Free Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-01209-LMB

Document 52-3

Filed 05/29/2007

Page 1 of 12

EXHIBIT D

Case 1:05-cv-01209-LMB

Document 52-3

Filed 05/29/2007

Page 2 of 12

U.S. Department of Justice Civil Division
KBB 154705-1209

Telephone: (202) 307-0343 Facsimile No: (202) 307-0345
Washington, D.C. 20530

.April 4, 2007 BY FACSIMILE, CONFIRMATION BY MAIL Anthony J. Biller, Esq. Coats & Bennett, P.L.L.C. 1400 Crescent Green Suite 300 Cary, NC 27511 Jennings Transmission Service of Goldsboro, Inc. vl United States, Court of Federal Claims No. 05-1209 C Dear Mr. Biller: This is in response to your letter of March 30, 2007, concerning the Government's responses to plaintiff's discovery requests. Your letter specifically addresses the Government's objections to plaintiff' s Interrogatory No. 1 and Requests for Production Nos. 8 through 10 and 12. You state that you are disappointed with.the Government's responses and assert that. the Government's objections "lack merit." Your letter demonstrates that you misinterpreted our objections and the Court's Rules. The Government objected to the instructions, definitions, and other explanatory statements. contained in plaintiff's requests to the extent that they attempt to impose upon defendant obligations beyond that imposed by the Court's Rules and its Orders. You misinterpreted this objection as an objection based on relevance and as an assertion of privilege. This objection is directed at, for example, plaintiff' s request that responsive documents be produced for inspection at your office within thirty days of the date of service of the Requests. The Rules only require a response within thirty days and allow the responder to produce the documents by category or as they are kept in the usual course of business. RCFC 33(b). Thusl the documents may be produced for inspection at the custodian's location. Additionally, your letter assumes that Requests for Production 8 through 10 and 12 are limited to sales invoices. Those Requests are not so limited. Requests for Production 8 and 9 request "[a]ll documents comprising or reflecting [certain] communications." Requests for Production 10 and 12 similarly request "[a]ll documents comprising or reflecting.., internal communications" concerning certain topics. The Government's objections are appropriate because these categories encompass both unprotected, non-privileged documents and those documents that are privileged and/or protected work product. Further, it is unclear how you arrive at your conclusion that any of these requests are limited to "invoices."

DA17

Case 1:05-cv-01209-LMB

Document 52-3

Filed 05/29/2007

Page 3 of 12

-2Your letter contends that the Government's objections to the plaintiff's definition of the terms "Defendant," "you," "your," "Post Office," and "United States" lack merit. You assert that one could conclude that the definition means the United States Postal Service because "United States" and "Post Office" are "in close proximity" in plaintiff's definition. However, the definition states that these terms "refer to Defendant United States" without limitation. Therefore, the Government properly objected to requests incorporating these terms "as overly broad and unduly burdensome to the extent that they require an investigation of any department or agency of the United States other than [the United States Postal Service]." Nonetheless, the Government's objection states that its responses would encompass information in the possession, custody or control of the United States Postal Service (USPS). As it appears that we are in agreement that the Postal Service is the only agencY accused of infringement, and therefore the only proper responding agency, the Government will not search the records of other agencies. Your letter also asserts that the Government's objection to the term "accused devices" as overly broad is "without merit," because "[you] interpreted it to mean the Jasper and Ready Built devices listed in the initial disclosures." However, plaintiff's definition for the purposes of its discovery is:
The term "Accused Device" means any kit used to adapt a transmission intended for a left-hand drive vehicle for use in a right-hand drive vehicle, to include without limitation for use in United States Postal Service Grumman LLV-A vehicles. Accused Devices include, without in any way limiting the foregoing, the devices shown at Exhibits 1-9 of Jennings Transmission's Submissions of Infringement Charts and Proposed Claim Construction Statements Pursuant to the Court's Scheduling Order of July 5, 2006.

