`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`ALACRITECH, INC.,
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`Plaintiff,
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`v.
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`CENTURYLINK, INC., et al.,
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`Defendants.
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`
`
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`Case No. 2:16-cv-693-RWS
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` LEAD CASE
` Jury Trial Demanded
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`
`DEFENDANT DELL INC.’S FIRST SUPPLEMENTAL RESPONSE TO
`PLAINTIFF’S SECOND SET OF COMMON INTERROGATORIES
`TO DEFENDANTS AND INTERVENORS (NO. 11)
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`Pursuant to Federal Rules of Civil Procedure 26 and 33, Defendant Dell Inc. (“Dell”)
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`provides its First Supplemental Responses and Objections to Plaintiff Alacritech Inc.’s
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`(“Alacritech” or “Plaintiff”) Second Set of Common Interrogatories, Interrogatory No. 11
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`(“Interrogatories” or “Interrogatory”).
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`GENERAL STATEMENTS AND OBJECTIONS
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`The responses provided here are submitted on behalf of Dell, and reflect Dell’s continuing
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`investigations of facts and discovery of information and documents relating to the claims and
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`defenses at issue in this case. Accordingly, Dell’s responses to these Interrogatories are based upon
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`Dell’s current knowledge and reasonable beliefs. Dell expressly reserves the right to modify and/or
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`supplement any response, and to assert additional objections to these Interrogatories as necessary
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`and/or appropriate.
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`Nothing in these responses and objections shall be deemed an admission by Dell regarding
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`the existence of any information, the relevance or admissibility of any information, for any
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`purpose, or the truth or accuracy of any statement or characterization contained in any
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`EX. 2005.001
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`Interrogatory. Where Dell responds by identifying individuals with knowledge concerning a
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`particular subject matter identified in an Interrogatory, such response shall not be construed as an
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`admission concerning the accuracy of Alacritech’s characterization of the subject matter.
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`Furthermore, Dell makes the following General Objections, whether or not separately set
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`forth in each response to each instruction, definition, and Interrogatory made in Alacritech’s
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`Second Set of Interrogatories:
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`1.
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`Dell objects to the Interrogatories to the extent they seek information or documents
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`protected by any applicable privilege, including but not limited to the attorney-client privilege, the
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`work-product doctrine or immunity, joint-defense privilege, common-interest privilege, and any
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`other applicable privilege, immunity, or exemption from discovery as outlined in the Federal Rules
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`of Civil Procedure, Local Rules, orders of the Court, and applicable law. For the sake of clarity,
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`Dell hereby asserts such privileges and/or exemptions. Any inadvertent disclosure or production
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`of information and/or documents shall not be deemed a waiver of any privilege with respect to
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`such information or documents or of any work-product doctrine or immunity that may attach
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`thereto.
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`2.
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`Dell objects to the Interrogatories to the extent they seek information or documents
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`not relevant to the claims or defenses of any party, not reasonably calculated to lead to the
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`discovery of admissible evidence, or otherwise not within the scope of relevant discovery.
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`3.
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`Dell objects to the Interrogatories to the extent that they request information that is
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`not proportional to the needs of the case, considering the importance of the issues at stake in the
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`action, the amount in controversy, the parties’ relative access to relevant information, the parties’
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`resources, the importance of the discovery in resolving the issues, and whether the burden or
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`expense of the proposed discovery outweighs its likely benefit.
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`2
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`EX. 2005.002
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`4.
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`Dell objects to the Interrogatories to the extent they seek information that Dell is
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`under an obligation to third parties not to disclose, or information otherwise subject to
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`confidentiality restrictions of a third party. Dell will not disclose or produce such information
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`except in conformity with Dell’s obligations to such third party.
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`5.
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`Dell objects to the Interrogatories to the extent that they request information that is
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`a matter of public record, that is equally available to Alacritech and/or equally obtainable from
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`more convenient sources, or that purport to impose upon Dell a burden or obligation beyond the
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`duties imposed by the Federal Rules of Civil Procedure or other applicable rules or law governing
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`this action.
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`6.
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`Dell objects to the Interrogatories to the extent that they are duplicative, cumulative,
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`compound, or contain multiple subparts in violation of Fed. R. Civ. P. 33. Dell objects to the
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`Interrogatories to the extent they exceed the permissible number, including all parts and subparts.
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`7.
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`Dell objects to the Interrogatories to the extent they are overly broad, unduly
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`burdensome, oppressive, or constitute an abuse of process, particularly when the cost necessary to
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`investigate or respond is high compared to Alacritech’s need for the information.
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`8.
