`
`Exhibit 23
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 751-2 Filed 06/22/21 Page 2 of 11 PageID# 20466
`
`
`
`
`
`
`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.
`
`
`
`
`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.
`
`Defendants and Counterclaim
`Plaintiffs.
`
`Case No. 1:20-cv-00393-LO-TCB
`
`
`ALTRIA CLIENT SERVICES LLC, PHILIP MORRIS USA INC., AND
`PHILIP MORRIS PRODUCTS S.A.’S EIGHTH SET OF
`INTERROGATORIES (NOS. 29-30)
`
`Pursuant to Federal Rules of Civil Procedure 26 and 33, Altria Client Services LLC, Philip
`
`Morris USA Inc., and Philip Morris Products S.A. request that RAI Strategic Holdings, Inc. and
`
`R.J. Reynolds Vapor Company answer each interrogatory set forth below separately and fully, in
`
`writing and under oath, in accordance with the definitions and instructions contained herein, within
`
`thirty (30) days after service of the interrogatories. Altria Client Services LLC, Philip Morris USA
`
`Inc., and Philip Morris Products S.A. request that RAI Strategic Holdings, Inc. and R.J. Reynolds
`
`Vapor Company make any production of documents in connection with answers to these
`
`interrogatories at the office of Latham & Watkins LLP, 555 Eleventh Street NW, Suite 1000,
`
`Washington, DC 20004.
`
`
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 751-2 Filed 06/22/21 Page 3 of 11 PageID# 20467
`
`
`
`DEFINITIONS
`
`As used herein and all further interrogatories, unless specified otherwise, the following
`
`definitions apply:
`
`1.
`
`The terms “You,” “Plaintiffs,” “Counterclaim Defendants,” and “RJR” refer
`
`collectively to RAI Strategic Holdings, Inc. (“RAI”) and R.J. Reynolds Vapor Company
`
`(“RJRV”), their predecessors-in-interest, subsidiaries, joint ventures, affiliates, and other legal
`
`entities that are wholly or partially owned or controlled by RAI, RJRV, and/or R.J. Reynolds
`
`Tobacco Company, either directly or indirectly, and the principals, directors, officers, owners,
`
`members, representatives, employees, agents, consultants, accountants, and attorneys of these
`
`same entities.
`
`2.
`
`The terms “Defendants” and “Counterclaim Plaintiffs” refer collectively to Altria
`
`Client Services LLC (“ACS”), Philip Morris USA Inc. (“PM USA”), and Philip Morris Products
`
`S.A. (“PMP”).
`
`3.
`
`4.
`
`5.
`
`6.
`
`7.
`
`8.
`
`9.
`
`References to this “lawsuit,” “case,” or “action” mean the above-captioned action.
`
`The “’265 patent” means U.S. Patent No. 9,814,265.
`
`The “’556 patent” means U.S. Patent No. 10,555,556.
`
`The “’911 patent” means U.S. Patent No. 10,104,911.
`
`The “’545 patent” means U.S. Patent No. 6,803,545.
`
`The “’374 patent” means U.S. Patent No. 10,420,374.
`
`The “Counterclaim Asserted Patent(s)” means the ’265 patent, the ’556 patent, the
`
`’911 patent, the ’545 patent, and the ’374 patent, collectively, any other patent that may be added
`
`to this litigation by Counterclaim Plaintiffs, and the applications that led to the issuance of any of
`
`the foregoing patents.
`
`2
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 751-2 Filed 06/22/21 Page 4 of 11 PageID# 20468
`
`
`
`10.
`
`“Counterclaim Asserted Claim(s)” means each asserted claim of each Counterclaim
`
`Asserted Patent.
`
`11.
`
`12.
`
`13.
`
`The “’268 patent” means U.S. Patent No. 9,814,268.
`
`The “’542 patent” means U.S. Patent No. 10,492,542.
