To make the complaint and answers easier to read, I have combined them into one document. The answers are in this color and the comments are in this color.


COMMONWEALTH OF MASSACHUSETTS
MIDDLESEX, SS. SUPERIOR COURT DEPT.

CIVIL ACTION NO.: 98-4820


WILLIAM SILVERSTEIN, Plaintiff,
v.
MICROSYSTEMS SOFTWARE, INC., THE LEARNING COMPANY, INC., RICHARD GORGENS, DEBRA GORGENS, and LARRY MASON, Defendants.


DEFENDANTS' RESPONSES TO PLAINTIFF'S INITIAL
REQUEST FOR PRODUCTION OF DOCUMENTS

 

Defendants Microsystems Software, Inc., The Learning Company, Inc., Richard Gorgens, Debra Gorgens and Larry Mason (collectively "Defendants") make the following responses to

Plaintiff's Initial Request for Production of Documents, as follows:

I. GENERAL OBJECTIONS

1. Defendants object to the Requests to the extent that they seek information protected by the attorney-client privilege, that was prepared in anticipation of litigation, and/or is attorney work product.

2. Defendants object to providing documents outside the time period January 1, 1994 to the present (the "relevant period"), on the grounds that requests for documents and information outside the relevant period are overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.

3. Defendants object to the Requests to the extent that they require Defendants to provide information not within the scope of discovery permitted by Rules 26 and 34 of the Massachusetts Rules of Civil Procedure.

4. Defendants object to paragraph (j) of the "Definitions" section, to the extent that it requires Defendants to provide information not within the scope of discovery permitted by Rules 26 and 34 of the Massachusetts Rules of Civil Procedure.

5. Defendants object to the fifth paragraph of the "Instructions" section, as it exceeds the scope of Rule 34.

II. SPECIFIC RESPONSES

Request No. 1:

Please produce all documents that evidence or refer to facts that led to and justified the plaintiff's dismissal, that are in your custody or control.

Response No. 1:

Defendants object to this Request on the ground that it is vague.

Subject to and without waiver of their general and specific objections, Defendants will make available for inspection and copying all such documents in their possession which they believe are responsive to this Request.

Request No. 2:

Please produce copies of all documents that evidence or refer to facts you rely upon in support of your Answer to the Complaint in this case.

Response No. 2:

Defendants object to this Request on the grounds that it is vague, overbroad and unduly burdensome.

Request No. 3:

Please produce copies of all documents that evidence or refer to facts you rely upon in support of your Counterclaim in this case.

Response No. 3:

Defendants object to this Request on the grounds that it is overbroad and unduly burdensome.


Subject to and without waiver of their general and specific objections, Defendants will make available for inspection and copying all documents presently in their possession which they believe are responsive to this Request.

Request No. 4:

Please produce copies of all materials in the plaintiff's personnel record, as defined above, plus all other documents that refer to the plaintiff by name.

Response No. 4:

Defendants object to this Request, insofar as it seeks all documents which refer in any  way to plaintiff, on the grounds that it is overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.

Subject to and without waiver of their general and specific objections, Defendants will make available for inspection and copying plaintiffs personnel record. Further responding,

Defendants refer to their response to Request No. 1.

Request No. 5

Please produce copies of all employee manuals distributed to employees of MSI during the relevant time period.

Response No. 5:

Subject to and without waiver of their general objections, Defendants will make available for inspection and copying all employee manuals distributed to employees of MSI during the relevant period.

Request No. 6:

Please produce copies of all weekly payroll listings for MSI for 1995 and 1996.

Response No. 6:

Defendants object to this Request on the ground that it seeks disclosure of confidential employee and business information.

Subject to and without waiver of their general and specific objections, and subject to an appropriate stipulation and protective order regarding confidentiality, Defendants will make available for inspection and copying all such documents in their possession which they believe are responsive to this Request.

Request No. 7:

Please produce copies of all correspondence with the Department of Labor or others, or other internal or external documents that discuss, evidence, or reflect (A) MSI's position with respect to its coverage by the Family and Medical Leave Act, including at what point in time it became covered by it, (B) MSI's position with respect to the plaintiffs requests for leave and reinstatement or (C) the requests of others for leave or reinstatement after leave.

Response No. 7:

Defendants object to this Request insofar as it seeks disclosure of information that is protected by the attorney-client and/or work product privileges. Defendants object to sub-part C of this Request on the grounds that it seeks disclosure of confidential employee information and is overbroad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence.

