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`EXHIBIT 1
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`Case 1:17-cv-00770-JDW-MPT Document 136-1 Filed 01/20/23 Page 2 of 19 PageID #:
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`AO 88A (Rev. 12/13) Subpoena to Testify at a Deposition in a Civil Action
`
`UNITED STATES DISTRICT COURT
`for the
`
`__________ District of __________
` District of Delaware
`
`Civil Action No.
`
`1:17-cv-00770-JDW-MPT
`
`) ) ) ) ) )
`
`Wirgen America, Inc.
`Plaintiff
`v.
`
`Caterpillar, Inc.
`
`Defendant
`
`SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION
`
`To:
`
`RFA Engineering, Assumed Name of Rogers, Freels & Associates, Inc.
`12986 Valley View Road, Eden Prarie, MN 55344
`(Name of person to whom this subpoena is directed)
`
`✔
`(cid:117) Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a
`deposition to be taken in this civil action. If you are an organization, you must designate one or more officers, directors,
`or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or
`those set forth in an attachment:
`See Schedule B, Wirtgen America, Inc.'s Notice of Subpoena to RFA Engineering.
`
`Place:
`
`Law Offices of Greene Espel PLLP
` 222 South Ninth Street, Suite 2200
`Minneapolis, MN 55402-3362
`
`Date and Time:
`
`02/21/2023 9:00 am
`
`CST
`
`The deposition will be recorded by this method:
`
`videographic and stenographic
`
`✔
`(cid:117) Production: You, or your representatives, must also bring with you to the deposition the following documents,
`electronically stored information, or objects, and must permit inspection, copying, testing, or sampling of the
`material:
`See Schedule A, Wirtgen America, Inc.'s Notice of Subpoena to RFA Engineering.
`
`The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
`Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
`respond to this subpoena and the potential consequences of not doing so.
`
`Date:
`
`01/20/2023
`
`CLERK OF COURT
`
`Signature of Clerk or Deputy Clerk
`
`OR
`
`/s/ Seth R. Ogden
`
`Attorney’s signature
`
`The name, address, e-mail address, and telephone number of the attorney representing (name of party)
`Inc.
`
`, who issues or requests this subpoena, are:
`
`Wirtgen America,
`
`Seth R. Ogden, Patterson Intellectual Property Law, P.C., 1600 Division Street, Suite 500, Nashville, TN 37203
`
`Notice to the person who issues or requests this subpoena
`If this subpoena commands the production of documents, electronically stored information, or tangible things, a notice
`and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is
`directed. Fed. R. Civ. P. 45(a)(4).
`
`

`

`Case 1:17-cv-00770-JDW-MPT Document 136-1 Filed 01/20/23 Page 3 of 19 PageID #:
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`AO 88A (Rev. 12/13) Subpoena to Testify at a Deposition in a Civil Action (Page 2)
`
`Civil Action No.
`
`1:17-cv-00770-JDW-MPT
`
`(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
`
`PROOF OF SERVICE
`
`I received this subpoena for (name of individual and title, if any)
`
`on (date)
`
`.
`
`(cid:117) I served the subpoena by delivering a copy to the named individual as follows:
`
`(cid:117) I returned the subpoena unexecuted because:
`
`on (date)
`
`; or
`
`Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
`tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
`
`$
`
`.
`
`My fees are $
`
`for travel and $
`
`for services, for a total of $
`
`0.00
`
`.
`
`.
`
`I declare under penalty of perjury that this information is true.
`
`Date:
`
`Server’s signature
`
`Printed name and title
`
`Server’s address
`
`Additional information regarding attempted service, etc.:
`
`

