Case 1:20-cv-00393-LO-TCB Document 721-3 Filed 06/16/21 Page 1 of 14 PageID# 17736
`Case 1:20-cv-00393-LO-TCB Document 721-3 Filed 06/16/21 Page 1 of 14 Page|D# 17736
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`EXHIBIT 4
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`EXHIBIT 4
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`Case 1:20-cv-00393-LO-TCB Document 721-3 Filed 06/16/21 Page 2 of 14 PageID# 17737
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`Alexandria Division
`
`
`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
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`Plaintiffs and Counterclaim Defendants,
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`
`
`
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`
`
`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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`
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`Defendants and Counterclaim Plaintiffs.
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`
`PLAINTIFF R.J. REYNOLDS VAPOR COMPANY’S TWELFTH SET OF REQUESTS
`FOR PRODUCTION TO DEFENDANT PHILIP MORRIS PRODUCTS S.A.
`(NOS. 430-460)
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`Pursuant to Federal Rules of Civil Procedure 26 and 34, Plaintiff R.J. Reynolds Vapor
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`Company (“RJRV”), by its undersigned attorneys, hereby requests Defendant Philip Morris
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`Products S.A. (“PMP”) respond in writing and produce the Documents and things requested below
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`in accordance with the Definitions and Instructions contained herein, and serve such documents
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`on Plaintiffs’ counsel, Jones Day, 901 Lakeside Avenue, Cleveland, Ohio 44114, within fourteen
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`days as required by the Court’s March 12, 2021, Order (Dkt. No. 483).
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`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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`1
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`Case 1:20-cv-00393-LO-TCB Document 721-3 Filed 06/16/21 Page 3 of 14 PageID# 17738
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`2.
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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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`3.
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`“Compatible Tobacco Stick” or “Compatible Tobacco Sticks” means all
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`compatible tobacco sticks, and each version thereof, for use with any version of the IQOS® System,
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`including but not limited to, IQOS® HEETS, MarlboroTM HeatSticks, MarlboroTM Fresh Menthol
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`HeatSticks, or MarlboroTM Smooth Menthol HeatSticks. This definition shall further include any
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`smaller breakdown of parts, if applicable, for all Compatible Tobacco Sticks.
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`4.
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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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`5.
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`“IQOS® System” or “IQOS® Systems” means the IQOS® electric tobacco heating
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`device systems, including the holder, charger, and each version thereof. This definition shall
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`further include any smaller breakdown of parts, if applicable, for the IQOS® System.
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`6.
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`“IQOS® Product” or “IQOS® Products” means the IQOS® System and Compatible
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`Tobacco Sticks, including all versions thereof. This definition shall further include any smaller
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`breakdown of parts, if applicable, for all IQOS® Products.
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`7.
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`“JUUL Device” means the closed system vaporizer made, used, offered for sale,
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`sold, or imported into the United States by or on behalf of JUUL Labs, Inc. (as described further
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`at https://www.juul.com/learn/device).
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`8.
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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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`2
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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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`9.
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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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`10.
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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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`11.
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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.
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`12.
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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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`13.
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`14.
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`15.
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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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`3
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`Case 1:20-cv-00393-LO-TCB Document 721-3 Filed 06/16/21 Page 5 of 14 PageID# 17740
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`16.
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`“VEEV E-Cigarette Product ” or “VEEV E-Cigarette Products” shall mean the e-
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`vapor product platform made by or on behalf of PMP (as described further at
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`https://www.pmi.com/smoke-free-products/veev-innovating-e-vapor-technology).
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`17.
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`“VUSE Product” or “VUSE Products” means (i) the VUSE VibeTM power unit and
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`associated flavor packs; (ii) the VUSE Alto® power unit and associated flavor packs; (iii) the
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`VUSE Ciro® power unit and associated flavor packs, and/or (iv) VUSE Solo® power unit and
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`associated flavor packs.
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`INSTRUCTIONS
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`1.
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`The singular form of a word should be interpreted in the plural as well. Any
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`pronoun shall be construed to refer to the masculine, feminine, or neutral gender as in each case is
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`most appropriate. The words “and” and “or” shall be construed conjunctively or disjunctively,
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`whichever makes the request most inclusive. The word “including” shall be without limitation.
