CONTAINS CONFIDENTIAL – ATTORNEYS’ EYE ONLY INFORMATION
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`
`
`CASE NO. 2:15-cv-1366-JRG-RSP
`
`
`
`PERSONALIZED MEDIA
`COMMUNICATIONS, LLC,
`
` Plaintiff,
`
`vs.
`
`APPLE, INC.,
`
` Defendant.
`
`
`
`
`PLAINTIFF PERSONALIZED MEDIA COMMUNICATIONS, LLC’S OBJECTIONS
`AND RESPONSES TO DEFENDANT APPLE, INC.’S
`FIRST SET OF INTERROGATORIES
`
`Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, Plaintiff
`
`Personalized Media Communications, LLC (“PMC”) hereby objects and responds to the First Set
`
`of Interrogatories (Nos. 1-11) (the “Interrogatories”) from Defendants Apple, Inc. (“Apple”).
`
`PMC makes the objections and responses herein (collectively, the “Responses”) to Apple’s
`
`Interrogatories based solely on its current knowledge, understanding, and belief as to the facts
`
`and information available to PMC as of the date of the Responses.
`
`PMC does not waive any objections made in these Responses, nor any claim of privilege,
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`whether expressly asserted or not, by providing any information or documents in response to the
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`Interrogatories. The inadvertent production of any information or document shall not constitute
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`a waiver of any applicable privilege as to that document or any other document identified in that
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`document or produced by PMC.
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`PMC further does not waive its rights to object on any basis permitted by law to any
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`other discovery requests involving or relating to the subject matter of the Interrogatories or
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`APPLE EX. 1036
`Page 1
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`CONTAINS CONFIDENTIAL – ATTORNEYS’ EYE ONLY INFORMATION
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`Responses.
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`This response is subject to all objections as to competence, relevance, materiality,
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`propriety and admissibility, and to any and all other objections on any grounds that would
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`require the exclusion of any statements contained herein if such interrogatory were asked of, or
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`statements contained herein if such interrogatory were asked of, or statements contained herein
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`were made by, a witness present and testifying at trial, all of which objections and grounds are
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`expressly reserved and may be interposed at the time of trial.
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`Discovery in this matter and PMC’s investigation are ongoing. Accordingly, the
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`following responses are given without prejudice to PMC’s right to produce evidence of any
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`subsequently discovered facts that it may later recall or discover. PMC reserves the right to
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`change, amend or supplement any or all of the matters contained in these responses as additional
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`facts are ascertained, analyses are made, and research is completed.
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`GENERAL OBJECTIONS
`
`The following general objections apply to, and are incorporated by reference in, the
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`Objection and Response to each and every Interrogatory. PMC’s specific objections to any
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`Interrogatory are not intended to preclude, override, or withdraw any of the general objections to
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`that Interrogatory.
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`1.
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`PMC objects to Apple’s Interrogatories to the extent that they call for information
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`protected by: (i) the attorney-client privilege; (ii) the common interest privilege; (iii) the work
`
`product doctrine; or (iv) any other privilege or protection from disclosure afforded by state or
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`federal law. PMC will provide only such responsive information that is not subject to any such
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`privilege or protection. No waiver of any privilege, doctrine, or immunity is intended by or
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`should be construed from the Responses or Objections given herein.
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`2
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`APPLE EX. 1036
`Page 2
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`CONTAINS CONFIDENTIAL – ATTORNEYS’ EYE ONLY INFORMATION
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`PMC objects to Apple’s Interrogatories to the extent that they call for information
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`2.
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`or the identification of documents or things that PMC cannot disclose pursuant to confidentiality
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`obligations to third parties, including restrictions on disclosure or production due to applicability
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`of a protective order from any other litigation or court. PMC reserves the right to disclose such
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`information or identify or produce such responsive non-privileged documents or things after
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`complying with contractual obligations to notify such parties prior to producing such documents.
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`3.
