White et al v. West Publishing Corporation et al

Filing 62

DECLARATION of John R. Gerba in Support re: 46 MOTION for Summary Judgment.. Document filed by West Publishing Corporation. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Rich, Robert)

EXHIBIT E

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------x
EDWARD L. WHITE, P.C.,
Plaintiff,

v.

12 Civ. 1340 (JSR)
DEFENDANT WEST
PUBLISHING CORPORATION’S
FIRST SET OF REQUESTS FOR
ADMISSION TO PLAINTIFF
EDWARD L. WHITE, P.C.

WEST PUBLISHING CORPORATION d/b/a West;
and REED ELSEVIER, INC. d/b/a LexisNexis,
Defendants.
---------------------------------------------------------------x
Pursuant to Rule 36 of the Federal Rules of Civil Procedure, defendant West
Publishing Corporation (“West”), through its undersigned attorneys, requests that plaintiff
Edward L. White, P.C. (“Plaintiff”) make the following admissions. Responses to these requests
are to be served on West on or before September 21, 2012. If, after answering these requests,
you acquire any additional knowledge or information called for by these requests, or learn that
any of your prior answers is incorrect, you promptly shall serve upon West amended or
supplemental responses accordingly.
DEFINITIONS
1.

“Amended Complaint” means your Amended Complaint in the above-

captioned action dated June 26, 2012, which was filed in the United States District Court for the
Southern District of New York.
2.

“Any” includes “all.”

3.

“LexisNexis” means defendant Reed Elsevier, Inc. d/b/a LexisNexis.

4.

“PACER” means the Public Access to Court Electronic Records service

provided by the United States Courts, as described generally at www.pacer.gov.
5.

“Person” is defined as in Local Rule 26.3(c)(6) and includes, but is not

limited to, any natural person, firm, association, partnership, joint venture, corporation, business
trust, banking institution, unincorporated association, government agency or any other entity, its
officers, directors, partners, employees, agents and representatives.
6.

“Works” means “Works” as defined in paragraph 4 of the Amended

7.

“XTO Litigation” means Case No. CIV-07-798-L in the Western District

Complaint.

of Oklahoma, which was originally captioned Beer, et al. v. XTO Energy Inc.
8.

“You” and “your” refer to Edward L. White, P.C., its predecessors and

successors, and its present and former officers, directors, employees, attorneys, agents,
representatives, and all persons acting or purporting to act on its or their behalf.
9.

Nouns, whether singular or plural herein, shall be construed as either

singular or plural as necessary to bring within the scope of each request any response that might
otherwise be construed to be outside the scope of the request.
10.

Past and present tense shall be construed to include each other as

necessary to bring within the scope of each request any response that might otherwise be
construed to be outside the scope of the request.
11.

The remaining definitions and rules of construction of Local Rule 26.3 and

the Federal Rules of Civil Procedure are hereby incorporated as though fully set forth herein.

2

INSTRUCTIONS
1.

Each matter is admitted unless, on or before September 21, 2012, you

serve a written answer or objection addressed to the matter, signed by you or your attorney.
2.

The time period covered by these requests, unless otherwise indicated, is

February 22, 2009, to the present.
3.

If objection is made, the reason(s) therefor shall be stated. The answer

shall specifically deny the matter or set forth in detail the reason(s) why you cannot truthfully
admit or deny the matter. A denial shall fairly meet the substance of the requested admission,
and when good faith requires that you qualify an answer or deny only a part of the matter to
which an admission is requested, you shall specify so much of it as is true and qualify or deny
the remainder.
4.

You may not give lack of information or knowledge as a reason for failure

to admit or deny unless you state that you have made reasonable inquiry and that information
known or readily obtainable by you is insufficient to enable you to admit or deny.
5.

You may not object to a request on the ground that an admission has been

requested which presents a genuine issue for trial.
6.

Your response to any of the following requests is anything but an

unqualified admission, please explain fully the reason for the denial in response to each request.
7.

If you find the meaning of any term in these requests unclear, assume a

reasonable meaning, state that meaning, and respond to the request according to that meaning.

3

REQUESTS FOR ADMISSION
1.

Admit that, other than filing this lawsuit, you never made any request to

any Person to remove or take down the Works, or either of them, from any database or website
that is accessible to the public.
2.

Admit that no Person has ever asked you for a license to copy, display or

otherwise use the Works or either of them.
3.

Admit that you have never attempted to license the Works, or either of

them, to any Person.
4.

Admit that, other than filing with the court in the XTO Litigation and

thereby effecting service on opposing counsel and providing copies to your clients in the XTO
Litigation, you have not distributed copies of the Works, or either of them, to any Person.
5.

Admit that the Works are available to be copied by members of the public

at the Court Clerk’s office of the Western District of Oklahoma.
6.

Admit that the Works are available to be copied by members of the public

through PACER.
Dated: September 7, 2012
New York, New York
/s/ John R. Gerba
R. Bruce Rich
Benjamin E. Marks
Jonathan Bloom
John R. Gerba
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
[phone]
[e-mail]
Attorneys for Defendant
West Publishing Corporation

4