Free Motion in Limine - District Court of Arizona - Arizona

EXHIBIT D

Case 2:04-cv-00400-PGR

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Sid Leach (#019519) Andrew F. Halaby (#017251) Monica A. Lim6n-Wynn (#019174) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Street Phoenix, AZ 85004-2202 Telephone: (602) 382-6372 Attorneys for Plaintiff Hypercom Corporation [email protected] [email protected] [email protected] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Hypercom Corporation, Plaintf, No. CV 04-0400 PHX PCR HYPERCOM CORPORATION'S RESPONSE TO OMRON CORPORATION'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS

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Verve, L.L.C., and Omron Corporation, Defendants.

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Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Plaintiff Hypercom Corporation ("Hypercom") responds to Defendant Omron Corporation's ("Omron") First Set of Requests for Production of Documents ("Requests") as follows: PRELIMINARY STATEMENT
Hypercom has made a good faith effort to respond to the Requests, interpreting individual Requests so as to avoid objections where possible and to facilitate the

23 discovery process. In responding to the Requests, Hypercom has conducted a reasonable 24 inquiry and investigation relating to the information requested by Omron. Where 25 Hypercom has indicated in its Response that documents will be produced for inspection 25 and copying, the time for such production will be at a mutually-agreeable date. 27 28

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GENERAL OBJECTIONS 2 3
4 S Nothing herein shall be construed as an admission or waiver of (i) 2. objections regarding admissibility, competency, relevance, privilege, materiality, or authenticity; (ii) objections due to vagueness, ambiguity, or undue burden; or (iii) Hypercom's right to object to the use of any document during any subsequent proceeding, including the trial of this or any other action.

Hypercom objects to the requests to the extent the "Definitions" and 1. "Instructions" are interpreted by Omron as imposing obligations beyond those required by the Federal Rules of Civil Procedure.or the Local Rules of the Court.

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Hypercom objects to producing documents that are publicly available.

Hypercom objects to the Requests to the extent they seek documents 4. protected by the attorney-client privilege, work product doctrine, or any other applicable privilege or immunity. Hypercom also objects to providing a log of privileged andl protected documents dated after the filing of the Complaint in this action.

Hypercom objects to the, Requests to the extent they are directed at 5. documents that are not in Hypercom's possession, custody or control.
Hypercom objects to the Requests to the extent they are vague, ambiguous, 6. or unintelligible. Such objections may be made to individual requests in the short form "vague."

Hypercom objects to the Requests to the extent they are overly broad, 7. oppressive, or unduly burdensome. Such objections may be made to individual requests in the short form "overbroad and unduly burdensome."
19 20 21 22 23 24 25 26 27 By responding to these Requests, Hypercom neither adopts nor agrees with 10. any of Omron's allegations therein, nor does Hypercom adopt or agree with Omron's terminology or its implications.

Hypercom objects to the Requests to the extent that they seek proprietary or 8. confidential information or documents, or documents or information that Hypercom is contractually obligated not to disclose, in the absence of any showing that the proprietary or confidential information or documents are relevant to the case. Hypercom also objects to the Requests to the extent that they seek proprietary or confidential business or technical information or documents, or documents disclosing Hypercom new product development methodologies and the like which would be valuable to competitors, and which have no relevance to this case. Hypercom objects to the Requests to the extent that they seek documents 9. and information that are neither relevant nor reasonably calculated to lead to the discovery of admissible evidence.

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Subject to the foregoing General Objections, all of which are specifically incorporated into each of Hypercom's responses (below) to the Requests, Hypereom responds further to each individual Request as follows:

REQUEST NO. 1.

All documents, videotapes, specifications, and drawings

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referring to or depicting the structure and operation of Hypercom's POS devices manufactured or sold by or for Hypereom.
RESPONSE NO. 1: Hypereom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypereom by Verve with the aid ofOmron. Documents and information that Omron may acquire after the fact are not relevant to Omron's failure to conduct a pre-filing investigation of the patent infringement claims that

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were asserted against Hypercom before Verve, with Omron's aid, filed its lawsuits against Hypereom. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to Hypereom products other than the Hypercom products accused of infringement in one of the proceedings brought by Verve, with Omron's aid, against Hypereom. Hypereom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to Hypereom products other than those that were known to Omron prior to the 23 24 25 26 27 28 date that the baseless lawsuits were filed against Hypereom. Subject to, and without waiving these objections, Hypereom responds that if any relevant non-privileged documents can be located with a reasonable search, they will be produced for inspection and copying.

