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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS JENNINGS TRANSMISSION SERVICE OF GOLDSBORO, INC., Plaintiff, v. THE UNITED STATES, Defendant, and JASPER ENGINES & TRANSMISSIONS, Third-Party Defendant, and READY BUILT DISTRIBUTORS, INC., Third-Party Defendant. APPENDIX TO THE GOVERNMENT'S RESPONSE TO PLAINTIFF'S "MOTION TO COMPEL THE UNITED STATES' DISCOVERY RESPONSES AND FOR SANCTIONS" PETER D. KEISLER Assistant Attorney General JOHN FARGO Director KEN B. BARRETT Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 Telephone: (202) 307-0343 Facsimile: (202) 307-0345 E-mail: [email protected] Attorneys for the United States

No. 05-1209 C Judge Lawrence M. Baskir

OF COUNSEL: GARY L. HAUSKEN Assistant Director Department of Justice May 29, 2007

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TABLE OF CONTENTS FOR THE APPENDIX A. B. C. Declaration of William W. (Wayne) Corey . . . . . . . . . . . . . . . . . DA1 National VMF Directory Listing, July 2005 . . . . . . . . . . . . . . . . . DA6 Letter dated March 30, 2007, from Anthony J. Biller, Esq., to Ken B. Barrett, Esq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DA15 Letter dated April 4, 2007, from Ken B. Barrett, Esq., to Anthony J. Biller, Esq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DA17 Letter dated April 20, 2007, from Ken B. Barrett, Esq., to Anthony J. Biller, Esq. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DA20 Letter dated April 16, 2007, from Rafael A. Sanchez, Esq., to Anthony J. Biller, Esq., and Larry L. Coats, Esq. . . . . . . . . . . . DA22

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EXHIBIT A

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DA1

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DA2

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DA3

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DA4

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DA5

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EXHIBIT B

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DA6

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DA7

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DA8

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DA9

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DA10

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DA12

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DA13

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EXHIBIT C

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1400 Crescent Green Suite 300 Cary, North Carolina 27518 tel: 919-854-1844 800-575-1278 fax: 919-854-2084 www.coatsand ben nett.com Patents, Trademarks, Copyrights, Trade Secrets, Licensing, and Related Litigation

March 30, 2007

VIA FACSIMILE and U.S. MAIL

Mr. Ken B. Barrett Commercial Litigation Branch Civil Division Department of Justice Washington, D.C. 20530 RE: Dear Ken: Jennings v. The United States, et al. Civil File No.: 1:05CV1209C LMB

Larry L. Coats David E. Bennett John R. Owen David D. Kalish Anthony J. Biller Michael D. Murphy Edward H. Green III Rebecca E. Crandall Mark R. Bilak Stephen A. Herrera* Jennifer K. Stewart*
*Registered patent agent

I am writing in regard to issues with the United States's discovery responses. Specifically, we are disappointed with United States's response to Interrogatory Number 1 and Requests for Production of Documents ("RPDs") Numbers 8 through 10 and 12. In the Government's response, it asserted several general objections to the interrogatory and RPDs that lack merit. In particular, it cited general objections C through E in its response to interrogatory number 1. The Government also cited general objections A through E in its response to RPDs 8-10 and 12. The Government first objected to the interrogatory and request because they wo.uld impose more obligations than the Rules of the Court of Federal Claims ("RCFC") require. This objection is without merit because26(b)(1) of the RCFC permits the discovery of any unprivileged matter relevant to die claiml Sales invoices from Jasper and Ready Built are not privileged documents, and they are relevant to the claim at issue, as they potentially demonstrate that the parts listed in the invoices are the infringing parts. This also nullifies the Government's objections that the RPDs ask for privileged or attorney-produced documents. The Government next objected to the interrogatory and requests because they used the terms "Defendant," "you," "your, .... Post Office, .... United States," and "Accused Device." The Government asserted that this was overly broad and unduly burdensome. This objection is also without merit, because using the terms "United States" and "Post Office" in close proximity would lead a reasonable person to conclude that the United

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Ken B. Barrett March 30, 2007 Page 2 States Government Office most relevant to this inquiry is the United States Postal Service ("USPS"). This objection is also without merit regarding the term "accused device" because we interpreted it to mean the Jasper and Ready Built devices listed in the initial disclosures. Therefore, the term is not overly broad. We ask that you withdraw the objections or in the alternative, confirm that you are not withholding information on the basis of these objections. The USPS replied that it would produce the requested information under RCFC 33(d). We are in receipt of a box of documents from the USPS. In the box were Ready Built invoices from the USPS's Vehicle Maintenance Facilities ("VMFs") in Baltimore, Maryland, and Canton, Ohio. It is our understanding that VMFs around the country had promo.ti.o.nal, :materi!l andinsta!!ation instructions.fr0m both Ready Built arid Jasper.. It is, therefore, unlikely that Baltimore and Canton were the only VMFs in the country to buy parts from Ready Built. There is no excuse for refusing to produce documents from Jasper. This production fails the RCFC 33(d) standard. Rule 33(d) allows a party to produce business records in response to interrogatories only when the answers to the interrogatories may be derived from the business records and the burden of deriving the answer is substantially the same for the party serving the interrogatory as for the party served. The responding party must state that the burden is substantially the same and must specifically identify which records are responsive. The answer to the interrogatories must be clearly obtainable or discernable from the documents produced. The United States did not specifically identify the responsive records, thus United States failed the requirements of the Rule. The United States should fully answer each interrogatory separately and fully in writing. Please provide a complete written response and immediately supplement the USPS's document production relating to Interrogatory Number 1 and RPDs 8-10 and 12. We expect this supplemental production shall include additional invoices from Ready Built from other locations and invoices from Jasper to VMFs. We request the supplemental production and written response no later than April 4, 2007. We prefer to avoid seeking a court intervention; however, we will not hesitate to file a motion to compel should you fail to fully respond. Sincerely,

tony J. Biller cc: Larry L. Coats, Esq.

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