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`The terms “each” and “any” shall mean any and all.
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`2.
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`These requests call for Documents or things that are known or available to PMP, or
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`in PMP’s possession, custody or control, including all information known or available to PMP’s
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`attorneys, agents, representatives, or any other Person acting or purporting to act on PMP’s behalf
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`or under the direction or control of PMP or PMP’s attorneys, agents, representatives, or
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`investigators.
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`3.
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`If PMP withholds any Document or thing, or portion thereof, in response to any of
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`the requests set forth below on grounds of privilege or any other claim of immunity from discovery,
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`then for each identification, Document, Communication, or portion thereof withheld, state the
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`following:
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`a.
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`the type of Document (e.g., letter, memorandum, contract, etc.);
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`4
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`Case 1:20-cv-00393-LO-TCB Document 721-3 Filed 06/16/21 Page 6 of 14 PageID# 17741
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`b.
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`c.
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`d.
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`e.
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`f.
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`g.
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`its title;
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`its date;
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`its subject matter;
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`the name, address, and employer at the time of preparation of the
`individual(s) who authored, drafted, or prepared it;
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`the name, address, and employer at the time of dissemination of the
`individual(s) to whom it was directed, circulated, or copied, or who had
`access thereto; and
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`the grounds on which the Document is being withheld (e.g., “attorney-
`client privilege,” “work product immunity,” etc.).
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`4.
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`In the event that PMP objects to any request on the ground that it is overbroad
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`and/or unduly burdensome for any reason, respond to that request as narrowed to the least extent
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`necessary, in PMP’s judgment, to render it not overbroad/unduly burdensome and state specifically
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`the extent to which PMP has narrowed that request for purposes of PMP’s response.
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`5.
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`In the event that PMP objects to any request on the ground that it is vague and/or
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`ambiguous, identify the particular words, terms or phrases that are asserted to make such request
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`vague and/or ambiguous and specify the meaning actually attributed to PMP by such words for
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`purposes of PMP’s response thereto.
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`6.
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`If no Documents are responsive to a particular request, PMP is to state no
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`responsive Documents exist.
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`7.
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`All Documents requested are to be produced in the same file or other organizational
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`environment in which they are maintained. For example, a Document that is part of a file, docket,
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`or other grouping, should be physically produced together with all other Documents from said file,
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`docket or grouping, in the same order or manner of arrangement as the original. Alternatively, as
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`to each Document and thing produced in response hereto, PMP shall identify the request for
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`production and where applicable, the interrogatory number, in response to which the Document or
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`Case 1:20-cv-00393-LO-TCB Document 721-3 Filed 06/16/21 Page 7 of 14 PageID# 17742
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`thing is being produced. Where a Document or thing exists in hard copy and electronic format,
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`PMP shall produce both the hard and the electronic copy.
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`8.
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`These requests seek all responsive Documents in their original language and, if
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`such original language is not English, these requests also seek all English-language translations
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`that may exist for any such Documents.
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`9.
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`Each Document is to be produced along with all drafts, without abbreviation or
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`redaction.
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`10.
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`If any Document, electronically stored information, or thing has been redacted or
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`altered in any fashion, identify the reason for the redaction or alteration, the date of the redaction
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`or alteration and the Person performing the redaction or alteration. Make any redaction clearly
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`visible.
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`11.
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`Because these discovery requests are continuing under Federal Rule of Civil
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`Procedure 26(e), PMP remains under a duty to supplement or amend any response herein.
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`REQUESTS FOR PRODUCTION
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`REQUEST NO. 430:
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`All Documents reflecting or relating to any agreement or potential agreement concerning
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`the importation, distribution, marketing, or sale of VEEV E-Cigarette Products in the United
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`States.
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`REQUEST NO. 431:
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`All Documents reflecting or relating to any Communications or negotiations between PMP
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`and any other entity concerning the importation, distribution, marketing, or sale of VEEV E-
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`Cigarette Products in the United States.