`

`Case 1:17-cv-00770-JDW-MPT Document 136-1 Filed 01/20/23 Page 4 of 19 PageID #:
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`AO 88A (Rev. 12/13) Subpoena to Testify at a Deposition in a Civil Action (Page 3)
`
`Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
`
`(c) Place of Compliance.
`
` (1) For a Trial, Hearing, or Deposition. A subpoena may command a
`person to attend a trial, hearing, or deposition only as follows:
` (A) within 100 miles of where the person resides, is employed, or
`regularly transacts business in person; or
` (B) within the state where the person resides, is employed, or regularly
`transacts business in person, if the person
` (i) is a party or a party’s officer; or
` (ii) is commanded to attend a trial and would not incur substantial
`expense.
`
` (2) For Other Discovery. A subpoena may command:
` (A) production of documents, electronically stored information, or
`tangible things at a place within 100 miles of where the person resides, is
`employed, or regularly transacts business in person; and
` (B) inspection of premises at the premises to be inspected.
`
`(d) Protecting a Person Subject to a Subpoena; Enforcement.
`
` (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
`responsible for issuing and serving a subpoena must take reasonable steps
`to avoid imposing undue burden or expense on a person subject to the
`subpoena. The court for the district where compliance is required must
`enforce this duty and impose an appropriate sanction—which may include
`lost earnings and reasonable attorney’s fees—on a party or attorney who
`fails to comply.
`
` (2) Command to Produce Materials or Permit Inspection.
`(A) Appearance Not Required. A person commanded to produce
`documents, electronically stored information, or tangible things, or to
`permit the inspection of premises, need not appear in person at the place of
`production or inspection unless also commanded to appear for a deposition,
`hearing, or trial.
`(B) Objections. A person commanded to produce documents or tangible
`things or to permit inspection may serve on the party or attorney designated
`in the subpoena a written objection to inspecting, copying, testing, or
`sampling any or all of the materials or to inspecting the premises—or to
`producing electronically stored information in the form or forms requested.
`The objection must be served before the earlier of the time specified for
`compliance or 14 days after the subpoena is served. If an objection is made,
`the following rules apply:
`(i) At any time, on notice to the commanded person, the serving party
`may move the court for the district where compliance is required for an
`order compelling production or inspection.
` (ii) These acts may be required only as directed in the order, and the
`order must protect a person who is neither a party nor a party’s officer from
`significant expense resulting from compliance.
`
` (3) Quashing or Modifying a Subpoena.
`
`(A) When Required. On timely motion, the court for the district where
`compliance is required must quash or modify a subpoena that:
`
` (i) fails to allow a reasonable time to comply;
`(ii) requires a person to comply beyond the geographical limits
`specified in Rule 45(c);
`(iii) requires disclosure of privileged or other protected matter, if no
`exception or waiver applies; or
`(iv) subjects a person to undue burden.
`(B) When Permitted. To protect a person subject to or affected by a
`subpoena, the court for the district where compliance is required may, on
`motion, quash or modify the subpoena if it requires:
`
`(i) disclosing a trade secret or other confidential research, development,
`or commercial information; or
`(ii) disclosing an unretained expert’s opinion or information that does
`not describe specific occurrences in dispute and results from the expert’s
`study that was not requested by a party.
`(C) Specifying Conditions as an Alternative. In the circumstances
`described in Rule 45(d)(3)(B), the court may, instead of quashing or
`modifying a subpoena, order appearance or production under specified
`conditions if the serving party:
`(i) shows a substantial need for the testimony or material that cannot be
`otherwise met without undue hardship; and
`(ii) ensures that the subpoenaed person will be reasonably compensated.
`
`(e) Duties in Responding to a Subpoena.
`
` (1) Producing Documents or Electronically Stored Information. These
`procedures apply to producing documents or electronically stored
`information:
`(A) Documents. A person responding to a subpoena to produce documents
`must produce them as they are kept in the ordinary course of business or
`must organize and label them to correspond to the categories in the demand.
`(B) Form for Producing Electronically Stored Information Not Specified.
`If a subpoena does not specify a form for producing electronically stored
`information, the person responding must produce it in a form or forms in
`which it is ordinarily maintained or in a reasonably usable form or forms.
`(C) Electronically Stored Information Produced in Only One Form. The
`person responding need not produce the same electronically stored
`information in more than one form.
`(D) Inaccessible Electronically Stored Information. The person
`responding need not provide discovery of electronically stored information
`from sources that the person identifies as not reasonably accessible because
`of undue burden or cost. On motion to compel discovery or for a protective
`order, the person responding must show that the information is not
`reasonably accessible because of undue burden or cost. If that showing is
`made, the court may nonetheless order discovery from such sources if the
`requesting party shows good cause, considering the limitations of Rule
`26(b)(2)(C). The court may specify conditions for the discovery.
`
`(2) Claiming Privilege or Protection.
`(A) Information Withheld. A person withholding subpoenaed information
`under a claim that it is privileged or subject to protection as trial-preparation
`material must:
`(i) expressly make the claim; and
`(ii) describe the nature of the withheld documents, communications, or
`tangible things in a manner that, without revealing information itself
`privileged or protected, will enable the parties to assess the claim.
`(B) Information Produced. If information produced in response to a
`subpoena is subject to a claim of privilege or of protection as
`trial-preparation material, the person making the claim may notify any party
`that received the information of the claim and the basis for it. After being
`notified, a party must promptly return, sequester, or destroy the specified
`information and any copies it has; must not use or disclose the information
`until the claim is resolved; must take reasonable steps to retrieve the
`information if the party disclosed it before being notified; and may promptly
`present the information under seal to the court for the district where
`compliance is required for a determination of the claim. The person who
`produced the information must preserve the information until the claim is
`resolved.
`
`(g) Contempt.
`The court for the district where compliance is required—and also, after a
`motion is transferred, the issuing court—may hold in contempt a person
`who, having been served, fails without adequate excuse to obey the
`subpoena or an order related to it.
`
`For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
`
`