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REQUEST NO. 2. 2 3 4
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All technical manuals , operator manuals and instructions

for Hypercom's POS devices. RESPONSE NO. 2: Hypercom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible
evidence. Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about

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Hypercom's accused products (or lack thereof that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests, documents relating to Hypercom products other than the
Hypercom products accused of infringement in one of the proceedings brought by Verve, with the aid of Omron, against Hypercom. Hypercom further objects to this request as

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overbroad and unduly burdensome in scope to the extent that it requests documents relating to Hypercom products other than those that were known to Omron prior to the date that the baseless lawsuits were filed-against Hypercom. Hypercom further objects to this request as vague on grounds that it.is unclear what meaning Omron intends for the term "instructions" in this context. Subject to, and without waiving these objections, Hypercom responds that if any relevant non privileged documents can be located with a reasonable search, they will be produced for inspection and copying.

REQUEST NO. 3.

All product brochures, marketing materials and advertising

materials, from the date of first manufacture to the present, referring or relating to Hypercom's POS devices. RESPONSE NO. 3: Hypercom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom's accused products (or lack thereof) that was in the possession of Omron when
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the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron,

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Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to Hypercom products other than the Hypercom products accused of infringement in one of the proceedings brought by Verve, with the aid of 0mron, against Hypercom. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to Hypercom products other than those that were known to Omron prior to the date that the baseless lawsuits were filed against Hypercom, Subject to, and without waiving these objections, Hypercom responds that if any relevant non-privileged documents can be located with a reasonable search, they will be produced for inspection and copying.

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REQUEST NO. 4.

Copies of source code for all Related Software, both printed

and in computer readable form. RESPONSE NO. 4- Hypercom objects to this request as seeking information

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that is neither relevant nor reasonably calculated to lead to the discovery of admissible
evidence. Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of.Qmron.

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Omron and Verve cannot file a baseless lawsuit and then later seek discovery in an effort to justify their abuse of process. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to Hypercom products other than the Hypercom products. accused of infringement in one of the proceedings brought by Verve, with the aid of Omron, against Hypercom. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to Hypercom products other than those that were known to Omron-prior to the date that the baseless lawsuits were filed against Hypercom.
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REQUEST NO. 5,

All documents referring or relating to the infringement or

noninfringement, both literal and under the doctrine of equivalents, of any of the claims of the patents in suit.

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RESPONSE NO, 5: Hypercom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Omron and Verve cannot file a baseless lawsuit and then later seek discovery in an effort to justify their abuse of process. Subject to, and without waiving this objection, Hypercom responds that if any relevant non-privileged documents can be located with a reasonable search, they will be produced for inspection and copying.

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REQUEST NO. 6.

All documents referring or relating to the invalidity of any

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of the claims of the patents in suit. RESPONSE NO. 6: Hypercom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Omron and Verve cannot file a baseless lawsuit and then later seek discovery in an effort to justify their abuse of process. Subject to, and without waiving this objection, Hypercom responds that if any relevant non-privileged documents can be located with a reasonable search, they will be produced for inspection and copying.

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REQUEST NO. 7. 2 3 4

All prior art references , documents, patents, and things

relating or referring to, supporting, or refuting the invalidity of any claim of the patents in suit. RESPONSE NO. 7: Hypercom objects to this request as seeking information
that is neither relevant nor reasonably calculated to lead to the discovery of admissible

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evidence. Subject to, and without waiving this objection, Hypercom responds that if any relevant non-privileged documents can be located with a reasonable search, they will be produced for inspection and copying.

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REQUEST NO. 8.

All documents referring or relating to the unenforceability

of any of the claims of the patents in suit. RESPONSE NO. 8: Hypercom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible

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produced for inspection and copying.

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REQUEST NO. 9.

All documents evidencing any contemplated or actual

attempts by Hypercom to design around any of the claims of the patents in suit. RESPONSE NO. 9: Hypercom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom's accused products (or lack thersof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Omron and Verve cannot file a baseless lawsuit and then later seek discovery in an effort to justify their abuse of process. Subject to, and without waiving this objection, Hypercom responds that it has no documents responsive to this request.
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REQUEST NO. 10.

