UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C. 20436
`
`Before The Honorable Thomas B. Pender
`Administrative Law Judge
`
`In the Matter of
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`CERTAIN HYBRID ELECTRIC VEHICLES
`AND COMPONENTS THEREOF
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`Investigation No. 337-TA-998
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`COMPLAINANTS’ MOTION TO COMPEL AND
`REQUEST FOR SHORTENED TIME TO RESPOND
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`Complainants Paice LLC and the Abell Foundation, Inc. (collectively referred to as
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`“Complainants”) respectfully move for an Order compelling Respondents Volkswagen AG and
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`Volkswagen Group of America, Inc. (“VW”); Audi AG and Audi of America, LLC (“Audi”);
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`and Dr. lng. H.C. F. Porsche AG and Porsche Cars North America, Inc. (“Porsche”) (collectively
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`referred to as “Respondents”) to complete their production of technical documents including
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`source code and supplementation of related interrogatories by August 12, 2016. The support for
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`this motion is found in the Memorandum of Law filed herewith.
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`Pursuant to Ground Rule 5.1.3, Complainants request the ALJ to shorten the period of
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`time during which Respondents may respond to this motion. The shortened time is necessary to
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`afford Complainants the relief they seek, namely the production of technical documents, source
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`code, and supplementation of related interrogatory requests by August 12, 2016. Complainants
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`propose that Respondents file their opposition on or by August 10, 2016. Respondents have
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`been aware of the issues discussed herein for weeks and as such, should be able to respond
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`within this shortened time frame.
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`Investigation No. 337-TA-998
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`Pursuant to Ground Rule 5.1.2, Complainants, by counsel, hereby certify that they have
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`made reasonable, good-faith efforts to resolve the subject of this motion with Respondents more
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`than two business days prior to filing this motion. Pursuant to Ground Rule 5.4.1, Respondents
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`have raised the subject matter of this motion with Respondents during the Discovery Committee
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`Meetings held on June 22, 2016, July 6, 2016, July 20, 2016, and August 3, 2016. Moreover,
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`pursuant to Ground Rule 5.4.2, Complainants requested a discovery teleconference on July 19,
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`2016, which was subsequently held on July 29, 2016. The details of Complainants’ efforts to
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`resolve this motion, and Respondents’ positions on this motion are set forth in the accompanying
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`Memorandum of Law.
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`Dated: August 5, 2016
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`Respectfully submitted,
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`FISH & RICHARDSON P.C.
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`By: /s/ Ralph A. Phillips
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`Ruffin B. Cordell
`Linda Liu Kordziel
`Ahmed J. Davis
`Ralph A. Phillips
`Thomas S. Fusco
`Brian J. Livedalen
`Daniel A. Tishman
`Jared M. Hartzman
`FISH & RICHARDSON P.C.
`1425 K Street, N.W., 11th Floor
`Washington, D.C. 20005
`Telephone: (202) 783-5070
`Facsimile: (202) 783-2331
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`John S. Goetz
`FISH & RICHARDSON P.C.
`601 Lexington Avenue, 52nd Floor
`New York, NY 1002
`Telephone: (212) 765-5070
`Facsimile: (212) 765-2331
`
`Counsel for Complainants Paice LLC and
`the Abell Foundation, Inc.
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C. 20436
`
`Before The Honorable Thomas B. Pender
`Administrative Law Judge
`
`In the Matter of
`
`CERTAIN HYBRID ELECTRIC VEHICLES
`AND COMPONENTS THEREOF
`
`Investigation No. 337-TA-998
`
`
`
`
`MEMORANDUM IN SUPPORT OF COMPLAINANTS’ MOTION TO COMPEL
` AND REQUEST FOR SHORTENED TIME TO RESPOND
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`Complainants Paice LLC and the Abell Foundation, Inc. (collectively referred to as
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`“Complainants”) respectfully request the ALJ’s assistance in obtaining technical documents,
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`source code, and supplementation of related interrogatories from Respondents Volkswagen AG
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`and Volkswagen Group of America, Inc. (“VW”); Audi AG and Audi of America, LLC
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`(“Audi”); and Dr. lng. H.C. F. Porsche AG and Porsche Cars North America, Inc. (“Porsche”)
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`(collectively referred to as “Respondents”). Complainants have diligently pursued discovery in
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`this Investigation, and do not file this motion gratuitously. Unfortunately, recent
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`communications have revealed that the deficient discovery production by Respondents is likely
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`to continue without assistance from the Court. In particular, despite spending weeks negotiating
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`a source code addendum to the protective order to permit Respondents to produce source code,
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`the VW and Audi Respondents now claim that they have no source code.
