`(36) All contracts, proposals, statements of work, agreements, or other arrangements
`between Plaintiff and Any Third Party that advertise, display, offer for sale, or evidence a sale of
`DMC Pertinent Maternity Products.
`
`The terms and conditions of Any license discussions, offer to license, license,
`(37)
`and/or settlement agreement Relating to Any DMC Pertinent Maternity Products.
`
`(38) All notice letters or other Communications sent by DMC, or that have been sent
`on DMC’s behalf, Relating to the Patents-in—Suit or the Related Patents and Applications.
`
`(39) DMC’s policies
`Infringement matters.
`
`and practices Related to patent protection and patent
`
`(40) DMC’s policies and/or marketing programs for licensing and enforcing patents,
`trademarks, know—how, or proprietary technology.
`
`dms.us.52720713.02
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`

`

`(41) Valuation and appraisal reports concerning the valuation of intellectual property
`assets and intangible property performed by Plaintiff or on Plaintiffs behalf.
`
`(42) Any policy and/or methodology statements for determining asset value of patents.
`
`(43)
`
`The identity of All Pertinent Maternity Products.
`
`The development, changes, modification, design revisions, marketing, sales, and
`(44)
`testing, of Your Pertinent Maternity Products.
`
`(45)
`
`The development and prototyping of Pertinent Maternity Products.
`
`(46) Modifications and/or design revisions of Your Pertinent Maternity Products.
`
`(47) Marketing, sales, and testing, of Your Pertinent Maternity Products.
`
`(48) Market testing of Your Pertinent Maternity Products and comparison studies of
`Your Pertinent Maternity Products with products sold by DMC competitors including Target and
`the Accused Products.
`
`Business plans, market studies, economic forecasts and financial estimates or
`(49)
`projections that relate to DMC’s decision to develop, market, sell or license Pertinent Maternity
`Products.
`
`(50)
`by DMC.
`
`The number or volume (in dollars and units) of Pertinent Maternity Products sold
`
`(51) Your annual sales (Gross and Net) of Any Pertinent Maternity Products, including
`Any Related profits, costs, and expenses.
`'
`
`(52) Your filings with the Securities and Exchange Commission.
`
`including the identification of documents in Your
`Facts and circumstances,
`(53)
`' possession, Relating to the type, amount, factual bases, and support for All damages that You
`believe constitute lost profits, a reasonable royalty, or other appropriate measure of relief, should
`liability be established for the counts of the Complaint.
`
`including the identification of documents in Your
`Facts and circumstances,
`(54)
`possession, Relating to or referring to Your contention as to the reasonable royalty rate that You
`allege would be owed, should liability be established for each of the counts of the Complaint,
`including:
`
`(a)
`
`The method used to calculate the reasonable royalty rate;
`
`(b)
`
`The data used in such calculations;
`
`(c)
`
`The source of the data;
`
`((1)
`
`The royalty rate so calculated; and
`
`dms.us.52720713.02
`
`-16-
`
`

`

`(e)
`
`The base to which the royalty rate is to be applied.
`
`Profitability of Any DMC Pertinent Maternity Products advertised, offered for
`(55)
`sale, or sold. Profitability includes, but is not necessarily limited to, profit margins, cost
`structures associated with sales of Pertinent Maternity Products (including fixed and variable
`costs, if Any), and the accounting methodology used to record or determine profitability
`Pertinent Maternity Products.
`
`Intellectual property rights, including patents and patented technology which You
`(56)
`have licensed or attempted to license from another Person or Third Party or which You have
`licensed or attempted to license to Any other Person or Third Party, including but not limited to,
`identification of the intellectual property licensed, License Agreements, royalties paid or
`collected, and negotiations of such License Agreements.
`
`(57) Non-infringing substitutes for the subject matter claimed in the Patents-in-Suit,
`including the acceptability of each substitute.
`
`(58)
`Products.
`
`The commercial market for DMC Pertinent Maternity Products, and Accused
`
`(59) Market surveys or studies that evidence or refer to customer demand for DMC
`Pertinent Maternity Products, and Accused Products.
`
`Identity of each industry participant in the commercial market for DMC Pertinent
`(60)
`Maternity Products or the Accused Products.
`>
`
`The actual market share occupied by each industry participant in the commercial
`(61)
`market for Relevant Systems, DMC Systems, and Accused Systems.
`
`Existing or potential industry participants in the commercial market for DMC
`(62)
`Pertinent Maternity Products or the Accused Products.
`
`The actual or projected market share for existing or potential industry participants
`(63)
`in the commercial market for DMC Pertinent Maternity Products or the Accused Products.
`
`(64) Your plans for future marketing, advertising, and development of DMC Pertinent
`Maternity Products.
`
`(65) Any decision to no longer market, advertise, and develop DMC Pertinent
`Maternity Products.
`
`Customer acceptance, demand for, or complaints Relating to DMC Pertinent
`(66)
`Maternity Products.
`
`(67)
`
`Customer acceptance, demand for, or complaints maternity products generally.
`
`including the identification of documents in the
`Facts and circumstances,
`(68)
`possession of Plaintiff, relating to Any contention that one or more of the fifteen factors
`
`dms.us.52720713.02
`
`-17-
`
`

`

`identified in Georgia Pacific Corp. v. US. Plywood Corp, 318 F .Supp. 1116, 1120 (S.D.N.Y.
`1970) may affect the determination of a reasonable royalty rate for Any Accused Product should
`liability be established for patent infringement, and, for each product:
`
`(a)
`
`The factors which would affect determination of the rate; and
`
`(b)
`
`The effect that each factor would have on the determination of the rate.
`
`(69) A description and identification Of the portion of the profit, if Any, that DMC
`contends should be credited to the claimed subje