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1992-11-03
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Michael D. Loprete (MDL1695)
CRUMMY, DEL DEO, DOLAN,
GRIFFINGER & VECCHIONE, P.C.
One Riverfront Plaza
Newark, New Jersey 07102
(201) 596-4500
George L. Graff
James W. Kennedy
Charles B. Ortner
MILGRIM THOMAJAN & LEE P.C.
New York, New York 10005-2815
(212) 858-5300
Sanford Tannebaum
Executive Vice President and General Counsel
UNIX System Laboratories, Inc.
190 River Road
Summit, New Jersey 07901-1444
(908) 522-6666
Attorneys for Plaintiff
Unix System Laboratories, Inc.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNIX SYSTEM LABORATORIES, INC.,
Plaintiff, Civil Action No.
92-1667 (DRD)
-against-
PLAINTIFF'S FIRST
BERKELEY SOFTWARE DESIGN, INC., REQUEST FOR
PRODUCTION OF
Defendant. DOCUMENTS
Pursuant to Rule 34 of the Federal Rules of Civil Procedure and
Local Rule 16, Plaintiff Unix System Laboratories, Inc. ("USL"),
requests that Defandant Berkeley Software Design, Inc. ("BSDI")
produce for inspection and copying by the plaintiff, its attorneys
and/or agents, at the offices of Milgrim, Thomajan & Lee P.C., 53 Wall
Street, New York, New York 10005-2815, within thrity (30) days from the
date this Request is served upon you, those documents and things
described below that are in the posession, custody or control of the
Defendant, its attorneys and/or its agents, in accordance with the
following Definitions and Instructions.
Definitions
1. Plaintiff incorporates by reference teh Definitions set
forth in Plaintiff's First Set of Interrogatories to Defendant.
Instructions
1. Pursuant to Rule 45(d)(2) of the Federal Rules of Civil
procedure, if any of the documents demanded are withheld under a claim
of privilege, you must furnish a list identifying each such document
and state the date of the document, its author and addressee, each
person to whom the contents of the document were communicated, a
summary of the subject matter of the document, its present location and
custodian, the basis upon which the asserted privilege is claimed and
the request(s) to which each document is responsive.
2. If any of the documents demanded herein have been destroyed,
please furnish a list identifying each such document, its author and
addressee, each person to whom copies of the document were furnished or
to whom the contents of the document were communicated, a summary of the
substance of teh document, the date upon which it was destroyed and the
reason it was destroyed.
3. This Reuqest is deemed to eb continuing in nature, and in
the event you become aware or or acquire in your posession, custody or
control, new responsive documents, you are requested promptly to
produce such additional documents for inspection and copying.
REQUEST NO. 1:
All documents constituting, evidencing, reflecting or
concerning the use of, possession of, or access to any computer
related products developed and/or licensed by USL or AT&T
(including without limitation UNIX brand computer software
operating systems) occurring at any time by any past or present
BSDI personnel or by any person or entity which has performed or is
now performing services for or on behalf of BSDI.
REQUEST NO. 2:
All documents constituting, evidencing, reflecting or
concerning any past or current use by BSDI of the term "UNIX" in
connection with the development, promotion, marketing or
distribution of any computer related products.
REQUEST NO. 3:
All documents constituting, evidencing, reflecting or
concerning any agreements, correspondence or communications between
BSDI or any person or entity which has performed, was considered
for, or is now performing services for or on behalf of BSDI and
(a) the Regents of the University of California (the
"Regents"); or
(b) the Computer Systems Research Group of the University of
California, Berkeley, or any individuals affiliated
therewith.
REQUEST NO. 4:
All documents constituting, evidencing, reflecting or
concerning (a) the Berkeley Networking Release 2 or (b) any other
software relied on, used, consulted, or reviewed by any person or
entity which has performed or is now performing services for or on
behalf of BSDI in the development of its "BSDI 386 Source" or any
other software product developed or planned by BSDI.
REQUEST NO. 5:
All documents constituting, evidencing, reflecting or
concerning the development of the "BSDI 386 Source" or any other
software product developed or planned by BSDI.
REQUEST NO. 6:
All documents, including without limitation reference
materials, technical publications, or source materials, reviewed,
consulted, relied upon, or used in connection with the development
of "BSDI 386 Source," or any other software product developed or
planned by BSDI.
REQUEST NO. 7:
All time logs and other documents evidencing, reflecting
or concerning time spent in development of, testing of, commenting
upon, or assisting in the preparation of, "BSD 386 Source."