`
`The “RJR Asserted Patent(s)” means the ’268 patent, and the ’542 patent
`
`collectively, any other patent that may be added to this litigation by Plaintiffs in amended
`
`pleadings, and the applications that led to any of the foregoing patents.1
`
`14.
`
`“RJR Asserted Claim(s)” mean each claim of each RJR Asserted Patent that
`
`Plaintiffs allege Defendants infringe, either directly or indirectly, literally or by the doctrine of
`
`equivalents.
`
`15.
`
`“Infringe,” “infringing,” “infringed,” or “infringement” means direct infringement,
`
`indirect infringement, contributory infringement, induced infringement, literal infringement and/or
`
`infringement under the doctrine of equivalents.
`
`16.
`
` “RJR Accused Product(s)” refers to any RJR Product Counterclaim Plaintiffs
`
`contend infringe any Counterclaim Asserted Claim(s), including but not limited to the VUSE
`
`VIBE, VUSE SOLO, VUSE CIRO, and VUSE ALTO devices, as well as Flavor Packs and power
`
`units associated with those products.
`
`
`1 RJR has 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”). These 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 “RJR Asserted Patent(s),” as used in this document, will further encompass the ’238
`patent, ’123 patent, and ’915 patent.
`
`3
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 751-2 Filed 06/22/21 Page 5 of 11 PageID# 20469
`
`
`
`17.
`
`“Accused Product(s)” means any of Counterclaim Plaintiffs’ products that
`
`Counterclaim Defendants contend infringe any RJR Asserted Claims, including but not limited to
`
`the IQOS System and associated tobacco sticks identified in ¶¶ 20-33 of the Amended Complaint.
`
`18.
`
`“RJR Covered Product(s)” refers to any Product that Plaintiffs contend practices or
`
`embodies any purported invention described or claimed in the RJR Asserted Patents, including
`
`any Products made by Plaintiffs or third parties.
`
`19.
`
`“Product” means any machine, manufacture, apparatus, device, system, process,
`
`service, method, or instrumentality which is designed to function together electrically,
`
`mechanically, chemically, or otherwise, to achieve a particular function or purpose, including
`
`those offered for sale, sold, imported, or under development.
`
`20.
`
`21.
`
`“Person” or “individual” means any natural person.
`
`“Document” is synonymous in meaning and equal in scope to the usage of the term
`
`“documents or electronically stored information” in Rule 34(a)(l)(A) of the Federal Rules of Civil
`
`Procedure. A draft or non-identical copy is a separate document within the meaning of this term.
`
`By way of illustration, and without limitation, documents include at least the following: originals,
`
`drafts, and all non-identical copies of memoranda, reports, notes, graphs, laboratory notebooks,
`
`correspondence, interoffice communications, letters, diaries, calendars, photographs, motion
`
`pictures, sketches, drawings, promotional material, technical papers, printed publications, patents,
`
`records, reports, and all other writings, as well as all non-paper information storage means such as
`
`sound reproductions, computer inputs and outputs, tape, film and computer memory devices, as
`
`well as tangible things such as models, modules, prototypes, and commercially saleable products.
`
`22.
`
`“Thing” shall mean any tangible item, including without limitation, models,
`
`prototypes and samples of any device or apparatus or product.
`
`4
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 751-2 Filed 06/22/21 Page 6 of 11 PageID# 20470
`
`
`
`23.
`
`The term “Communication” means every manner or method of the disclosure,
`
`transfer, or exchange of information, whether orally, electronically, or by Document, and whether
`
`face to face or by telephone, mail, facsimile, E-mail, video, instant message, internet
`
`Communication, or otherwise.
`
`INSTRUCTIONS
`
`1.
`
`The following shall apply to all Interrogatories:
`
`a.
`
`The singular of any word includes its plural, and vice versa, to bring within
`
`the scope of these Interrogatories any information that might otherwise be
`
`deemed outside their scope;
`
`b.
`
`The terms “and” and “or” shall be construed either conjunctively or
`
`disjunctively, to bring within the scope of these Interrogatories any
`
`information that might otherwise be deemed outside their scope;
`
`c.
