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