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`I.
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`STATEMENT OF FACTS
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`Complainants served their First Set of Requests for Production and First Set of
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`Interrogatories to Respondents on May 24, 2016. (Ex. 1-6.) These Requests and Interrogatories
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`seek information relating to the control strategy implemented in Respondents’ hybrid vehicles.
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`(See Ex. 1-3 (Interrogatory Nos. 4-6); Ex. 4-6) (Request No. 8).) Respondents have therefore
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`had over two months to collect the requested information and documents responsive to
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`Complainants’ discovery requests.
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`Throughout this Investigation, Complainants have been working in good faith with
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`Respondents to ensure timely production of source code and technical documents regarding the
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`accused vehicles. By way of example, when Respondents indicated a desire for a modification
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`to the Protective Order for source code, Complainants provided draft language and met and
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`conferred with Respondents regarding the modifications to this language for over a month. (Ex.
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`23.) Complainants have worked extensively with Respondents in pursuit of critical discovery
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`before the parties engage in deposition practice; however, in many areas Respondents still have
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`fallen short. A specific recounting of these efforts as to respective Porsche Respondents, and the
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`VW and Audi Respondents, is provided in the following.
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`A. Porsche’s Deficient Discovery Responses and Document Productions
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`Having obtained very little discovery in response to Complainants’ May 24 requests,
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`Complainants wrote a letter dated June 22, 2016 (Ex. 7) asking Porsche to produce documents
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`and supplement their interrogatory responses by Monday, June 27, 2016. Porsche responded in a
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`letter dated June 28, 2016 (Ex. 8), stating that Porsche would begin producing documents within
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`the week. Complainants again wrote Porsche letters dated July 1, 2016, and July 7, 2016 (Ex. 9
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`and 10), seeking substantial technical documents and source code by July 14, 2016. On July 15,
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`Porsche’s counsel stated that they would make productions of development documents that day
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`and in the following week, but would not identify what was included in the productions or say
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`when the additional productions would take place. On July 15, 2016 (almost two full months
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`after Complainants served discovery requests specifically asking for source code), Porsche raised
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`. At the
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`for the first time that
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`time of the July 15 call,
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`. However, once these German-language documents were produced,
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`In light of Porsche’s deficiencies, Complainants filed a letter to Judge Pender on July 19,
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`2016 (Ex. 11), requesting a discovery teleconference. In this letter, Complainants detailed
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`Porsche’s failure to produce technical documentation sufficient to identify the structure,
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`function, and operation of the accused vehicles, or source code. (Ex. 11.) In the week leading
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`up to the discovery teleconference scheduled for July 29, 2016, Porsche produced two
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`documents, each approximately 17,500 pages and in German. In a letter to Porsche dated July
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`28, 2016 (Ex. 12), Complainants noted their appreciation for Porsche’s efforts, yet noted many of
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`the issues raised in Complainants letter dated July 19, 2016, to Judge Pender remained. In
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`particular, given the size and need for translation, Complainants noted the difficulty in assessing
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`the sufficiency of this production. (See id.) Complainants further noted that the difficulty was
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`compounded by the fact that, despite Porsche’s assurances that it would supplement its
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`interrogatory responses over the last month, Porsche had yet to do so. (Id.) On July 29, 2016,
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`the day of the parties’ scheduled discovery teleconference with Judge Pender, Porsche served
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`their First Supplemental Response to Complainants’ First Set of Interrogatories (Ex. 13.) In
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`response to Complainants’ interrogatories regarding the Accused Products and their
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`functionality, Porsche merely cited the two large German documents produced several days
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`earlier (each approximately 17,500 pages). (See id.)
