Vertical Computer Systems, Inc. v. Interwoven, Inc. et al

Filing 92

REPLY to Response to Motion re 84 SEALED MOTION to Sever and Transfer Claims filed by LG Electronics Inc, LG Electronics Mobilecomm USA Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Healey, David)

Exhibit D

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
VERTICAL COMPUTER SYSTEMS, INC.,
Plaintiff,
Civil No. 2:10-CV-00490
v.
Hon. Michael H. Schneider
LG ELECTRONICS MOBILECOMM
U.S.A., INC., LG ELECTRONICS INC.,
SAMSUNG ELECTRONICS CO., LTD.,
SAMSUNG ELECTRONICS AMERICA,
INC.,

JURY TRIAL DEMANDED

Defendants.

PLAINTIFF’S FIRST SET OF DOCUMENT REQUESTS
TO DEFENDANTS LG ELECTRONICS
MOBILECOMM U.S.A., INC. AND LG ELECTRONICS INC.
Plaintiff, Vertical Computer Systems, Inc., (“Vertical”), requests that the
Defendants, LG Electronics MobileComm U.S.A., Inc. and LG Electronics Inc.
(collectively, "LG" or “Defendants”), produce the documents and things described in the
following requests. Vertical will examine the documents at the offices of its counsel, or
where the documents are maintained by Defendants, or at any other mutually agreeable
location where suitable examination and photocopying facilities exist or can be
arranged.

By accepting photocopies, Vertical is not waiving his right to examine

originals where necessary.
Where Defendants withhold documents for reasons of attorney-client privilege,
work-product immunity or the like, Vertical requests that it be served with a list of such
documents prepared in accordance with applicable case law, including at least the
names and titles or functions of the authors; any recipients; the date; the basis for

withholding; and a description of the document and its subject matter sufficient to allow
Vertical to contest the claim.
In cases where Defendants believe there is no responsive document, or where it
is maintained for a different period or fiscal year, Vertical asks that the Defendants
produce the best available documents from which the information sought by the request
may be derived. (In the case of financial information, it is usually possible to derive the
desired information if it is not already available.)
These requests are intended to seek documents and things as broadly as those
words are defined by Fed.R.Civ.P. 34 and applicable case law.
DEFINITIONS
The following definitions are applicable to terms employed in these requests:
A.

The term "person" refers to both natural persons and to corporate or other

business entities, whether or not in the employ of Defendants, and the acts of a person
(including any of the Defendants) are defined to include the acts of directors, officers,
owners, members, employees, agents or attorneys acting on the person’s behalf.
B.

To "identify" a person means to state the person’s name and business or

home address, and business and home telephone numbers.
C.

The

term

"document"

refers

to

all

handwritten,

typed,

printed,

electronically recorded or graphic matter however produced or reproduced, whether
copies or originals, in the possession, custody or control of Defendants or its owners,
employees or attorneys.
D.

To "identify" documents means to provide a brief description of each

document sufficient to support a request for production, including at least the type of

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document, the date of the document, identification of the author, identification of each
person to whom the original document or any copy thereof was directed, identification of
all persons who received or saw copies, as well as identification of each person who
presently has custody of the document and of any copy thereof, and if the document
embodies an agreement, identification of the persons involved in such agreement. If a
copy of the document is not provided, state whether Defendants are willing to allow
Vertical's counsel to inspect and copy said document; and if not, the reasons for such
refusal.
E.

To "locate" documents means to state the present whereabouts of each

document, and to identify the person having possession, custody or control thereof.
F.

The term "relevant" means documents and other information which are

relevant in the sense of Fed.R.Civ.P. 26 or Fed.R.Evid. 401-02; or which Defendants
intend to use to support its allegations or defenses; or which tend to prove or disprove
any allegations or defenses of the Defendants.
G.

The term "Plaintiff" or "Vertical" means Vertical Computer Systems, Inc.,

its assignees, agents, representatives and predecessors in interest.
H.

“Defendants,” or “LG" means LG Electronics MobileComm U.S.A., Inc.

and LG Electronics Inc., their assignees, predecessors in interest, successors in
interest, subsidiaries and related companies and the officers, directors, employees,
agents and representatives thereof.
I.

The “patents-in-suit” are U.S. Patent No. 6,826,744 ("the ‘744 patent”) and

U.S. Patent No. 7,716,629 ("the '629 patent").

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J.

“Prior art” means all publications, patents, physical devices, prototypes,

uses, sales, offers for sale, or other activity relating to the subject matter of the patentin-suit, and having or occurring at a date such as to be relevant under any subdivision of
35 U.S.C. §102 or under 35 U.S.C. §103.
K.

"Product" means any cellular telephone, smartphone, or other wireless

communication device, or any computer of any type manufactured, sold in or imported
into the United States by the Defendants that contains any type of Android operating
system, platform or application.
REQUESTS
1.

All documents pertaining to Vertical.

2.

All documents pertaining to the patents-in-suit, including its applications,

filings and prosecutions.
3.

All documents pertaining to communications which Defendants have had

with any person that refers or relates in any way to the patents-in-suit.
4.

Documents pertaining to any investigation conducted by Defendants of

Plaintiff.
5.

All documents pertaining to contacts between Defendants and their

representatives, distributors and/or customers pertaining to any of the patents-in-suit.
6.

All documents pertaining to legal opinions regarding the patents-in-suit

and Defendants' right to make and/or sell its products, including any legal opinions of
invalidity, unenforceability, inventorship, license and/or non-infringement of the patentsin-suit.