`

`Case 1:17-cv-00770-JDW-MPT Document 136-1 Filed 01/20/23 Page 5 of 19 PageID #:
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`SCHEDULE A
`
`DOCUMENTS AND THINGS TO BE PRODUCED
`PURSUANT TO FED. R. CIV. P. 45
`
`
`
`DEFINITIONS
`
`The following definitions shall apply to the Requests below:
`
`1.
`
`The terms “RFA,” “You,” and “Your” shall refer to RFA Engineering, the assumed
`
`name of Rogers, Freels & Associates, Inc., a domestic business corporation incorporated under the
`
`laws of the state of Minnesota with a principal office address of 12986 Valley View Road, Eden
`
`Prairie, MN 55344, or any of their predecessors, domestic or foreign divisions, departments,
`
`subsidiaries, parents, affiliates, and other legal entities that are wholly or partially owned or
`
`controlled by RFA, either directly or indirectly, and each of their respective present or former
`
`directors, officers, employees, partners, agents, consultants, experts, representatives, and
`
`attorneys, as well as all other individuals or business entities in the employ of or otherwise acting
`
`on behalf of RFA including, but not limited to, Matrix Engineering, LLC, Matrix Engineering, and
`
`Matrix Engineering Consultants.
`
`2.
`
`The term “Plaintiff/Counterclaim-Defendant” or “Wirtgen” refers to Wirtgen
`
`America, Inc., its predecessors or successor corporations, and any of its subsidiaries, divisions,
`
`affiliates, foreign affiliates, present and former agents, employees, directors, trustees, attorneys,
`
`representatives, research and development personnel, and any person or entity acting in concert
`
`with Wirtgen or on behalf of Wirtgen.
`
`3.
`
`The term “Defendant/Counterclaim-Plaintiff” or “Caterpillar” refers to Caterpillar
`
`Inc., its predecessors or successor corporations, and any of its subsidiaries, divisions, affiliates,
`
`foreign affiliates, present and former agents, employees, directors, trustees, attorneys,
`
`representatives, research and development personnel, and any person or entity acting in concert
`
`

`

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`with Caterpillar or on behalf of Caterpillar.
`
`4.
`
`The terms “Road Milling Machine(s)” and “Cold Planer Machine(s)” shall mean
`
`any product, or component thereof, that has been, or is capable of being, used to remove, i.e., mill,
`
`all or a portion of an existing paved surface.
`
`5.
`
`The term “Road Working Machine” shall mean any product, or component thereof
`
`that has been, or is capable of being, used to work a road surface, such as a Road Milling Machine,
`
`rotary mixer, reclaimer, recycler, or stabilizer, which is supported on Adjustable Lifting Members
`
`and corresponding wheels or tracks, with a rotor, such as a milling drum, for working a road
`
`surface.
`
`6.
`
`The term “Accused Product(s)” refers to any or all of Caterpillar’s Road Working
`
`Machines, including Road Milling Machines, rotary mixers, reclaimers, recyclers, or stabilizers,
`
`which are supported on Adjustable Lifting Members and corresponding wheels or tracks, with a
`
`rotor, such as a milling drum, for working a road surface, that use or include the Patented
`
`Technology. The term “Accused Product(s)” shall include, without limitation, products designed,
`
`labeled, and marked as a PM620, PM622, PM820, PM822, PM825, PM310, PM312, PM313,
`
`RM600, or RM800.
`
`7.
`
`8.
`
`The term “person(s)” means any natural person or group of natural persons.
`
`The terms “entity” or “entities” mean any firm, association, organization,
`
`partnership, business, trust, corporation, proprietorship, scientific or academic establishment,
`
`governmental agency, or organizational unit thereof, including U.S. and foreign.
`
`9.
`
`The term “Action” shall mean the action captioned, Wirtgen America, Inc. v.
`
`Caterpillar Inc., C.A. No. 17-770-JDW-MPT, in the United States District Court for the District
`
`of Delaware.
`
`

