Free Motion to Compel - District Court of Arizona - Arizona

EXHIBIT B-1
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MESCHKOW & GRESHAM, P.L.C.
Jordan M. Meschkow (AZ Bar No. 007454) Lowell W. Gresham (AZ Bar No. 009702) 5727 North Seventh Street Suite 409 Phoenix, Arizona 85014-5818
(602) 274-6996 (602) 274-6970 (facsimile) Attorneys for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

DAN COOGAN, doing business as COOGAN PHOTOGRAPHIC, Plaintiff, v. AVNET, INC., ROY VALLEE and CINDY VALLEE, husband and wife, and AL MAAG and MICHAELLE MAAG, husband and wife, Defendants.

Case No.: CV-04-0621 PHX SRB

18 19 20 21 22 23 24 25 26 TO: PLAINTIFF'S SECOND REQUEST FOR PRODUCTION OF DOCUMENTS TO ALL DEFENDANTS (AVNET, INC., ROY VALLEE, AND ALLEN MAAG) Defendants Avnet, Inc., Roy Vallee, and Allen Maag (hereinafter collectively,

"YOU"), and Jordan Greene and Charles Houston, FENNEMORE CRAIG, its Attorneys. Pursuant to Rule 34 of the Federal Rules of Civil Procedure, you are requested to produce for inspection, photographing, photocopying and/or duplication (as the case may be) the DOCUMENTS or THINGS identified on Exhibit "A" to this Request at the offices of MESCHKOW & GRESHAM, P.L.C., 5727 North Seventh Street, Suite 409,

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Phoenix, Arizona 85014-5818, within thirty (30) days of the date of service hereof, or at such other time and place as may be mutually agreed upon by the parties, in accordance with Rules 26 and 34 of the Federal Rules of Civil Procedure.

INSTRUCTIONS 1) In producing the documents designated below, you are requested to furnish all documents known or available to you regardless of whether a document is currently in your possession, custody, or control, or that of your attorneys, employees, agents, investigators, or other representatives, or is otherwise available to you. 2) If, for any reason, you are unable to produce in full any document requested: (a) Produce each such document to the fullest extent possible; (b) Specify the reasons for your inability to produce the remainder; and (c) State in detail whatever information, knowledge, or belief you have concerning the whereabouts and substance of each document not produced in full. 3) If any document requested was at one time in existence, but is no longer in existence, please state for each document as to which that is the case: (a) The type of document; (b) The types of information contained therein; (c) The date upon which it ceased to exist; (d) The circumstances under which it ceased to exist; (e) The identity of all persons having knowledge of the circumstances under which it ceased to exist; and (f) The identity of all persons having knowledge or who had knowledge of the contents thereof. 4) For each document requested which you are unable to produce and which was at any time within your possession, custody or control, or to which you had access at any time, specify in detail:

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(a) The nature of the document (i.e., e-mail, letter, memorandum, etc.); (b) The author of the document; (c) All recipients of the document and any copy thereof; (d) A summary of the information contained in the document; (e) The date on which you lost, relinquished, or otherwise ceased to have possession, custody, control of, or access to the document; (f) Identify all persons having knowledge of the circumstances whereby you lost, relinquished, or otherwise ceased to have possession, custody, or control of, or access to the document; and (g) Identify all persons who have or have had knowledge of the contents of the document, in full or in part. 5) In the event you seek to withhold or do withhold any document, in whole or in part, on the basis that it is not subject to discovery, produce a list of all such documents and, as to each such document, state: (a) The name of each author, writer, sender or initiator of each such document; (b) The name of each recipient, addressee or party to whom such document was sent or intended to be sent; (c) The name of each and every person who received a copy of the document; (d) The date of the document, or, if no date appears on the document, the date the document was prepared; (e) The title of the document, or if it has no title, then such other description of the document and its subject matter as shall be sufficient to identify the documents; and (f) The grounds claimed for withholding the document from discovery (e.g., attorney-client privilege, attorney work product, or any other grounds), and the factual basis for such a claim. 6) In accordance with Rule 34 of the Federal Rules of Civil Procedure, as to each document produced, you are requested to designate the paragraph and subparagraph

