Free Motion for Sanctions - District Court of Arizona - Arizona

EXHIBIT E
Case 2:04-cv-00621-SRB Document 108-6 Filed 11/22/2005 Page 1 of 26

FENNERdORE CRAIG Jordan Green (No. 00 1860) Charles Houston (No. 020844) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 850 12-2913 Telephone: (602) 9 16-5000 Email: j [email protected] Email: c [email protected]

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Attorneys for Defendants Avnet, Inc., Roy Vallee, and Allen Maag

DISTRICT OF ARIZONA DAN COOGAN, doing business as Coogan Photographic, Plaintiff,

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No. CV2004-0621 PHX SRB

AVNET, INC., a foreign corporation, ROY VALLEE and JANE DOE VALLEE, husband and wife; and ALLEN MAAG and JANE DOE MAAG, husband and wife, Defendants.

AVNEr'S SUPPLEMENTAL RESPONSES TO PLAINTIFF'S FIRST SET O F INTERROGATORIES TO DEFENDANT AVNET, INC.

Pursuant to Rule 33, Federal Rules of Civil /procedure, Defendants Avnet, Inc.,
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Roy Vallee and Allen Maag (collectively "Avnet" oi "Defendants") hereby supplements its Responses to Plaintiffs First Set of ~nterro~atbries Defendant Avnet, Inc., as to follows:
GENERAL OBJECTjIONS

I forth in response to each and every interrogatqry propounded by Plaintiff. The
Avnet makes the following General Objections, whether or not separately set
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assertion of the same, similar, or additional objections or partial responses to

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Plaintiff's Objections.

individual Interrogatories does not (waive any of Avnet's General
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1. Avnet objects to the Interrogatories to the'11 extent that they seek information
that is not relevant to the subject matter of this action in that it is neither admissible 1 in evidence nor reasonably calculated to lead to the discovery of admissible evidence related to a claim or defense in this action.

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2. Avnet objects to the Interrogatories to thd extent that they seek confidential
or private business information, including, without limitation, trade secret information, personnel information, andlor competitively sensitive information. Avnet will not produce confidential or private business information except pursuant to an appropriate protective order to be entere,d in this action and any Court ordered modifications thereof.

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3. Avnet objects to the Interrogatories to t h i extent they seek information that
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is: (a) protected by the attorney-client privilege o r prepared in anticipation of litigation or for trial, or that is otherwise subject to the attorney work product
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doctrine; andlor (b) protected by the right to

guaranteed by the United

States Constitution; (c) protected by any other applicable privilege, doctrine or immunity. Any such information is defined to be] "privileged."
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Any inadvertent

disclosure of privileged information shall not be dbemed to be a waiver by Avnet of any applicable privileges or doctrines. 4. Avnet objects to the Interrogatories toilthe extent that they are vague, ambiguous, misleading, uncertain, unintelligible, [overly broad, fail to specifically describe the information sought, are not defined, skek information outside the scope of the instant lawsuit, and/or would require Avneti to speculate as to the nature and scope of the documents sought.
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FENNEMORE CRAIG
PROFESSIONAL R P O R A T I O N CO
PHOENIX

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5. Avnet objects to the Interrogatories to ,the extent that they are unduly
burdensome, compound and/or duplicative.

6. Avnet objects to the Interrogatories to t h t extent that they purport to seek
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documents that are already in Plaintiffs possession, documents that are a matter of accessible to Plaintiff. public record and/or documents that are otherwise~equally

7. Avnet objects to the Interrogatories 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, and/or that cannot be found in the course of a reasonable search.

8. Avnet objects to the Interrogatories 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 Interrogatories to the extent that they contain
inappropriate and/or argumentative headings and sub-headings.

10. Avnet objects to the Interrogatories to the extent that the Interrogatories,
including but not limited to the definition of "IPENTIFY," call for the mailing addresses of Avnet's employees. Avnet requirqs that those employees not be contacted directly, but only through counsel for Avpet.

11. Avnet states these objections without waiving o r intending to waive, but on I)
the contrary preserving and intending to preserve: (a) all objections to the competency, relevancy, materiality, privilege, andd admissibility as evidence for any
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purpose of the responses to the Interrogatories or $he 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 o,r any other action; (c) the right to object on any grounds a t any time to a demand for further response to these or any

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other discovery procedures involving o r relatdd to the subject matter of the

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Interrogatories directed to Avnet; and (d) the rigdt to object on any grounds to any other or future discovery requests. Subject to and without waiving the Genekal Objections and qualifications above, A.vnet further responds as follows: Interro~atory 1: No.