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`PMC objects to Apple’s Interrogatories on the grounds that the Interrogatories are
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`overly broad, unduly burdensome, and oppressive to the extent that they seek information that is
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`not within PMC’s possession, custody, or control or the identification of documents that are not
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`within PMC’s possession, custody, or control.
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`4.
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`PMC objects to Apple’s Interrogatories to the extent that they are vague,
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`ambiguous, overbroad, not limited in time and scope, and/or seek information that is not relevant
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`to the subject matter of this action and not proportional to the needs of the case. PMC further
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`objects to the Interrogatories to the extent that they are unduly burdensome or unreasonably
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`cumulative or duplicative.
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`5.
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`PMC objects to Apple’s Interrogatories to the extent that they call for information
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`that is not known by or reasonably available to PMC.
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`6.
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`PMC objects to Apple’s Interrogatories on the grounds that the Interrogatories are
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`overly broad, unduly burdensome, and oppressive to the extent that they seek information that is
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`a matter of public record or is equally available to or readily ascertainable by Apple from some
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`other source that is more convenient, less burdensome, or less expensive. PMC will respond to
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`such interrogatories to the extent and in the manner required by Rule 33(d) of the Federal Rules
`
`of Civil Procedure.
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`3
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`APPLE EX. 1036
`Page 3
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`CONTAINS CONFIDENTIAL – ATTORNEYS’ EYE ONLY INFORMATION
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`PMC objects to Apple’s Interrogatories to the extent that the Interrogatories seek
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`7.
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`information that is not relevant to any claim or defense in the pending action against Apple or to
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`the extent that it is not proportional to the needs of the case.
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`8.
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`PMC objects to Apple’s Interrogatories to the extent that they incorporate
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`disputed facts or definitions in this case. PMC’s responses should not be considered to be
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`acceptance of any such disputed fact or definition.
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`9.
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`PMC objects to the Interrogatories to the extent that they call for PMC to make
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`conclusions of law.
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`10.
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`PMC objects to these Interrogatories to the extent the Interrogatories are
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`premature. PMC will undertake a reasonable effort to locate and provide information. PMC’s
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`investigation is continuing, and its responses will be based upon such information as is
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`reasonably available to PMC and susceptible to retrieval through reasonable efforts. PMC
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`reserves the right to supplement and/or amend any and all of its responses. Any responses
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`provided in connection with these Interrogatories are based upon information presently known to
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`PMC and are given without prejudice to PMC’s right to produce evidence of any subsequently
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`discovered facts.
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`11.
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`PMC objects to Apple’s Interrogatories, Definitions, and Instructions to the extent
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`they conflict with the Federal Rules of Civil Procedure and/or the Docket Control Order in this
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`case and to the extent they purport to impose additional requirements on PMC other than those of
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`the Federal Rules of Civil Procedure and/or the Docket Control Order. In responding to the
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`Interrogatories, PMC will produce documents and/or information in compliance with the Federal
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`Rules of Civil Procedure and/or the Docket Control Order in this case.
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`12.
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`PMC objects to the definition of “knowledge” to the extent it purports to require
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`4
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`APPLE EX. 1036
`Page 4
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`CONTAINS CONFIDENTIAL – ATTORNEYS’ EYE ONLY INFORMATION
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`PMC to provide information that is not within PMC’s possession, custody, or control.
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`13.
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`PMC objects to the definition of Personalized Media Communications,” “PMC,”
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`“Plaintiff,” “You,” or “Your” as overly broad and unduly burdensome to the extent that it
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`requires the production of information that is not within PMC’s possession, custody, or control.
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`14.
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`PMC objects to the definition of “Identify” or “Identification” as overly broad,
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`unduly burdensome and not proportional to the needs of the case.
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`15.
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`PMC objects to the definition of “Document” as overly broad, unduly
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`burdensome and to the extent that it is inconsistent with the Federal Rules of Civil Procedure.