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`On July 29, 2016, all named parties participated in the scheduled discovery
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`teleconference with Judge Pender (Ex. 14). On this call, Porsche argued that it substantially
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`satisfied its technical production through its recent production of the two 17,500 page
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`documents. Judge Pender noted that if he were litigating and “got a document dump like that,
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`[he] wouldn’t think it was particularly responsive either.” (Id. at 12:5-7.) Judge Pender then
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`directed Porsche to
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` point out the important information as
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`“17,000 pages is more than anybody humanly can deal with.” (Id. at 12:8-11.) Additionally,
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`Judge Pender noted that Complainants are “entitled to the source code”
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` (See id. at 15:12-13.)
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`Immediately following the discovery teleconference with Judge Pender, Complainants
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`sent Porsche another letter, dated July 29, 2016 (Ex. 15.) Complainants reiterated their requests
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`for production and sought confirmation that Porsche’s responses to Complainants’
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`interrogatories would be further supplemented in light of Judge Pender’s remarks. (Ex. 15.)
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`Porsche responded via e-mail on August 1, 2016 (Ex. 16), stating that it intended to substantially
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`complete its document production by August 12, 2016, and that Porsche’s interrogatory
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`responses would be supplemented by that date as well. Since August 1, 2016, Porsche has
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`produced several thousand new documents. However, this document production remains
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`deficient. Specifically, Porsche has not provided Complainants with source code or with any
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`identification of specific relevant Bates Ranges within its previous production of 35,000 pages of
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`technical German documentation.
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`B. VW and Audi’s Deficient Discovery Responses and Document Productions
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`As was the case with Porsche, Complainants also requested VW and Audi provide source
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`code and technical documents sufficient to identify the structure, function, and operation of the
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`accused vehicles, and to provide interrogatory responses in our May 24 original requests. After
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`receiving merely a promise to produce relevant, responsive documents in the future,
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`Complainants repeated that request in a letter dated June 22, 2016 (Ex. 17). After failing to
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`receive a response, Complainants reiterated their request in another letter dated July 5, 2016 (Ex.
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`18)—this time asking VW and Audi to remedy their deficiencies by July 8, 2016. VW and Audi
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`responded via e-mail on Wednesday, July 13, 2016 (Ex. 19), stating that a document production
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`would be made. Concurrently with these exchanges, Complainants had been working in good
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`faith with VW and Audi to negotiate a source code addendum, as VW and Audi were unwilling
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`to provide source code absent such protections. (Ex. 23.) Although VW and Audi produced a
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`few additional documents on July 15, 2016, the production did not remedy their deficiencies with
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`respect to technical documents and source code.
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`In Complainants’ letter to Judge Pender on July 19, 2016, Complainants detailed VW and
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`Audi’s failure to produce technical documentation sufficient to identify the structure, function,
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`and operation of the accused vehicles. (Ex. 11.) In the week leading up to the discovery
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`teleconference, VW and Audi produced an additional 502 documents, bringing their total
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`production at that point to just 803 documents, and served their First Supplemental Response to
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`Complainants’ First Set of Interrogatories (Ex. 20). On July 28, 2016, Complainants sent
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`another letter (Ex. 21) pointing out VW and Audi’s continued failure to provide technical
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`documentation. Complainants noted that of the 803 documents, approximately 407 appeared to
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`be prior art, IPR materials, emails, or other public documents unrelated to the accused products.
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`Additionally, VW’s supplemental interrogatory responses regarding the accused technology
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`identified only 13 documents. (Ex. 20.)