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of this request to which each such document is responsive. 7) If you dispute the propriety of Instructions 2, 3, 4, and/or 5, above, as being outside the scope of Rule 34 or otherwise objectionable, then consider such instructions as interrogatories posed pursuant to Rule 33, of the Federal Rules of Civil Procedure, and answer them accordingly. 8) This Request is a continuing one, and requires that you produce all responsive documents and tangible objects whenever you obtain or become aware of them, even if they are not in your possession or available to you first produce documents pursuant to this Request. DEFINITIONS The terms used herein are to be given their most expansive and inclusive interpretation, unless otherwise specifically limited in the Request itself. Capitalized words and phrases in this Request for Production of Documents have the following meanings, unless otherwise indicated: 1. "ACCESS" means to approach, instruct, communicate with, store DATA in, retrieve DATA from or otherwise make use of any resources of a COMPUTER, COMPUTER SYSTEM or COMPUTER NETWORK. 2. "ACTIVE FILE" means any FILE that has not been erased, deleted or otherwise destroyed AND/OR damaged AND which is readily visible to the operating system and/or another COMPUTER PROGRAM or COMPUTER SOFTWARE. 3. "AND" and "OR" and any other conjunctions or disjunctions used herein shall be read both conjunctively and disjunctively so as to require the production of all DOCUMENTS responsive to all or any part of each particular request for production in which any conjunction or disjunction appears. 4. "ANY," "EACH" and "ALL" shall be read to be all inclusive, and to require the production of each and every DOCUMENT responsive to the particular request for production in which such term appears. 5. "ARCHIVE" and "BACKUP" means any and all DATA other than ACTIVE FILES maintained on on-line storage and/or all copies of one or more FILES saved for future reference or for recovery purposes in case the original DATA is damaged or lost and/or a copy of COMPUTER PROGRAMS, FILES and/or other DATA placed on one or more types of MEDIA for safekeeping, future reference and/or to use as a substitute if the

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original is lost or destroyed. The terms "ARCHIVE" and "BACKUP" include, but are not limited to, all MEDIA onto which COMPUTER PROGRAMS, FILES and/or other DATA has been written for the purpose of safekeeping, future reference, and/or to use as a substitute if the original is lost or destroyed; any system, device, FILE, COMPUTER PROGRAMS or facility that can be used in the event of a malfunction or loss of DATA; and/or any procedure, technique, COMPUTER PROGRAM or COMPUTER device used to recover lost or damaged DATA or to keep a system running. The terms "ARCHIVE" and "BACKUP" are meant to be interpreted as broadly as possible and include, but are not limited to, archives, dumps, purge tapes, off-line storage, inactive storage and/or infrequently accessed DATA stored on various MEDIA by automatic or manual means, including hierarchical DATA management systems. 6. The term "AVNET WEBSITE" or "AVNET WEBSITES" means ANY AND ALL of the WEBSITES that were or are available at WWW.AVNET.COM, AUX.AVNET.COM, WWW.AVNET.DE, WWW.IR.AVNET.COM, and WWW.AVNET.TV, including, but not limited to, their homepages, sub-pages, subdomains, links, sub-sites, or any page or pages that could have been or can be accessed from any of them, and any other website owned by Avnet where "PLAINTIFF'S PHOTOGRAPHS" have appeared, and all DOCUMENTS relating thereto. 7. "COMPUTER" or "COMPUTERS" means an electronic DATA processing device(s) which performs logic, arithmetic or memory functions by the manipulations of electronic or magnetic impulses and includes all input, output, processing, storage, software or communication facilities which are connected or RELATED TO such a device in a system or network. A COMPUTER may consist of a stand-alone unit or may consist of several interconnected units and includes, but is not limited to, microcomputers (also known as personal computers), laptop computers, portable computers, notebook computers, palmtop computers, personal digital assistants (so-called "PDAs" - e.g., "Palm Pilots"), minicomputers and mainframe computers. 8. "COMPUTER NETWORK" means the interconnection of communication lines with a COMPUTER through remote terminals or a complex consisting of two or more interconnected COMPUTERS or any configuration of DATA processing devices and COMPUTER SOFTWARE connected for information interchange. For the purposes of this definition, the connection between or among the COMPUTERS or DATA processing devices need not be either physical or direct (e.g., wireless networks utilizing radio frequencies and DATA sharing via indirect routes utilizing modems and phone company facilities.) In addition, there need not be a central FILE or DATA server or a central COMPUTER NETWORK operating system in place (e.g., a "peer-to-peer" COMPUTER NETWORK or a COMPUTER NETWORK utilizing a mainframe host to facilitate DATA transfer.

