Clark v. The Walt Disney Company et al

Filing 63

MOTION for Sanctions PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 11 by Defendants Disney shopping Inc, Jakks Pacific, Inc., Play Along Toys, Toys 'R Us. (Attachments: # 1 Affidavit, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Text of Proposed Order) (Kinsel, Grant)

Clark v. The Walt Disney Company et al

Doc. 63 Att. 6

Case 2:08-cv-00982-JDH-MRA Document 63-7

Filed 10/07/09 Page 1 of 37

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

AARON CLARK, Plaintiff, v. THE WALT DISNEY COMPANY; JAKKS PACIFIC, INC.; PLAY ALONG TOYS; KB TOYS; AMAZON.COM; and TOYS `R US, Defendants.

Case No. 2:08CV982

JAKKS PACIFIC, INC.'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS [NOS. 1 THROUGH 60]

LACA_2113291.1

149

Exhibit 6 Dockets.Justia.com

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Filed 10/07/09 Page 2 of 37

TO PLAINTIFF AARON CLARK, AND TO HIS ATTORNEYS OF RECORD: YOU ARE HEREBY NOTIFIED that pursuant to the provisions of Rule 34 of the Federal Rules of Civil Procedure, Defendant JAKKS Pacific, Inc. ("JAKKS") requests that within thirty (30) days of service hereof, at the offices of Foley & Lardner LLP, located at 555 So. Flower Street, Los Angeles, CA, you produce and permit the inspection and photocopying of the documents hereinafter designated. Please note, however, that production may be

accomplished by mailing or by otherwise delivering copies of the requested documents to Foley & Lardner LLP at the above address no later than the date otherwise scheduled for inspection and photocopying, provided that you make the originals of such documents available for inspection and photocopying at a later date upon reasonable notice by JAKKS or its authorized representative. In responding to these Requests, you are required to produce all nonprivileged documents available to you, including not only documents in your possession, custody or control, but also in that of your attorneys, agents, and other representatives, or anyone acting in cooperation or concert with them. DEFINITIONS 1. The term "Clark," "You" or "Your" means Plaintiff Aaron Clark and any agent,

employee, servant, representative, or any other person or entity in privity with or controlled by Clark. 2. The term "Inotrend" means Inotrend, Inc., and any parent, affiliate, or subsidiary

(whether owned in whole or in part), any agent, officer, director, employee, servant, representative, shareholder, and any predecessor company, and any other person or entity in privity with or controlled by Inotrend.

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LACA_2113291.1

150

Exhibit 6

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Filed 10/07/09 Page 3 of 37

59.

All documents evidencing, reflecting, or referring to any instances of confusion

resulting from Defendants' actions as alleged in the Complaint. Answer:

60.

All communications between You and Inotrend related, in any way, to a Covered

Product, the Patent-in-Suit, or any Related Patent Matters. Answer:

Dated: February 11, 2009

Respectfully submitted, By: /s/ Michael C. Lueder Michael C. Lueder Foley & Lardner LLP 777 E. Wisconsin Ave. Milwaukee, WE 53202 Tel: [phone] Trial Attorney /s/ Grant E. Kinsel Grant Kinsel (Pro Hac Vice) Foley & Lardner LLP 555 South Flower St., Suite 3500 Los Angeles, CA 90071 Tel: [phone] Attorneys for JAKKS Pacific, Inc., Play Along Toys, KB Toys, and Toys "R" Us, The Walt Disney Company

19
LACA_2113291.1

151

Exhibit 6

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Filed 10/07/09 Page 4 of 37

CERTIFICATE OF SERVICE I hereby certify that the counsel of record who are deemed to have consented to electronic service are being served today with a copy of this document via by electronic mail, facsimile transmission and/or first class mail on this same date. Dated: February 11, 2009 Brian Edward Dickerson The Dickerson Law Group 5003 Horizons Drive Suite 200 Upper Arlington , OH 43220 614-339-5370 Fax: [phone] [e-mail] Kevin R Conners 5003 Horizons Drive Suite 101 Columbus , OH 43220 614-562-5877 [e-mail] Sharlene I Chance The Dickerson Law Group 5003 Horizons Drive Suite 200 Columbus , OH 43220 614-339-5370 Fax: [phone] [e-mail] /s/ Grant E. Kinsel Attorneys for Plaintiff Aaron Clark

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LACA_2113291.1

152

Exhibit 6

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Filed 10/07/09 Page 5 of 37

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

AARON CLARK, Plaintiff, v. THE WALT DISNEY COMPANY; JAKKS PACIFIC, INC.; PLAY ALONG TOYS; KB TOYS; AMAZON.COM; and TOYS `R US, Defendants.