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`Further, as noted in Complainants’ letter of July 28, 2016, Complainants had not yet
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`received any source code as part of VW’s and Audi’s production, despite the fact that
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`Complainants had stated on numerous occasions that there is no basis for withholding this
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`material, since the protective order entered in this case was more than sufficient to protect the
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`confidentiality of these materials. (Ex. 21.) Immediately preceding the teleconference with
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`Judge Pender on July 29, 2016, VW and Audi made a production of 380 documents,
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`On July 29, 2016, VW and Audi participated in the discovery teleconference with Judge
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`Pender discussed above. As with Porsche, Complainants sent a letter to VW and Audi following
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`the teleconference dated July 29, 2016, reiterating their requests for production and seeking
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`confirmation that VW and Audi’s responses to Complainants’ interrogatories would be further
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`supplemented in light of Judge Pender’s remarks. VW and Audi responded in a letter dated
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`August 1, 2016 (Ex. 22). After Complainants had begun to digest Porsche’s large production of
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`German technical documentation, and had spent weeks negotiating over the terms of source code
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`production with VW and Audi,
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` Subsequently, on August 3, 2016, and August 4, 2016, VW and Audi made
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`productions of two technical documents
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`It was then that Complainants realized neither party would be producing code—Simulink or
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`, with no guidance as to what sections are relevant. (Ex. 24.)
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`otherwise—bringing this issue to a head.
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`II.
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` ARGUMENT
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`The Commission’s Rules of Practice and Procedure provide that the ALJ may compel
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`discovery upon a failure to make or to cooperate in discovery. (See 19 C.F.R. § 210.33; Certain
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`Integrated Circuit Chipsets, USITC Inv. No. 337-TA-428, Order No. 9 (May 1, 2000) (granting
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`complainant’s motion to compel production of documents provide “all information necessary . . .
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`to understand accurately the state of [accused products]”).)
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`Here, the record clearly demonstrates a lack of cooperation on the part of Respondents. To
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`date, Porsche cites only 8 documents in its supplemental interrogatory responses as providing
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`information regarding the control strategy of its hybrid vehicles. (See Ex. 13 (Interrogatory Nos.
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`3-6).) Two of these documents are approximately 17,500 pages and in German. While they
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`appear to be detailed technical functional specifications, given their size and translation issues,
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`Complainants are still working to verify that they are relevant. Porsche’s interrogatory responses
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`to date are not helpful in this regard as they generally cite to the entire Bates ranges of these two
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`documents without any specificity. A more specific identification of relevant information is
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`required. See 19 C.F.R. § 210.29(c) (requiring a party referring documents in answering
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`interrogatories to “include sufficient detail to permit the interrogating party to locate and to
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`identify, as readily as can the party served, the documents from which the answer may be
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`ascertained.”).
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`The record as to VW and Audi is no better. Only 13 documents are cited in its
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`supplemental interrogatory responses as providing information regarding the accused
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`technology. (See Ex. 20 (VW/Audi Resp. to Rog. Nos. 3-6).)
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` On August 3,
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`2016, and August 4, 2016, VW and Audi finally made productions of technical documentation
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`This documentation is, however, of similar size, also in German, and, again VW and Audi’s
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`interrogatory responses to date provide no guidance as to what sections are relevant to
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`technology at issue in this investigation.
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`The conduct of Respondents with respect to source code is of particular concern. 1 As
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`discussed above, from the beginning of discovery, Respondents engaged in a protracted
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`negotiation with Respondents regarding a modification to the Protective Order in this case to
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`provide special protections for source code. Respondents cited the lack of such a modification as
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`grounds for not producing or otherwise making source code available for inspection, engaging in
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`several weeks of negotiations, including numerous meet and confers. Respondents now contend
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`that they cannot provide source code
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`Respondents’ engaging in protracted negotiations to support their elaborate source code
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`production plans for weeks, only then to announce that they have no such code borders on bad
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`faith. It is difficult to imagine that Respondents, and their engineers, do not have access to the
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`source code that governs the operation and control of the accused hybrid vehicles. Hybrid
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`vehicles are complicated, sophisticated machines, and the embedded hybrid control software that
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`                                                            
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`1 To be clear, by source code, Complainants refer to actual code, such as C+ or C++ code, used
`to implement the hybrid control strategy, as well as the native (electronic) Simulink files and
`calibration data that are used to generate the C code.
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`. Providing
` is insufficient for Respondents to satisfy their discovery obligations—Complainants are
`entitled to access the source code that controls the operation of the accused vehicles.
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`controls operation of the gasoline engine and electric motor must be specifically designed for a
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`particular vehicle—this software is not available “off the shelf” and must be customized to fit the
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`particular needs of each or Respondents’ vehicles.