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9. "COMPUTER PROGRAM" means a series of instructions or statements, in a form acceptable to a COMPUTER, which permits the functioning of a COMPUTER SYSTEM in a manner designed to provide appropriate products from such COMPUTER SYSTEM and includes a series or sequence of instructions suitable for processing by a COMPUTER and/or a sequence of instructions that a COMPUTER can interpret and execute. 10. "COMPUTER SOFTWARE" means a set of COMPUTER PROGRAMS, procedures and associated DOCUMENTATION concerned with the operation of a COMPUTER SYSTEM or any applications thereon. 11. "COMPUTER SYSTEM" means a set of related, connected or unconnected COMPUTER equipment, devices and COMPUTER SOFTWARE. 12. "COMMUNICATION(S)" means any contact or act by which any information is transmitted or conveyed between two or more persons, and shall include, without limitation, ANY electronic or written contact by such means as letters, memoranda, facsimile or other DATA transmissions, e-mail or other electronic transmissions of information or communications, telegrams, telexes, DATA, or by any DOCUMENT, and any oral contact by such means as face to face meetings or conversations and telephone or electronically transmitted conversations (e.g., so-called "voice mail"). 13. "CONFIGURATION" when used in reference to any COMPUTER, includes, but is not limited to, the following information: a) COMPUTER type, brand, model and serial number; b) Brand and version of all COMPUTER SOFTWARE, including operating system, private and custom developed applications, commercial applications, shareware and/or work-in-progress; c) COMMUNICATIONS capability, including asynchronous and/or synchronous, including, but not limited to, terminal to mainframe emulation, DATA download and/or upload capability to mainframe, and COMPUTER to COMPUTER connections via COMPUTER NETWORK, modem and/or direct connect. d) cards. 14. "DATA" refers to any representations such as digital or analog quantities to which meaning is or might be assigned and/or a representation of facts or instructions in a form suitable for COMMUNICATION, interpretation or processing by human or automatic means. Description of all attached DATA storage devices, drives and adapter

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DATA may include, but is not limited to, COMPUTER PROGRAMS (whether private, commercial or work-in-progress) programming notes or instructions, electronic mail receipts and/or transmittals, output resulting from the use of any COMPUTER PROGRAM or COMPUTER SOFTWARE, including word processing documents, document images (e.g., those in a "TIF", "JPG", "PDF", "GIF" or other imaging FILES made with other imaging file formats), spreadsheets, database FILES, charts, graphs and outlines, audio or video FILES (e.g., "WAV" or "MPG" FILES), electronic mail, operating systems, source code of all types, programming languages, linkers and compilers, peripheral drivers, PIF FILES, batch FILES, utility FILES, any and all ASCII FILES, and any and all miscellaneous FILES, regardless of the MEDIA on which they reside and regardless of whether said DATA consists in an ACTIVE FILE, DELETED FILE or FILE FRAGMENT. Electronic DATA includes any and all items stored on MEDIA. The term DATA also includes the file folder, file tabs and/or containers and labels appended to, or associated with, any physical storage device associated with each such aforesaid original and/or copy. 15. "DELETED FILE" refers to a FILE that has been erased or deleted from, or otherwise destroyed and or damaged, on the MEDIA on which it resided and/or a FILE whose File Allocation Table ("FAT") -- or system equivalent -- entry has been modified to indicate that the FILE has been deleted. 16. "DOCUMENT" or "DOCUMENTS" means ANY and all "original" or "duplicate" "writings," "recordings" or "photographs" (as those italicized terms are defined in Rule 1001 of the Feederal Rules of Evidence 1 ), whether stored electronically or in traditional paper files and including (but not limited to) all "writings" and "recordings" memorializing or constituting any COMMUNICATIONS, DATA, FILES or information stored on any COMPUTER, COMPUTER SOFTWARE, COMPUTER PROGRAMS, COMPUTER SYSTEM, or electronic MEDIA, or as any ARCHIVE or BACKUP, of every kind and description, however produced or reproduced, WHETHER DRAFT OR FINAL, including (but not limited to) all COMMUNICATIONS, DOCUMENTATION, letters, correspondence, e-mail, Internet Web Pages, memoranda, notes, films, transcripts,
Rule 1001 provides, in pertinent part: "Rule 1001. Definitions. For purposes of this article the following definitions are applicable: (1) Writings and recordings. "Writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation." (2) Photographs. "Photographs" include still photographs, x-ray films, video tapes, and motion pictures. (3) Original. An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original". (4) Duplicate. A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original."
1

