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 BERKELEY SOFTWARE DESIGN, INC., FIRST SET OF INTERROGATORIES Defendant. Plaintiff Unix System laboratories, Inc. ("USL"), pursuant to Rule 33 of the Federal Rules of Civil Procedure and Local Rule 16, demands that Defandant Berkeley System Design, Inc. ("BSDI") serve answers to the following Interrogatories within thirty (30) days from teh date on which they are served, in accordance with the Definitions and Instructions set forth below. Definitions 1. The term "BSDI 386 Source" means any and all forms (e.g., source, alpha, beta, binary, or object code forms), in whole or in part (including without limitation any component, module or element thereof), of the operating system described in the "BSD 386 Source" product brochure (copy annexed as Exhibit A) as a "UNIX compatible operating system for 386 and 486 PC architectures," and all versions, releases or derivatives thereof, in whole or in part (including without limitation any component, module or element thereof), whether or not marketed, licensed or sold under the name "BSD 386 Source." 2. The terms "promotional materials" mean any and all matter that promotes, advertises or otherwise describes BSDI or its products and/or services, including but not limited to: (1) Promotional brochures, (2) Advertisements, (3) Order forms, and (4) Notices or other communications posted to computer network bulletin boards. 3. The terms "Berkeley NET2 software" and "Berkeley Networking Release 2" mean any and all forms (e.g., source, alpha, beta, binary, or object code forms), in whole or in part (including without limitation any component, module or element thereof), of the software referred to in BSDI's "386 Source" software product brochure (annexed as Exhibit A) as "the most recent release from the Computer Systems Research Group of the University of California, Berkeley - the Networking Release 2" and as the "NET2 tape," and all versions, releases or derivatives thereof, in whole or in part (including without limitation any component, module or element thereof). 4. Reference to any software product includes without limitation all versions, releases and derivatives thereof. 5. The term "communication" means any correspondence, contact, discussion or exchange between or among any two or more persons or entities. Without limiting the foregoing, "communication" includes all documents, telephone conversations, negotiations, meetings, and conferences. 6. The term "identify" or "identifying" means: (a) when referring to a natural person, state his full name, present or last known business and home addresses, his present or last known business position, and, if different, his occupation or business position at the time to which the interrogatory or your response thereto has reference. When used with reference to any particular person, the information other than his full name need be given only once. (b) when referring to a corporation or other business enterprise or legal entity, state the full name and address and a brief description of the primary business in which such entity is engaged. With respect to any particular entity, the information other than the full name need be given only once. (c) when referring to communication or act: (i) state its date and place of occurrence (or, if a telephone call is involved, so state and provide the location of all parties to such telephone call and identify the person who initiated it) ; the identity of each person participation therein, who each such person participation therein represented or purported to represent, the nature and subject matter or any circumstances surrounding it, and the substance of what transpired or was said; and (ii) identify all documents, summarizing, recording, reflecting, reporting or containing a reference to it. 7. The term "concerning" includes referring to, relating to, embodying, connected with, commenting on, responding to, showing, describing, analyzing, reflecting or constituting. 8. The term "document" is used in the broadest sense allowed under Fed. R. Civ. P. 34 and includes, without limitation, any printed, written, recorded, taped, electronic, magnetic, optical, graphic, computerized printout, computer software, computer disc or other storage medium, or other tangible matter from whatever source, however produced or reproduced or stored, whether in draft or otherwise, whether sent or received or neither, including the original or any non- identical copy (whether different from the original because of notes made on or attached to such copy or any other reason). 9. Reference to any entity includes its present and former subsidiaries, affiliates, divisions, joint ventures, partners, present and former officers, present and former directors, present and former employees, present and former advisors, and present and former trustees or administrators, both individually and collectively, and any person acting or purporting to act on their individual or collective behalf. 10. Subject to ythe foregoing, "USL" means UNIX System Laboratories, Inc., "BSDI" means defendant Berkeley Software Design, Inc., and "AT&T" means America Telephone and Telegraph Company. 11. Reference to any individual includes such individual, his or her employees, agents, and all persons acting or purporting to act on behalf of or in concert with that individual and all persons or entities under his or her control. 12. "And" as well as "or" shall be construed either disjunctively or conjunctively as necessary to bring within the scope of these interrogatories any response that might otherwise be construed to be outside their scope. 