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`Accordingly, Respondents VW, Audi, and Porsche should be required to substantially
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`complete their production of technical documentation and to supplement their interrogatory
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`responses to more specifically identify what portions of the massive German-language technical
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`specifications they have recently produced relate to the hybrid control strategy. Further,
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`Respondents should be required to provide or otherwise make source code available for
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`inspection.
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`As discussed above, Respondents have committed to completing their technical productions,
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`and providing an additional supplementation of related interrogatories, by August 12, 2016.
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`Importantly, they are required to do so as part of their Ground Rule 7.2 Disclosure of Accused
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`Products, which is due to be served the same day. Over the past two and a half months,
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`Respondents have repeatedly claimed that their productions are forthcoming, yet to-date their
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`productions remain entirely deficient. Parties need to complete document production in advance
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`of depositions; complicating depositions further is the fact that to date Respondents have not
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`agreed to produce witnesses during August (owing to vacation plans in Germany) and have not
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`agreed to produce witnesses in the U.S. (despite doing so in other litigation). Given that there
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`are just over two months remaining in the fact discovery period, Complainants can no longer rest
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`on these representations. Of course, to the extent that Respondents render this motion moot by
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`way of future productions and supplementation of discovery requests, Complainants will
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`immediately move to withdraw the present motion.
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`III. CONCLUSION
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`For the foregoing reasons, Complainants respectfully request that the Administrative Law
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`Judge grant their motion to compel and issue an Order requiring Respondents to complete
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`production of technical documents; supplementation of related interrogatory requests; and to
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`make source code available by August 12, 2016. Complainants also respectfully request that
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`Respondents be required to file any opposition to this motion by August 10, 2016.
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`Dated: August 5, 2016
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`Respectfully submitted,
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`FISH & RICHARDSON P.C.
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`By: /s/ Ralph A. Phillips
`
`Ruffin B. Cordell
`Linda Liu Kordziel
`Ahmed J. Davis
`Ralph A. Phillips
`Thomas S. Fusco
`Brian J. Livedalen
`Daniel A. Tishman
`Jared M. Hartzman
`FISH & RICHARDSON P.C.
`1425 K Street, N.W., 11th Floor
`Washington, D.C. 20005
`Telephone: (202) 783-5070
`Facsimile: (202) 783-2331
`
`John S. Goetz
`FISH & RICHARDSON P.C.
`601 Lexington Avenue, 52nd Floor
`New York, NY 1002
`Telephone: (212) 765-5070
`Facsimile: (212) 765-2331
`
`Counsel for Complainants Paice LLC and
`the Abell Foundation, Inc.
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`CERTIFICATE OF SERVICE
`I hereby certify that true and correct copies of the foregoing document,
`COMPLAINANTS’ MOTION TO COMPEL AND REQUEST FOR SHORTENED TIME
`TO RESPOND have been served on this 5th day of August, 2016, on the following:
` Via First Class Mail
`The Honorable Lisa R. Barton
` Via Hand Delivery
`Secretary
`
`U.S. International Trade Commission
` Via Federal Express
` Via Electronic Filing
`500 E Street, S.W.
`Washington, D.C. 20436
`
`The Honorable Thomas B. Pender
`Administrative Law Judge
`U.S. International Trade Commission
`500 E Street, S.W.
`Washington, D.C. 20436
`
`Gregory Moldafsky
`Houda Morad
`Attorney Advisors
`U.S. International Trade Commission
`500 E Street, S.W., Room 401
`Washington, D.C. 20436
`Gregory.Moldafsky@usitc.gov
`Houda.Morad@usitc.gov
`
`Michael J. Lennon
`Kenyon & Kenyon LLP
`One Broadway
`New York, NY 10004
`E-mail: KenyonServPaiceVWAudiITC998@kenyon.com
`
`Counsel for Respondents Volkswagen AG, Volkswagen
`Group of America, Inc., Audi AG, and Audi of America,
`LLC
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` Via First Class Mail
` Via Hand Delivery
` Via Federal Express
` Via Electronic Filing
`
` Via First Class Mail
` Via Hand Delivery
` Via Federal Express
` Via Electronic Mail
`
`
`
` Via First Class Mail
` Via Hand Delivery
` Via Overnight Mail
` Via Electronic Mail
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`PUBLIC VERSION
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` Via First Class Mail
` Via Hand Delivery
` Via Overnight Mail
` Via Electronic Mail
`
` Via First Class Mail
` Via Hand Delivery
` Via Overnight Mail
` Via Electronic Mail
`
`
`Edgar H. Haug
`FROMMER LAWRENCE & HAUG LLP
`745 Fifth Avenue
`New York, NY 10151
`E-mail: PorscheITC@flhlaw.com
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`Counsel for Respondents Dr. Ing, H.C.F. Porsche AG and
`Porsche Cars North America, Inc.
