Case 1:20-cv-00393-LO-TCB Document 614-1 Filed 05/14/21 Page 1 of 11 PageID# 13950
`Case 1:20-cv-00393-LO-TCB Document 614-1 Filed 05/14/21 Page 1 of 11 Page|D# 13950
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`EXHIBIT 1
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`EXHIBIT 1
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`Case 1:20-cv-00393-LO-TCB Document 614-1 Filed 05/14/21 Page 2 of 11 PageID# 13951
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
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`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
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`Plaintiffs and Counterclaim Defendants,
`
`v.
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`Case No.: 1:20cv00393-LO-TCB
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`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA, INC.; and PHILIP MORRIS
`PRODUCTS S.A.,
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`Defendants and Counterclaim Plaintiffs.
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`PLAINTIFFS RAI STRATEGIC HOLDINGS, INC. AND R.J. REYNOLDS VAPOR
`COMPANY’S SECOND NOTICE OF RULE 30(B)(6) DEPOSITION TO DEFENDANT
`PHILIP MORRIS PRODUCTS S.A.
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`Please take notice that Plaintiffs RAI Strategic Holdings, Inc. (“RAI”) and R.J. Reynolds
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`Vapor Company (“RJRV”) (collectively, “Reynolds” or “Plaintiffs”), pursuant to Federal Rule of
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`Civil Procedure 30(b)(6), will take the deposition of Defendant Philip Morris Products S.A.
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`(“PMP”) through persons designated by PMP to testify on its behalf with respect to the topics
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`listed in Schedule A hereto, at the offices of Jones Day, 51 Louisiana Ave., N.W., Washington,
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`D.C. 20001, beginning on May 6, 2021, at 9:00 a.m. (Eastern) or at a time and place to be agreed
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`upon by the parties and continuing from day to day, excluding weekends, until completed. The
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`deposition shall be upon oral examination before an officer appointed or designated under Federal
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`Rule of Civil Procedure 28, and shall be recorded by audio-visual and stenographic means.
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`1
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`Case 1:20-cv-00393-LO-TCB Document 614-1 Filed 05/14/21 Page 3 of 11 PageID# 13952
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`Dated: April 7, 2021
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`Respectfully submitted,
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`Stephanie E. Parker
`JONES DAY
`1420 Peachtree Street, N.E.
`Suite 800
`Atlanta, GA 30309
`Telephone: (404) 521-3939
`Facsimile: (404) 581-8330
`Email: separker@jonesday.com
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`Anthony M. Insogna
`JONES DAY
`4655 Executive Drive
`Suite 1500
`San Diego, CA 92121
`Telephone: (858) 314-1200
`Facsimile: (844) 345-3178
`Email: aminsogna@jonesday.com
`
`William E. Devitt
`JONES DAY
`77 West Wacker
`Suite 3500
`Chicago, IL 60601
`Telephone: (312) 269-4240
`Facsimile: (312) 782-8585
`Email: wdevitt@jonesday.com
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`Sanjiv P. Laud
`JONES DAY
`90 South Seventh Street
`Suite 4950
`Minneapolis, MN 55402
`Telephone: (612) 217-8800
`Facsimile: (844) 345-3178
`Email: slaud@jonesday.com
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`/s/ David M. Maiorana
`David M. Maiorana (VA Bar No. 42334)
`Ryan B. McCrum
`JONES DAY
`901 Lakeside Avenue
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
`Email: rbmccrum@jonesday.com
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`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Tel: (212) 326-3939
`Fax: (212) 755-7306
`Email: jjnormile@jonesday.com
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`Alexis A. Smith
`JONES DAY
`555 South Flower Street
`Fiftieth Floor
`Los Angeles, CA 90071
`Telephone: (213) 243-2653
`Facsimile: (213) 243-2539
`Email: asmith@jonesday.com
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`Charles B. Molster, III (VA Bar No. 23613)
`The Law Offices of Charles B. Molster III PLLC
`2141 Wisconsin Ave., N.W., Suite M
`Washington, DC 20007
`Telephone: (703) 346-1505
`Email: cmolster@molsterlaw.com
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`Counsel for Plaintiffs RAI Strategic Holdings, Inc.