Case No. 2:08CV982

PLAINTIFF AARON CLARK'S RESPONSE TO JAKKS PACIFIC, INC.'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS [NOS. 1 THROUGH 60]

1
LACA_2113291.1

153

Exhibit 6

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Filed 10/07/09 Page 6 of 37

Now comes Plaintiff Aaron Clark (hereinafter "Plaintiff"), pursuant to Rules 26 of the Federal Rules of Civil Procedure (hereinafter the "Rule") and Rule 26.1 of the Local Rules of the United States District Court for the Southern District of Ohio (hereinafter the "Local Rules") and respectfully submits the following objections and responses to Defendant JAKKS Pacific Inc.'s (hereinafter "Defendant") First Request for Production of Documents (hereinafter "Requests"). GENERAL OBJECTIONS To avoid undue and unnecessary repetition, Plaintiff makes the following general and continuing objections to the Requests. All general and continuing objections apply to each response to the Requests. Although these objections may be specifically referred to elsewhere in a Response, failure to mention a general and continuing objection should not be construed as a waiver of that objection. Moreover, the assertion of the same, similar, or additional objections in response to specific Requests does not waive, limit, or modify any of these General Objections. 1. Plaintiff objects to Defendant's Requests to the extent they impose burdens

beyond the obligations of discovery as proscribed by the Federal Rules of Civil Procedure and the Local Civil Rules of the United States District Court for the Southern District of Ohio and are not reasonably calculated to lead to the discovery of admissible evidence. 2. Plaintiff objects to Defendant's Requests that the production of documents at the

offices of Foley & Lardner LLP, located at 555 So. Flower Street, Los Angeles, CA imposes burdens beyond the obligations of discovery as proscribed by the Federal Rules of Civil Procedure and Local Civil Rules of the United States District Court for the Southern District of Ohio. Rule 34 only requires that Plaintiff make the requested documents available for inspection and copying and not bear the costs of copying. As such, Defendant shall have access to the documents demanded at Plaintiff's counsel's office at The Dickerson Law Group, P.A., 5003 Horizons Drive, Suite 101, Columbus, Ohio 43220 and bear reasonable copying costs.

154

Exhibit 6

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Filed 10/07/09 Page 7 of 37

SPECIFIC OBJECTIONS AND RESPONSES Without waiving and subject to the foregoing General Objections and qualifications, which are incorporated into each response below, Plaintiff responds as follows to each specific request: REQUESTS FOR PRODUCTION 1. All documents evidencing, reflecting, or referring to the preparation of any

Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 4-6, 8-

10, 12, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 2. All documents evidencing, reflecting, or referring to the prosecution of the Patent-

in-Suit and any Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-6, 8-

10, 12, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 3. All file histories and correspondence relating, in any way, to the prosecution of

the Patent-in-Suit and any Related Patent Matters in the United States Patent and Trademark Office and foreign patent offices. Answer: See General Objections, including, but not limited to, General Objections 3-6, 8-

10, 12, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request.

155

Exhibit 6

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Filed 10/07/09 Page 8 of 37

4.

All documents evidencing, reflecting, or referring to Prior Art and potential Prior

Art for the Patent-in-Suit. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 15 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 5. All documents evidencing, reflecting, or referring to foreign patents or patent

applications claiming priority from the Patent-in-Suit. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 6. All documents evidencing, reflecting, or referring to written opinions, analyses, or

communications concerning the patentability of the invention claimed in, or alleged infringement of, the Patent-in-Suit or any Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-6, 8-

10, 12, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 7. All documents identified or obtained in the course of all searches or investigations

relating to the patentability of the subject matter disclosed or claimed in the Patent-in-Suit or Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will

156

Exhibit 6

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Filed 10/07/09 Page 9 of 37

make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 8. All documents evidencing, reflecting, or referring to Prior Art cited by the patent

office of any country or international organization in any patent application or other patent proceeding for the Patent-in-Suit or any Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 15-16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 9. All documents evidencing, reflecting, or referring to any subject matter claimed in

the Patent-in-Suit, where the document was published or available to any member of the public prior to March 10, 1995. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 10. All documents evidencing, reflecting, or referring to communications concerning

the Patent-in-Suit from and to You and/or all attorneys and agents prosecuting the Patent-in-Suit and Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request.

157

Exhibit 6

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Filed 10/07/09 Page 10 of 37

11.