`
`The terms “all,” “any,” and “each” shall be construed as encompassing any
`
`and all to bring within the scope of these Interrogatories any information
`
`that might otherwise be deemed outside their scope;
`
`d.
`
`“Including” shall not be used to limit any general category or description
`
`that precedes it and shall mean “including without limitation” so as to be
`
`inclusive; and
`
`e.
`
`The present tense shall be construed to include the past tense and vice versa.
`
`2.
`
`Each Interrogatory shall operate and be responded to independently and, unless
`
`otherwise indicated, no Interrogatory limits the scope of any other Interrogatory.
`
`5
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 751-2 Filed 06/22/21 Page 7 of 11 PageID# 20471
`
`
`
`3.
`
`All Interrogatories are to be understood as requesting information in Your
`
`possession, custody, or control, and the request extends to knowledge or information in the
`
`possession of your predecessors-in-interest and/or successors.
`
`4.
`
`In answering the following Interrogatories, You shall furnish all available
`
`information, including information in the possession, custody, or control of any of Your attorneys,
`
`directors, officers, agents, employees, representatives, associates, investigators or division
`
`affiliates, partnerships, parents or subsidiaries, and persons under Your control, who have the best
`
`knowledge, not merely information known to You based on Your own personal knowledge. If
`
`You cannot fully respond to the following Interrogatories after exercising due diligence to secure
`
`the information requested thereby, so state, and specify the portion of each Interrogatories that
`
`cannot be responded to fully and completely. In the latter event, state what efforts were made to
`
`obtain the requested information and the Facts relied upon that support any contention that the
`
`Interrogatories cannot be answered fully and completely, and state what knowledge, information
`
`or belief You have concerning the unanswered portion of any such Interrogatories.
`
`5.
`
`If any information requested is claimed to be privileged or otherwise immune from
`
`discovery, please provide all information falling within the scope of the Interrogatory which is not
`
`privileged, and for each item of information contained in a document or communication to which
`
`a claim of privilege is made, identify such document or communication with sufficient particularity
`
`for purposes of a motion to compel in accordance with Federal Rule of Civil Procedure 26(b)(5).
`
`6.
`
`If any Interrogatory is ambiguous or unclear to You, please contact undersigned
`
`counsel as soon as possible so that the Interrogatory can be clarified to avoid unnecessary delays
`
`in discovery.
`
`6
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 751-2 Filed 06/22/21 Page 8 of 11 PageID# 20472
`
`
`
`7.
`
`Your obligation to respond to these Interrogatories is continuing and Your
`
`responses are to be supplemented to include subsequently acquired information in accordance with
`
`the requirements of Rule 26(e) of the Federal Rules of Civil Procedure.
`
`8.
`
`To the extent You contend that any Interrogatory consists of multiple discrete
`
`subparts, You are to state in Your objections to that Interrogatory Your contention as to the number
`
`of subparts for that Interrogatory and the basis for Your contention.
`
`9.
`
`If You elect to specify and produce business records in answer to any Interrogatory,
`
`the specification shall be in sufficient detail to permit Defendants/Counterclaim Plaintiffs to locate
`
`and identify, as readily as You can enable, the business records from which the answer may be
`
`ascertained.
`
`10.
`
`If in answering any Interrogatory, You seek to invoke the procedures of Rule 33(d)
`
`of the Federal Rules of Civil Procedure, state fully all facts which support your contention that the
`
`burden of ascertaining the answer to the Interrogatory is substantially the same for
`
`Defendants/Counterclaim Plaintiffs as it is for you, and specify those business records from which
`
`You contend Defendants/Counterclaim Plaintiffs may ascertain or derive the answer.
`
`11.
`
`If any objection is made to any Interrogatory herein, the objection shall state with
`
`particularity the basis therefore, and the Interrogatory shall be answered to the extent not objected
`
`to.
`
`12.