`and R.J. Reynolds Vapor Company
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`2
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`Case 1:20-cv-00393-LO-TCB Document 614-1 Filed 05/14/21 Page 4 of 11 PageID# 13953
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`CERTIFICATE OF SERVICE
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`I hereby certify that on April 7, 2021, the foregoing was served on counsel for PMP using
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`the following designated email address: pmiedva.lwteam@lw.com.
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`Dated: April 7, 2021
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`/s/ David M Maiorana
`David M. Maiorana (VA Bar No. 42334)
`JONES DAY
`901 Lakeside Avenue
`Cleveland, OH 44114
`Telephone: (216) 586-3939
`Facsimile: (216) 579-0212
`Email: dmaiorana@jonesday.com
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`Case 1:20-cv-00393-LO-TCB Document 614-1 Filed 05/14/21 Page 5 of 11 PageID# 13954
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`SCHEDULE A TO PLAINTIFFS RAI STRATEGIC HOLDINGS, INC. AND R.J.
`REYNOLDS VAPOR COMPANY’S SECOND NOTICE OF RULE 30(B)(6)
`DEPOSITION TO DEFENDANT PHILIP MORRIS PRODUCTS S.A.
`DEFINITIONS
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`1.
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`“ACS” shall each mean and refer to Altria Client Services LLC, including without
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`limitation all of its corporate locations, and all predecessors, predecessors-in-interest, and all past
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`or present directors, officers, agents, representatives, employees, consultants, attorneys, entities
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`acting in joint venture, licensing agreements, or partnership relationships with ACS, and others
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`acting on behalf of ACS.
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`2.
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`“Altria Accused Product” or “Altria Accused Products” shall mean any and all
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`electric tobacco heating device systems and the associated tobacco sticks sold for use with the
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`device systems. The tobacco heating device systems and components thereof shall include
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`Defendants’ IQOS® System Holder and Charger (“IQOS® system”). For avoidance of doubt, the
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`holder, charger and all compatible tobacco sticks (such as, but not limited to, IQOS® HEETS,
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`MarlboroTM HeatSticks, MarlboroTM Fresh Menthol HeatSticks, or MarlboroTM Smooth Menthol
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`HeatSticks) should be considered components of the respective tobacco heating device systems,
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`and thus are included in the meaning of “Altria Accused Product” or “Altria Accused Products.”
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`Components further shall include any smaller breakdown of parts, if applicable, to the IQOS®
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`system and associated tobacco sticks.
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`3.
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`“Altria Asserted Patents” means each and any of United States Patent No.
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`9,814,265 (“the ’265 patent”), United States Patent No. 10,555,556 (“the ’556 patent”), United
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`States Patent No. 10,104,911 (“the ’911 patent”), United States Patent No. 6,803,545 (“the ’545
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`patent”), and United States Patent No. 10,420,374 (“the ’374 patent”).
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`4.
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`“Communication” or “Communications” means every manner or method of
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`disclosure or transfer or exchange of information, whether orally or by Document, and whether
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`face-to-face, by telephone, mail, electronic mail, personal delivery, facsimile, or otherwise.
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`5.
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`“Defendants,” “Counterclaim Plaintiffs” “You,” or “Your” shall mean and refer to
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`ACS, PM USA, and PMP.
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`6.
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`“Document” or “Documents” has the broadest meaning consistent with Federal
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`Rule of Civil Procedure 34 and applicable case law, and includes electronically stored information
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`as specified in Federal Rule of Civil Procedure 34. Any draft or non-identical copy is a separate
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`Document within the meaning of this term.
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`7.
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`“Identify,” “Identifying,” “Identity,” or “Identification,” when used with respect to
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`any natural Person, shall mean that the following information shall be provided: the Person’s full
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`name; last known home address; last known business address and telephone number; last known
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`title or occupation; and last known employer.
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`8.