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contracts, agreements, licenses, memoranda or notes of telephone conversations or personal conversations, telephone messages, microfilm, telegrams, books, newspaper articles, magazines, advertisements, marketing materials, periodicals, bulletins, circulars, pamphlets, statements, notices, reports, rules, regulations, directives, teletype messages, minutes of meetings, lists of persons in attendance, interoffice communications, reports, summaries, financial statements, ledgers, books of account, proposals, prospectuses, schedules, organization charts, offers, orders, receipts, working papers, calendars, appointment books, diaries, time sheets, logs, movies, tapes for visual or audio reproduction, recordings, or materials similar to any of the foregoing, however denominated, and including writings, drawings, graphs, charts, photographs, DATA processing results, printouts and computations (both in existence and stored in memory components), and other compilations from which information can be obtained or translated, if necessary, through detection devices into reasonably usable form. THE TERM "DOCUMENT" INCLUDES ALL DUPLICATES OF A DOCUMENT WHICH CONTAIN ANY ADDITIONAL HANDWRITING, UNDERLINING, NOTES, DELETIONS, OR ANY OTHER MARKINGS, MARGINALIA OR NOTATIONS, OR ARE OTHERWISE NOT IDENTICAL COPIES OF THE ORIGINAL. 17. "DOCUMENTATION" means all DOCUMENTS and electronic DATA FILES containing written and/or on-line information, whether from in-house sources or provided by the author, manufacturer or seller of any hardware, COMPUTER PROGRAM or COMPUTER SOFTWARE or DATA, including all manuals, guides, instructions, programming notes, protocols, policies, procedures and other sources of information about technical specifications, installation, usage and functioning of the COMPUTER, operating systems and utilities, application software and/or hardware devices. 18. "FILE" or "FILES" refers to a collection of DATA, program instructions, text or any other information, whether stored electronically or in traditional paper files, that is stored and retrieved by an assigned name; a collection of logical records and/or a collection of information treated as a unit and/or information held on any MEDIA in order to enable it to exist beyond the time of execution and/or creation and/or to overcome the space limitations of memory. 19. "FILE FRAGMENT" refers to a complete or partial FILE that exists as one or fragments on a given MEDIA and which is not recognized by the operating system and/or other programs as being an ACTIVE FILE. 20. "IDENTIFY" when used in reference to DATA, means to provide: a) The file name of the FILE in which the DATA is stored;

b) The MEDIA and, if appropriate, the COMPUTER, on which the DATA is located; c) All identifying marks and/or labels on the MEDIA; and,

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d) a) b) c) MEDIA; d) e)

All directory and sub-directory names in which the DATA is stored. The brand and type of MEDIA; All identifying marks and/or labels on the MEDIA; The CONFIGURATION of the device(s) used to write to the The location of the MEDIA; and, The custodian of the MEDIA.