Identify methods for posting Plaintiffs Photogfaphs on any and all Avnet website.
Answer: Defendants object to this Interrogatory on the grounds that it is
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vague and ambiguous by its directive to "[l]dentify methods for posting" the photographs a t issue. Nonetheless and without w'aiving its objection, Avnet asserts that it posted the photographs a t issue on Avnet websites as Joint Photographic Experts Group files (.jpg), Graphics Interchange Format files (GIF), and Tagged Image File Format files (TIFF) types. Avnet furtker asserts that it posted plaintiff's
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photographs as part of its 2002 and 2003 ~ n n u a l l ~ e ~ o r t s were available for which download as Portable Document Files (PDF). Because discovery is ongoing in this matter, Defendants reserve the right to supplement this and all other responses to Plaintiff's interrogatories.

Interrogatory No. 2:

Identify Defendant's methods for providing Plaintiffs Photographs for posting on any and all Third-party website.
Defendants object to this Interrogatory on the grounds that it is /j vague and ambiguous by its directive to "[Ildentify methods for providing" the photographs a t issue for posting on third party websites. Nonetheless and without waiving its objections, Avnet will endeavor to rebpond to plaintiffs assertion that Avnet distributed plaintiff's photographs to: (1) CMP Media; (2) Arizona Answer:

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Governor's Council on Innovation and ~echnolog);and (3) Supply-Chain Council. Avnet asserts that Avnet Director of Marketing Communications provided one of the
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photographs a t issue to CMP Distribution Editor Scott Campbell in response to his request via an email dated January 1, 2004.

& XVN0040 attached to Avnet's lS'

Supplemental Disclosure Statement). After diligept inquiry, Avnet was unable to t locate any correspondence between any other ~ v 6 e employees and the other two
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entities to whom Avnet allegedly "distributed" the iiVallee photographs. Avnet notes
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that generally, third parties seeking to obtain photographs of Roy Vallee and other Avnet Directors and Officers may obtain such photographs by either submitting a request to Avnet's Director of Public Relations J a b Jurcy or by downloading such
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photographs from the Press Room link a t Avnet's website. Neither Jurcy nor Maag
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can recall receiving a request for the Vallee photbgraphs from either the Arizona
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Governors' Council on Innovation and Technolob or the Supply-Chain Council,
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leading them to conclude that these two entities must have downloaded the photographs from Avnet's website.

Interrogatory No. 3:

Identify methods utilized in the preparation of all Avnet annual reports and Avnetrelated publications, including, but not limited to, the methods for using any of Plaintiffs
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Photographs in any such report or publication.
Answer: Defendants object to this

interrogatory on the grounds that it is

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overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. The Interrogatoi-y is unlimited in scope and time, and it calls for information concerning the prepar?tion of "all Avnet annual reports and Avnet-related publications" whether they include the photographs a t issue or not. Avnet prepares and has prepared hundreds1 if not thousands of reports and

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FENNEMORER A I G C
PROFESSIONAL CORPORATION

PHOENIX

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publications over the years that have no bearing on the instant lawsuit. Defendants
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further object to this Interrogatory on the grounds that it is vague and ambiguous by
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its directives to identify "methods utilized in the, preparation of all Avnet annual reports and Avnet-related publications" and "methods for using any of Plaintiffs
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photographs in any such report o r publication." Nonetheless and without waiving its objecitions, Avnet will respond to this Interrogatory with a description of how the phoiographs a t issue were selected to appear in Avnet's 2002 and 2003 Annual Report as well as Avnet's internal
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publication Avnet Global Perspective.

Avnet chief Communications Officer A1

Maag is responsible for selecting the images of Vallee to appear in Avnet's Annual Report. In determining which photographs to use, Maag reviews all of the
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photographs of Roy Vallee available to him and selects the one he likes best. He then directs either Avnet's Director of Creative S1ervices Javed Badar or Avnet Multimedia Services Director Bob Hackett to incoqporate the photograph he selected into the Annual Report. With respect to the photographs that appeared in Avnet Global Perspective, Avnet Director of Creative Services Javed Badar is responsible for the design and layout of the magazine, which includes selection of the photographs. Mr. Badar reports directly to Avnet Director of Employee

Communicati'ons Michele Spiegel but the selection of the photographs is left to Mr. Badard. Like Mr. Maag, Mr. Badar simply selects the photograph of Mr. Vallee he likes best and inserts it into the publication. Interrogatory No. 4: State the date (month, day, and year) and circumstances concerning Defendants' first use and all subsequent uses of Plaintiffs Photogiaphs of Roy Vallee and the manner
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and extent of such first and all subsequent uses, whether on an Avnet website, a Thirdparty website, or in any report or publication.