`

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`10.
`
`The term “document(s)” is defined broadly to be given the full scope of that term
`
`contemplated in the Local Rules, the Federal Rules of Civil Procedure, and the Federal Rules of
`
`Evidence, and includes all non-identical copies of a document, all drafts of final documents, all
`
`other written, typed, printed, recorded, or graphically portrayed matter in any form or embodiment,
`
`and all other data compilations from which information can be obtained and translated if necessary,
`
`that are or have been in Your actual or constructive custody or control, regardless of the medium
`
`on which they are produced, reproduced, or stored (including computer programs and files
`
`containing any requested information), any communication, and any recording or writing, as these
`
`terms are defined in Federal Rule of Evidence 1001. Any document bearing marks, including
`
`initials, stamped initials, comments, or notations not part of the original text or photographic
`
`reproduction thereof, is a separate document.
`
`11.
`
`The term “communication(s)” shall mean all written, electronic, oral, telephonic,
`
`or other
`
`inquiries, dialogues, conversations,
`
`interviews, correspondence, consultations,
`
`negotiations, agreements, understandings, meetings, letters, notes, telegrams, advertisements,
`
`computer mail, email, and all other documents evidencing any verbal or nonverbal interaction
`
`between persons and entities.
`
`12.
`
`The term “thing(s)” shall be construed under the broadest possible construction
`
`under the Federal Rules of Civil Procedure.
`
`13.
`
`The terms “include” and “including” mean include or including without limitation.
`
`14.
`
`The terms “each” and “any” mean any and all.
`
`15.
`
`The terms “use” and “using” shall include without limitation customer use, RFA
`
`use, use in testing, use in demonstrating, and use in training.
`
`16.
`
`The terms “sell” and “sold” shall mean selling, leasing, and transferring title to.
`
`

`

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`17.
`
`The terms “U.S.” and “United States” shall be interpreted as the United States of
`
`America, including all fifty states, the District of Columbia, and Puerto Rico.
`
`18.
`
`The terms “relate to,” “related to,” or “relating to” shall mean, in whole or in part,
`
`constituting, containing, embodying, reflecting, describing, analyzing, identifying, mentioning,
`
`stating, referring directly or indirectly to, dealing with, or in any way pertaining to.
`
`19.
`
`The term “identify,” when used with respect to a document, means the: (1) type of
`
`document, (2) subject matter, (3) date of the document, (4) author(s), addressee(s), and recipient(s),
`
`and (5) Bates number.
`
`20.
`
`The term “date” shall mean the exact day, month, year, if ascertainable, or, if not,
`
`the best approximation thereof.
`
`INSTRUCTIONS
`
`The following instructions apply to the request for production:
`
`1.
`
`If any document, communication, or portion thereof that is responsive to the
`
`request for production (“Request”) is withheld on the basis of a claim of privilege, then each
`
`withheld document, communication, or portion thereof shall be separately identified in a
`
`privileged-document list. The privileged-document list must identify each document separately,
`
`specifying for each document at least: (1) the date; (2) author(s)/sender(s); (3) recipient(s),
`
`including copy recipients; and (4) general subject matter of the document. The sender(s) and
`
`recipient(s) shall be identified by position and entity (corporation or firm, etc.) with which they
`
`are employed or associated. If the sender or the recipient is an attorney or a foreign patent agent,
`
`he or she shall be so identified. The type of privilege claimed must also be stated, together with a
`
`certification that all elements of the claimed privilege have been met and have not been waived
`
`with respect to each document.
`
`2.
`
`If any information, document or thing requested herein was, but no longer is, in
`
`