REQUEST NO. 8:
All documents constituting, evidencing, reflecting,
concerning or analyzing the "BSDI 386 Source" software product or
its design, organization, structure, methods or processes,
including without limitation source code, flow charts, work plans,
work sheets, data books, developer's notes, bug reports,
modification reports, and architectural documents.
REQUEST NO. 9:
A copy of the source code for "BSD 386 Source" and all
earlier versions of such software and all modules, components or
elements thereof.
REQUEST NO. 10:
All documents evidencing, reflecting or concerning the
testing of "BSDI 386 Source", including without limitation all
communications with alpha and beta test sites.
REQUEST NO. 11:
All documents constituting BSDI's promotional materials
in any form, including without limitation advertising brochures,
flyers or electronic bulletin board notices.
REQUEST NO. 12:
All documents constituting, evidencing, concerning or
reflecting the distribution or possible distribution of BSDI's
promotional materials to customers or potential customers.
REQUEST NO. 13:
All documents supporting, contradicting, or otherwise
concerning the statement in BSDI's "386 Source" software product
brochure (annexed as Exhibit A) that
BSD/386 is a "Berkely (sic) UNIX" compatible
operating system for the 386 and 486 architectures,
including without limitation (a) all matter reviewed, considered or
relied upon in relation to that statement, and (b) all matter
relating to such statement's truth, falsity or tendency to mislead.
REQUEST NO. 14:
All documents supporting, contradicting, or otherwise
concerning the statement in BSDI's "386 Source" software product
brochure (annexed as Exhibit A) that
It is based on the most recent release from the
Computer Systems Research Group of the University of
California, Berkeley - the Networking Release 2,
including without limitation (a) all matter reviewed, considered or
relied upon in relation to that statement, and (b) all matter
relating to such statement's truth, falsity or tendency to mislead.
REQUEST NO. 15:
All documents supporting, contradicting, or otherwise
concerning the statement in BSDI's "386 Source" software product
brochure (annexed as Exhibit A) that
The NET2 tape contained no AT&T licensed code, but
was not a complete system. BSDI has completed the
system and added additional drivers,
including without limitation (a) all matter reviewed, considered or
relied upon in relation to that statement, and (b) all matter
relating to such statement's truth, falsity or tendency to mislead.
REQUEST NO. 16:
All documents supporting, contradicting, or otherwise
concerning the statement in BSDI's "386 Source" software product
brochure (annexed as Exhibit A) that
The resulting system does not require a license from
AT&T, and so is available in source form at a
fraction of AT&T's price,
including without limitation (a) all matter reviewed, considered or
relied upon in relation to that statement, and (b) all matter
relating to such statement's truth, falsity or tendency to mislead.
REQUEST NO. 17:
All documents supporting, contradicting, or otherwise
concerning the statement in BSDI's "386 Source" software product
brochure (annexed as Exhibit A) that
The production system is planned to support SCO UNIX
V3.3 binaries,
including without limitation (a) all matter reviewed, considered or
relied upon in relation to that statement, and (b) all matter
relating to such statement's truth, falsity or tendency to mislead.
REQUEST NO. 18:
All documents supporting, contradicting, or otherwise
concerning the statement in BSDI's form of License Agreement
(annexed as Exhibit B) that
THE LICENSED PROGRAM DOES NOT CONTAIN CODE FROM
AT&T'S UNIX OPERATING SYSTEM CURRENTLY LICENSED BY
UNIX SYSTEMS [sic] LABORATORIES,
including without limitation (a) all matter reviewed, considered or
relied upon in relation to that statement, and (b) all matter
relating to such statement's truth, falsity or tendency to mislead.
REQUEST NO. 19:
All documents supporting, contradicting, or otherwise
concerning the statement appearing in Exhibit C that:
[W]e have seven people putting in more than 280
hours/week on getting the release out. That's every
week. We pay them for their efforts. We'll
certainly be hiring more,
including without limitation (a) all matter reviewed, considered or
relied upon in relation to that statement, and (b) all matter
relating to such statement's truth, falsity or tendency to mislead.
REQUEST NO. 20:
All documents supporting, contradicting, or concerning
the statement appearing in Exhibit C that
We have been billed more than US$40,000 just for the
legal services we have used to ensure that our code
will [sic] is technically and legally free from
AT&T/USL trade secrets,
including without limitation (a) all bills received by BSDI for
legal services in connection with any efforts to determine whether
BSDI software products are free from AT&T or USL trade secrets,
(b) any opinions by outside consultants, lawyers or others relating
thereto, (c) all materials provided to, or reviewed, considered or
relied upon, by such consultants or lawyers, and (d) all matter
relating to such statement's truth, falsity or tendency to mislead.