"Plaintiffs First Set of Interrogatory Nos. 1-8 and Requests for Production of Documents 1-14 to Defendant USA" at 2. Under plaintiff's definition, the term "accused devices" is no___~t limited to the devices identified in plaintiff's disclosures as you now contend. Therefore, plaintiff's requests seek information concerning any "kit" including those for which plaintiff has not or cannot disclose any basis in a claim chart for asserting infringement. The Government's objection to plaintiff' s definition of"accused devices" is proper. Furthermore, the Government, rather than simply not responding to the objectionable requests, stated that it responds to the requests with the understanding that "accused devices" are those Jasper Engines & Transmissions and Ready Built devices identified in plaintiff's disclosures. Because we are in agreement as to the definition of "accused devices," the Government will not search for records concerning devices other than the identified Jasper and Ready Built devices. Contrary to the suggestion in your letter, the Government is not refusing to produce invoices from Jasper Engines. The USPS's search for responsive documents and information from the hundreds of Vehicle Maintenance Facilities (VMFs) continues and we will supplement our responses if appropriate. Furthermore, Jasper Engines stated in its responses to similar requests that responsive, non-privileged documents would be produced for plaintiff's inspection

DA18

Case 1:05-cv-01209-LMB

Document 52-3

Filed 05/29/2007

Page 4 of 12

-3upon reasonable advanced notice. The information in Jasper Engines' possession may contain, in one location, the information that you purport to require the USPS to obtain from the hundreds of VMFs. It is my understanding that you have not yet scheduled an inspection of Jasper's documents.. Plaintiff should attempt to conduct discovery inthe least costly and least burdensome manner. In your letter, you erroneously assert that RCFC 33(d) requires the responding party to state that the burden of deriving the answer to an interrogatory from business records is substantially the same for both parties. Rule 33(d) does not require such a statement. You also contend that the "United States did not specifically identify the responsive records." However, in my letter of January 26, 2007, accompanying the documents produced by the Government, I indicated by Bates number the requests to which the documents are responsive. Additionally, you state that, where Rule 33(d) is utilized, the answers to interrogatories must be clearly obtainable or discernable from the documents. The rule, however, only requires that the information be as ascertainable to the receiving party as to the producing party. In any event, you do not assert that you are unable to ascertain the requested information from the produced documents. Where your letter makes it apparent that you are requesting documents from the hundreds of VMFs, your demand for a supplemental production within less than a week is unreasonable. The Government's investigation into this matter continues, and subject to its objections, non-privileged documents in the possession, custody or control of the USPS will be produced to the extent that they have not already been provided to plaintiff. Plaintiff has propounded multiple, broad requests for documents and information which, as you concede in your letter, may be located at "VMFs around the country." Please advise as to whether plaintiff is now narrowing its requests to specific documents such as invoices. If you do so, that will enable the USPS to better focus its search. In the meantime, ' all non-privileged responsive documents will be made available for your inspection at any USPS facility upon reasonable notice and at a time convenient to all concerned. Please feel free to call me if you would like to discuss this matter further. truly yours, KEN B. BARRETT Attorney Commercial Litigation Branch Civil Division
CC:

James S. Ward, Esq., counsel for Ready-Built (via facsimile) James M. Hinshaw, Esq., counsel for Jasper Engines (via facsimile)

DA19

Case 1:05-cv-01209-LMB

Document 52-3

Filed 05/29/2007

Page 5 of 12

EXHIBIT E

Case 1:05-cv-01209-LMB

Document 52-3

Filed 05/29/2007

Page 6 of 12

DA20

Case 1:05-cv-01209-LMB

Document 52-3

Filed 05/29/2007

Page 7 of 12

DA21

Case 1:05-cv-01209-LMB

Document 52-3

Filed 05/29/2007

Page 8 of 12

EXHIBIT F

Case 1:05-cv-01209-LMB

Document 52-3

Filed 05/29/2007

Page 9 of 12

DA22

Case 1:05-cv-01209-LMB

Document 52-3

Filed 05/29/2007

Page 10 of 12

DA23

Case 1:05-cv-01209-LMB

Document 52-3

Filed 05/29/2007

Page 11 of 12

DA24

Case 1:05-cv-01209-LMB

Document 52-3

Filed 05/29/2007

Page 12 of 12

DA25