All documents referring or relating to any study, analysis,

research, or opinion regarding the validity or enforceability of the patents in suit. RESPONSE NO. 10 : Hypercom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom' s accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Omron and Verve cannot file a baseless lawsuit and then later seek discovery in an effort to justify their abuse of process. Subject to, and without waiving this objection, Hypercom responds that if any relevant non-privileged documents can be located with a reasonable search , they will be produced for inspection and copying.

REQUEST NO. 11 .

All documents related to Hypercom's infringement or

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noninfringement of the patents in suit including but not limited to , written or oral opinions or advice from counsel. RESPONSE NO. 11 : Hypercom objects to this request as overbroad and unduly burdensome in scope , and as seeking information .that is neither relevant nor reasonably calculated to lead to -the discovery of admissible evidence. Information that is-relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom 's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron . Omron and Verve cannot file a baseless lawsuit and then later seek discovery in an effort to justify their abuse of process. Hypercom further objects to this request as calling for information protected by the attorney- client privilege or work product doctrine. Hypercom did not know about any of the Omron patents asserted against Hypercom prior to the date that Verve filed suit on
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each patent, and Hypercom objects to the request for documents relating to Hypercom's 2 3 4
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evaluation of the Omron patents after the date that Verve filed suit on the patents.

REQUEST NO. 12 .

All documents, including but not limited to , all legal

opinions, stating, asserting, or opining that any claim of the patent in suit was, is, or may be:

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(a) (b) (c)

valid or invalid; non-infringed or infringed by Hypercom ; and/or enforceable or unenforceable for any reason.

RESPONSE NO. 12 : Hypercom objects to this request as overbroad and unduly burdensome in scope, and as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence . Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom ' s accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom. by Verve with the aid of Omron. Omron and Verve cannot file a baseless lawsuit and then later seek discovery in an effort to justify their abuse of process. Hypercom further objects to this request as calling for information protected by the attorney-client privilege or work product doctrine . Hypercom did not know about any of the Omron patents asserted against Hypercom prior to the date that Verve filed suit on each patent, and Hypercom objects to the request for documents relating to Hypercom's evaluation of the Omron patents after the date that Verve filed suit : on the patents.

REQUEST NO. 13, All documents describing industry pricing and licensing practices. RESPONSE NO. 13: Hypercom objects to this request as overbroad and unduly burdensome in scope, and as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Information that is relevant to

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the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom's accused products (or lack thereof) that was in the possession of 4mron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron., Omron and Verve cannot file a baseless lawsuit and then later seek discovery in an effort to justify their abuse of process. Hypercom further objects to this request as vague on grounds that it is unclear what meaning Omron intends for the terms "industry pricing" and "licensing practices" in this content. Hypercom further objects to this request as seeking information that is not in the control of Hypercom, or which is publicly available and equally available to Omron as to Hypercom. Subject to, and without waiving these objections, Hypercom responds that if any relevant non-privileged documents can be located with a reasonable search, they will be produced for inspection and copying.

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REQUEST NO. 14.

All assignments filed by Hypercom in the United States

Patent and Trademark Office including assignments fled regarding any patent or
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trademark owned by Hypercom. RESPONSE NO. 14 : Hypercom objects to this request as overbroad and unduly burdensome in scope, and as seeking information that is neither relevant nor reasonably calculated to lead to 'the discovery of admissible evidence. The only information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case is the information about Hypercom 's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Subject to, and without waiving these objections, Hypercom responds that if any relevant non privileged documents can be located with a reasonable search, they will be produced for inspection and copying.

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REQUEST NO. 15 .

All agreements entered into by Hypercom which grant any

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rights to any Hypercom patent or trademark.

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RESPONSE NO. 1S: Hypercom objects to this request as overbroad and unduly burdensome in scope, and as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. The only information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in
this case is the information about Hypercom's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by

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Verve with the aid of Omron, Subject to, and without waiving these objections, Hypercom responds that if any relevant non-privileged documents can be located with a reasonable search, they will be produced for inspection and copying.

REQUEST NO. 16. and policies.

