Case 1:21-cv-00149-RH-HTC Document 168 Filed 09/01/22 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION

RARE BREED TRIGGERS, et al.

Plaintiffs. CASE NO. 1:21-CV-00149-RH-HTC

-vs-

BIG DADDY ENTERPRISES, et al.

Defendants.

DEFENDANTS’ MOTION TO COMPEL UNREDACTED DOCUMENTS

Big Daddy Enterprises, Inc., (“BDE”), Big Daddy Unlimited, Inc. (“BDU”),

BlackStock, Inc., Wide Open Enterprises, LLC d/b/a Wide Open Triggers (“WOT”),

We Got Ammo, Inc. (“WGA”), Anthony McKnight, Sherrie McKnight, and Douglas

Enrique Rios (together, “Defendants”) hereby file this Motion to compel unredacted

documents pursuant to Rule 37 of the Federal Rules of Civil Procedure and

applicable case law.

While Defendants are cognizant of the requirements of L.R. 26.1 (D), they are

not pertinent to the issues raised in the main portion of this motion. Here, Plaintiffs

have produced documents in response to requests for production, but they redacted

the documents. Thus, the language of the requests and objections are not the issue,
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but rather whether Plaintiff may redact documents on the basis of relevance and for

social media purposes, as well as, should the Court find redacting documents

appropriate, whether the information redacted is in fact irrelevant to any issue in the

case. Defendants did include the requests and objections as exhibits, should the

Court find that a review of those documents is needed. An alternative argument is

included in which the language of the requests is set forth in the motion.

On February 4, 2022, Defendants served Requests for Production (“RFP’s”)

on Plaintiffs, Rare Breed and ABC IP. After Tony McKnight, Sherrie McKnight,

Doug Rios, and We Got Ammo were added as defendants, a second set of RFP’s

were sent to Plaintiffs on July 21, 2022. For reasons not fully understood by the

undersigned, neither side began producing documents until August 2022.1

Rule 26(b)(1) allows parties to obtain discovery regarding “any nonprivileged

matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). The

rule also provides that information within this scope of discovery “need not be

admissible in evidence to be discoverable.” Evidence is relevant if: (a) it has any

tendency to make a fact more or less probably than it would be without the evidence;

and (b) the fact is of consequence in determining the action. Fed. R. Evid. 401.

Relevant nonprivileged information need not be produced if the court finds that the

1
Both sides had served documents as exhibits to motions or patent rule disclosures,
but none had produced in response to RFP’s until early August 2022.
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burden or expense of its production outweighs its likely benefit to the resolution of

the case on its merits. Fed. R. Civ. P. 26(b)(2)(C). Plaintiffs have not argued that

the production of the redacted sections complete with customer information is a

burdensome or expensive endeavor nor have they otherwise provided a

counterweight to the relevance of the information sufficient for withholding it.

Plaintiffs contend (without explanation) that the information is irrelevant and its

release could be a social media embarrassment. At a minimum, this information is

useful for: (1) the identification of witnesses that can provide information regarding

noninfringing alternatives to the FRT-15; (2) determining whether Rarebreed could

meet consumer demand so as to satisfy its claim for lost profits; and (3) providing

information relevant to the parties’ assessment of Plaintiffs’ potential recovery for

purposes of evaluating a potential settlement.

In Plaintiffs’ production, they redacted the names and contact information of

people they claim to be customers who purchased an FRT-15 trigger from them.

Plaintiffs’ redactions are not alleged to be subject to any privilege. The sole

explanation initially provided was that it would be harmful to their business to

disclose its customers. Obviously, this is not a valid objection. Later, Plainitffs

further alleged that he information was irrelevant, but failed to address the obvious

ways in which the information is related to issues in the case. For reasons explained

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below, Defendants believe that Plaintiffs merely wish to have the Court order the

production of the information, so they may use that to save face on social media.

The customers’ information is relevant to issues in the case. For example,

customers may be interested in discussing a license to Rounds ‘223 the terms of

which would be highly relevant to the issues in the case. Also, in seeking lost profits,

Plaintiffs are required to prove they had the capacity to meet the demand that would

have placed upon them. Upon information and belief, Defendants do not believe

that Plaintiffs were able to keep up with their own demand, much less the demand

that would have been added if Plaintiffs had to supply Defendant customers.

Contacting Plaintiffs customers would provide evidence of extremely long wait

times and customers that never received product.