REQUEST NO. 21:
All communications involving BSDI and a customer or
potential customer, including without limitation customer
complaints, inquiries or requests for technical assistance.
REQUEST NO. 22:
All personnel records of BSDI's current, former and
prospective employees and consultants or other personnel involved
in the development of the "BSD 386 Source" or any other BSDI
software products.
REQUEST NO. 23:
All documents evidencing, concerning or reflecting the
identity, education, training, technical skill or employment
history of:
(a) all current and former BSDI employees involved in the
development of the "BSD 386 Source" or any other BSDI
software products; and
(b) any person or entity, whether or not employed by BSDI,
which has been or is now contributing to or involved with
the development of the "BSDI 386 Source" software
product.
REQUEST NO. 24:
All agreements, including without limitation employment
or consulting agreements, involving BSDI and:
(a) its current and former employees; or
(b) any person or entity, whether or not employed by BSDI,
which contributed to, or has been or is now involved
with, the development of the "BSDI 386 Source" software
product.
REQUEST NO. 25:
All documents constituting, evidencing, reflecting or
concerning job descriptions of BSDI's employees.
REQUEST NO. 26:
All documents constituting, evidencing, reflecting or
concerning agreements between BSDI and anyone concerning the sale
or licensing of BSDI's products, including without limitation
computer software, and all communications relating thereto.
REQUEST NO. 27:
All purchase orders and other documents evidencing,
reflecting or concerning the sale or licensing by BSDI of computer
products, including without limitation "BSD 386 Source."
REQUEST NO. 28:
All telephone logs, telephone bills and other documents
evidencing, concerning, or reflecting (a) calls made to BSDI via
the telephone number, "1-800-ITS-UNIX," and (b) BSDI responses to
such calls.
REQUEST NO. 29:
All documents evidencing, reflecting, concerning or
analyzing the presence, absence or possibility of consumer
confusion with respect to BSDI, its products or its services.
RESPONSE TO REQUEST NO. 29:
BSDI incorporates the general objections and specifically
objects on the grounds that it is overly broad, unduly burdensome,
vague and ambiguous. BSDI further objects to this request to the
extent that it seeks confidential and proprietary business
information regarding its customers. BSDI will produce responsive
documents once a suitable protective order or confidentiality
agreement has been agreed upon by the parties or entered by the
Court.
REQUEST NO. 30:
All documents reflecting the number and identity of
persons who have seen or been exposed to BSDI's promotional
materials or to the allegedly false and misleading representations
of BSDI referenced in the Complaint.
REQUEST NO. 31:
All documents constituting, evidencing, reflecting or
concerning business, marketing or strategic plans of BSDI with
respect to (a) "BSD 386 Source" and (b) any other product or
service of BSDI.
REQUEST NO. 32:
All documents constituting, evidencing, reflecting or
concerning any ownership interest in BSDI.
REQUEST NO. 33:
All documents evidencing, reflecting or concerning
sharing of revenues or profits generated by the sale or licensing
of BSDI's products or services.
REQUEST NO. 34:
All documents evidencing, reflecting or concerning
compensation of any kind for contributions to "BSD 386 Source."
REQUEST NO. 35:
All documents evidencing, reflecting or concerning
insurance or indemnity related to alleged or actual trademark
infringement, deceptive trade practices, unfair competition,
misappropriation of trade secrets, copyright infringement or any
other infringement of intellectual property rights on the part of
BSDI.
REQUEST NO. 36:
All documents constituting, evidencing, reflecting or
concerning prospecttuses, offering statements, and any other
communication soliciting investment in, or otherwise describing the
business or planned business of, BSDI.
ReQUEST NO. 37:
All documents identified, reviewed, consulted or relied upon in
connection with BSDI's response to Plaintiff's First Set of
Interrogatories to Defendant.
Dated: Newark, New Jersey
May 1, 1992
Unix System Laboratratories, Inc.
By:
Michael D. Loprete (MDL1695)
CRUMMY, DEL DEO, DOLAN
GRIFFINGER & VECCHIONE, P.C.
One Riverfront Plaza
Newark, New Jersey 07102
(201) 596-4500
and
By:
George L. Graff
James W. Kennedy
Charles B. Ortner
MILGRIM THOMAJAN & LEE P.C.
53 Wall Street
New York, New York 10005-2815
(212) 858-5300
Attorneys for Plaintiff
Of Counsel:
Sanford Tannenbaum
Executive Vice President and General Counsel
UNIX System Laboratories, Inc.
190 River Road
Summit, New Jersey 07901-1444
(908) 522-6666