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`John Flock
`George E. Badenoch
`Mark A. Chapman
`KENYON & KENYON LLP
`One Broadway
`New York, NY 10004
`JFlock@kenyon.com
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`Counsel for Toyota Motor Corporation
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`                                                                                                
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`/s/ Judith Best
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`Judith Best
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`14
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`Investigation No. 337-TA-998
`COMPLAINANTS’ MOTION TO COMPEL AND
`REQUEST FOR SHORTENED TIME TO RESPOND
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`PUBLIC VERSION
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`IIIIIIIIIII ON
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`Exhibit 1
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`Exhibit 1
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`PUBLIC VERSION
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`WASHINGTON, D.C. 20436
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`Before The Honorable Thomas B. Pender
`Administrative Law Judge
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`In the Matter of
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`CERTAIN HYBRID ELECTRIC
`VEHICLES AND COMPONENTS
`THEREOF
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`Investigation No. 337-TA-998
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`COMPLAINANT PAICE LLC’S FIRST SET OF
`INTERROGATORIES (NOS. 1-65) TO RESPONDENTS VOLKSWAGEN AG AND
`VOLKSWAGEN GROUP OF AMERICA, INC.
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`Pursuant to the United States International Trade Commission’s Rules of Practice and
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`Procedure, 19 C.F.R. § § 210.27 and 210.29, Complainant Paice LLC (“Paice” or
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`“Complainant”), by its undersigned attorneys, hereby requests that Respondents Volkswagen AG
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`and Volkswagen Group of America, Inc. (collectively “VW”) separately answer each
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`interrogatory set forth below, in writing, under oath, in accordance with the Definitions and
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`Instructions contained herein, and serve such answers on Complainant’s counsel, Fish &
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`Richardson P.C., 1425 K Street, N.W., Suite 1100, Washington D.C. 20005, within the time
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`prescribed by the rules of the Commission and of the Administrative Law Judge.
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`DEFINITIONS
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`The following definitions shall apply throughout these requests, regardless of whether
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`upper or lower case letters are used:
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`A.
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`“Volkswagen AG” include, collectively and individually, (1) Volkswagen AG
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`and any parent, subsidiaries and divisions, (2) any successors and predecessors thereto, and (3)
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`any and all persons or entities acting or purporting to act on Volkswagen AG’s behalf, including
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`but not limited to all past and present employees, officers, directors, agents, consultants, partners,
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`affiliates, associates, attorneys or representatives thereof.
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`B.
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`“Volkswagen Group of America, Inc.” include, collectively and individually, (1)
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`Volkswagen Group of America, Inc. and any parent, subsidiaries and divisions, (2) any
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`successors and predecessors thereto, and (3) any and all persons or entities acting or purporting
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`to act on Volkswagen Group of America Inc.’s behalf, including but not limited to all past and
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`present employees, officers, directors, agents, consultants, partners, affiliates, associates,
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`attorneys or representatives thereof.
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`C.
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`The terms “You,” “Your,” or “VW” refer to Volkswagen AG and Volkswagen
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`Group of America, Inc., as defined herein.
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`D.
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`“Authorized Dealerships” includes, collectively and individually, any franchisees,
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`resellers, distributors, or dealerships that purchase and subsequently sell or are authorized to sell
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`vehicles, components, or parts manufactured by VW, or any franchisees or dealerships that repair
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`or are authorized to perform repairs on vehicles, components or parts manufactured by VW.
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`“Paice” refers to Paice LLC and any successors and predecessors thereto.