In Gargoyles, Inc. v. U.S., the Federal Circuit addressed the issue of lost

profits in a patent infringement lawsuit. Gargoyles, Inc. v. U.S., 113 F.3d 1572,

1575 (Fed. Cir. 1997). There, the panel noted that the four factors outlined in

Panduit are instructive in determining whether to award lost profits in a patent

infringement case; namely, the patent owner must prove: (1) demand for the patented

product, (2) absence of acceptable noninfringing substitutes, (3) manufacturing and

marketing capability to exploit the demand, and (4) the amount of profit he would

have made. Id. at 69 (citing Panduit Corp. v. Stahlin Bros. Fibre Works, Inc., 575

F.2d 1152 (Sixth Cir. 1978)). The Federal Circuit agreed with the Claims Court in

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finding that Gargoyles could not have met consumer demand, an issue dispositive of

the case. As previously mentioned, Defendants herein doubt Plaintiffs’ ability to

meet consumer demand. By redacting this information, Plaintiffs have concealed

facts relevant to making this determination.

This Court may find SmithKline Diagnostics instructive. SmithKline

Diagnostics, Inc. v. Helena Laboraties Corp., 926 F.2d 1161, 1166 (Fed. Cir. 1991).

There, SmithKline Diagnostics (“SKD”) owned a patent for a specimen test slide

and method for detecting occult blood in fecal matter. SKD sought damages

calculated on the basis of its lost profits. In that case, a doctor involved in purchasing

for a major clinic stated that he would consider two noninfringing alternatives to the

SKD’s test slide, testimony that was dispositive of the case. Likewise, bulk

purchasers of FRT-15 trigger devices may have pondered other noninfringing

devices. Dealers could also provide crucial information regarding manufacturing

and production standards in the industry. Customer testimony could be invaluable

in comparing the functionality of the FRT-15 with that of other similarly functioning

trigger mechanisms.

In seeking damages based upon a reasonable royalty, parties must account for

non-infringing alternatives. Speaking to Plaintiffs customers would serve to

establish a basis for what they would have considered an acceptable non-infringing

alternative. Another factor to consider in establishing a royalty would be

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improvements over the patented product that are not covered by the patent. As

publicly known, many of the customers had complaints about the FRT-15 which

would not apply to the WOT. See e.g., Ex. 7 at RBT1328-1329, 2415, 2422–2429,

2433–2441. Also, publicly voiced, customers had concerns with the legality of the

triggers and were reassured by Rare Breed that they were legal. See e.g., id. at

RBT2409–2410. Such customers likely would have been interested in legal,

noninfringing alternatives.

Supporting Memorandum

A. Statement of Facts

1. On February 4, 2022, Defendants served identical Requests for Production on

Plaintiffs, Rare Breed and ABC IP. Exs. 1 & 2.

2. On March 4, 2022, Plaintiffs filed identical objections to the first set of RFP’s

which include “General Objections” and formulaic objections. Exs. 3 & 4.

On August 9, 2022, Plaintiffs’ filed supplemental objections to the first set of

RFP’s. While Defendants question Plaintiffs’ ability to lodge new objections

to four-month-old request, the supplemental objections are included for

completeness. Exs. 11 & 12.

3. On July 21, 2022, after new Defendants were added to this case, a second set

of RFP’s were sent to Plaintiffs. Exs. 5 & 6. Defendants have not served

objections to the second set of RFP’s, despite the lapse of 30 days.

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4. On August 17, 2022, Plaintiffs produced a large number of documents

containing redactions. See e.g., Ex. 7.2

5. On August 18, 2022, Defendants asked why the documents were redacted.

Ex. 8.

6. On August 24, 2022, after much back-and-forth, Plaintiffs reply that they

“redacted information that specifically identifies a purchaser.” Plaintiffs

threaten to request information on Defendants’ customers, should Defendants

press the issue. Mr. Bellamy concludes, “I implore you to consult your client

about the business consequences of such a move. I expect the reaction of

industry consumers would be swift and harsh.” Ex. 9.

7. On August 25, 2022, Plaintiffs state that “Rare Breed is not willing to divulge

private customer identifying information,” and claim that we stated no basis

for needing it. Ex. 10.