All documents discussing Hypercom's licensing practices

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RESPONSE NO. 16: Hypercom objects to this request as overbroad and unduly burdensome in scope, and as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. The only information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case is the information about Hypercom's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron, Subject to, and without waiving these objections, Hypercom responds that if any relevant non-privileged documents can be located with a reasonable search, they will be produced for inspection and copying.

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' REQUEST NO. 17.

All documents, from the fast issue date of the patents in

suit to the present, summarizing or reporting the total number of each of the terminals ever made or sold by Hypercom, broken down by year and by geographical location. RESPONSE NO. 17: Hypercom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. The only information that is relevant to the malicious prosecution claims and
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aiding and abetting claims pending in this case is the information about Hypercom's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it
requests documents relating to Hypercom products other than the Hypercom products accused of infringement in one of the proceedings brought by Verve, with the aid of

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Omron, against Hypercom. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to Hypercom products other than those that were known to Omron prior to the date that the baseless lawsuits were filed against Hypercom. Subject to, and without waiving these objections, Hypercom responds that if any relevant non-privileged documents can be located with a reasonable search, they will be produced for inspection and copying. REQUEST NO. 18. All agreements, from the first issue date of the patents in

suit to the present, with any third-party related to the programming, alteration, customization, integration or maintenance of any Hypercom POS device. RESPONSE NO. IS: Hypercom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom, by Verve with the aid of Omron.
Omron and Verve cannot file a baseless lawsuit and then later seek discovery in an effort to justify their abuse of process. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to

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Hypercom products other than the Hypercom products accused of infringement in one of the proceedings brought by 'Nerve, with the aid of Omron, against Hypercom. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent
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that it requests documents relating to Hypercom products other than those that were
known to Omron prior to the date that the baseless lawsuits were filed against Hypercom. Subject to, and without waiving these objections, Hypercom responds that if any relevant non-privileged documents can be located with a reasonable search, they will be produced for inspection and copying.

RE UEST NO. 19. All agreements, from the first issue date of the patents in suit to the present, related to the sale, installation, programming, alteration, customization, integration or maintenance of any Hypercom POS device for any of the following vendors: Staples Inc., Office Depot Inc., and Scotsman Groceries. RESPONSE NO. 19: Hypercom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom's accused products {or lack thereof} that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Omron and Verve cannot file a baseless lawsuit and then later seek discovery in an effort

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to justify their abuse of process. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to Hypercom products other than the Hypercom products accused of infringement in one of

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further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to Hypercom products other than those that were known to Omron prior to the date that the baseless lawsuits were filed against Hypercom. Subject to, and without waiving these objections, Hypercom responds that if any relevant non-privileged documents can be located with a reasonable search, they will be produced for inspection and copying.

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REQUEST NO. 20. 2 3 4
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All documents, from the first issue date of the patents in

suit to the present, showing projections , analyses, or estimates of sales of Hypercom's POS devices in the United States or foreign markets , by customer or reseller, from the first issue date of the patents in suit.
RESPONSE NO. 20 : Hypercom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible

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evidence. The only information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case is the information about Hypercom's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to Hypercom products other than the Hypercom products accused of infringement in one of the proceedings brought by Verve, with the aid of Omron, against Hypercom. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to Hypercom products other than those that were known to Omron prior to the date that the baseless

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overbroad and unduly burdensome in scope to the extent that it requests documents relating to foreign markets. Subject to, and without waiving these objections, Hypercom responds that if any relevant non-privileged documents can be located with a reasonable search, they will be produced for inspection and copying.

REQUEST NO.21. All documents, from the first issue date of the-patents in suit to the present, relating to any market research, market survey, forecast of demand, business plans, potential sales, or other market analysis for Hypercom's POS devices, and for all products that are either sold in conjunction with or that are f mctionally dependent on Hypercom's POS devices.

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RESPONSE NO. 21: Hypercom objects to this request as seeking information

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that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. The only information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case is the information about Hypercom's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to Hypercom products other than the Hypercom products accused of infringement in one of the proceedings brought by Verve, with the aid of Omron, against Hypercom. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to Hypercom

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products other than those that were known to Omron prior to the date that the baseless lawsuits were filed against Hypercom. Subject to, and without waiving.these objections, Hypercom responds that if any relevant non-privileged documents can be located with a reasonable search, they will be produced for inspection and copying.