"IDENTIFY," when used in reference to MEDIA, means to provide:

22. The term "IDENTIFY" when used in reference to a natural PERSON means to state to the fullest extent possible his or her full name, present or last known residence, business AND e-mail addresses, his or her present or last known place of employment or business affiliation, job title or position, and ANY AND ALL telephone numbers AND fax numbers of that PERSON. 23. The term "IDENTIFY" when used in reference to any PERSON other than a natural PERSON means to state to the fullest extent possible its full name, the street address of its principal place of business and its primary or main telephone number, fax numbers AND e-mail addresses. 24. The term "IDENTIFY" when used in reference to a DOCUMENT or WRITING means to describe the DOCUMENT by name, date, subject matter, content, type (e.g., letter, memo, etc.), and PERSON(s) that wrote, signed, initialed, dictated or otherwise participated in the creation of same, the name(s) of the address or addresses (if any) and the name and address of the PERSON or PERSONS who have custody of said DOCUMENT; provided, however, that in lieu of IDENTIFYING any such DOCUMENTS, you may simply produce true and legible copies thereof. If any DOCUMENT was, but no longer is, in YOUR possession or under YOUR control, then state what disposition was made of it. 25. "LAYOUT" refers to the manner in which the hardware and COMPUTER SOFTWARE of a COMPUTER NETWORK or an information processing system are organized and interconnected and/or the physical and logical arrangement of devices and programs that make up an information processing system. A LAYOUT description includes, but is not limited to, the physical layout of all COMPUTERS and/or their peripherals, of all sorts, whether physically attached or not to a given computing unit; the nature and type of any sort of Local Area, Wide Area or any other type of COMPUTER NETWORK, whether consisting of physical connections between nodes or not; the brand and name and version of all operating systems in use as well as the brand and name and version of all application COMPUTER SOFTWARE

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packages in use, including, but not limited to, custom and privately designed applications, commercial and public applications and work-in-progress; and, a detailed description of all COMPUTER SOFTWARE and/or hardware packages or devices which operate in a capacity to share or exchange DATA and/or information between two or more COMPUTERS, especially any electronic mail, database or executive information system. 26. "MAGNETIC MEDIA" refers to the various types of physical MEDIA on which DATA recording is effected by the writing of a magnetic pattern onto the magnetizable surface of such MEDIA. MAGNETIC MEDIA may include, but is not limited to, COMPUTER memories, hard disks, floppy disks, magneto-optical, CD-ROM, Bernoulli Box drives and their equivalent, magnetic tape and magnetic tape cartridges of all types, magnetic drums, magnetic sheet, magnetic stripe, plated wire, magnetic bubble memory, PC MCIA or other magnetic cards, computer chips, including, but not limited to EPROM, PROM, RAM and ROM, and/or any other vehicle for magnetic DATA storage and/or transmittal. 27. "MEDIA" refers to any MAGNETIC MEDIA, OPTICAL MEDIA and/or OTHER MEDIA for the storage of DATA. 28. "OPTICAL MEDIA" refers to the various types of physical MEDIA on which DATA recording is effected by the use of optical techniques. OPTICAL MEDIA may include, but is not limited to, optical CD-ROM and any other vehicle for optical DATA storage and/or transmittal. 29. "OTHER MEDIA" refers to the various types of physical MEDIA on which DATA recording is effected by the use of non-magnetic and/or non-optical techniques. OTHER MEDIA may include, but is not limited to, microfiche, punched cards, punched tape and any other vehicle for non-magnetic and/or non-optical DATA storage and/or transmittal. 30. "PERSON" means any individual, natural person, firm, corporation, association, organization, trust, partnership, Limited Liability Company or any other business entity. 31. "PLAINTIFF'S PHOTOGRAPHS" shall mean ANY AND ALL PHOTOGRAPHS AND/OR PHOTOGRAPHIC IMAGES of ROY VALLEE given to YOU by Plaintiff or by Upside Magazine, which are subject of the instant lawsuit. 32. "RELATING TO" means referring to, relating to, responding to, concerning, connected with, commenting on, in respect of, about, regarding, discussing, showing, demonstrating, memorializing, describing, mentioning, reflecting, analyzing, comprising, supporting, sustaining, constituting, evidencing, and pertaining to, whether in whole or in part. 33. "ROTATION" means any plan, policy or scheme that involves the re-use of MEDIA after such MEDIA has been used for BACKUP, ARCHIVE or other DATA