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`REQUEST NO. 432:
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`Case 1:20-cv-00393-LO-TCB Document 721-3 Filed 06/16/21 Page 8 of 14 PageID# 17743
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`Any study or analysis of how the VEEV E-Cigarette Product is expected to perform in the
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`United States.
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`REQUEST NO. 433:
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`All Documents reflecting or relating to PMP’s financial interest in the sales or potential
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`sales of VEEV E-Cigarette Products in the United States, including but not limited to the specific
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`terms governing how PMP will make money from any sales of VEEV E-Cigarette Products in the
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`United States.
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`REQUEST NO. 434:
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`All Documents reflecting or relating
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`to any commercialization or plans for
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`commercialization of VEEV E-Cigarette Products in the United States, including but not limited
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`to all Documents that lay out the details of any launch plans, identify the market or markets in
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`which the products will be launched, and lay out the expected timeline for any such launch.
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`REQUEST NO. 435:
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`All Documents reflecting or relating to any application or potential application for PMTA
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`approval to sell VEEV E-Cigarette Products in the United States, including but not limited to all
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`Documents that reflect or relate to the timing of such application and the expected timing of any
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`potential approval of such application.
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`REQUEST NO. 436:
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`Any Communications with the FDA regarding the VEEV E-Cigarette Product.
`REQUEST NO. 437:
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`All Documents reflecting or relating to business plans or strategic plans for regulatory
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`approval, sale, and/or commercialization of the VEEV E-Cigarette Product in the United States.
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`REQUEST NO. 438:
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`Case 1:20-cv-00393-LO-TCB Document 721-3 Filed 06/16/21 Page 9 of 14 PageID# 17744
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`All Documents reflecting or relating to plans for marketing the VEEV E-Cigarette Product
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`in the United States.
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`REQUEST NO. 439:
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`All Documents reflecting or relating to plans for advertising the VEEV E-Cigarette Product
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`in the United States.
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`REQUEST NO. 440:
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`All Documents reflecting or relating to studies, testing, and scientific evidence that PMP
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`intends to use in support of any PMTA application for the VEEV E-Cigarette Product.
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`REQUEST NO. 441:
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`All Documents reflecting or relating to forecasted or expected sales in the United States of
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`VEEV E-Cigarette Products.
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`REQUEST NO. 442:
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`All Documents reflecting or relating to any analysis or consideration of the features and
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`benefits or the advantages or disadvantages of the VEEV E-Cigarette Product as compared to other
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`e-vapor or vaping Products offered for sale in the United States.
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`REQUEST NO. 443:
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`All Documents reflecting or relating to any analysis or consideration of the features and
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`benefits or the advantages or disadvantages of the VEEV E-Cigarette Product as compared to
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`potentially reduced risk products offered for sale in the United States other than e-vapor or vaping
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`Products, including but not limited to modern oral tobacco Products, snus Products, smoking
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`cessation Products, and heat-not-burn Products.
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`REQUEST NO. 444:
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`Case 1:20-cv-00393-LO-TCB Document 721-3 Filed 06/16/21 Page 10 of 14 PageID# 17745
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`All Documents reflecting or relating to analyses relating to competition or potential
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`competition in the United States between VEEV E-Cigarette Products and VUSE Products.
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`REQUEST NO. 445:
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`All Documents reflecting or relating to analyses relating to competition or potential
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`competition in the United States between VEEV E-Cigarette Products and JUUL Products,
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`including but not limited to the JUUL Device.
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`REQUEST NO. 446:
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`All Documents reflecting or relating to analyses relating to competition or potential
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`competition in the United States between VEEV E-Cigarette Products and any other e-vapor or
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`vaping Products.
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`REQUEST NO. 447:
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`All Documents reflecting or relating to analyses relating to competition or potential
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`competition in the United States between VEEV E-Cigarette Products and potentially reduced risk
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`products offered for sale in the United States other than e-vapor or vaping Products, including but
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`not limited to modern oral tobacco Products, snus Products, smoking cessation Products, and heat-
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`not-burn Products.
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`REQUEST NO. 448:
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`All Documents reflecting or relating to analyses relating to competition or potential
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`competition in the United States between VEEV E-Cigarette Products and combustible cigarettes.