`

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`Your possession, custody, or control, please state whether such document or thing has been lost,
`
`destroyed, or transferred, is missing, or has otherwise been disposed of, and in each instance,
`
`explain the circumstances surrounding the disposition of the document or thing and the date that
`
`such disposal occurred.
`
`3.
`
`Any term not specifically defined herein is to be defined in accordance with the
`
`Federal Rules of Civil Procedure.
`
`4.
`
`To the extent the Request seeks information that is recorded in any form of
`
`document, including electronically stored documents such as word-processing files and email,
`
`You are asked to take steps to ensure that (i) all such documents are preserved for the Present
`
`Action, and (ii) no responsive electronically stored documents are erased or deleted.
`
`5.
`
`All documents requested are to be produced in the same file or other
`
`organizational environment in which they are maintained. For example, a document that is part
`
`of a file, docket, or other grouping should be physically produced together with all other
`
`documents from said file, docket, or grouping in the same order or manner of arrangement as the
`
`original. Where a document or thing exists in hard copy and electronic format, You shall produce
`
`both the hard and the electronic copies.
`
`6.
`
`This Request seeks all responsive documents in their original language and, if
`
`such original language is not English, this Request also seeks all English-language translations
`
`that may exist for any such documents.
`
`7.
`
`You shall keep and produce a record of the source of each document produced.
`
`This shall include the name and location of the file where each document was located and the
`
`name of the person, group, or department having possession, custody, or control of each
`
`document.
`
`

`

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`8.
`
`If the Request is objected to in part, a complete answer should be provided to all
`
`portions of the Request to which no objection is made. If You object to the Request as overbroad
`
`and/or unduly burdensome for any reason, You are requested to respond to that portion of the
`
`Request to which no such objection is made, to produce documents responsive thereto, and to
`
`identify specifically the respect in which the Request is allegedly overbroad and/or unduly
`
`burdensome.
`
`9.
`
`If no documents are responsive to the Request, You are to state that no responsive
`
`documents exist.
`
`10.
`
`To the extent a document is considered confidential in nature, You may designate
`
`it in accordance with the Protective Order entered in the above-captioned matters, a copy of
`
`which is attached as Exhibit 2.
`
`REQUESTS FOR PRODUCTION
`
`REQUEST FOR PRODUCTION NO. 1:
`
`
`
`All documents and communications, including but not limited to photographs, videos, and
`
`CAD drawings, related to teardowns, reverse engineering, and/or competitive analysis of any
`
`Wirtgen Road Working Machine, including but not limited to a teardown of a Wirtgen W210 and
`
`a teardown of a Wirtgen W120.
`
`REQUEST FOR PRODUCTION NO. 2:
`
`
`
`All documents and communications, including but not limited to photographs, videos, and
`
`CAD drawings, related to teardowns of a Caterpillar PM210, a Caterpillar PM102, and/or a
`
`Caterpillar RM500B.
`
`REQUEST FOR PRODUCTION NO. 3:
`
`
`
`All documents and communications directed to any design changes to the Accused
`
`

`

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`Products made after June 16, 2017.
`
`REQUEST FOR PRODUCTION NO. 4:
`
`
`
`Documents sufficient to show any non-disclosure or other confidentiality agreements
`
`between RFA and Caterpillar affiliates related to any of the activities described in Request Nos.
`
`1–4, including, but not limited to, agreements involving Jon Ness, Bruce Birr, Joe Frank, Derek
`
`Swartz, Tony Shakal, Roger Hedlund, Anne Fundakowski, and/or Bob Bennett.
`
`
`
`
`
`