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EXHIBIT "A" CATEGORIES OF DOCUMENTS TO BE PRODUCED 1) ANY AND ALL DOCUMENTS RELATING TO ANY AND ALL COMMUNICATIONS that YOU have had with ANY PERSON, including ANY PERSON contacted or solicited by YOU for the purpose of using ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS from the time YOU obtained possession of them (estimated before the July/August 2001 issue of Avnet Global Perspective magazine) to when all use by YOU of ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS ceased. 2) ANY AND ALL DOCUMENTS RELATING TO ANY AND ALL COMMUNICATIONS that YOU have had with ANY PERSON, including ANY PERSON contacted or solicited by YOU for the purpose of using ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS on ANY AND ALL THIRD-PARTY WEBSITE. 3) YOUR COMPUTER SOFTWARE products and ANY AND ALL DOCUMENTATION RELATING TO them that were used to use, contain, incorporate, or point to ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS from the time YOU obtained possession of them (estimated before the July/August 2001 issue of Avnet Global Perspective magazine) to when all use by YOU of ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS ceased. 4) ANY AND ALL DOCUMENTS AND/OR DATA FILES stored on ANY COMPUTER that IDENTIFY ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS, or RELATING TO ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS. 5) ANY AND ALL ARCHIVE AND/OR BACKUP FILES stored on MEDIA that IDENTIFY ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS. 6) ANY AND ALL COMPUTER, COMPUTER SYSTEM or COMPUTER NETWORK that IDENTIFY ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS. 7) ANY AND ALL COMPUTER, COMPUTER SYSTEM or COMPUTER NETWORK that formerly carried FILES RELATING TO ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS. 8) ANY AND ALL COMPUTER, COMPUTER SYSTEM or COMPUTER NETWORK that IDENTIFY ANY AND ALL ACTIVE FILE, DELETED FILE or FILE FRAGMENT RELATING TO ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS. 9) ANY AND ALL COMPUTER, COMPUTER SYSTEM or COMPUTER NETWORK that IDENTIFY ANY AND ALL AVNET WEBSITES that carries, uses, or displays ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS. 10) ANY AND ALL COMPUTER, COMPUTER SYSTEM or COMPUTER NETWORK that IDENTIFY ANY AND ALL AVNET WEBSITES that carried, used,

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or displayed ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS from the time YOU obtained possession of ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS (estimated to be before the July/August 2001 issue of Avnet Global Perspective magazine) to when all use by YOU of ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS ceased. 11) ALL FILES, COMPUTER SOFTWARE, COMPUTER PROGRAMS AND DOCUMENTATION RELATING TO ANY AND ALL of YOUR COMPUTER SOFTWARE, to make any article displaying or showing ANY AND ALL OF PLAINTIFF'S PHOTOGRAPHS. 12) All DOCUMENTS that YOU IDENTIFY in YOUR Responses to Plaintiff's First Interrogatories to all Defendants (Avnet, Inc., Roy Vallee, and Allen Maag).

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EXHIBIT B-2
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6. Avnet objects to the Requests to the extent that they purport to seek
documents that are already in plaintiffs possession, documents that are a matter of public record andlor documents that are otherwise equally accessible to Plaintiff.

7. Avnet objects to the Requests to the extent that they purport to impose on
Avnet the burden of ascertaining information that is not in Avnet's possession, custody or control, andlor that cannot be found in the course of a reasonable search.
8. Avnet objects to the Requests to the extent that they call for organization of

documents according to request. Avnet will produce documents as they are kept in the ordinary course of business.