8. On March 27, 2022, Rare Breed’s president, Lawrence DeMonico, posted a

video in which he claimed Rare Breed has a “digital shredding policy.”

https://www.youtube.com/watch?v=o9miePNJ21U&t=17s (beginning at

minute 13). He explains that Rare Breed computer system magically and

automatically destroys all electronic files when a customer’s order is fulfilled.

2
As Plaintiffs designated the bulk of its production as Outside Counsel Eyes Only,
Defendants are simultaneously moving to file Exhibit 7 (which contains a sampling
of redacted documents) under seal.
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Upon information and belief, these misrepresentations by Rare Breed are

driving its refusal to provide unredacted documents.

B. Legal Standard

The burden to justify these unilateral redactions rests on the Plaintiffs.

McNabb v. City of Overland Park, 2014 WL 1152958, at *4 (D. Kan. Mar. 21, 2014);

Orion Power Midwest, L.P. v. American Coal Sales Co., No. 2008 WL 4462301, at

*2 (W.D. Pa. Sept. 30, 2008); Beverage Distributors, Inc. v. Miller Brewing Co.,

2010 WL 1727640, at *4 (S.D. Ohio Apr. 28, 2010). Rule 26(b)(1) allows parties

to obtain discovery regarding “any nonprivileged matter that is relevant to any

party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). The rule also provides that

information within this scope of discovery “need not be admissible in evidence to

be discoverable.”

Redacting irrelevant or non-responsive information from documents is

improper, absent some unusual need for protection (e.g., credit card or account

numbers). “Redaction is an inappropriate tool for excluding alleged

irrelevant information from documents that are otherwise responsive to a discovery

request. It is a rare document that contains only relevant information. And

irrelevant information within a document that contains relevant information may be

highly useful to providing context for the relevant information.” Bartholomew v.

Avalon Capital Group, Inc., 278 F.R.D. 441, 451 (D. Minn. 2011) ); Krausz Indus.,

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Ltd. v. Romac Indus., Inc., 2011 U.S. Dist. LEXIS 159426, 2011 WL 13100750, at

*3 (W.D. Wash. Aug. 10, 2011) (“The Court is persuaded by cases that hold that

unilateral redactions on the basis of irrelevance or non-responsiveness are

improper”); see also In re Medeva Securities Litigation, 1995 U.S. Dist. LEXIS

21895, 1995 WL 943468, at *3 (C.D. Cal. May 30, 1995) (“The Court does not

welcome unilateral editing of documents by the producing party. Even when

implemented with restraint and in good faith, the practice frequently gives rise to

suspicion that relevant material harmful to the producing party has been obscured.

It also tends to make documents confusing or difficult to use.”).

In fact, for policy reasons, federal courts have erred on the side of disclosure

when addressing the propriety of unilateral redactions. See McNabb v. City of

Overland Park, 2014 WL 1152958, at *3 (D. Kan. March 21, 2014). Permitting

unilateral redaction would open the floodgates for new discovery battles. Orion

Power Midwest, L.P. v. American Coal Sales Co., No. 2008 WL 4462301, at *2

(W.D. Pa. Sept. 30, 2008). In accordance with Federal Rule 34(b)(2)(E)(ii), a party

must produce information “in a form or forms in which it is ordinarily maintained.”

Id; Fed. R. Civ. P. 34(b)(2)(E)(ii). As contented by the Orion Power court, a party

that seeks to inspect a document would anticipate being able to inspect the entire

document. Id. Plaintiffs have added unnecessary costs and delay to this litigation

in taking it upon themselves to scrub all such documents. Id.

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The practice of unilateral redaction is frowned upon by courts and permitted

under a very limited set of circumstances Evon v. Law Offices of Sidney Mickell,

2010 U.S. Dist. LEXIS 20666, 2010 WL 455476, at *4 n.1 (E.D. Cal. Feb. 3,

2010) (“[r]edaction is, after all, an alteration of potential evidence. The Federal

Rules sanction only very limited unilateral redaction, see Fed. R. Civ. P.

5.2. Outside of these limited circumstances, a party should not take it upon ... itself

to decide unilaterally what context is necessary for the non-redacted part disclosed,

and what might be useless to the case”). For example, redactions by governmental

agencies in compliance with FOIA exemptions where said information included

personal information (e.g., medical records or bank account information) wholly

irrelevant to the any issue in the case. American Manufacturers Mutual Insurance

Company v. Payton Lane Nursing Home, Inc., 2009 WL 10701187, at *9 (E.D.N.Y.