Subject to and without waiver of their general and specific objections, and subject to an appropriate stipulation and protective order regarding confidentiality, Defendants will make available for inspection and copying all non-privileged documents which they believe are responsive to parts (A) and (B) of this Request.

Request No. 8:

Please produce all correspondence and notes of conversations (other than with employees   of MSI or with legal counsel) that discusses the events that are complained of in this lawsuit.

Response No. 8:

Defendants object to this Request on the grounds that it is vague and overbroad.

Subject to and without waiver of their general and specific objections, Defendants will   make available for inspection and copying all such documents which they believe are responsive to this Request.

Request No. 9:

With respect to all individuals who performed paid services for MSI, whether considered to be "employees," "consultants," "independent contractors," "officers," "directors," or otherwise, within the period commencing January 1, 1993 through and concluding December 31, 1997, please produce copies of all materials that would constitute personnel records (as defined above) if such individuals were considered to be employees.

Response No. 9:

Defendants object to this Request on the grounds that it seeks disclosure of confidential employee information and is overbroad, unduly burdensome, oppressive, vexatious, and not reasonably calculated to lead to the discovery of admissible evidence.


Request No. 10:

Please produce copies of all logs of telephone use by individuals covered by Document Request 6.

Response No. 10:

Defendants object to this Request on the grounds that it is overbroad, unduly burdensome, oppressive, vexatious, and not reasonably calculated to lead to the discovery of admissible evidence.

Request No. 11:

Please produce copies of all logs of internet use by individuals covered by Document Request 6 or by individuals who perform paid services for TLC that show visits by such individuals to the plaintiffs internet site or to any server in the internet domain "prairielaw.com".

Response No. 11:

Defendants object to this Request on the grounds that it is overbroad, unduly burdensome, oppressive, vexatious, and not reasonably calculated to lead to the discovery of admissible evidence.

Request No. 12:

Please produce copies of all job postings for employment by MSI, TLC, or any company controlled by TLC as software engineers from May 1996 until the present. With respect to anyone interviewed for or hired into such positions, please produce all documentation maintained, including but not limited to the resumes, application information, interview notes and hiring decision.

Response No. 12:

Defendants object to this Request on the grounds that it is overbroad and seeks disclosure of confidential business information.

Subject to and without waiver of their general and specific objections, Defendants will make available for inspection and copying all such documents in their possession which they  believe are responsive to the Request for all job postings for employment by MSI and by TLC's Cambridge, Massachusetts facility. Further, subject to an appropriate stipulation and protective order regarding confidentiality, Defendants will make available for inspection and copying all such documentation maintained with respect to anyone interviewed for or hired into positions at MSI or TLC's Cambridge, Massachusetts facility as software engineers from May 1996 until the present.

Request No. 13:

Please produce copies of all job postings for employment by MSI, TLC, or any company controlled by TLC as support personnel from May 1996 until the present. With respect to anyone interviewed for or hired into such positions, please produce all documentation maintained, including but not limited to the resumes, application information, interview notes and hiring decision.

Response No. 13:

Defendants object to this Request on the ground that the term "support personnel" is vague and on the grounds that the Request is overbroad, unduly burdensome, oppressive, not reasonably calculated to lead to the discovery of admissible evidence, and seeks confidential employee information.

Request No. 14:

Please produce copies of all requests for and documentation requested of individuals at MSI for doctor appointments, leaves of absence or time off, whether for full or partial days, and whether for medical purposes or otherwise, handicap accommodations, or modified schedules for health reasons, from January 1993 through December 1997, along with all documents that evidence or reflect what was done about each such request, including all comments made about the making of that request.

Please include in this response, in addition to all other materials that fit within the request, all documents that evidence or reflect the purchase of non-economy class airline tickets for whether for reasons of health or handicap or otherwise, and the justification given therefore.


Response No. 14:

Defendants object to this Request on the grounds that it is oppressive, unduly burdensome, requires Defendants to provide information not within the scope of Rule 26 of the Massachusetts Rules of Civil Procedure, and seeks the disclosure of private and confidential employee information.

Request No. 15:

Please produce paper copies of the following records, whether the originals are stored on paper or in electronic form. For records stored in electronic form, please also provide copies on IBM-formatted 3" High Density (1.44 megabyte) floppy disks:

A. The following version control system records for the CaLANdar project, from May 1, 1996 to the present:

i. The version labels for that project and their dates;
ii. All bug reports; and
iii. All versions, with dates, of the following computer files: calw3.c and msg_en.c
iv. All changes, with the dates made, to any other file used by CaLANdar.

