Case 1:20-cv-00393-LO-TCB Document 721-7 Filed 06/16/21 Page 1 of 13 PageID# 17778
`Case 1:20-cv-00393-LO-TCB Document 721-7 Filed 06/16/21 Page 1 of 13 Page|D# 17778
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`EXHIBIT 11
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`EXHIBIT 11
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`Case 1:20-cv-00393-LO-TCB Document 721-7 Filed 06/16/21 Page 1 of 13 Page|D# 17778
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`EXHIBIT 11
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`EXHIBIT 11
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`Case 1:20-cv-00393-LO-TCB Document 721-7 Filed 06/16/21 Page 2 of 13 PageID# 17779
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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,
`
`Plaintiffs and Counterclaim Defendants,
`
`
`
`
`
`
`
`v.
`
`Case No.: 1:20cv00393-LO-TCB
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA, INC.; and PHILIP MORRIS
`PRODUCTS S.A.,
`
`
`
`Defendants and Counterclaim Plaintiffs.
`
`
`PLAINTIFFS RAI STRATEGIC HOLDINGS, INC. AND R.J. REYNOLDS VAPOR
`COMPANY’S TENTH SET OF REQUESTS FOR PRODUCTION TO DEFENDANT
`PHILIP MORRIS PRODUCTS S.A. (NOS. 375-394)
`
`Pursuant to Federal Rules of Civil Procedure 26 and 34, Plaintiffs RAI Strategic Holdings,
`
`Inc. (“RAI”) and R.J. Reynolds Vapor Company (“RJRV”) (collectively, “Plaintiffs”), by their
`
`undersigned attorneys, hereby request Defendant Philip Morris Products S.A. (“PMP”) respond in
`
`writing and produce the Documents and things requested below in accordance with the Definitions
`
`and Instructions contained herein, and serve such documents on Plaintiffs’ counsel, Jones Day,
`
`901 Lakeside Avenue, Cleveland, Ohio 44114, within fourteen days as required by the Court’s
`
`March 12, 2021, Order (Dkt. No. 483).
`
`DEFINITIONS
`
`1.
`
`“ACS” shall each mean and refer to Altria Client Services LLC, including without
`
`limitation all of its corporate locations, and all predecessors, predecessors-in-interest, and all past
`
`or present directors, officers, agents, representatives, employees, consultants, attorneys, entities
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`
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`1
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`Case 1:20-cv-00393-LO-TCB Document 721-7 Filed 06/16/21 Page 3 of 13 PageID# 17780
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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
`
`electric tobacco heating device systems and the associated tobacco sticks sold for use with the
`
`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.”
`
`Components further shall include any smaller breakdown of parts, if applicable, to the IQOS®
`
`system and associated tobacco sticks.
`
`3.
`
`“Altria Asserted Patents” means each and any of United States Patent No.
`
`9,814,265 (“the ’265 patent”), United States Patent No. 10,555,556 (“the ’556 patent”), United
`
`States Patent No. 10,104,911 (“the ’911 patent”), United States Patent No. 6,803,545 (“the ’545
`
`patent”), and United States Patent No. 10,420,374 (“the ’374 patent”).
`
`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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`2
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`Case 1:20-cv-00393-LO-TCB Document 721-7 Filed 06/16/21 Page 4 of 13 PageID# 17781
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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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`“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.
`
`8.
`
`9.
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`“Plaintiffs” 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
`
`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. “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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`3
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`Case 1:20-cv-00393-LO-TCB Document 721-7 Filed 06/16/21 Page 5 of 13 PageID# 17782
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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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`“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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`14.
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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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`15.
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`16.
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`17.
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`18.
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`19.
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`20.
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`21.
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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.
`
`
`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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`
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`4
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`Case 1:20-cv-00393-LO-TCB Document 721-7 Filed 06/16/21 Page 6 of 13 PageID# 17783
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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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`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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`the type of Document (e.g., letter, memorandum, contract, etc.);
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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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`5
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`Case 1:20-cv-00393-LO-TCB Document 721-7 Filed 06/16/21 Page 7 of 13 PageID# 17784
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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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`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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`6
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`Case 1:20-cv-00393-LO-TCB Document 721-7 Filed 06/16/21 Page 8 of 13 PageID# 17785
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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. 375:
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`All Documents identified in PMP’s answer to Plaintiffs’ Interrogatory No. 23.
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`REQUEST NO. 376:
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`All Documents identified in PMP’s answer to Plaintiffs’ Interrogatory No. 24.
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`REQUEST NO. 377:
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`All Documents relating to the product market that PMP believes is relevant to PMP’s
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`claims, including, but not limited to, Documents about the relevant market size, market share,
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`relevant geographic market, and analysis of all competitors and competition.
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`REQUEST NO. 378:
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`All Documents relating to the relevant product market that PMP believes is relevant to
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`PMP’s claims, including, but not limited to, Documents about the features and benefits of each of
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`the major products in that market, consumer surveys, consumer preferences, and any expectations
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`for changes in that market and in consumer behavior.