9. Avnet objects to the Requests to the extent that they contain inappropriate
andlor argumentative headings and sub-headings. 10. Avnet states these objections without waiving or intending to waive, but on the contrary preserving and intending to preserve: (a) all objections to the competency, relevancy, materiality, privilege, and admissibility as evidence for any purpose of the responses to the Requests or the subject matter thereof, in any subsequent proceeding in, or the trial of, this or any other action; (b) the right to object on any grounds to the use of any response, o r the subject matter thereof, in any subsequent proceeding in, o r the trial of, this or any other action; (c) the right to object on any grounds at any time to a demand for further response to these or any other discovery procedures involving or related to the subject matter of the Requests directed to Avnet; and (d) the right to object on any grounds to any other or future discovery requests. Subject to and without waiving the General Objections and qualifications above, Avnet further responds as follows:
1.

Any and all documents relating to any and all communications that you have

had with any person, including any person contacted or solicited by you for the purpose of
1635350.1/12444.027

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using any and all of plaintiffs photographs from the time you obtained possession of them (estimated before the JulyIAugust 2001 issue of Avnet Global Perspective magazine) tc when all use by you of any and all of plaintiffs photographs ceased.
Response:

See documents Bates-labeled AVN0025-28 and AVN0037-45,

previously disclosed with Avnet's lSt Supplemental Disclosure Statement.

2.

Any and all documents relating to any and all communications that you havc

had with any person, including any person contacted or solicited by you for the purpose ol using any and all of plaintiffs photographs on any and all third-party website.
Response:

See documents Bates-labeled AVN0037-45, previously disclosed

with Avnet's lSt Supplemental Disclosure Statement.

3.

Your computer software products and any and all documentation relating tc

them that were used to use, contain, incorporate, or point to any and all of plaintiff! photographs from the time you obtained possession of them (estimated before thc JulyIAugust 2001 issue of Avnet Global Perspective magazine) to when all use by yo\ and all of plaintiffs photographs ceased.
Response: Defendants object to this Request on the grounds that it is

irrelevant, overbroad, unduly burdensome, and not reasonably calculated to lead tc the discovery of admissible evidence.

4.

Any and all documents andlor data files stored on any computer that identif)

any and all of plaintiffs photographs, or relating to any and all of plaintiffs photographs.
Response: Defendants object to this Request on the grounds that it i c

irrelevant, overbroad, unduly burdensome, and not reasonably calculated to lead tc the discovery of admissible evidence.
1635350.1/12444.027

Nonetheless and without waiving said

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objection, Avnet hereby produces two disks containing archived back-up images 01 plaintiffs photographs.

4

5.

Any and all archive and/or backup files stored on media that identify any

5
6

and all of plaintiffs photographs.
Response: Defendants object to this Request on the grounds that it is

7
8

irrelevant, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. Nonetheless and without waiving said

9 10 11
12

objection, Avnet hereby produces two disks containing archived back-up images 01 plaintiff's photographs.

6.

Any and all computer, computer system or computer network that identifj

13 14

any and all of plaintiffs photographs.
Response: Defendants object to this Request on the grounds that it is

15
16

irrelevant, overbroad, unduly burdensome, and not reasonably calculated to lead t o the discovery of admissible evidence.

17
18

7.

Any and all computer, computer system or computer network that formerly

19

carried files relating to any and all of plaintiffs photographs.
Response: Defendants object to this Request on the grounds that it is

20
21 22 23 24 25 26
F E N N E M O R E CRAIG
P a o r r r a l o l r L CokPolirll<
PliorNlX

irrelevant, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.

8.

Any and all computer, computer system or computer network that identifj

any and all active file, deleted file or file fragment relating to any and all of plaintiff I photographs.
1635350.1/12444.027

Case 2:04-cv-00621-SRB

. Document 91-35 - Filed 09/27/2005

Page 21 of 31

1

Response:

Defendants object to this Request on the grounds that it is

2
3 4

irrelevant, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.

5

9.

Any and all computer, computer system or computer network that identify

6
7
8

any and all Avnet websites that carries, uses, or displays an and all of plaintiffs photographs. Response: Defendants object to this Request on the grounds that it is

9 10 11 12 13 14 15

irrelevant, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.

10.