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`INTERROGATORY NO. 1:
`
`INTERROGATORIES
`
`Separately for each Asserted Claim, Identify what You allege to be the dates and locations of
`conception, reduction to practice, and/or exercise of diligence in reduction to practice; each
`Person who participated in, contributed to, or witnessed such alleged conception, reduction to
`practice, and/or exercise of diligence; the alleged contribution of each alleged inventor to each
`Asserted Claim; whether the alleged reduction to practice was actual or constructive; and each
`Document (by Bates number) or Person You allege can substantiate or corroborate such alleged
`conception, reduction to practice, and/or exercise of diligence.
`
`RESPONSE TO INTERROGATORY NO. 1:
`
`PMC repeats and reasserts all of its General Objections as if set forth fully herein. PMC
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`objects to this Interrogatory as overly broad and unduly burdensome and not proportional to the
`
`needs of the case. PMC objects to this Interrogatory on the grounds that the phrase “each Person
`
`who participated in, contributed to, or witnessed such alleged conception, reduction to practice,
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`and/or exercise of diligence” is vague and ambiguous, overly broad and unduly burdensome, as
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`used in this Interrogatory. PMC further objects to this Interrogatory to the extent that it seeks
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`information that is protected from discovery by the attorney-client privilege, common interest
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`privilege, work product immunity, and/or any other applicable privilege or immunity.
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`
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`5
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`APPLE EX. 1036
`Page 5
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`CONTAINS CONFIDENTIAL – ATTORNEYS’ EYE ONLY INFORMATION
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`PMC further objects to this interrogatory on the ground that it is compound, with multiple
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`subparts, and states that each subpart should be counted as a single interrogatory towards the
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`total permitted by the Rules. PMC objects to this interrogatory on the grounds that it is overly
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`broad, unduly burdensome, and oppressive to the extent that it seeks information that are not
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`known by or reasonably available to PMC.
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`Subject to and without waiving its general and specific objections, PMC responds as
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`follows:
`
`U.S. Patent No. 7,752,649
`
`
`Claim
`
`Date
`Conceived
`
`Claim 39
`
`9/11/1987
`
`Date
`Reduced to
`Practice
`9/11/1987
`
`Claim 54
`
`9/11/1987
`
`9/11/1987
`
`Claim 62
`
`9/11/1987
`
`9/11/1987
`
`Claim 67
`
`9/11/1987
`
`9/11/1987
`
`
`U.S. Patent No. 8,191,091
`
`
`Claim
`
`Date
`Conceived
`
`Claim 13
`
`9/11/1987
`
`Date
`Reduced to
`Practice
`9/11/1987
`
`Claim 14
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`9/11/1987
`
`9/11/1987
`
`Claim 15
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`9/11/1987
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`9/11/1987
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`Claim 16
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`9/11/1987
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`9/11/1987
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`Claim 18
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`9/11/1987
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`9/11/1987
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`Claim 20
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`9/11/1987
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`9/11/1987
`
`Claim 21
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`9/11/1987
`
`9/11/1987
`
`Individuals Involved in the Conception
`and Reduction to Practice
`
`Location
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`John C. Harvey and James W. Cuddihy New York,
`NY
`John C. Harvey and James W. Cuddihy New York,
`NY
`John C. Harvey and James W. Cuddihy New York,
`NY
`
`Individuals Involved in the Conception
`and Reduction to Practice
`
`Location
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`John C. Harvey and James W. Cuddihy New York,
`NY
`John C. Harvey and James W. Cuddihy New York,
`NY
`John C. Harvey and James W. Cuddihy New York,
`NY
`John C. Harvey and James W. Cuddihy New York,
`NY
`John C. Harvey and James W. Cuddihy New York,
`NY
`John C. Harvey and James W. Cuddihy New York,
`
`
`
`6
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`APPLE EX. 1036
`Page 6
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`CONTAINS CONFIDENTIAL – ATTORNEYS’ EYE ONLY INFORMATION
