New and Used Sales and FULL Service
233 East Main Street Torrington, CT. 06790 Phone: (860) 626-8486 Fax: (860) 626-0091 Email: email@example.com
June 11, 2009
VIA Email KDugdale@perkinscoie.com
Re: Microsoft v. Johnson 3:08CV1602 RNC
Dear Ms. Dugdale.
This letter is in response to your letter of June 10, 2009 (yesterday) in which you claim you tried to explain to me that what you want is indication whether or not I “have responsive documents” and that I failed to supply those “responsive documents”. It seems absolutely ridiculous to wonder if a business possesses documents “including, without limitation, sales invoices, receipts, purchase order, or shipping records”. Of course I do.
The issue has always been whether or not I should supply them to you. Hence my answers to your requests for production.
When what you asked was to produce “all documents (including, without limitation, sales invoices, receipts, purchase order, or shipping records) that relate to any acquisition, distribution, prices, agreement, Certificates of Authenticity, and Product Keys for Microsoft items you wish every record concerning buying or selling a Microsoft product for fifteen years of business operation. I have no idea how I could find such documents rather than to go through documents page by page looking for reference to any of Microsoft’s products.
It is clear you will go through with your motion to compel regardless how cooperative I am, how many letters we write, or whatever I say. I can best help you by answering your issues to the best of my ability here so as to be prepared when the Court is looking for reasonable responses to what is clearly an expensive fishing expedition by Microsoft lawyers.
Your first issue, numbered “1” in your letter from June 10, 2009, my failure to produce any documents, is borne of the fact that you have asked for documents “including, without limitation, sales invoices, receipts, purchase order, or shipping records” that relate to all Microsoft products.
In my opinion there are myriad reasons not to produce such documents for you, including those reasons in my responses of May 11, but also because such documents are not reasonably accessible because of undue burden or cost, that Microsoft can obtain these documents from some other source that is more convenient, less burdensome, or less expensive, that Microsoft has had ample opportunity to obtain the information by discovery in the action, and the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
For like reasons I failed to produce documents concerning license agreements and correspondence with Microsoft or with customers, and “financial documents” your numbers 2, 3 and 4 in your letter of June 10, 2009. Beyond the reasons listed above I have no idea what license agreements or correspondence or financial documents I might have that you are looking for.
I think it is clear that I am cooperative and reasonable, and you are not.
It appears you are attempting to argue that I have no right to distribute Microsoft products because I have no agreement with Microsoft which gives me that right. If that is your argument, my reply is that I comply with the requirements stated on the box or packaging of the items I buy or sell, whether they are Microsoft or any other manufacturer. Don’t you have copies of those Microsoft products?
As to my bank statements: You want all of them? For 15 years? And you don’t find that request unreasonable? I think we will have to ask the Court about that request as well.
And you ask “if” I have issues about your insufficiencies of response. It is as if you cannot read my clear and concise list of reasonable requests for production of documents and answers to questions. Shall I quote them again here?
Please state clearly if signing this “Stipulated Protective Order” will bring complete responses to my questions of March 5, 2009 and April 26, 2009, and if so, how?
Please list any concerns you have about my publicizing any and all communications between the Microsoft Corporation and me concerning this case.
It was represented that a minimum penalty for non-willful copyright and trademark infringement was $750. I believe figure is $200. Please direct me to how you found the $750 figure.
It was represented that if a defendant is found to have engaged in non-willful copyright and/or trademark infringement it is common that court costs will be awarded to the plaintiff. I have found several cases that suggest such awards are not commonly made. Please provide support for your assertions to the contrary.
Provide all information pertaining to the two complaints you have received from customers about copyright infringement from me and my company.
Provide all information about the Microsoft employee you called “another investigator” in your April 9, 2009 email, the employee who came to my business to retrieve the items Microsoft purchased on July 14, 2008. Please identify this Microsoft employee and provide any notes or comments by that employee about that purchase.
If it is your position that this Microsoft employee did not retrieve software you purchased, please state so clearly and provide details about my business’s handling of our neglect in this regard.
Pursuant to Rule 34 Discovery please provide all personnel records pursuant to the two Microsoft employees, Patricia Urban and the one you identified as “another investigator” in the April 9 communication who contacted my place of business, especially regarding general behavior and job performance reviews.
Provide all information about reports of me and my business given you through your Anti-piracy Hotline and any other reports of wrong-doing Microsoft Corporation considers concerning me, my business and this case.
On April 20, 2009 I asked: “Are there other actions of mine which you will be dealing with in this case?” You responded that the purchase of two computers by your investigator was the only issue unless you find more issues during Discovery. Is that a fair characterization of the information you have provided so far concerning your accusations against me?
Very Truly Yours