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Answer:

In 2001, Avnet Chief Communications Officer Allen Maag saw

photographs of Roy Vallee in the July 2001 issue

06 Upside Magazine.
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Believing that

Upside owned the rights to the photographs, Maag contacted Upside Magazine, obtained permission from Upside Editor-in-Chief Jerry Borrell to use the photographs (the "Upside Magazine Photographs"), and Avnet used them in Avnet's JulyIAugust 2001 issue and the September 2001 issue of Avnet Global Perspective I\ Magazine. In late 2001, Maag was contacted by Plaintiff, who claimed to have recently learned that Avnet had used the Upsidg Magazine Photographs without authorization. Plaintiff claimed that Upside ~ a g a z i n e had gone out of business
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before paying him his photographic fee for the Upside Magazine Photographs, and Plaintiff now wanted to sell some of the Upside Ma[gazine Photographs to Avnet. At a meeting with Plaintiff on or about March 6, 2002, Maag agreed to purchase the photographs and offered to purchase the photogra6hs a t issue and rights to use them
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for two years for $2,500. Maag and Plaintiff negot&ted fees for the photographs and t photographic rights a t issue and entered into an agreement that would allow Avnet to use some of the photographs and own the righds to them for a limited period of time. Believing that he had purchased the right to qo so, Maag used the photographs a t issue on Avnet's website for the next two years and in Avnet's 2002 and 2003 Annual Report. Avnet transferred one of the

allb be photographs to CMP Media in
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response to a request by CMP on January 21 i2004.

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Additionally, the Vallee

photographs were available for download from th,e Press Room section of Avnet's website.

Interrogatory No. 5: Identify all analyses made by or on behalf of Avnet, Inc. with respect to sales volume for each year or portion thereof since Defendants' first use of Plaintiffs
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Photographs.
Answer:

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Defendants object to this lnter?ogatory on the grounds that it is
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overbroad, unduly burdensome, and not reasonablb calculated to lead to the
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discovery of admissible evidence. The Interrogatov requests "all analyses made by or on behalf of Avnet with respect to sales vo1ume':l since 2001. Given the size and scope of Avnet's worldwide operations, it would be1 highly impractical for Avnet to provide every single analysis relating to Avnet's sales volume relating to sales volume /I since Avnet's first use of the photographs a t issue. i~onetheless without waiving and its objection, Avnet hereby attests that its Annual ~ e ~ o rcontain detailed financial ts and sales information and that the Avnet Annual Reports for the years 2001 - 2004

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are available for review a t the internet link below:

,,

BID%253DDF3%2526CTP%253DSTA,OO.html.

fiikewise, Plaintiff may view

Avnet's Form 10-I(, filed with the United States Seturities and Exchange Commission for the years 2001-2004 at:
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Interrogatory No. 6:

Identify the person or persons at Avnet, Inc. responsible for the decision to proceed

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with posting and/or publishing image files, articles, 04 any other type of media content on any Avnet website, third-party website or any affiliated company or business entity website, and the methods utilized in the decision to proceed, from beginning to final authorization, including, but not limited to, the methods for using an image file in any form whatsoever, for each such person or peopllle identified in response to this Interrogatory. Answer: Defendants object to this Interrogatory on the grounds that it is
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overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. The Interrogatory is unlimited in scope and time and calls for information unrelated to the instant !lawsuit. Nonetheless and without waiving its objection, Avnet asserts that Avnet Cliief Communications Officer Allen Maag, Avnet Director of Public Relations Jan Jurcy, and Avnet Director of Creative Services Javed Badar are the people who have1 been involved in the posting or publication of photographs of Roy Vallee from '12001to the present. And while

plaintiff's Interrogatory asks for Avnet's "methods utilized in the decision to proceed, from beginning to final authorization", Avnet asserts that Allen Maag has final authority to decide which photographs are~~published posted and that his or decision is largely subjective, i.e. he chooses the pictures he likes best.

Interrogatory No. 7: Identify the person or persons at Avnet, Inc. re:sponsible for the decision to proceed in the preparation of all Avnet websites, annual redorts and Avnet-related publications, including, but not limited to outlines, operational guidelines, client andlor investor relation development materials, marketing and promotional materials and materials distributed to
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the publi,c, and the methods utilized in the decision to proceed with using an image file in any such website, report, or publication, for each such person or people identified in

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response to this Interrogatory.
Answer:

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Defendants object to this 1nterlogatory on the grounds that it is

overbroad, unduly burdensome, and not reasonably calculated to lead to the r discovery of admissible evidence. The ~ n t e r r o ~ a t d isyunlimited in scope and time and calls for information unrelated to the instant llawsuit. Nonetheless and without waiving its objection, Avnet asserts that Avnet Ch;ief Communications Officer Allen Maag and Avnet Director of Public Relations J a n Jurcy are the people who have been involved in the posting or publication of phofographs of Roy Vallee from 2001 to the present. And while it is unclear what "methods" the Interrogatory refers to, Avnet asserts that there are no established procedures for determining which photographs will be posted or what electronic format they will be stored in.
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Interrogatory No. 8:

Identify the person or persons at Avnet, Inc. with knowledge of the photo shoot
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that produced Plaintiffs Photographs, the payment llby Avnet for any use of Plaintiffs Photographs, and the photographic rights Avnet ori its persons know or believed they acquired or were acquiring in Plaintiffs Photographs, the knowledge of those persons
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concerning the photo shoot that produced Plaintiffs IPhotographs, the payment by Avnet for any use of Plaintiffs Photographs, and the photographic rights of Avnet or its persons
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knew, believed they acquired or were acquiring in Plaintiffs Photographs, and the methods of Avnet to track those photographic rightsjAvnet or its persons knew, believed they acquired or were acquiring in Plaintiffs ~ h o t o ~ r a ~from their intake until the suit hs, was filed.
Answer: Defendants object to this Interrogatory on the grounds that it is Nonetheless and without

vague and ambiguous and poses a compound g"estion.

waiving its objection, Avnet asserts that Avnet Sknior Vice President of Marketing

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and Communications Sean Fanning had retained plaintiff to take photographs at several Avnet events. Additionally, Avnet's Creative Services Director Javed Badar received a call from plaintiff regarding Avnet's juse of plaintiff's photographs in
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Avnet's internal publication Avnet Global Perspective. Mr. Badar acknowledged that he had used the photographs and suggested /that plaintiff talk to Avnet Chief Communications Officer A1 Maag. Mr. Maag explained that he had obtained the
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photographs from Upside Magazine and used them, believing he had the right to do so. Plaintiff informed him that plaintiff held the: copyright to the photographs a t issue and requested reimbursement for the use qf the Vallee photographs. Maag then negotiated with plaintiff regarding the price hvnet would pay Plaintiff for the photographs and photographic rights a t issue. Maag believed that Avnet was

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purchasing unlimited rights to use the photographs a t issue for a period of two years, and did not learn that Avnet's use of the photographs was contrary to the language contained in Invoice No. 2002-1212 until plaintiff lcontacted him and informed him that Avnet had violated the contract. Avnet further asserts that A1 Maag and all Avnet North America employees are guided by Avnet's Code of Conduct for North 1 American Employees, which instructs them to respect the intellectual property and
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copyrights of others. Moreover, A1 Maag is the individual responsible for keeping track of Avnet's right to use the photographs a t issue, and he did so to the best of his ability.

1nterrog;tutor-y No. 9:
Identify the person or persons at Avnet, Inc. pbssessing knowledge of the uses of Plaintiffs Photographs and quotes obtained by Avnet from other photographers in Phoenix for photographs and photographic rights where usage is similar to the uses of 'i Plaintiffs Photographs by Avnet, the knowledge possessed by those persons concerning

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the uses of Plaintiffs Photographs and quotes obtained by Avnet from other photographers in Phoenix for photographs and photographic rights where usage is similar to the uses of Plaintiffs Photographs by Avnet, the methods of Avnet to obtain quotes from other photographers in Phoenix for photographs and photographic rights where
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usage is similar to the uses of Plaintiffs Photographs by Avnet, and the methods of Avnet to assess photographs and photographic rights were [sic] usage is similar to the uses of Plaintiffs Photographs by Avnet.
Answer: Defendants object to this ~ n t e r i o ~ a t o on the grounds that it is ry

vague an.d ambiguous and poses a compound qukstion. Nonetheless and without waiving its objections, Avnet asserts that Avnet chief Communications Officer Allen Maag and Avnet Director of Public Relations p ad Jurcy are the Avnet employees with knowledge of Avnet's uses of the photographs a t issue and quotes obtained by Avnet from other photographers in Phoenix. In March 2004, Jan Jurcy obtained quotes from two local photographers for photo shoots of Roy Vallee. These quotes includedi unlimited rights of use and were
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disclosed as part of Avnet's August 27,2004 disclosure statement. And finally, while it is unclear what "metliods" the Interrogatory refers to,
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Avnet asserts that it contacted other photographeis in the Phoenix area and asked them what they would charge for photographs add photographic rights similar to those a t issue in the instant case.

DATED this,w'&ay

o

w

k

1,

2004.

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FENNEMORE CRAIG

By

Jordan Green Charles Houston ~ t t o q i e y s Defendant for Avnet, Inc.

Jordan M. Meschkow MESCHKOW & GRESHAM, P.L.C. 5727 N. Seventh Street Suite 409 Phoenix, Arizona 850 14-5818

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