Any and all computer, computer system, or computer network that identify

any and all Avnet websites that carried, used, or displayed any and all of plaintiffs photographs from the time you obtained possession of any and all of plaintiffs photographs (estimated to be before the JulyIAugust 2001 issue of Avnet Global Perspective magazine) to when all use by any and all of plaintiffs photographs ceased. Response: Defendants object to this Request on the grounds that it is

16
17

18
19

irrelevant, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.

20
21
I

11.

All files, computer software, computer programs and documentation relating

22 23 24 25
26
F E N N E M O R E CRAIG Paorr.r,or*r Co",o"rr,o
PIIO~IIX

to any and all of your computer software, to make any article displaying or showing any

~

and all of plaintiffs photographs. Response: Defendants object to this Request on the grounds that it is

irrelevant, overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.

I I

Case 2:04-cv-00621-SRB

Document 91-3

Filed 09/27/2005

Page 22 of 31

12.

All documents that you identify in your responses to Plaintiffs I

Interrogatories to all Defendants (Avnet, Inc., Roy Vallee, and Allen Maag). Response: See enclosed disks containing archived back-up images

plaintiff's photographs. DATED t h i s 3 4 day of

1 4 ~ 3

,2005.

FENNEMORE CRAIG
8 9
10 11

BY Jordan Green Charles Houston Attorneys for Defendant Avnet, Inc. ORIGINAL o f t e foregoing "3 3rA day of ,2005 to: Jordan M. Meschkow MESCHKOW & GRESHAM, P.L.C. 5727 N. Seventh Street Suite 409 Phoenix, Arizona 85014-5818

12
13 14

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16 17
18

19
20 21

22
23
24 25 26
F E N N E M O R E CRAIG
PRornss,oN*L CoilPoRITlor
PIIOLNIX

Case 2:04-cv-00621-SRB

Document 91-3

Filed 09/27/2005

Page 23 of 31

EXHIBIT B-3
Case 2:04-cv-00621-SRB Document 91-3 Filed 09/27/2005 Page 24 of 31

PowerDesk Pro 6 - E:\ Name Coogan_photos (E:)

Date: 9/13/2005

Page: 1

Case 2:04-cv-00621-SRB

Document 91-3

Filed 09/27/2005

Page 25 of 31

PowerDesk Pro 6 - E:\DO_NOT_USE_COPYWRITE_VIOLATION Name Size Date Time Attr 12:00 AM 12:00 AM 2:05 PM 12:00 AM 2:38 AM 8/25/2003 Type r r rh r r 10:02 AM

Date: 9/13/2005

Page: 1

roy4ink.jpg 36,344 6/27/2001 rv.jpg 18,813 2/7/2003 Thumbs.db 21,504 7/25/2005 vallee.jpg 18,813 2/28/2003 vallee_small.tif 7,275,042 9/5/2003 vallee_small_blur.tif 7,272,336

JPEG Image JPEG Image Data Base File JPEG Image TIF Image r TIF Image

Case 2:04-cv-00621-SRB

Document 91-3

Filed 09/27/2005

Page 26 of 31

roy4ink.jpg

rv.jpg

vallee.jpg

vallee_small.tif

vallee_small_blur.tif

Case 2:04-cv-00621-SRB

Document 91-3

Filed 09/27/2005

Page 27 of 31

Case 2:04-cv-00621-SRB

Document 91-3

Filed 09/27/2005

Page 28 of 31

PowerDesk Pro 6 - D:\ Name Roy Vallee's Pho (D:)

Date: 9/23/2005

Page: 1

Case 2:04-cv-00621-SRB

Document 91-3

Filed 09/27/2005

Page 29 of 31

PowerDesk Pro 6 - D:\ Name Size Date

Date: 9/23/2005 Time Attr

Page: 1 Type rh rh r r

Desktop DB 1,024 Desktop DF 2 vallee_r_2 8,999,178 vallee_r_1 9,086,984

8/25/2004 8/25/2004 7/9/2002 7/9/2002

10:03 PM 10:03 PM 4:58 PM 4:58 PM

Case 2:04-cv-00621-SRB

Document 91-3

Filed 09/27/2005

Page 30 of 31

Case 2:04-cv-00621-SRB

Document 91-3

Filed 09/27/2005

Page 31 of 31