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`Individuals Involved in the Conception
`and Reduction to Practice
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`Claim
`
`Date
`Conceived
`
`Date
`Reduced to
`Practice
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`Claim 23
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`9/11/1987
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`9/11/1987
`
`Claim 24
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`9/11/1987
`
`9/11/1987
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`Claim 26
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`9/11/1987
`
`9/11/1987
`
`Location
`
`NY
`John C. Harvey and James W. Cuddihy New York,
`NY
`John C. Harvey and James W. Cuddihy New York,
`NY
`New York,
`NY
`
`John C. Harvey and James W. Cuddihy
`
`Individuals Involved in the Conception
`and Reduction to Practice
`
`Location
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`
`
`U.S. Patent No. 8,559,635
`
`
`Claim
`
`Date
`Conceived
`
`Date
`Reduced to
`Practice
`11/3/1981
`
`Claim 1
`
`Claim 2
`
`Claim 3
`
`Claim 4
`
`Claim 7
`
`On or
`before
`8/24/1981
`On or
`before
`8/24/1981
`On or
`before
`8/24/1981
`On or
`before
`8/24/1981
`On or
`before
`8/24/1981
`Claim 13 On or
`before
`8/24/1981
`Claim 18 On or
`before
`8/24/1981
`Claim 20 On or
`before
`8/24/1981
`Claim 21 On or
`before
`8/24/1981
`Claim 28 On or
`before
`8/24/1981
`
`11/3/1981
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`
`11/3/1981
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`
`11/3/1981
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`
`11/3/1981
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`
`11/3/1981
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`
`11/3/1981
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`John C. Harvey and James W. Cuddihy New York,
`NY
`
`11/3/1981
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`
`11/3/1981
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`
`11/3/1981
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`
`
`
`7
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`APPLE EX. 1036
`Page 7
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`CONTAINS CONFIDENTIAL – ATTORNEYS’ EYE ONLY INFORMATION
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`Individuals Involved in the Conception
`and Reduction to Practice
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`Claim
`
`Date
`Conceived
`
`Location
`
`Date
`Reduced to
`Practice
`11/3/1981
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`
`11/3/1981
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`
`11/3/1981
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`
`11/3/1981
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`
`Claim 29 On or
`before
`8/24/1981
`Claim 30 On or
`before
`8/24/1981
`Claim 32 On or
`before
`8/24/1981
`Claim 33 On or
`before
`8/24/1981
`
`Claim
`
`Date
`Conceived
`
`
`U.S. Patent No. 8,752,088
`
`
`Date
`Reduced to
`Practice
`11/3/1981
`
`Individuals Involved in the Conception
`and Reduction to Practice
`
`Location
`
`John C. Harvey and James W. Cuddihy New York,
`NY
`
`Claim 14 On or
`before
`6/29/1981
`
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`Pursuant to F.R.C.P. 33(d), further answers to this interrogatory may be derived or
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`ascertained from PMC’s business records, and the burden of deriving or ascertaining the answer
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`is substantially the same for Apple as for PMC. PMC further responds that the following
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`documents contain information responsive to this interrogatory: PMCAPL00000001-
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`PMCAPL00000399; PMCAPL00000407-PMCAPL00000709; PMCAPL00000723-
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`PMCAPL00000733; PMCAPL00000734-PMCAPL00000738; PMCAPL00000739-
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`PMCAPL00000743; PMCAPL00000744-PMCAPL00000841; PMCAPL00000893 -
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`PMCAPL00002798; PMCAPL00002799 - PMCAPL00006664; PMCAPL00018553 -
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`PMCAPL00022169; and PMCAPL00034058 - PMCAPL00036934.
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`PMC is continuing to investigate the subject matter of this Interrogatory and reserves the
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`right to supplement its response at the appropriate time under the Federal Rules of Civil
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`8
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`APPLE EX. 1036
`Page 8
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`CONTAINS CONFIDENTIAL – ATTORNEYS’ EYE ONLY INFORMATION
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`Procedure, the Eastern District of Texas Local Rules, and any other applicable rules or orders, to
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`the extent that it identifies any responsive, non-privileged, and relevant documents or
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`information.