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`Consistent with Fed. R. Civ. P. 33(d), Dell objects to providing narrative responses
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`to the Interrogatories where the information sought can be derived from documents produced by
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`Dell or Dell’s suppliers, and where the burden to derive such information from those documents
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`is substantially the same for Alacritech as it is for Dell.
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`9.
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`Dell objects to the Interrogatories as overly broad to the extent they fail to specify
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`a relevant time period for which information is requested, to the extent the specified period is
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`irrelevant, or to the extent the specified period includes periods of time for which Alacritech would
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`not be entitled to collect any documents.
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`3
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`EX. 2005.003
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`10.
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`Dell objects to the Interrogatories as overly broad to the extent they fail to specify
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`a relevant geographic area for which information is requested, and to the extent a specified
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`geographic area is irrelevant.
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`11.
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`Dell objects to the Interrogatories to the extent that they use terms that are not
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`defined or understood; Dell will not speculate as to the meaning ascribed to these terms, and will
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`respond to the extent it understands such requests.
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`12.
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`Dell objects to the Interrogatories to the extent they seek legal opinions or
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`conclusions, or present questions of pure law.
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`13.
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`Dell objects to the Definitions, Instructions, and Interrogatories to the extent they
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`seek information or the identification of documents not within Dell’s possession, custody or
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`control, or refer to persons, entities, or events not known to Dell, on the grounds that such
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`Definitions, Instructions, and Interrogatories seek to require more of Dell than any obligation
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`imposed by law, they subject Dell to unreasonable and undue burden and expense, and further seek
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`to impose upon Dell an obligation to investigate or discover information or materials from third
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`parties or sources which are equally accessible to Alacritech.
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`14.
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`Dell objects to the Interrogatories to the extent they seek identification of “all”
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`information that refers or relates to a particular subject on the grounds of overbreadth, undue
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`burden, and expense.
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`15.
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`Dell objects to the Interrogatories to the extent they are premature. Dell’s
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`investigation, discovery and analysis are ongoing, and its responses are based on its present
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`investigation and information presently available to Dell. Dell reserves the right to produce
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`evidence of subsequently discovered facts, and to modify, supplement, or otherwise change or
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`amend its responses to these Interrogatories as necessary.
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`4
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`EX. 2005.004
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`16.
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`Dell objects to each and every Interrogatory to the extent that it (i) is framed in
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`terms that Alacritech has not specifically or reasonably defined or (ii) fails to identify with
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`reasonable particularity the information requested. Dell objects to such Interrogatories on the
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`grounds that they are vague, ambiguous, and unduly broad.
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`17.
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`Dell reserves the right to make any use of, or to introduce at any hearing and at
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`trial, information and/or documents responsive to the Interrogatories but discovered subsequent to
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`the date of its response, including, but not limited to, any such information or documents obtained
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`in discovery herein.
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`18.
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`Dell uses the term “will produce” throughout its responses to indicate that it will
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`comply with the particular demand for inspection and any related obligations imposed by the
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`Federal Rules of Civil Procedure, the Local Rules, and/or the scheduling orders agreed to and
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`entered in this case, subject to the qualifications and objections set forth in the specific response
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`and these general objections. Dell’s statements that it “will produce” responsive information or
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`documents is not a representation that such information or documents exist.
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`19.
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`Dell incorporates by reference the general objections set forth above into specific
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`objections and responses set forth below. Dell may repeat a general objection for emphasis or some
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`other reason. The failure to repeat any general objections, or failure to specifically incorporate a
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`general objection by reference, does not waive any general objection to the Interrogatory.
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`Moreover, Dell does not waive its rights to amend its objections.
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`20.
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`Dell objects to the “Definitions” and “Instructions” contained in Alacritech’s
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`Interrogatories to the extent they are inconsistent with or seek to impose obligations beyond those
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`imposed by the Federal Rules of Civil Procedure, Local Rules, or orders of the Court.
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`5
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`EX. 2005.005
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`21.
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`Dell objects to the definition of “Defendant,” “You,” and “Your” to the extent that
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`it includes persons or entities that are separate and distinct from Dell and over whom Dell exercises
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`no control.
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`22.
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`Dell objects to these Interrogatories as premature insofar as Dell’s responses will
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`depend upon claim construction.
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`SPECIFIC OBJECTIONS AND RESPONSES
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`INTERROGATORY NO. 11:
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`Describe and identify your complete contentions, including all factual and documentary
`evidence, regarding the state of the relevant art at a time when the inventions described in the
`Patents-in-Suit were made, the knowledge and perspective of one of ordinary skill in the art at a
`time when the inventions described in the Patents-in-Suit were made, and the level of ordinary
`skill in the art for each of the Patents-in-Suit.
