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Case 2:08-cv-02701-MSG Document 45-7

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EXHIBIT G

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AMERICAN INFRASTRUCTURE, INC., Plaintiff,

v.
ZACHRY CONSTRUCTION CORP., Defendant.

) ) ) ) ) ) ) ) ) )

Case No. 08cv2701

PLAINTIFF'S RESPONSE TO DEFENDANT ZACHARY CONSTRUCTION CORP.'S FIRST SET OF DOCUMENT REQUESTS

Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Plaintiff American Infrastructure, Inc. ("American Infrastructure" or "Plaintiff') responds to Defendant Zachry Construction Corporation's ("ZCC" or "Defendant") first set of document requests as follows:
GENERAL OBJECTIONS

1. Nothing contained herein may be construed as an admission relative to the existence or non-existence of any document, and no response is an admission respecting the relevance or admissibility in evidence of any statement or characterization contained in the discovery requests. 2. The production of documents from which information has been redacted shall not be deemed to waive any objections Plaintiff may have to the production ofunredacted versions of such documents.

RESPONSES AND OBJECTIONS TO DOCUMENT REQUESTS

1. All documents concerning the use ofthe AMERICAN INFRASTRUCTURE marks identified in response to Interrogatory NO.2.
Response:

Subject to the entry of a suitable protective order, Plaintiff will produce responsive, nonprivileged documents.

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2. For each good and/or service identified in response to Interrogatory No.2, provide documents sufficient to show (a) the annual sales volume and (b) the annual advertising, promotional and/or marketing expenditures.
Response:

See answers and objections to Interrogatory No.3. 3. All advertisements, promotional and marketing materials containing or concerning the AMERICAN INFRASTRUCTURE mark.
Response:

Plaintiff will produce responsive, non-privileged documents. 4. All awards, honors, accolades, media reviews or press coverage concerning the AMERICAN INFRASTRUCTURE mark.
Response:

Plaintiff will produce responsive, non-privileged documents. 5. Documents sufficient to show Plaintiffs geographic use by city, county, state, and country of the AMERICAN INFRASTRUCTURE mark.
Response:

Objection. This interrogatory is overbroad, not relevant to the claims or defenses of the parties, and not reasonably calculated to lead to the production of admissible evidence. Subject to the foregoing objections, American Infrastructure has used the AMERICAN INFRASTRUCTURE mark in countless geographic locations throughout the United States and will produce responsive documents from which it may be possible for Defendant to ascertain the information in question. 6. Documents sufficient to identify all customers of goods or services sold or marketed under the AMERICAN INFRASTRUCTURE mark.
Response:

Subject to the entry of a suitable protective order, Plaintiff will produce responsive
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documents identifying its relevant customers. 7. All licenses or other documents authorizing others to sell, offer for sale, solicit offers to buy, or distribute any products or services made, provided, or sold or intended to be made, provided, or sold using the AMERICAN INFRASTRUCTURE mark. Response: There are none. 8. All documents concerning and/or supporting the allegation in paragraph 13 of the Complaint that American Infrastructure has engaged in "extensive, long-time, continuous and exclusive advertising, promotion, and use ofthe AMERICAN INFRASTRUCTURE Mark. ..." Response: Plaintiff will produce responsive, non-privileged documents, if any. 9. All documents concerning and/or supporting the allegation in paragraph 13 of the Complaint that "the AMERICAN INFRASTRUCTURE Mark has become strongly associated with Plaintiff in the minds of relevant consumers...." Response: Plaintiff will produce responsive, non-privileged documents, if any. 10. All documents concerning and/or supporting the allegation in paragraph 13 of the Complaint that the AMERICAN INFRASTRUCTURE mark "has acquired significant good will and secondary meaning." Response: Plaintiff will produce responsive, non-privileged documents, if any. 11. All documents concerning the registration of any domain names concerning the AMERICAN INFRASTRUCTURE mark. Response: Plaintiff will produce responsive, non-privileged documents, if any. 12. All documents concerning all purported instances of actual confusion resulting from the use or planned use of the ZACHRY AMERICAN INFRASTRUCTURE mark or any other mark containing the term AMERICAN INFRASTRUCTURE.
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Response: Objection. This request is overbroad, not relevant to the claims or defenses of the parties and not reasonably calculated to lead to the production of admissible evidence to the extent it seeks information about marks other than those that are the subject of the complaint. Subject to the foregoing objections and subject to the entry of a suitable protective order, Plaintiff has not completed its investigation and discovery relating to instances of actual confusion. To be supplemented. 13. All documents concerning the alleged likelihood of confusion resulting from the use or planned use of the ZACHRY AMERICAN INFRASTRUCTURE mark or any other mark containing the term AMERICAN INFRASTRUCTURE. Response: Objection. This request is overbroad, not relevant to the claims or defenses of the parties and not reasonably calculated to lead to the production of admissible evidence to the extent it seeks information about marks or goods and services other than those that are the subject of the complaint. Subject to the foregoing objections and subject to the entry of a suitable protective order, Plaintiff will produce responsive, non-privileged documents relating to the subject marks. 14. All documents concerning misdirected mail, phone calls or any other inquiries received by American Infrastructure regarding ZCC's (or any other Zachry entity) products or services, and inquiries regarding whether American Infrastructure and ZCC (or any other Zachry entity) were or are connected or associated with each other. Response: Plaintiff will produce responsive, non-privileged documents, if any. 15. All documents concerning consumer surveys, marketing studies, polls or focus groups concerning in any way the AMERICAN INFRASTRUCTURE or ZACHRY AMERICAN INFRASTRUCTURE marks. Response:
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Plaintiff will produce responsive, non-privileged documents, if any, in accordance with Fed. R. Civ. P. 26(a)(2). 16. All documents concerning federal, state or common law searches or investigations concerning the availability of the AMERICAN INFRASTRUCTURE mark.