Nov. 18, 2009). Here, the Plaintiff do not deny that Rule 5.2 does not apply, nor do

they allege highly personal information (e.g., account numbers) is being protected.

Rather they argue the customer information is irrelevant and that disclosing it would

be harmful to their business due to social media concerns.

C. Argument

Defendants served two sets of identical sets of RFP’s on Plaintiffs, Rare Breed

and ABC IP. SOF 1, 3. Plaintiffs objected to the first set of RFP’s, it did not lodge

objections pertaining to the second set. SOF 2. (Thus, as argued below, Plaintiffs

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objections on relevance should not even be considered with respect to the second set

of RFP’s.) In response to both sets of RFP’s, Plaintiffs produced documents, but

redacted customer information from them. SOF 4.

1. Plaintiffs’ redactions for relevance were improper

Unilateral redactions based on one party’s subjective view of relevancy are

generally improper. Bonnell v. Carnival Corporation, 2014 U.S. Dist. LEXIS

22459, 2014 WL 10979823, at *4 (S.D. Fla. Jan. 31, 2014) (“defendant may not

unilaterally redact portions of otherwise discoverable, non-privileged documents

based on its own belief that portions of the documents are irrelevant to the claims in

this case”); Toyo Tires & Rubber Co., Ltd v. CIA Wheel Group, 2016 U.S. Dist.

LEXIS 184189, 2016 WL 6246384, at *2 (C.D. Cal. Feb. 23, 2016) (producing party

may not redact otherwise responsive documents because those documents contain

irrelevant material); Melchior v. Hilite International, Inc. 2013 U.S. Dist. LEXIS

71393, 2013 WL 2238754, at *3 (E.D. Mich. May 21, 2013) (subpoenaed nonparty

“cannot unilaterally redact portions of documents based on relevancy grounds).

Plaintiff has not alleged, nor can it prove, that any special exception applies. It’s

only legally-based objection is relevance. SOF 5–7.

“Indeed, the language of Rule 34 discusses production of ‘documents,’ rather

than paragraphs or sentences. [There is] no compelling reason [to permit Defendant

to withhold information it thinks is] not relevant or responsive where that

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information appears in a document that contains otherwise relevant or responsive

information.” ArcelorMittal Cleveland Inc. v. Jewell Coke Co., L.P., 2010 U.S. Dist.

LEXIS 133263, 2010 WL 5230862, at *3 (N.D. Ohio Dec. 16, 2010) (“The Court is

not persuaded that [Defendant] is entitled to redact information in its document

production that it believes is irrelevant or non-responsive to [Plaintiff's] document

request.”); Orion Power Midwest, L.P. v. American Coal Sales Co., 2008 U.S. Dist.

LEXIS 76366, 2008 WL 4462301, at *1-2 (W.D. Pa. Sept. 30, 2008) (“redaction of

documents is disfavored and is appropriate only in limited circumstances”...and

finding no express or implied support in the Federal Rules of Civil Procedure by

“which a party would scrub responsive documents of non-responsive information.”).

While Defendants do not have the burden of establishing relevance, it has

nonetheless done so. Plaintiffs have not and cannot deny the customer information

is relevant to licensing terms of the patent-in-suit, lack of manufacturing capacity

and unmet demand, existence of noninfringing alternatives that the customers would

find acceptable, and problems with the FRT-15 triggers which goes to value of a

license to name a few.

Plaintiffs’ half-hearted claim that the information is irrelevant is simply a ploy

to have this Court order the disclosure of customer information, so that it can attempt

to save face on social media. Plaintiffs could have sought a protective order if the

information were truly irrelevant and highly sensitive. In responding to Defendants’

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request for production, Plaintiffs’ lodged numerous general and formulaic objections

on grounds of confidentiality, in flagrant violation of LPR 26.1(c). SOF 2. Plaintiffs

even lodged a second set of “supplemental” objections four months later. Id. Yet,

Plaintiffs do not rely upon any of those objections and have produced responsive

documents. By providing responsive documents, Plaintiffs have implicitly admitted

that the information contained therein is discoverable. See Berney v. Apple Inc.,

2021 U.S. Dist. LEXIS 250174, at *7 (D. Conn. May 27, 2021) (relevance of

redacted information was established once defendant produced the documents in

response to discovery protocols).