All documents disclosing any element of any claim of the Patent-in-Suit that bears

a date, or was created, on or before March 10, 1995, including but not limited to, any patent or other public disclosure, or any offer to sell or sale of any product, as well as all advertising materials, invoices, product brochures, catalogs, letters, correspondence, purchase orders, bills of lading, shipping documents, customs documentation, artist proofs, advertising bills, and payment checks. Answer: See General Objections, including, but not limited to, General Objections 3-7, 9-

10, 12 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 12. All documents evidencing, reflecting, or referring to the first sale or offer for sale

of any Covered Product. Answer: See General Objections, including, but not limited to, General Objections 4-10,

12, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 13. All documents evidencing, reflecting, or referring to the original and revised

blueprints, design reports, illustrations, diagrams, test specifications, drawings, specifications, control drawings, sales outline drawings, engineering documents, schematic diagrams, process schematics, design documents, project books, project files, manufacturing invoices, requests for proposals, requests for quotations, and correspondence for all versions of any prototype of any Covered Product. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will

158

Exhibit 6

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Filed 10/07/09 Page 11 of 37

make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 14. All documents evidencing, reflecting, or referring to any Covered Product which

is dated prior to, or which existed prior to, March 10, 1995. Answer: See General Objections, including, but not limited to, General Objections 3-7, 9-

10, 12, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 15. All documents evidencing, reflecting, or referring to whether the inventions

claimed in the Patent-in-Suit work as described in the specification of the Patent-in-Suit. Answer: See General Objections, including, but not limited to, General Objections 3-10, 12

and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 16. All documents evidencing, reflecting, or referring to the first three months of sales

and/or offers for sale of any Covered Product. Answer: See General Objections, including, but not limited to, General Objections 3-7, 9-

10, 12, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 17. All documents evidencing, reflecting, or referring to the first time any Covered

Product was offered for sale, sold, publicly used, publicly known, or accessible to the public including but not limited to, advertising materials, invoices, product brochures, catalogs, letters,

159

Exhibit 6

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Filed 10/07/09 Page 12 of 37

correspondence, purchase orders, bills of lading, shipping documents, customs documentation, artist proofs, advertising bills, and payment checks. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 18. All articles emanating from, or published or authored by, the Inventor relating, in

any way, to the subject matter claim in the Patent-in-Suit or any Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 19. All documents evidencing, reflecting, or referring to any litigation threatened or

brought concerning the Patent-in-Suit or any Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff states that he has no responsive documents in his possession, custody, or control. 20. All Prior Art disclosed in any lawsuit threatened or brought concerning the

Patent-in-Suit or any Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 15-16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff states that he has no responsive documents in his possession, custody, or control. 21. All documents claimed by anyone to constitute Prior Art against the Patent-in-

Suit or Related Patent Matters.

160

Exhibit 6

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Filed 10/07/09 Page 13 of 37

Answer:

See General Objections, including, but not limited to, General Objections 3-10,

12, 15-16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff states that he has no responsive documents in his possession, custody, or control. 22. All documents evidencing, reflecting, or referring to any claim by You that there

are indicia of non-obviousness concerning any claim found in the Patent-in-Suit. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff states that he has no responsive documents in his possession, custody, or control. 23. All discovery requests and responses, including all deposition transcripts,

interrogatory answers, and responses to requests for admission, relating to any litigation involving the Patent-in-Suit or any Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff states that he has no responsive documents in his possession, custody, or control. 24. All motions, including summary judgment motions and motions to dismiss,

oppositions, and responses thereto relating to the Patent-in-Suit or any Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff states that he has no responsive documents in his possession, custody, or control. 25. All documents charging anyone with infringement of the Patent-in-Suit or any

Related Patent Matters, and all responses thereto. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff states that he has no responsive documents in his possession, custody, or control.

161

Exhibit 6

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Filed 10/07/09 Page 14 of 37

26.

All documents evidencing, reflecting, or referring to each and every authorization,

permission, license, license agreement and every other form of actual grant or attempt to grant, to any person, of part of or all of the rights under the Patent-in-Suit or Related Patent Matters, including but not limited to, all licenses, settlement agreements, assignments, UCC-1 statements, employment agreements, mortgage agreements, pledge agreements, security agreements, and/or sales agreements. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 27. All documents evidencing, reflecting, or referring to any license or agreement into

which You have entered relating, in any way, to a Covered Product, the Patent-in-Suit, or any Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 28. All documents evidencing, reflecting, or referring to any license into which You

have entered relating, in any way, to posters that include sound mechanisms including any and all license agreements by which You obtained any right to use any famous character or image on such posters. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will

162

Exhibit 6

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Filed 10/07/09 Page 15 of 37

make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 29. All documents evidencing, reflecting, or referring to any potential license

concerning which You have entered into negotiations relating, in any way, to a Covered Product. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 30. All documents evidencing, reflecting, or referring to any potential license

concerning which You have entered into negotiations relating, in any way, to posters that include sound mechanisms. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 31. All documents evidencing, reflecting, or referring to all correspondence offering

licenses or assignments or relating, in any way, to negotiations for same, relating to the Patentin-Suit or Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request.