B. All records provided to auditors regarding software control, and source, release, and version control.

Response No. 15:

Defendants object to this Request on the grounds that it is overbroad, unduly burdensome, not reasonably calculated to lead to the discovery of admissible evidence, and seeks the disclosure of proprietary and confidential business information.

Subject to and without waiver of their general and specific objections, and subject to an appropriate stipulation and protective order regarding confidentiality, Defendants will make available for inspection and copying documents in their possession which are responsive to sub-part B of this Request, but for the CaLANdar 4.0 project only.

Request No. 16:

Please produce all documents that evidence or refer to release dates for CaLANdar 4.0 including:

A. All projected and actual release dates given for CaLANdar 4.0, including to whom given and when.
B. All internal and external documents regarding CaLANdar 4.0 release dates.
C. Any and all revisions of World Wide Web pages containing projected release dates for CaLANdar 4.0.

Response No. 16:

Defendants object to this Request on the grounds that it seeks the disclosure of  proprietary and confidential business information.

Subject to and without waiver of their general objections, Defendants will make available for inspection and copying all such documents in their possession which they believe are responsive to this Request, except that documents containing confidential information will be produced only subject to an appropriate stipulation and protective order regarding confidentiality.

Request No. 17:

Please produce all documents that evidence or refer to customers who had used or evaluated CaLANdar before or after the release of version 4.0 of that product.

Response No. 17:

Defendants object to this Request on the grounds that it is overbroad, unduly burdensome, oppressive, vexatious and not reasonably calculated to lead to the discovery of admissible evidence.


Request No. 18:

Please produce all documents that evidence or refer to lost sales or other lost business of  the defendants, or other harm to the defendants, that are claimed to have resulted from the plaintiffs actions since September 1996.

Response No. 18:

Subject to and without waiver of their general objections, Defendants will make available for inspection and copying all such documents in their possession which they believe are responsive to this Request.

Request No. 19:

Please produce all documents that evidence or refer to the income, expenses, and assets of each of the defendants since September 1996.

Response No. 19:

Defendants object to this Request on the grounds that it is overbroad, unduly burdensome, vague, seeks the disclosure of confidential and proprietary business information, and is not reasonably calculated to lead to the discovery of admissible evidence.

Request No. 20:

Please produce all documents that evidence or refer to all licenses for software used by MSI from May 1996 to the present, and the name or names of users who have access to the use of each piece of software.

Response No. 20:

Defendants object to this Request on the grounds that it is overbroad, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence.

Request No. 21:

Please produce all shareholder reports for MSI and TLC since 1995, and all  communications with actual or potential shareholders.


Response No. 21:

Defendants object to this Request on the grounds that it is overbroad, unduly burdensome, oppressive and may require the disclosure of confidential information.

Subject to and without waiver of their general and specific objections, Defendants will make available for inspection and copying all shareholder reports for TLC for 1997 and 1998.

Further, Defendants state that they have no shareholder reports for MSI in their possession.

Request No. 22:

Please produce all documents that evidence or refer to the relationship between MSI and TLC, including, but not limited to:

A. The ownership of MSI's shares by or the holding of any positions at MSI by TLC or any individuals associated with it or entities or owned or controlled by it;
B. The ownership of TLC's shares by MSI's former shareholders;
C. All contracts and financial transactions between MSI and TLC or any individuals associated with it or entities or owned or controlled by it;
D. All guarantees or assumption of any of MSI's obligations by TLC or any individuals associated with it or entities or owned or controlled by it; and
E. The continuation or discontinuation of MSl's business activities, management, personnel (including all individuals whose services were terminated, transferred to TLC instead of MSI, and/or reclassified between "employee," "consultant," "independent contractor" or otherwise), physical location, assets, and general business operations since TLC merged MSI's operations with its own.

Response No. 22:

Defendants object to this Request on the grounds that it is overbroad, unduly oppressive, seeks information not reasonably calculated to lead to the discovery of admissible evidence, and seeks the disclosure of confidential and proprietary business information.

Subject to and without waiver of their general and specific objections, Defendants will  make available for inspection and copying documents in their possession which reflect information sought in sub-parts A and B only.

 

MICROSYSTEMS SOFTWARE, INC.,
THE LEARNING COMPANY, INC.,
RICHARD GORGENS,
DEBRA GORGENS, and
LARRY MASON,

By their attorneys,

Tracey E. Spruce
Michael L. Rosen, BBO# 559954
Tracey E. Spruce, BBO# 638124
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, MA 02109
(617) 832-1000



Dated: May 10, 1999