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`“Identify,” “Identifying,” “Identity,” or “Identification,” when used with respect to
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`any legal entity, such as a corporation, company, or Person other than a natural person, shall mean
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`that the following information shall be provided: the entity’s name; the place of incorporation or
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`organization; the principal place of business; and the nature of the business conducted by that legal
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`entity.
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`9.
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`“Infringe,” “Infringing,” “Infringed,” or “Infringement” are broadly defined to
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`include direct
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`infringement,
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`indirect
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`infringement, contributory
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`infringement,
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`induced
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`infringement, literal infringement and/or infringement under the doctrine of equivalents.
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`10.
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`“Person” or “Persons” shall mean any natural person, legal entity or any business
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`entity, including but not limited to any proprietorship, firm, partnership, corporation, association,
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`organization, or other legal entity. The acts of a Person shall include the acts of directors, officers,
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`owners, members, employees, agents, attorneys, or other representatives acting on the Person’s
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`behalf.
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`11.
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`12.
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`“Plaintiffs” and “Reynolds” shall mean and refer to RAI and RJRV.
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`“PM USA” shall mean and refer to Philip Morris USA, Inc., including without
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`limitation all of its corporate locations, and all past or present directors, officers, agents,
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`representatives, employees, consultants, attorneys, entities acting in joint venture, licensing
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`agreements, or partnership relationships with PM USA, and others acting on behalf of PM USA.
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`13.
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`“PMP” shall mean and refer to Philip Morris Products S.A., including without
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`limitation all of its corporate locations, and all past or present directors, officers, agents,
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`representatives, employees, consultants, attorneys, entities acting in joint venture, licensing
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`agreements, or partnership relationships with PMP, and others acting on behalf of PMP.
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`14.
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`“Product” or “Products” shall mean a machine, manufacture, apparatus, device,
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`instrument, mechanism, appliance, composition of matter, assemblage of components/parts (either
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`individually or collectively), process, or method which are designed to function together
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`electrically, mechanically, chemically, or otherwise, to achieve a particular function or purpose,
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`including those offered for sale, sold, or under development. “Product” or “Products” shall further
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`include all “Altria Accused Products” or “Reynolds Accused Products” as defined in this section.
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`15.
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`“Relate to,” “Related to,” “Relating to,” or “Concerning” shall mean in any way
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`concerning, constituting, comprising, containing, setting forth, summarizing, reflecting, stating,
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`describing, recording, noting, embodying, mentioning, studying, analyzing, evaluating,
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`discussing, contemplating, or referencing a specified subject either directly or indirectly.
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`16.
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`“Reynolds Accused Product” or “Reynolds Accused Products” shall mean (i) the
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`VUSE VibeTM power unit and associated flavor packs; (ii) the VUSE Alto® power unit and
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`associated flavor packs; (iii) the VUSE Ciro® power unit and associated flavor packs, and/or (iv)
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`VUSE Solo® power unit and associated flavor packs.
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`17.
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`“Reynolds Asserted Patents” means each and any of United States Patent
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`No. 9,814,268 (“the ’268 patent”) and United States Patent No. 10,492,542 (“the ’542 patent”).1
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`18.
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`19.
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`20.
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`21.
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`22.
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`23.
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`24.
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`“The ’268 patent” means United States Patent No. 9,814,268.
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`“The ’542 patent” means United States Patent No. 10,492,542.
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`“The ’265 patent” means United States Patent No. 9,814,265.
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`“The ’556 patent” means United States Patent No. 10,555,556.
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`“The ’911 patent” means United States Patent No. 10,104,911.
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`“The ’545 patent” means United States Patent No. 6,803,545.
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`“The ’374 patent” means United States Patent No. 10,420,374.
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`INSTRUCTIONS
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`1.
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`In construing the deposition topics, the singular form of a word should be
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`interpreted in the plural as well. Any pronoun shall be construed to refer to the masculine,
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`feminine, or neutral gender as in each case is most appropriate. The words “and” and “or” shall
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`be construed conjunctively or disjunctively, whichever makes the request most inclusive. The
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`word “including” shall be without limitation. The terms “each” and “any” shall mean any and all.