`

`Case 1:17-cv-00770-JDW-MPT Document 136-1 Filed 01/20/23 Page 12 of 19 PageID #:
`14897
`
`SCHEDULE B
`
`REQUEST FOR DEPOSITION
`PURSUANT TO FED. R. CIV. P. 45
`
`DEFINITIONS
`
`The following definitions shall apply to the Topics below:
`
`1.
`
`The terms “RFA,” “You,” and “Your” shall refer to RFA Engineering, the assume
`
`name of Rogers, Freels & Associates, Inc., a domestic business corporation incorporated under the
`
`laws of the state of Minnesota with a principal office address of 12986 Valley View Road, Eden
`
`Prairie, MN 55344, or any of their predecessors, domestic or foreign divisions, departments,
`
`subsidiaries, parents, affiliates, and other legal entities that are wholly or partially owned or
`
`controlled by RFA, either directly or indirectly, and each of their respective present or former
`
`directors, officers, employees, partners, agents, consultants, experts, representatives, and
`
`attorneys, as well as all other individuals or business entities in the employ of or otherwise acting
`
`on behalf of RFA including, but not limited to, Matrix Engineering, LLC, Matrix Engineering, and
`
`Matrix Engineering Consultants.
`
`2.
`
`The term “Plaintiff/Counterclaim-Defendant” or “Wirtgen” refers to Wirtgen
`
`America, Inc., its predecessors or successor corporations, and any of its subsidiaries, divisions,
`
`affiliates, foreign affiliates, present and former agents, employees, directors, trustees, attorneys,
`
`representatives, research and development personnel, and any person or entity acting in concert
`
`with Wirtgen or on behalf of Wirtgen.
`
`3.
`
`The term “Defendant/Counterclaim-Plaintiff” or “Caterpillar” refers to Caterpillar
`
`Inc., its predecessors or successor corporations, and any of its subsidiaries, divisions, affiliates,
`
`foreign affiliates, present and former agents, employees, directors, trustees, attorneys,
`
`representatives, research and development personnel, and any person or entity acting in concert
`
`

`

`Case 1:17-cv-00770-JDW-MPT Document 136-1 Filed 01/20/23 Page 13 of 19 PageID #:
`14898
`
`with Caterpillar or on behalf of Caterpillar.
`
`4.
`
`The terms “Road Milling Machine(s)” and “Cold Planer Machine(s)” shall mean
`
`any product, or component thereof, that has been, or is capable of being, used to remove, i.e., mill,
`
`all or a portion of an existing paved surface.
`
`5.
`
`The term “Road Working Machine” shall mean any product, or component thereof
`
`that has been, or is capable of being, used to work a road surface, such as a Road Milling Machine,
`
`rotary mixer, reclaimer, recycler, or stabilizer, which is supported on Adjustable Lifting Members
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`and corresponding wheels or tracks, with a rotor, such as a milling drum, for working a road
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`surface.
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`6.
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`The term “Accused Product(s)” refers to any or all of Caterpillar’s Road Working
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`Machines, including Road Milling Machines, rotary mixers, reclaimers, recyclers, or stabilizers,
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`which are supported on Adjustable Lifting Members and corresponding wheels or tracks, with a
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`rotor, such as a milling drum, for working a road surface, that use or include the Patented
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`Technology. The term “Accused Product(s)” shall include, without limitation, products designed,
`
`labeled, and marked as being part of the Caterpillar PM620, PM622, PM820, PM822, PM825,
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`PM310, PM312, PM313, RM600, or RM800.
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`7.
`
`8.
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`The term “person(s)” means any natural person or group of natural persons.
`
`The terms “entity” or “entities” mean any firm, association, organization,
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`partnership, business, trust, corporation, proprietorship, scientific or academic establishment,
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`governmental agency, or organizational unit thereof, including U.S. and foreign.
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`9.
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`The term “Action” shall mean the action captioned, Wirtgen America, Inc. v.
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`Caterpillar Inc., C.A. No. 17-770-JDW-MPT, in the United States District Court for the District
`
`of Delaware.
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`