13. The singular includes the plural and the plural includes the singular; "any" shall mean "any and all" and "all" shall mean "all" and "any." 14. The term "including" means "including without limitation." Instructions 1. These interrogatories are to be regarded as continuing, and you are requested to provide, by way of supplementary answers, such additional information as you, or any other person in your behalf, may hereafter obtain, which will augment or otherwise modify your answers now given to these interrogatories. Such supplementary answers are to be filed and served upon USL's counsel within 30 days after receipt of such information, but not later than two (2) weeks preceding the date of Trial. 2. In answering these interrogatories, even though the question may be addressed to "you", you must include both information of which you have personal knowledge or which is available to you and information obtainable by reasonable investigation. This includes information in the possession of or available to any person acting on your behalf or under your control, including your representatives. 3. If all the information furnished in answer to all or any part of any interrogatory is not within your knowledge, identify each person to whom all or any part of the information furnished is a matter of personal knowledge, and each person who communicated to the affiant any part of the information furnished. 4. Where any of these interrogatories or any sub-part thereof may be responsibly and fully answered by the reference to a document, such interrogatory or sub-part may be answered by attaching to your answer a copy of such document, by referring in such answer to such document, and by identifying the paragraph, portion, or provision of the document that fully answers the interrogatory. 5. When referring to a document not being produced in lieu of answering an interrogatory, state its title and date; identify the auther or person who prepared it and any signatories to it; give the type of document (e.g., letter, memorandum, note agreement), its present location and custodian, a summary of its contents, or principal terms or provisions; and the identity of its addresses and all other persons receiving it or copies of it. If the document so identified was but is no longer in your possession, custody or control, state what disposition was made of it. 6. Each interrogatory and subpart thereof is to be accorded a seperate answer and interrogatories are not to be combined for the purpose of supplying a common answer thereto. 7. If, after exercising due diligence, you can obtain no information about the subject of a particular interrogatory, or if for some reason you are unable to answer it, the response to that interrogatory should specifically so state, and no interrogatory should be without some response. If you have some information responsive to an interrogaroty, but believe that further information not now available to you would also be responsive, you should provide the information you now have and should specifically state when the balance of the information will be provided; the fact that a full answer cannot be given is not a basis for you to fail to provide such information as is available to you at the time of your response to these interrogatories. 8. If you assert that any interrogatory contains any objectionable inquiries, state your objection with regard to the particular inquiry or inquiries within any interrogatory which you deem objectionable. 9. If you contend that the contents of any writings described in your answers to these interrogatories are protected from disclosure by reason of a claim of privilege, work product or other ground of nonproduction a list is to be furnished, at the time your Response to these interrogatories is served, identifying specifically each such document by its nature (e.g., letter, memorandum, etc.), together with the following information with respect to each such document; author(s); recipient(s); sender(s); indicated or blind copies; date; subject matter; basis on which the privilege is claimed; number of pages; and each interrogatory to which such document relates. INTERROGATORY NO. 1: State whether BSDI has at any time adopted and/or implemented a policy or practice with respect to the retention or destruction of documents, and, if so, describe in detail the policy or practice, identify all persons who were involved in discussing, considering, adopting or implementing the policy or practice, and state the date on which the policy or practice was first adopted or implemented. INTERROGATORY NO. 2: State whether BSDI has at any time destroyed any documents, or is aware of the destruction of documents by anyone, that constitute, evidence, reflect or concern: (a) the technical development of the "BSD 386 Source" software product; (b) 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; (c) any other document responsive to the Plaintiff's First Request for Production of Documents. If so, (a) identify each such document, including without limitation all authors, addressees and recipients thereof, as well as the subject matter of such document, (b) state the date of its destruction, (c) describe the manner in which destroyed, (d) identify all persons responsible for its destruction and all persons with knowledge of its destruction, and (e) state the reason(s) for its destruction. INTERROGATORY NO. 3: Identify all persons and entities involved in any way in the technical development of the "BSD 386 Source" software product, including without limitation employees of BSDI, consultants, or outside contributors of software. In addition to the information required by Instruction No. 2, for each such person or entity: (a) describe the particular contribution made by such person or entity to the technical development of "BSD 386 Source"; (b) state the number of hours which such person or entity devoted to each particular contribution made to the technical development of "BSD 386 Source," and