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`RESPONSE TO INTERROGATORY NO. 11:
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`Dell incorporates by reference each of its General Objections as though set forth herein.
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`Dell further objects to this Interrogatory as a premature contention interrogatory.
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`Dell further objects to this Interrogatory as containing multiple subparts which must be
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`propounded as separate interrogatories. Dell objects that the multiple subparts make the
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`Interrogatory inherently ambiguous, confusing, and unduly burdensome. Depending on how the
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`ambiguities are resolved, the subparts of this Interrogatory exceed the number of interrogatories
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`permitted.
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`Dell further objects to this Interrogatory to the extent it seeks information protected from
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`discovery by the attorney-client privilege and/or the work-product doctrine, and/or other
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`applicable privileges and protections.
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`Dell further objects to this Interrogatory to the extent that this Interrogatory requests a legal
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`conclusion and/or calls for expert testimony.
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`6
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`EX. 2005.006
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`Dell objects to the extent that this Interrogatory calls for information tantamount to an early
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`expert report.
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`Subject to and without waiving the specific objections and the General Statement and
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`Objections, Dell responds as follows:
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`Pursuant to Fed. R. Civ. P. 33(d), Dell refers to its Invalidity Contentions and Intel’s
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`Invalidity Contentions served on February 7, 2017 as well as any supplements or other invalidity
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`contentions later served, Declaration of Mr. Mark Lanning Regarding Claim Construction, and
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`any expert reports or declarations that may be served by Dell pursuant to the schedule set by the
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`Court.
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`Dell’s investigation is ongoing, and Dell reserves the right to modify or supplement its
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`response to this interrogatory.
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`FIRST SUPPLEMENTAL RESPONSE TO INTERROGATORY NO. 11:
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`Subject to its general and specific objections, and without waiving its right to assert
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`additional objections, Defendant further responds as follows:
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`Defendant incorporates by reference all arguments outlined in the following:
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`Regarding the 036 Patent: IPR2017-01391
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`Regarding the 072 Patent: IPR2017-01406
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`Regarding the 104 Patent: IPR2017-01393
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`Regarding the 205 Patent: IPR2017-01402, IPR2017-01405
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`Regarding the 241 Patent: IPR2017-01392
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`Regarding the 880 Patent: IPR2017-01409, IPR2017-01410
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`Regarding the 948 Patent: IPR2017-01395
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`Regarding the 699 Patent: IPR2017-01559
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`7
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`EX. 2005.007
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`Dell’s investigation is ongoing, and Dell reserves the right to modify or supplement its
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`response to this interrogatory.
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`Dated: June 23, 2017
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`Respectfully submitted,
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`
`/s/ Michael J. Newton
`Michael J. Newton (TX Bar No. 24003844)
`Brady Cox (TX Bar No. 24074084)
`ALSTON & BIRD, LLP
`2828 North Harwood Street, 18th Floor
`Dallas, Texas 75201-2139
`Tel: (214) 922-3400
`Fax: (214) 922-3899
`mike.newton@alston.com
`brady.cox@alston.com
`
`Deron R Dacus (TX Bar No. 00790553)
`THE DACUS FIRM, PC
`821 ESE Loop 323, Suite 430
`Tyler, Texas 75701
`(903) 705-1117
`(903) 581-2543 Fax
`ddacus@dacusfirm.com
`
`Kirk T. Bradley (NC Bar No. 26490)
`ALSTON & BIRD, LLP
`Bank of America Plaza
`101 South Tryon Street, Suite 4000
`Charlotte, NC 28280-4000
`Tel: (704) 444-1000
`Fax: (704) 444-1111
`kirk.bradley@alston.com
`
`Lindsey Yeargin (GA Bar No. 248608)
`Emily Welch (GA Bar No. 606071)
`ALSTON & BIRD, LLP
`One Atlantic Center
`1201 West Peachtree St NW #4900
`Atlanta, GA 30309
`Tel: 404-881-7000
`Fax: 404-881-7777
`lindsey.yeargin@alston.com
`emily.welch@alston.com
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`ATTORNEYS FOR DEFENDANT DELL INC.
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`8
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`EX. 2005.008
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`Certificate of Service
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`The undersigned hereby certifies that the foregoing document was served via e-mail on
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`counsel for Plaintiff.
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`This 23rd day of June, 2017.
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`/s/ Michael J. Newton
`Michael J. Newton
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`9
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`EX. 2005.009
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