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`1 Plaintiffs have additionally asserted U.S. Patent Nos. 9,839,238 (“the ’238 patent”); 9,901,123
`(“the ’123 patent”); and 9,930,915 (“the ’915 patent”). Those patents have been stayed until the
`determination of the International Trade Commission in In the Matter of Certain Tobacco Heating Articles
`and Components Thereof (Inv. No. 337-TA-1199) becomes final. Once the stay is lifted, the term “Reynolds
`Asserted Patent(s),” as used in this document, will further encompass the ’238 patent, ’123 patent, and ’915
`patent.
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`2.
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`Connective terms such as “and” or “or” shall be construed either disjunctively or
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`conjunctively, as necessary, to bring within the scope of the topic all information which might
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`otherwise be construed to be outside of its scope.
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`3.
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`PMP should respond to each Deposition Topic based upon PMP’s entire knowledge
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`concerning that Topic, from all sources and all information in PMP’s possession or otherwise
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`available to PMP, including information from current and former officers, employees, agents,
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`representatives, consultants, or attorneys and information which is known to each of them.
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`TOPIC NO. 68:
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`DEPOSITION TOPICS
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`The factual bases underlying PMP’s contention, including PMP’s response to Interrogatory
`Nos. 23–24, that (i) PMP has suffered irreparable injury, (ii) remedies available at law, such as
`monetary damages, are inadequate to compensate for that injury, (iii) considering the balance of
`hardships between PMP and Reynolds, a remedy in equity is warranted, and (iv) the public interest
`would be properly served by a permanent injunction.
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`TOPIC NO. 69:
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`Each fact that PMP alleges supports PMP’s request for a permanent injunction and that
`was not present and/or known to PMP on or before June 29, 2020, including when each such fact
`became known to PMP.
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`TOPIC NO. 70:
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`Any and all harms or injury PMP alleges PMP has suffered or will suffer from Reynolds’s
`alleged infringement, absent entry of an injunction.
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`TOPIC NO. 71:
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`Each and every remedy PMP contends would be appropriate to compensate PMP, in full
`or in part, for any and all harms PMP contends PMP has suffered or will suffer from Reynolds’s
`alleged infringement.
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`TOPIC NO. 72:
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`All equitable considerations applicable to PMP’s request for injunctive relief.
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`TOPIC NO. 73:
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`Manufacture, distribution and sale of IQOS products, including any activities PMP
`performs relating to such products and any revenues or compensation PMP is paid relating to such
`activities.
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`TOPIC NO. 74:
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`The identity of any and all potentially reduced risk products or PRRPs currently available
`in the U.S. market.
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`TOPIC NO. 75:
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`The identity of any and all PRRPs currently available in the U.S. market that PMP contends
`are substitutable for the Reynolds Accused Products.
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`TOPIC NO. 76:
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`The drivers of demand for the Reynolds Accused Products.
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`TOPIC NO. 77:
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`The factual bases underlying PMP’s contention that consumers will or are likely to turn to
`another PRRP if the Reynolds Accused Products were removed from the market.
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`TOPIC NO. 78:
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`PMP’s contentions regarding whether a permanent injunction is justified, in whole or in
`part, based on the legal status of the Reynolds Accused Products before FDA.
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`TOPIC NO. 79:
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`PMP’s contentions regarding whether FDA is likely to take enforcement action against
`products for which timely PMTAs were filed but that have been pending before FDA for more
`than a year.
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`TOPIC NO. 80:
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`PMP’s contentions regarding the relative safety of vaping products as compared to
`smoking combustible cigarettes.
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`TOPIC NO. 81:
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`PMP’s contentions regarding the utility of vaping products to help smokers transition away
`from combustible cigarettes.
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`TOPIC NO. 82:
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`PMP’s contentions regarding the public’s interest in giving smokers many choices of
`available PRRPs.
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`TOPIC NO. 83:
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`PMP’s contentions regarding whether and to what extent Reynolds would suffer any
`hardships if the Reynolds Accused Products were enjoined.
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