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`INTERROGATORY NO. 2:
`
`Separately for each Asserted Claim, Identify all Prior Art that is reasonably understood to be
`relevant to the subject matter of the Asserted Claim, or that has been asserted by any Person to
`be relevant to the subject matter of the Asserted Claim, of which You are aware, and describe
`with particularity the circumstances Related to the discovery or identification of such Prior Art,
`including when such discovery or identification was made and the Person who made such
`discovery or identification, and Identify all Documents (by Bates number) Relating to such
`discovery or identification, including any comparisons of the Prior Art to the Asserted Claims.
`
`RESPONSE TO INTERROGATORY NO. 2:
`
`PMC repeats and reasserts all of its General Objections as is set forth fully herein. PMC
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`objects to this Interrogatory as overly broad and unduly burdensome and not proportional to the
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`needs of the case. PMC objects to this Interrogatory as overly broad and unduly burdensome,
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`especially with respect to the terms “all Documents.” PMC further objects to this Interrogatory
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`to the extent that it seeks information that is protected from discovery by the attorney-client
`
`privilege, common interest privilege, work product immunity, and/or any other applicable
`
`privilege or immunity. PMC also objects to this Interrogatory as being premature to the extent
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`that it conflicts with the Docket Control Order entered by the Court in this case.
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`PMC objects to this interrogatory to the extent that it calls for a legal conclusion.
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`Further, PMC objects to this Interrogatory to the extent it constitutes many separate
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`Interrogatories given its stated breadth relating to each Asserted Claim.
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`PMC further objects to identifying the purported art that Defendant itself has identified or
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`may identify in this litigation, as the burden of gathering such information is the same on
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`Defendant as PMC, and this would require burdensome supplementation to identify purported
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`9
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`APPLE EX. 1036
`Page 9
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`CONTAINS CONFIDENTIAL – ATTORNEYS’ EYE ONLY INFORMATION
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`right to supplement its response at the appropriate time under the Federal Rules of Civil
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`Procedure, the Eastern District of Texas Local Rules, and any other applicable rules or orders, to
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`the extent that it identifies any responsive, non-privileged, and relevant documents or
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`information.
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`Dated: February 4, 2016
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`/s/ Lana S. Shiferman
`Douglas A. Kline
`Lana S. Shiferman
`GOODWIN PROCTER, LLP
`Exchange Place
`Boston, MA 02109-2802
`P: (617) 570-1000
`
`F: (617) 523-1231
`email: dkline@goodwinprocter.com
`email: lshiferman@goodwinprocter.com
`
`Jennifer A. Albert
`Stephen T. Schreiner
`GOODWIN PROCTER LLP
`901 New York Ave., N.W.
`Washington, DC 20001
`P: (202) 346-4000
`F: (202) 346-4444
`email: jalbert@goodwinprocter.com
`email: sschreiner@goodwinprocter.com
`
`
`S. Calvin Capshaw (State Bar No. 03788390)
`Elizabeth L. DeRieux (State Bar No. 05770585)
`CAPSHAW DERIEUX, LLP
`1127 Judson Road, Suite 220
`Longview, TX 75601-5157
`P: (903) 233-4826
`F: (903) 236-8787
`email: ccapshaw@capshawlaw.com
`email: ederieux@capshawlaw.com
`
`Attorneys for Plaintiff
`Personalized Media Communications, LLC
`
`
`77
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`APPLE EX. 1036
`Page 10
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`CERTIFICATE OF SERVICE
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`I hereby certify that the foregoing document was served by electronic mail on
`Defendant’s counsel of record on February 4, 2016.
`
`/s/ Sarah J. Fischer
`Sarah J. Fischer
`
`78
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`APPLE EX. 1036
`Page 11