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`“Abell” refers to the Abell Foundation Inc. and any successors and predecessors
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`E.
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`F.
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`thereto.
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`G.
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`“Complainants” refers to Paice LLC and the Abell Foundation Inc. The “’347
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`patent” means U.S. Patent No. 7,104,347.
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`H.
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`I.
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`J.
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`The “’634 patent” means U.S. Patent No. 7,237,634.
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`The “’097 patent” means U.S. Patent No. 8,214,097.
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`The “Paice Patents,” “Patents-in-suit,” or “Asserted Patents” refer to U.S. Patent
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`No. 7,104,347, U.S. Patent No. 7,237,634, and U.S. Patent No. 8,214,097.
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`2
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`K.
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`“Relating to,” “related to,” or “relate to” means and includes concerning, reflecting,
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`alluding to, mentioning, regarding, discussing, bearing upon, commenting on, constituting, pertaining
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`to, demonstrating, describing, depicting, referring to, summarizing, containing, embodying, showing,
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`comprising, evidencing, refuting, contradicting, and/or supporting.
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`L.
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`“Referring to,” “refers to,” or “refer to” means and includes relating to, reflecting,
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`alluding to, mentioning, regarding, discussing, bearing upon, commenting on, constituting, pertaining
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`to, demonstrating, describing, depicting, concerning, summarizing, containing, embodying, showing,
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`comprising, evidencing, refuting, contradicting and/or supporting.
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`M.
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`“Document” is defined broadly to be given the full scope of that term contemplated in
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`Federal Rules of Civil Procedure 26 and 34, and includes all tangible things, all originals (or, if
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`originals are not available, identical copies thereof), all non-identical copies of a document, all drafts
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`of final documents, all other written, printed, or recorded matter of any kind, and all other data
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`compilations from which information can be obtained and translated if necessary, that are or have
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`been in your actual or constructive possession, custody or control, regardless of the medium on
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`which they are produced, reproduced, or stored (including without limitation computer programs and
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`files containing any requested information, and any recording or writing, as these terms are defined
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`in Rule 1001, Federal Rules of Evidence. Any document bearing marks, including without
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`limitation, initials, stamped initials, comments, or notations not a part of the original text or
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`photographic reproduction thereof, is a separate document.
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`N.
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`“Person” shall mean any natural person or any business, proprietorship, firm,
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`partnership, corporation, association, organization, or other legal entity. The acts of a Person shall
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`include the acts of directors, officers, owners, members, employees, agents, attorneys or other
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`representatives acting on the Person’s behalf.
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`O.
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`“Communication” means any contact, oral or written, whereby information of any
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`nature is transmitted, including without limitation, a person(s) seeing or hearing any information
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`by any means and any document memorializing or referring to the contact.
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`P.
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`“Entity” means, including without limitation, corporation, company, firm,
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`partnership, joint venture, association, governmental body or agency, or persons other than a
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`natural person.
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`Q.
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`“Third Party” means any person or entity other than Volkswagen AG and
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`Volkswagen Group of America, Inc.
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`R.
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`“Identify,” “identity,” or “identification” means:
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`(1) When used with reference to a natural person, to state the person’s full
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`name, address and telephone number and state the person’s present or last known position
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`and employer.
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`(2) When used with reference to any entity (including without limitation
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`corporation, company, firm, partnership, joint venture, association, governmental body or
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`agency or persons other than a natural person), to state the full legal name of the entity,
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`the place of incorporation or organization, the address and telephone number of the
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`principal place of business, and the nature of the business conducted by that entity.
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`(3) When used with reference to any document, to summarize the substance of
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`the document and state the document’s title, date, form (e.g., letter, memorandum, email,
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`etc.), document production number range, author(s), recipient(s), and name of its present
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`custodian.
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`(4) When used with reference to any communication, to (1) summarize the
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`substance of the communication; (2) state the date and place of the communication; (3)
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`identify each person who was present at, involved in, connected with or who participated
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`in the communication; (4) state the form of communication (e.g., telephone call, meeting,
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`letter, etc.); and (5) identify each document memorializing or referring to the
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`communication.
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`S.
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`“Accused Product” or “Accused Products” means and includes any