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`10.
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`The term “document(s)” is defined broadly to be given the full scope of that term
`
`contemplated in the Local Rules, the Federal Rules of Civil Procedure, and the Federal Rules of
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`Evidence, and includes all non-identical copies of a document, all drafts of final documents, all
`
`other written, typed, printed, recorded, or graphically portrayed matter in any form or embodiment,
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`and all other data compilations from which information can be obtained and translated if necessary,
`
`that are or have been in Your actual or constructive custody or control, regardless of the medium
`
`on which they are produced, reproduced, or stored (including computer programs and files
`
`containing any requested information), any communication, and any recording or writing, as these
`
`terms are defined in Federal Rule of Evidence 1001. Any document bearing marks, including
`
`initials, stamped initials, comments, or notations not part of the original text or photographic
`
`reproduction thereof, is a separate document.
`
`11.
`
`The term “communication(s)” shall mean all written, electronic, oral, telephonic,
`
`or other
`
`inquiries, dialogues, conversations,
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`interviews, correspondence, consultations,
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`negotiations, agreements, understandings, meetings, letters, notes, telegrams, advertisements,
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`computer mail, email, and all other documents evidencing any verbal or nonverbal interaction
`
`between persons and entities.
`
`12.
`
`The term “thing(s)” shall be construed under the broadest possible construction
`
`under the Federal Rules of Civil Procedure.
`
`13.
`
`The terms “include” and “including” mean include or including without limitation.
`
`14.
`
`The terms “each” and “any” mean any and all.
`
`15.
`
`The terms “use” and “using” shall include without limitation customer use, RFA
`
`use, use in testing, use in demonstrating, and use in training.
`
`16.
`
`The terms “sell” and “sold” shall mean selling, leasing, and transferring title to.
`
`

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`17.
`
`The terms “U.S.” and “United States” shall be interpreted as the United States of
`
`America, including all fifty states, the District of Columbia, and Puerto Rico.
`
`18.
`
`The terms “relate to,” “related to,” or “relating to” shall mean, in whole or in part,
`
`constituting, containing, embodying, reflecting, describing, analyzing, identifying, mentioning,
`
`stating, referring directly or indirectly to, dealing with, or in any way pertaining to.
`
`19.
`
`The term “identify,” when used with respect to a document, means the: (1) type of
`
`document, (2) subject matter, (3) date of the document, (4) author(s), addressee(s), and recipient(s),
`
`and (5) Bates number.
`
`20.
`
`The term “date” shall mean the exact day, month, year, if ascertainable, or, if not,
`
`the best approximation thereof.
`
`INSTRUCTIONS
`
`The following instructions apply to the request for deposition:
`
`1.
`
`You are to prepare fully and completely to testify regarding the following Topics
`
`for Examination after conducting a diligent and thorough investigation into all information
`
`within Your possession, custody, or control. If You cannot fully and completely testify regarding
`
`any Topic, You are to prepare to testify regarding the Topic to the extent possible, specify the
`
`portion of the Topic You are unable to prepare for, and provide any information You have
`
`regarding that portion.
`
`2.
`
`If the Topic seeks testimony referencing or regarding a document or thing that has
`
`been lost, discarded, destroyed, or is otherwise unavailable for any reason, You should prepare to
`
`testify as to: the pertinent information contained in the document, the date of disposal, the
`
`manner of disposal, the reason for disposal, any person, firm, or corporation who has possession,
`
`custody, or control of a full, partial, or incomplete copy of such document, and the identity of all
`
`

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`persons who participated in the destruction or discarding or who have knowledge of the data and
`
`circumstances surrounding the destruction or discarding of the document or thing.
`
`3.
`
`If any Topic is objected to in part, You should prepare to testify regarding all
`
`portions of the Topic not objected to.
`
`4.
`
`If You claim that a Topic is overbroad and/or unduly burdensome, identify the
`
`respect in which the Topic is allegedly overbroad and/or unduly burdensome, and prepare to
`
`testify regarding any unobjectionable portion of the Topic.
`
`5.
`
`If You claim that a Topic is vague or ambiguous, identify the particular words,
`
`terms, or phrases that You contend make the Topic vague and/or ambiguous, and specify the
`
`meaning You attribute to those words, terms, or phrases for purposes of Your testimony
`
`pertaining thereto.
`
`6.
`
`The use of the plural or singular form of a word herein shall be interpreted to
`
`include the plural and singular forms so as not to exclude any information otherwise within the
`
`scope of any Topic.
`
`7.
`
`The words “and” and “or” shall be interpreted either conjunctively or
`
`disjunctively, whichever makes the Topic most inclusive.
`
`8.
`
`Use of the past tense includes the present tense and use of the present tense
`
`includes the past tense.
`
`9.
`
`Any term not specifically defined herein is to be defined in accordance with the
`
`Federal Ru