the dates in which such person or entity was engaged in making that contribution; (c) describe such person's or entity's educational experience, technical expertise and training; and (d) with respect to individuals, list such person's employers, dates of employments, job titles, duties and responsibilities over the last fifteen years. INTERROGATORY NO. 4: With respect to each person and entity identified in response to the foregoing Interrogatory, state whether or not such person or entity is a licensee of UNIX operating system software; has performed or is performing services, as an employee, contractor or otherwise, for or on behalf of a licensee of UNIX operating system software; or has otherwise had access to UNIX operating system software. With respect to licensees, set forth the date of the License Agreement. Further, if such person or entity has had access to UNIX operating system software, set forth the date(s) of such access and a brief description of the circumstances in which such access was granted. INTERROGATORY NO. 5: Identify all sources of software code or other technology from which "BSD 386 Source" is or may be copied or derived, and identify the specific portion of "BSD 386 Source" related thereto. INTERROGATORY NO. 6: Identify all license agreements under which BSDI has obtained a past, current or prospective right of access to software or other computer-related technology. As to each such agreement, state whether BSDI has reviewed, referred to or relied upon any technology disclosed under such agreement in connection with the development of the "BSD 386 Source." If so, identify the specific portion of the "BSD 386 Source" related to such technology. INTERROGATORY NO. 7: Identify all agreements, including without limitation license agreements, between BSDI, or its past or current employees, or its past or current consultants, or any person or entity which at at(sic) the time of the agreement was 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 ("CSRG"), or any individuals affiliated therewith. With respect to each such agreement, identify all communications constituting, evidencing, reflecting or concerning negotiations with respect to such agreement, and identify all persons with knowledge of such communications and negotiations. INTERROGATORY NO. 8: Identify all communications involving BSDI, including without limitation anyone acting on its behalf, concerning the question of indemnity for infringement of intellectual property rights arising out of the use, licensing or sale of "BSD 386 Source" or BSDI's other software products or services. With respect to each such communication, state whether or not the communication involved the question of infringing upon the intellectual property, contractual or other legal rights of (a) the Regents, (b) CSRG, (c) USL, or (d) AT&T. INTERROGATORY NO. 9: Identify all communications involving BSDI, including without limitation anyone acting on its behalf, that concern the question of any source from which it may have copied or derived its "BSD 386 Source," or any portion thereof. With respect to each such communication, state whether or not such communication involved the question of whether the BSD 386 Source may have been copied or derived from software developed or licensed by (a) the Regents, (b) CSRG, (c) USL, or (d) AT&T, and if so, identify such software by reference to its trade name. INTERROGATORY NO. 10: Identify all past and current shareholders of BSDI. With respect to each shareholder, state the number of shares owned and the dates of ownership. INTERROGATORY NO. 11: Identify all persons with knowledge of facts concerning the statement in the "BSD 386 Source" product brochure (copy 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-Networking Release 2." INTERROGATORY NO. 12: Identify all documents and other sources of information consulted, reviewed or relied on in making the foregoing statement that "It is based on the most recent release from the Computer Systems Research Group of the University of California, Berkeley - Networking Release 2." INTERROGATORY NO. 13: Identify all persons with knowledge of facts concerning the statement in the "BSD 386 Source" product brochure (copy annexed as Exhibit A) that: "the NET 2 tape contained no AT&T licensed code, but was not a complete system." INTERROGATORY NO. 14: Identify all documents and other sources of information consulted, reviewed or relied on in making the foregoing statement that: "the NET 2 tape contained no AT&T licensed code, but was not a complete system." INTERROGATORY NO. 15: Identify all persons with knowledge of facts concerning the statement in the "BSD 386 Source" product brochure (copy annexed as Exhibit A) that: "BSDI has completed the system and added additional drivers." INTERROGATORY NO. 16: Identify all documents and other sources of information consulted, reviewed or relied on in making the foregoing statement that: "BSDI has completed the system and added additional drivers." INTERROGATORY NO. 17: Identify all persons with knowledge of facts concerning the statement in the "BSD 386 Source" product brochure (copy 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." INTERROGATORY NO. 18: Identify all documents and other sources of information consulted, reviewed or relied on in making the foregoing statement 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." INTERROGATORY NO. 19: Identify all persons with knowledge of facts concerning the statement in the "BSD 386 Source" product brochure (copy annexed as Exhibit A) that: "BSD/386 is a `Berkeley-UNIX' compatible operating system for the 386 and 486 PC architectures." INTERROGATORY NO. 20: Identify all documents and other sources of information consulted, reviewed or relied on in making the foregoing statement that: "BSD/386 is a 