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7.

All documents pertaining to the patents-in-suit, any studies or analysis of

the patents-in-suit and/or any communications between the Defendants and their
attorneys pertaining to the patents-in-suit. Plaintiff specifically requests the production
of any documents containing or pertaining to attorney opinions and all related
documents to the extent Defendants intend to assert good faith reliance on advice of
counsel as a defense.
8.

All documents pertaining to the alleged invalidity, unenforceability and/or

non-infringement of the patents-in-suit.
9.

All documents pertaining to Defendants' alleged non-infringement of the

patents-in-suit.
10.

Documents sufficient to identify by model number, type or other

description each of Defendants’ Products (as defined above) manufactured, used
and/or sold by or on behalf of Defendants.
11.

Documents relating to:
a.

the conception and development of the Defendants’ Products;

b.

the testing of the Defendants’ Products including, but not limited to,

test plans and test reports;
c.

the design of the Defendants’ Products including, but not limited to,

specification documents, flow-charts, each version of source code files, build files, build
scripts, module lists, build reports, user handbooks or instruction manuals and
application developer’s guides;
d.

the marketing and sales of Defendants’ Products;

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e.

the management of the overall business pertaining to the

Defendants’ Products.
12.

Documents sufficient to identify each person presently and previously

employed by or associated with Defendants (anywhere in the world) who had or has
responsibility for the following functions:
a.

the conception and development of the Defendants’ Products;

b.

the testing of the Defendants’ Products;

c.

the design of the Defendants’ Products;

d.

the marketing and sales of each Defendants’ Products;

e.

the management of the overall business pertaining to the

Defendants’ Products.
13.

For the Defendants’ Products, all documents pertaining to or sufficient to

identify:
a.

the date on which the design or development of the Defendants’

Products was commenced;
b.

the date on which the production of the Defendants’ Products was

c.

the date of the first sale of the Defendants’ Products;

d.

the unit and dollar volume of sales of the Defendants’ Products;

e.

the profits realized on such sales.

commenced;

14.

All documents pertaining to the manner of operation of Defendants’

Products made, used or sold by or on behalf of Defendants.
15.

All documents, including summaries, showing, pertaining or relating to:

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a.

the unit and dollar volume of Defendants' sales of its Products; and

b.

the cost of goods sold Defendants' sales of its cellular computer

software products.
16.

All documents pertaining to Defendants' net profits and gross profits from

the sale of its devices which contain or are made by Defendants’ Products.
17.

All documents and things pertaining to projections for sales of Defendants’

Products.
18.

All documents pertaining to the factual basis for the allegations made by

Defendants in its Answer and/or Affirmative Defenses and/or counterclaims.
19.

All sales and promotional materials pertaining to Defendants’ Products.

20.

Each item of actual or potential prior art to the patents-in-suit known to

Defendants or which Defendants may or intends to rely upon in this litigation.
21.

Each patent application and patent (United States and foreign) owned by,

assigned to or filed on behalf of the Defendants or its employees describing, claiming or
pertaining to (in whole or in part) Defendants’ Computer software products.
22.

All documents pertaining to any licenses taken, offered or accepted by

Defendants concerning Products.
23.

All documents pertaining to any settlement agreement signed by

Defendants that relates to any claim for patent infringement regarding the Defendants’
Products or other related products.
24.

All software and hardware that embodies the subject matter described

and/or claimed in the patents-in-suit.

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25.

All software written by or in any way originating directly or indirectly from

Vertical.
26.

A copy of the source code for all versions of Defendants’ Products

released to the public if not already supplied in Request 11(c).
27.

All documents and things relating to marketing plans for Defendants’

Products.
28.

All documents used or identified in answering Interrogatory Nos. 1-12,

served herewith.
Respectfully submitted,
/s/ Vasilios D. Dossas
Vasilios D. Dossas ([e-mail])
Illinois State Bar No. 6182616
NIRO, HALLER & NIRO
181 West Madison Street, Suite 4600
Chicago, Illinois 60602
Telephone: [phone]
Fax: [phone]
William E. Davis, III
Texas State Bar No. 24047416
THE DAVIS FIRM, PC
111 West Tyler Street
Longview, Texas 75601
Telephone: [phone]
Fax: [phone]
Attorneys for Plaintiff, Vertical
Computer Systems, Inc.

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CERTIFICATE OF SERVICE

I hereby certify that a true and accurate copy of the foregoing
PLAINTIFF’S FIRST SET OF DOCUMENT REQUESTS
TO DEFENDANTS LG ELECTRONICS
MOBILECOMM U.S.A., INC. AND LG ELECTRONICS INC.
was served on the following via email on March 1, 2012.
David Healey
Fish & Richardson, P.C.
One Houston Center
1221 McKinney, Suite 2800
Houston, TX 77010
[e-mail]
[phone]
Fax: [phone]
Kevin Su
Fish & Richardson P.C.
One Marina Park Drive
Boston, MA 02210
[e-mail]
[phone]
Fax: [phone]

Timothy DeMasi
[e-mail]
Julian Moore
[e-mail]
Weil Gotschall & Manges LLP
767 Fifth Avenue
New York, NY 10153
[phone]
Fax: [phone]
Counsel for Samsung Defendants

Counsel for LG Defendants

/s/ Vasilios D. Dossas
Vasilios D. Dossas

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