163

Exhibit 6

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Filed 10/07/09 Page 16 of 37

32.

All documents evidencing, reflecting, or referring to royalty payments or license

fees for, and all documents evidencing, reflecting, or referring to the title or ownership rights of, the Patent-in-Suit and any Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 33. All documents by which You obtained any rights to the Patent-in-Suit, including

but not limited to, any assignments or licenses between You and Inotrend or any other party claiming any interest, in whole or in part, in the Patent-in-Suit. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 34. All documents evidencing, reflecting, or referring to sales, offers to sell and

returns of any Covered Product, and all profits made from such sales, including, but not limited to, all price lists, invoices, purchase orders, inventory records, sales summaries, and all documents concerning profits, net and gross profit margin, costs of distribution, and license cost concerning any Covered Product. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request.

164

Exhibit 6

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Filed 10/07/09 Page 17 of 37

35.

All documents evidencing, reflecting, or referring to the manufacture of any

Covered Product. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 36. Answer: All documents sufficient to identify all customers for the Covered Products. See General Objections, including, but not limited to, General Objections 3-10,

12, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 37. Answer: All instruction, service and installation manuals relating to the Covered Products. See General Objections, including, but not limited to, General Objections 3-10,

12, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 38. All documents evidencing, reflecting, or referring to complaints regarding any

Covered Products from sales representatives, distributors, retailers, customers or others. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 39. All descriptive advertising or promotional materials relating, in any way, to any

Covered Product including, but not limited to, press releases and trade journal articles,

165

Exhibit 6

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Filed 10/07/09 Page 18 of 37

advertisements, catalogs, materials prepared for use in trade meetings and conventions, package inserts, technical data sheets, product specifications, circulars, leaflets, direct mail pieces, newspaper and magazine advertisements, telephone advertisements and photographs of all trade show or display advertisements and any other written or electronically stored materials. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 40. Customer orders, purchase orders, invoices, bills of lading, and summaries of

sales for all Covered Products. Answer: See General Objections, including, but not limited to, General Objections 3-10, 12

and 17. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 41. All documents evidencing, reflecting, or referring to revenues received by You

from the sales of any Covered Product. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 42. All documents evidencing, reflecting, or referring to Your allegations that

Defendants' infringement of the Patent-in-Suit referred to in Your Complaint in this action has been willful and/or intentional.

166

Exhibit 6

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Filed 10/07/09 Page 19 of 37

Answer:

See General Objections, including, but not limited to, General Objections 3-10,

12-13 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff has previously produced all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 43. All documents upon which You intend to rely in this action (including but not

limited to, all attorney opinion letters and memoranda) to support the claims of patent infringement alleged against the Defendants in this action. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff has previously produced all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 44. All documents relating, in any way, to any expert witness retained by You for this

lawsuit. This request includes, but is not limited to, all documents evidencing, reflecting, or referring to the qualifications or experience of any expert witness, publications authored by any expert witness, and all treatises, books and any other documents upon which the expert witness will base his or her testimony. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will produce all non-privileged documents in his possession, custody, or control responsive to this request, 60 days before the deadline for completing all discovery, per Preliminary Pretrial Order (Doc. 20). 45. All documents evidencing, reflecting, or referring to the display or sale of any

Covered Product since issuance of the Patent-in-Suit, which product was not marked pursuant to 35 U.S.C. § 287, including but not limited to: (1) all price lists, invoices, purchase orders,

167

Exhibit 6

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Filed 10/07/09 Page 20 of 37

inventory records, and related information; (2) all descriptive advertising or promotion materials, packaging, press releases, trade journal articles, advertisements, catalogs, materials prepared for use in trade meetings and conventions, package inserts, technical data sheets, product specifications, and any other publicly disseminated material promoting or describing Covered Products; and (3) all correspondence to or from anyone licensed to make or sell a Covered Product. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 46. All documents evidencing, reflecting, or referring to Your marking pursuant to 35

U.S.C. § 287 of any product with the number of the Patent-in-Suit or Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 47. Answer: A sample of each Covered Product. See General Objections, including, but not limited to, General Objections 3-10,

12, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 48. All documents evidencing, reflecting, or referring to Your claims that Defendants

have infringed the Patent-in-Suit either literally or under the doctrine of equivalents.