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`REQUEST NO. 379:
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`All Documents that relate to or concern any financial interest that PMP has in the sales of
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`any products that PMP contends will be impacted if PMP’s request for a permanent injunction is
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`7
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`Case 1:20-cv-00393-LO-TCB Document 721-7 Filed 06/16/21 Page 9 of 13 PageID# 17786
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`denied, including but not limited to Documents sufficient to show the receipt by PMP of any
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`revenues or payments of any kind from such sales, PMP’s expected future revenues or payments
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`associated with such sales, the contractual or other basis for PMP’s receipt of revenues or payments
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`from such sales, and the costs and profits associated with such sales.
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`REQUEST NO. 380:
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`All Documents and things PMP relies on to support any contention that Plaintiffs’ VUSE
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`products have taken away, are taking away, or are expected to take away sales of Defendants’
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`IQOS products in the United States.
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`REQUEST NO. 381:
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`All Documents reflecting communications between PMP and PM USA or ACS concerning
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`PMP’s request for a permanent injunction.
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`REQUEST NO. 382:
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`All Documents reflecting communications between any of the Defendants, or their agents
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`or representatives, and JUUL Labs, Inc. or any agent or representative of JUUL Labs, Inc.
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`concerning PMP’s request for a permanent injunction.
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`REQUEST NO. 383:
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`All Documents reflecting or relating to the potential impact on or benefits to JUUL Labs,
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`Inc. if PMP’s request for a permanent injunction is granted.
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`REQUEST NO. 384:
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`All Documents reflecting or relating to the potential impact on or benefits to PM USA if
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`PMP’s request for a permanent injunction is granted.
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`8
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`Case 1:20-cv-00393-LO-TCB Document 721-7 Filed 06/16/21 Page 10 of 13 PageID# 17787
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`REQUEST NO. 385:
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`
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`All Documents reflecting or relating to the potential impact on or benefits to ACS if PMP’s
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`request for a permanent injunction is granted.
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`REQUEST NO. 386:
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`
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`All Documents reflecting or relating to the potential impact on or benefits to Philip Morris
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`International Inc. if PMP’s request for a permanent injunction is granted.
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`REQUEST NO. 387:
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`All Documents reflecting or relating to how the public health might be impacted if
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`Plaintiffs’ VUSE products are removed from the market due to a permanent injunction.
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`REQUEST NO. 388:
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`All Documents that discuss, relate to, or reflect the extent to which adult tobacco
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`consumers switch from combustible cigarettes to Plaintiffs’ VUSE products, or the extent to which
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`adult tobacco consumers switch from combustible cigarettes to other vaping products.
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`REQUEST NO. 389:
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`All Documents that relate to or concern whether the public interest will be harmed if PMP’s
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`request for a permanent injunction is granted.
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`REQUEST NO. 390:
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`All Documents that refer or relate to the success of e-cigarettes in transitioning smokers
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`away from combustible cigarettes, generally, or the success of Plaintiffs’ VUSE products, more
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`specifically.
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`REQUEST NO. 391:
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`All Documents that refer or relate to the substitutability of available potentially reduced
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`risk products or PRRPs.
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`9
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`Case 1:20-cv-00393-LO-TCB Document 721-7 Filed 06/16/21 Page 11 of 13 PageID# 17788
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`REQUEST NO. 392:
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`All Documents relating to the U.S. demographics that use or purchase electronic cigarettes,
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`including but not limited to Plaintiffs’ VUSE products.
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`REQUEST NO. 393:
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`All Documents relating to the U.S. demographics that use or purchase heat-not-burn
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`products, including but not limited to Plaintiffs’ Eclipse product and Defendants’ IOQS products.
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`REQUEST NO. 394:
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`All Documents relating to the U.S. demographics that use or purchase oral tobacco
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`products (such as snus, chewing tobacco, pouches, and lozenges), including but not limited to
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`either party’s oral tobacco products.
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`Case 1:20-cv-00393-LO-TCB Document 721-7 Filed 06/16/21 Page 12 of 13 PageID# 17789
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`Dated: March 26, 2021
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`Respectfully submitted,
`
`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
`
`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
`
`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
`
`John J. Normile
`JONES DAY
`250 Vesey Street
`New York, NY 10281
`Tel: (212) 326-3939
`Fax: (212) 755-7306
`Email: jjnormile@jonesday.com
`
`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
`
`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
`
`Counsel for Plaintiffs RAI Strategic Holdings, Inc.
`and R.J. Reynolds Vapor Company
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`11
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`Case 1:20-cv-00393-LO-TCB Document 721-7 Filed 06/16/21 Page 13 of 13 PageID# 17790
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`CERTIFICATE OF SERVICE
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`
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`I hereby certify that on March 26, 2021, the foregoing was served on counsel for ACS and
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`PM USA using the following designated email address: pmiedva.lwteam@lw.com.
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`Dated: March 26, 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
`
`
`12
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