Response:
Plaintiff will produce responsive, non-privileged documents, if any. 17. All documents concerning an opinion of counsel as to the availability for use or registrability of the AMERICAN INFRASTRUCTURE mark.

Response:
Objection. This request is overbroad, not relevant to the claims or defenses of the parties and not reasonably calculated to lead to the production of admissible evidence, and seeks the production of attorney-client privileged communications or attorney work product. 18. All documents relating to any application by or on behalf of American Infrastructure to register the AMERICAN INFRASTRUCTURE mark, including but not limited to U.S. Trademark Application Nos. 77/044,84 1,77/044,836, and 77/044,834.

Response:
Plaintiff will produce responsive, non-privileged documents, if any. 19. All documents concerning the use ofthe term AMERICAN INFRASTRUCTURE in connection with the sale or offer for sale of goods and/or services by anyone other than American Infrastructure.

Response:
Objection. This request is overbroad, not relevant to the claims or defenses of the parties and not reasonably calculated to lead to the production of admissible evidence to the extent it seeks information about marks or goods and services other than those that are the subject of the complaint. Further, this request seeks the production of attorney-client privileged communications or work product. 5

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20. All documents concerning American Infrastructure's efforts to challenge or prevent the use of any mark or term based on American Infrastructure's perceived rights in the AMERICAN INFRASTRUCTURE mark, including but not limited to all cease and desist letters and legal filings.
Response:

Objection. This request is overbroad, not relevant to the claims or defenses of the parties and not reasonably calculated to lead to the production of admissible evidence to the extent it seeks information about marks or goods and services other than those that are the subject of the complaint. Further, this request seeks the production of attorney-client privileged communications or work product. Subject to the foregoing objections and subject to the entry of a suitable protective order, Plaintiff will produce responsive, non-privileged documents, if any. 21. All documents concerning efforts by third parties to challenge or prevent American Infrastructure's use of the AMERICAN INFRASTRUCTURE mark.
Response:

Objection. This request is overbroad, not relevant to the claims or defenses of the parties and not reasonably calculated to lead to the production of admissible evidence to the extent it seeks information about marks or goods and services other than those that are the subject of the complaint. Further, this request seeks the production of attorney-client privileged communications or work product. Subject to the foregoing objections and subject to the entry of a suitable protective order, Plaintiff will produce Plaintiff will produce responsive, nonprivileged documents, if any. 22. All documents concerning every type of damage or injury that you claim to have suffered as a result ofZCC's (or any other Zachry entity) conduct alleged in this action.
Response:

The quantum of damages incurred by Plaintiff has yet to be fully determined; however

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Plaintiff will produce responsive documents, if any. Investigation and discovery are continuing.

23. All documents and communications concerning the ZACHRY AMERICAN INFRASTRUCTURE mark.
Response:

Objection. This request is vague, overbroad, not relevant to the claims or defenses of the parties and not reasonably calculated to lead to the production of admissible evidence, and duplicative of other requests. Further, this request seeks the production of attorney-client privileged communications or work product. Subject to the foregoing objections, subject to the entry of a suitable protective order, and subject to Plaintiff s understanding of this vague request, Plaintiff will produce responsive, non-privileged documents, if any. 24. All documents identified or consulted in response to ZCC's First Set of Interrogatories.
Response:

Objection. This request is vague, overbroad, not relevant to the claims or defenses of the parties and not reasonably calculated to lead to the production of admissible evidence, and duplicative of other requests. Further, this request seeks the production of attorney-client privileged communications or work product. Subject to the foregoing objections, subject to the entry of a suitable protective order, and subject to Plaintiff s understanding of this vague request, Plaintiff will produce responsive, non-privileged documents, if any.

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Dated: January 13,2009

BLANK ROME LLP

lsi Dennis McCooe


Timothy D. Pecsenye, Esq. Dennis McCooe, Esq. Blank Rome LLP One Logan Square Philadelphia, Pelll1sylvania 19103-6998 Attorneys for Plaintiff, American Infrastructure, Inc.

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CERTIFICATE OF SERVICE I, Dennis P. McCooe, declare that on January 13,2009, a copy of the foregoing Plaintiff s Response to Defendant Zachry Construction Corp.' s First Set of Request for Production of Documents was served by electronic mail, by agreement of the parties, on the following:

William D. Coston Mary Ellen R. Himes VENABLELLP 575 7TH Street, NW Washington, DC 20004 Alan Fellheimer FELLHEIMER & EICHEN 1800 John F. Kennedy Blvd, Suite 1400 Philadelphia, PA 19103

lsi Dennis McCooe Dennis McCooe, Esq.

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