REQUEST NO. 22. All employee or officer organizational charts for Hypercom 18 19 20 21
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from the first issue date of the patents in suit to the present. RESPONSE NO. 22: Hypercom objects to this request as overbroad and unduly burdensome in scope, and as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hyporcom's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Omron and Verve cannot file a baseless lawsuit and then later seek discovery in an effort to justify their abuse.of process. Subject to, and without waiving these objections, Hypercom responds that if any relevant

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non-privileged documents can be located with a reasonable search , they will be produced
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for inspection and copying.

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REQUEST NO. 23. All evidence, in whatever form, that Hypercom is aware of which supports its claims against Omron Corporation.

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RESPONSE NO. 23:

Hypercom objects to this request to the extent it calls

for information protected by the attorney-client privilege or work product doctrine. Subject to, and without waiving that. objection, Hypercom responds that it will
produce any non-privileged responsive documents that can be located with a reasonable search, except that Hypercom does not intend to produce documents already in Omron's possession, such as documents containing communications with Omron, or documents filed or served in connection with this or any other proceeding in which Omron is a party. To the extent that this request encompasses such documents that are already in Omron's possession, Omron has access to these documents and a request to produce the documents, to Omron again would be unduly burdensome.

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REQUEST NO. 24.

All software used for the configuration, programming, set-

up or maintenance of the Hypercom T7Plus device in both executable form (i.e., capable of being loaded and operated on a computer) and in source code form. RESPONSE NO. 24: Hypercom objects to this request as.seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Omron and Verve cannot file a baseless lawsuit and then later seek discovery in an effort to justify their abuse of process. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to a
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Hypercom product other than the Hypercom products accused of infringement in one of the proceedings brought by Verve, with the aid of Omron, against Hypercom. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to a Hypercom product other than those that were
known to Ornron prior to the date that the baseless lawsuits were filed against Hypercom.

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23 24 25 RE UEST NO.25 . All manuals, instructions and documents which are used for

REQUEST NO. 25.

All documents sufficient to identify the hardware required

to run the software responsive to REQUEST NO. 24. RESPONSE NO. 25: Hypercom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Omron and Verve cannot file a baseless lawsuit and then later seek discovery in an effort to justify their abuse of process. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to a Hypercom product other than the Hypercom products accused of infringement in one of the proceedings brought by Verve; with the aid of Omron, against Hypercom. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating-to a Hypercom product other than those that were known to Omron prior to the date that the baseless lawsuits were filed against Hypercom.

or relevant to the operation of the software listed in REQUEST NO. 24.

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RESPONSE N0.26: Hypercom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. The only information that is relevant to the malicious prosecution claims and
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aiding and abetting claims pending in this case is the information about Hypercom's
accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to a Hypercom product other than the Hypercom products accused of infringement in one of the proceedings brought by Verve, with the aid of

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Omron, against Hypercom. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to a Hypercom product other than those that were known to Omron prior to the date that the baseless lawsuits were filed against Hypercor.

REQUEST NO.27.

All manuals and passwords relevant to the operation of the

software responsive to REQUEST NO. 24, RESPONSE NO. 27: Hypercorn objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom's accused products (ar lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Omron and Verve cannot file a baseless lawsuit and then later seek discovery in an effort to justify their abuse of process. Hypercom fizrther objects to this request as overbroad and unduly burdensome in scope to the extern that it requests documents relating to a Hypercom product other than the.Hypercom. products accused of infringement in one of the proceedings brought by Verve, with the aid of Omron, against Hypercom. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to a Hypercom product other than those that were known to Omron prior to the date that the baseless lawsuits were filed against Hypercom.

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REQUEST NO. 28. Copies of all versions of ePIC, Herm-Master and TermMaster Suite software currently used or made available by Hypercom for the configuration, programming, set-up or maintenance of the Hypercom 77PIus device. These copies are requested to be provided in both executable form (i.e., capable of being
loaded and operated on a computer) and in source code form.