'Berkeley-UNIX' compatible operating system for the 386 and 486 PC architectures." INTERROGATORY NO. 21: Identify all persons with knowledge of facts concerning the statement in the "BSD 386 Source" product brochure (copy annexed as Exhibit A) that: "The production system is planned to support SCO UNIX V3.3 binaries." INTERROGATORY NO. 22: Identify all documents and other sources of information consulted, reviewed or relied on in making the foregoing statement that: "The production system is planned to support SCO UNIX V3.3 binaries." INTERROGATORY NO. 23: Identify all persons with knowledge of facts concerning the statement appearing in the attached 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." INTERROGATORY NO. 24: Identify all documents and other sources of information consulted, reviewed or relied on in making the foregoing statement 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." INTERROGATORY NO. 25: Identify all persons with knowledge of facts concerning the statement appearing in the attached Exhibit C that: "we 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[.]" INTERROGATORY NO. 26: Identify all documents and other sources of information consulted, reviewed or relied on in making the foregoing statement that: "we 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[.]" INTERROGATORY NO. 27: Identify all persons involved in the drafting and/or review, prior to its release, of the "BSD 386 Source" product brochure (annexed as Exhibit A hereto). INTERROGATORY NO. 28: Identify all persons involved in the drafting and/or review, prior to its release, of the BSDI License Agreement (annexed as Exhibit B hereto). INTERROGATORY NO. 29: To the extent not identified above, identify all employees of BSDI. In addition to the information required by Instruction No. 2, for each such person, (a) describe each such person's title, duties and responsibilities at BSDI; (b) describe such person's educational experience, technical expertise, and training; and (c) list such person's employers, dates of employment, job titles, duties and responsibilities over the last fifteen years. INTERROGATORY NO. 30: With respect to each person identified in response to the foregoing Interrogatory, state whether or not such person is a licensee of UNIX operating system software; has performed or is performing services, as an employee, contractor or otherwise, for or on behalf of a licensee of UNIX operating system software; or has otherwise had access to UNIX operating system software. With respect to licensees, set forth the date of the License Agreement. Further, if such person has had access to UNIX operating system software, set forth the date(s) of such access and a brief description of the circumstances in which such access was granted. INTERROGATORY NO. 31: Identify all licensees or purchasers of the "BSD 386 Source" software product, and set forth the date of each license agreement or purchase. INTERROGATORY NO. 32: Identify all alpha and beta sites licensed to use, test or experiment with the "BSD 386 Source" software product. INTERROGATORY NO. 33: Separately identify all persons responsible for the marketing of "BSD 386 Source" within and without the United States and specifically describe each such person's responsibilities in that regard. INTERROGATORY NO. 34: Separately identify all persons involved in the distribution of "BSD 386 Source" including without limitation any outside distributors, and describe all planned methods of distribution. INTERROGATORY NO. 35: Separately identify all agreements relating to (a) the distribution of "BSD 386 Source" and (b) BSDI's other software products. INTERROGATORY NO. 36: Separately state the date(s) on which BSDI expects to make the production release of "BSD 386 Source" in binary and object code forms, and any intermediate versions thereof. INTERROGATORY NO. 37: Separately state the date(s) on which BSDI first released its BSD 386 Source in alpha and beta forms as well as the dates of any past or anticipated intermediate releases thereof. INTERROGATORY NO. 38: In addition to "BSD 386 Source", identify all other products and services, including but not limited to software products and services, which are (a) being offered for licensing or sale by BSDI or (b) under development at or on behalf of BSDI. State the trade name of such product(s) or services and briefly describe the type and function of such product(s) or services. INTERROGATORY NO. 39: With respect to each product identified in response to the foregoing interrogatory, state whether or not BSDI believes that such product is, or in its final form is intended to be, compatible with (a) UNIX operating system software or (b) any other product licensed or sold by USL and/or AT&T. INTERROGATORY NO. 40: With respect to each product identified in response to Interrogatory No. 38, identify all persons or entities involved in the development of such product, whether or not employed by BSDI. In addition to the information required by Instruction No. 2, describe the contribution made or being made by each such person in the technical development of each such product. INTERROGATORY NO. 41: Identify all phone calls made to the telephone number 1-800 ITS UNIX. INTERROGATORY NO. 42: Identify all persons or entities with knowledge of facts concerning phone calls made to the telephone number 1-800-ITS UNIX, including without limitation all persons involved in answering such calls for or on behalf of BSDI. INTERROGATORY NO. 43: Describe in detail the operation of BSDI's toll-free telephone service which used the number 1-800 ITS UNIX, including the name and business address of the telephone company providing such service, and the location(s) to which calls made to the number 1-800 ITS UNIX were routed. 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