`
`If You do not agree with any definition of the terms provided herein, You are
`
`instructed to provide a reasonable, alternative definition for that term, consistent with industry
`
`custom and usage.
`
`13.
`
`Each of the definitions and instructions contained herein shall be fully applicable
`
`to each Interrogatory notwithstanding that a definition or instruction above may, in whole or in
`
`7
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 751-2 Filed 06/22/21 Page 9 of 11 PageID# 20473
`
`
`
`part, be reiterated in a particular Interrogatory and notwithstanding that a particular Interrogatory
`
`may incorporate supplemental instructions or definitions. If, however, You provided any alternate
`
`definitions in accordance with these instructions, indicate whether and how, any answer to any
`
`Interrogatory would differ if You relied on Your alternate definition in responding to that
`
`Interrogatory instead of the definitions provided.
`
`INTERROGATORIES
`
`INTERROGATORY NO. 29:
`
`Describe in detail the complete factual and legal bases for Your contention that Reynolds
`
`does not willfully infringe the Counterclaim Asserted Patents and/or that enhanced damages are
`
`not appropriate, including identifying all facts, evidence, and Documents on which You intend to
`
`rely to support Your contention, as well as the three (3) Persons most knowledgeable concerning
`
`the basis for Your contention.
`
`INTERROGATORY NO. 30:
`
`To the extent you contend that PMP is not entitled to permanent injunctive relief, describe
`
`in detail the complete factual and legal basis for Your contention, including but not limited to any
`
`contention (i) that PMP has not suffered irreparable injury, (ii) that remedies available at law, such
`
`as monetary damages, are adequate to compensate for that injury, (iii) that considering the balance
`
`of hardships between You and PMP, a remedy in equity is unwarranted, and (iv) that the public
`
`interest would be disserved by a permanent injunction, and identify the three (3) individuals most
`
`knowledgeable of the foregoing subjects, as well as all Documents and things on which You intend
`
`to rely to support Your contention.
`
`8
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 751-2 Filed 06/22/21 Page 10 of 11 PageID# 20474
`
`
`
`Dated: March 12, 2021
`
`
`
`
`
`
`
`
`
`
`
`/s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`Matthew J. Moore (pro hac vice)
`matthew.moore@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
`
`Clement J. Naples (pro hac vice)
`clement.naples@lw.com
`LATHAM & WATKINS LLP
`885 Third Avenue
`New York, NY 10022-4834
`Tel: (212) 906-1200; Fax: (212) 751-4864
`
`Gregory K. Sobolski (pro hac vice)
`greg.sobolski@lw.com
`LATHAM & WATKINS LLP
`505 Montgomery Street, Suite 2000
`San Francisco, CA 94111
`Tel: (415) 391-0600; Fax: (415) 395-8095
`
`Brenda L. Danek (pro hac vice)
`brenda.danek@lw.com
`LATHAM & WATKINS LLP
`330 North Wabash Avenue, Suite 2800
`Chicago, IL 60611
`Tel: (312) 876-7700; Fax: (312) 993-9767
`
`Counsel for Defendants-Counterclaim
`Plaintiffs Altria Client Services LLC, Philip
`Morris USA Inc., and Philip Morris
`Products S.A.
`
`9
`
`
`
`Case 1:20-cv-00393-LO-TCB Document 751-2 Filed 06/22/21 Page 11 of 11 PageID# 20475
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on this 12th day of March, 2021, I caused the foregoing to be served
`
`on the following Plaintiffs/Counterclaim Defendants using the designated email address:
`
`RJREDVA@jonesday.com.
`
`
`
`
`
`/s/ Maximilian A. Grant
`Maximilian A. Grant (VSB No. 91792)
`max.grant@lw.com
`LATHAM & WATKINS LLP
`555 Eleventh Street, N.W., Ste. 1000
`Washington, DC 20004
`Tel: (202) 637-2200; Fax: (202) 637-2201
`
`
`
`10
`
`