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Answer:

See General Objections, including, but not limited to, General Objections 3-10,

12-13, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff has previously produced all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 49. All documents evidencing, reflecting, or referring to any claim by You that

Defendants have induced or contributed to the infringement of the Patent-in-Suit either literally or under the doctrine of equivalents. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13, 17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 50. All documents evidencing, reflecting, or referring to any claim by You that this

action is an exceptional case entitling You to recover Your attorneys' fees from Defendants. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff states that he has no responsive documents in his possession, custody, or control. 51. All documents evidencing, reflecting, or referring to any damages You claim You

suffered as a result of Defendants' actions. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff states that he has no responsive documents in his possession, custody, or control at this stage of the discovery proceedings and will supplement his response when Plaintiff discovers additional information.

169

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52.

All documents evidencing, reflecting, or referring to any loss of sales or licensing

royalties allegedly suffered by You as a result of Defendants' actions alleged herein. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff states that he has no responsive documents in his possession, custody, or control at this stage of the discovery proceedings and will supplement his response when Plaintiff discovers additional information. 53. All documents evidencing, reflecting, or referring to the nature and amount of any

reasonable royalty to which You claim You are entitled as a result of Defendants' alleged infringement of the Patent-in-Suit. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff states that he has no responsive documents in his possession, custody, or control at this stage of the discovery proceedings and will supplement his response when Plaintiff discovers additional information. 54. All documents evidencing, reflecting, or referring to any royalties You have

received from any person or party in licensing rights to practice the inventions in the Patent-inSuit or any Related Patent Matter. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request.

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55. Answer:

All communications between You and any Defendant in this action. See General Objections, including, but not limited to, General Objections 3-10,

12-13 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff has previously produced all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 56. All documents evidencing, reflecting, or referring to offers, discussions, or

negotiations between You and any Defendant in this action relating, in any way, to a Covered Product, the Patent-in-Suit, or Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13, 16 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff has previously produced all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 57. All documents evidencing, reflecting, or referring the chain of title for the Patent-

in-Suit, including but not limited to, all assignments or licenses relating, in any way, to the Patent-in-Suit. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 58. All documents evidencing, reflecting, or referring to Your claim that Defendants

engaged in any violation of the Lanham Act with respect to the sale of any products. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-13 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff has

171

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previously produced all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 59. All documents evidencing, reflecting, or referring to any instances of confusion

resulting from Defendants' actions as alleged in the Complaint. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12, and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff has previously produced all non-privileged documents in his possession, custody, or control, if any, responsive to this request. 60. All communications between You and Inotrend related, in any way, to a Covered

Product, the Patent-in-Suit, or any Related Patent Matters. Answer: See General Objections, including, but not limited to, General Objections 3-10,

12-14, 16-17 and 19. Subject to and without waiver of the foregoing General Objections, Plaintiff will make available for inspection and copying all non-privileged documents in his possession, custody, or control, if any, responsive to this request. AS TO ALL OBJECTIONS, ___________________________ Sharlene I. Chance (0070999)

172

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Respectfully submitted,

___________________________________ Brian E. Dickerson (0069227) Lead Trial Attorney Sharlene I. Chance (0070999) Kevin R. Conners (0042012) THE DICKERSON LAW GROUP, P.A. 5003 Horizons Drive, Suite 101 Columbus, OH 43220 Telephone: [phone] Facsimile: [phone] [e-mail] [e-mail] [e-mail] Attorneys for Plaintiff Aaron Clark CERTIFICATE OF SERVICE I hereby certify that on March 13, 2009, I served via electronic mail and Regular U.S. Mail, postage prepaid, the foregoing upon: Michael C. Lueder Trial Attorney [e-mail] Foley & Lardner LLP 777 E. Wisconsin Avenue Milwaukee, WE 53202 Grant Kinsel Pro Hac Vice [e-mail] Foley & Lardner LLP 555 South Flower Street Suite 3500 Los Angeles, CA 90071

____________________________________ Sharlene I. Chance (0069227) Attorney for Plaintiff Aaron Clark
173 Exhibit 6

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174

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175

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176

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177

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178

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179

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180

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181

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182

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183

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184

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185

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