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`REQUEST NO. 449:
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`All Documents reflecting or relating to how the introduction of the VEEV E-Cigarette
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`Product in the United States is likely to impact the sales of IQOS® Products in the United States.
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`REQUEST NO. 450:
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`Case 1:20-cv-00393-LO-TCB Document 721-3 Filed 06/16/21 Page 11 of 14 PageID# 17746
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`All Documents reflecting or relating to any marketing or sales strategy for the VEEV E-
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`Cigarette Product in the United States to try to minimize or reduce the impact of VEEV E-Cigarette
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`Product sales on the sales of IQOS® Products in the United States.
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`REQUEST NO. 451:
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`All Documents reflecting or relating to any actual use or incorporation of any of the
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`inventions claimed in PMP’s ’265, ’911, or ’556 Patents in the VEEV E-Cigarette Product, and all
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`Documents reflecting or relating to any plans to use or incorporate any of those inventions in the
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`VEEV E-Cigarette Product.
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`REQUEST NO. 452:
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`All Documents reflecting or relating to any Communications between PMP and ACS, PM
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`USA, or any of their affiliates concerning the potential introduction of VEEV E-Cigarette Products
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`in the United States.
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`REQUEST NO. 453:
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`All Documents reflecting or relating to any Communications between PMP and any other
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`entity concerning the potential introduction of VEEV E-Cigarette Products in the United States.
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`REQUEST NO. 454:
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`Documents sufficient to show when PMP made the decision concerning whether to market,
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`sell, or offer for sale the VEEV E-Cigarette Product in the United States.
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`REQUEST NO. 455:
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`All Documents reflecting or relating to the impact of the agreement between Altria Group,
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`Inc. and JUUL Labs, Inc. on PMP’s plans for marketing and sale of the VEEV E-Cigarette
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`Products in the United States.
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`REQUEST NO. 456:
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`Case 1:20-cv-00393-LO-TCB Document 721-3 Filed 06/16/21 Page 12 of 14 PageID# 17747
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`All Documents that relate to PMP’s contention that RJRV’s alleged infringement of PMP’s
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`patents has harmed PMP with respect to the VEEV E-Cigarette Product, including but not limited
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`to all Documents that support PMP’s contention that RJRV’s alleged infringement has “harmed
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`VEEV’s future standing in the U.S. market in ways similar to those described above for IQOS” or
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`PMP’s contention that RJRV’s alleged infringement has already “negatively affected” “VEEV’s
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`trajectory in the United States.”
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`REQUEST NO. 457:
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`All Documents that reflect or relate to any analysis of whether and to what extent users of
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`VEEV E-Cigarette Products also continue to use combustible cigarettes.
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`REQUEST NO. 458:
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`Documents sufficient to show any planned advertising or promotional strategy or materials
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`intended for use in promoting VEEV E-Cigarette Products in the United States, including samples
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`of any VEEV E-Cigarette Product advertisements or promotional materials.
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`REQUEST NO. 459:
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`All Documents that reflect or relate to PMP’s alleged exploration of ways to prevent youth
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`use of VEEV E-Cigarette Products “through advanced unlocking technology, sales through
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`specialty stores, more responsible marketing, and other solutions that current sellers of e-cigarettes
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`in the United States” have allegedly failed to implement.
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`REQUEST NO. 460:
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`All Documents that reflect or relate to any analysis of the impact on public health from
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`VEEV E-Cigarette Products.
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`11
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`Case 1:20-cv-00393-LO-TCB Document 721-3 Filed 06/16/21 Page 13 of 14 PageID# 17748
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`Dated: June 11, 2021
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`Respectfully submitted,
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`Stephanie E. Parker
`JONES DAY
`1221 Peachtree Street, N.E.
`Suite 400
`Atlanta, GA 30361
`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
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`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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`12
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`Case 1:20-cv-00393-LO-TCB Document 721-3 Filed 06/16/21 Page 14 of 14 PageID# 17749
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`CERTIFICATE OF SERVICE
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`I hereby certify that on June 11, 2021, the foregoing was served on counsel for Defendants
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`using the following designated email address: pmiedva.lwteam@lw.com.
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`Dated: June 11, 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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`13
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