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RESPONSE NO, 28: I Iypercom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. Information that. is relevant to the malicious prosecution claims and aiding and

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abetting claims pending in this case would appear to be limited to the information about

10 1 Hypercom's accused products (or 'lack thereof) that was in the possession of Omron when 1 I I the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. Omron and 'V'erve cannot file a baseless lawsuit and then later seek discovery in an effort to justify their abuse of process.: H, ypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating to a Hypercom product other than the':Hypercom products accused of infringement in one of the proceedings brought by Verve, with the aid of Omron, against Hypercom. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent 18
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that it requests documents relating'to a Hypercom product other than those that were
known to Omron prior to the date -that the baseless lawsuits were filed against Hypercom.

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REQUEST NO. 29.

All user manuals, instructions and documents which relate

to or concern the operation of the software listed in REQUEST NO. 28. RESPONSE NO. 29: Hypercom.objects to this request as seeking information that is neither relevant nor reasonablyvalculated to lead to the discovery of admissible evidence. Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom's accused products (or. lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron. -19-

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Omron and Verve cannot file a baseless lawsuit and then later seek discovery in an effort to justify their abuse of process, Hypercom further objects to this request as overbroad and unduly burdensome in scope to the. extent that it requests documents relating to a
Hypercom product other than the Hypercom products accused of infringement in one of the proceedings brought by Verve, with the aid of Omron, against Hypercom. Hypercom further objects to this request as overbroad and unduly burdensome in scope to the extent that it requests documents relating - to a Hypercom product other than those that were

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known to Omron prior to the date that the baseless lawsuits were filed against Hypercom.

REQUEST NO.. 30. Any. and all documents necessary to allow the ePIC, iTermMaster and Tenn-Master Suite programs to fully function including but not limited to any passwords, registration numbers or.u ser; IDs needed for their operation. RESPONSE N": Hypercom objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible
evidence . Information that is relevant to the malicious prosecution claims and aiding and abetting claims pending in this case would appear to be limited to the information about Hypercom's accused products (or lack thereof) that was in the possession of Omron when the baseless lawsuits were filed against Hypercom by Verve with the aid of Omron.

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Omron and Verve cannot file a baseless: lawsuit. and then later seek discovery in an effort to justify their abuse of process.

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REQUEST NO. 31 .1 Any and all documents which you claim support the alleged conspiracy between Omron and Verve.,
RESPONSE NO..3I : Hypercom objects to this request to the extent it calls for
information protected by the attorney-client privilege or work product doctrine. Subject

26 . to, and without waiving that objection, Hypercom responds that it will produce any non27 28 privileged responsive documents that can be located with a reasonable search, except that Hypercom does not intend to produce documents already in Omron' s possession, such as .-20-

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documents containing communications with Omron , or documents filed or served in connection with this or any other proceeding in which Omron is a party . To the extent that this request encompasses such documents that are already in Omron 's possession, Omron has access to these documents and a request to produce the documents to Omron

5 t again would be unduly burdensome

6 7 8 9 10 11 12 13 14 15 16 REQUEST NO. 32. Any and all documents which support any claim for

damages that Hypercom alleges to have suffered. RESPONSE NOJ2 ; Hypercom objects to this request to the extent it calls for information protected by the attorri6y-elient privilege or work product doctrine . Subject to, and without waiving. that objection , Hypercom responds that it will produce any nonprivileged responsive documents that can be located with a reasonable search, except that Hypercom does not intend to produce documents already in Omron ' s possession, such as documents containing communications with Omron , or documents filed or served in connection with this or any other proceeding in which Omron is a party . To the extent that this request encompasses such documents that are already in Omron 's possession,

17 a Ornron has access to these documents_and a request to produce the documents to Omron

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again would be unduly burderisom0

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SNELL & WILMER L

By Sid Leach Andrew F. Halaby Monica A. Limon-Wynn SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Attorneys for Plaintiff Hypercom Corporation

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CERTIFICATE OF SERVICE
An ORIGINAL and one COPY of the foregoing HYPERCOM CORPORATION'S RESPONSE TO OMRON CORPORATION'S FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS was served upon counsel of record for Ormron Corporation in the manner indicated below on this 31st day of May, 2006: By First Class Mail to:

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David P. Irmscher, Esq. John K. Henning, Esq. Baker & Daniels LLP 111 East Wayne Street,.Suite 800 Fort Wayne, IN 46802 Ray Farris, Esq. Paul Moore, Esq. FENNEMORE CRAIG 3003 North Central Avenue,: Suite 2600Phoenix, AZ 85012-2913.

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