Indeed, Plaintiffs must have known they would have to produce customer

information in this case. Based upon Mr. Bellamy’s statement and threat to request

disclosure of Defendants’ customers (SOF 6), Defendants believe that the motive

for Plaintiffs’ refusal is it wants the Court to order the production. This allows them

to attempt to avoid the “swift and harsh” “reaction of industry consumers” of which

Mr. Bellamy warned Defendants.

Rare Breed’s president, Lawrence DeMonico has reassured customers on

social media that their identity would be protected from the ATF by Rare Breed’s

“digital shredding policy.” SOF 8. Mr. DeMonico alleges that Rare Breed’s system

automatically destroys all electronic customer information, once the customer’s

order is fulfilled. Id. Setting aside Mr. DeMonico’s fantastic claim and assuming

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Rare Breed possess software which carries out a “digital shredding policy,”3 they

would have to disable it once they were in reasonable apprehension of suit. Hohider

v. United States Parcel Service, Inc., 257 F.R.D. 80 (W.D.Penn. 2009) (holding “a

duty to preserve is an affirmative obligation arising when the party in possession of

the evidence knows that litigation by the party seeking the evidence is pending or

probably and the party seeking the evidence can foresee the harm or prejudice that

would be caused to the party seeking the evidence if the evidence were to be

discarded”); Winters v. Textron, Inc., 187 F.R.D. 518, 520 (M.D.Pa.1999) (finding

that knowledge of even a potential claim is sufficient to impose a duty to preserve

evidence); Bowman v. American Medical Systems, Inc., No. 96–7871, 1998 WL

721079, at *3 (E.D.Pa. Oct. 9, 1998) (“A party which reasonably anticipates

litigation has an affirmative duty to preserve relevant evidence”); Barsoum v. NYC

Housing Authority, 202 F.R.D. 396, 400 (S.D.N.Y.2001) (citing Kronisch v. United

States, 150 F.3d 112, 126 (2d Cir.1998) (“A party has a duty to retain evidence that

it knows or reasonably should know may be relevant to pending or future

litigation.”)). Indeed, one might argue that Plaintiffs’ purpose in implementing such

3
Erasing electronic files which traverse the internet would be no small feat, as
numerous servers are involved which retain copies of data that pass through them.
Even assuming Rare Breed has its own server, which is unlikely, it has no access
or control over all of the other servers involved in handling emails and orders. In
addition, much of this information is backed up for redundancy in servers that Rare
Breed does not have control over.
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a program was precisely to destroy evidence that might be used in their suit with the

ATF. At a minimum, the destruction of any such evidence is highly prejudicial in

the case at bar. The extent to which destruction occurred and the veracity of

Mr. DeMonico’s claims remain to be discovered.

However, we know with certainty that customer information does exist, as it

was redacted from Plaintiffs’ production. As it was improper for Plaintiffs to

unilaterally redact this relevant information, the Court should order them to produce

the documents in unredacted form.

2. Should the Court find redacting for relevance is justified, it should not
apply to the second set of RFP’s

Many of the documents produced fail within scope of RFP’s 121–126, and

Plaintiffs did not object to those RFP’s on any basis including relevance. SOF 3.

These requests are as follows:

121. All documents concerning customer or distributor requests,

preference, or requirements relating to the FRT-15.
122. All documents concerning Your ability or inability to satisfy
orders for forced reset triggers or trigger devices, including the FRT-
15.
123. All documents concerning Your marketing capacity for forced
reset triggers or trigger devices, including the FRT-15.
124. All documents concerning Your capacity to manufacture forced
reset triggers or trigger devices, including the FRT-15.

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125. All documents concerning any returns by customers or

distributors of any forced reset triggers or trigger devices, including
the FRT-15.
126. All documents concerning any warranty repairs or any requests
for warranty repairs from customers or distributors of any forced reset
triggers or trigger devices, including the FRT-15.

Pursuant to Rule 34, Plaintiffs must respond to Defendants’ Request for

Production in writing within 30 days of being served. F ed. R. Civ. P. 34(2)(A). The

responding party must state with specificity the grounds for objecting to the request

within the aforementioned timeframe. Fed. R. Civ. P. 34(b)(2)(B). Most

importantly, an objection to part of a request must specify “the part and permit

inspection of the rest.” Fed. R. Civ. P. 34(b)(2)(C). When a party fails to timely

object to production requests, the objections are deemed waived. Pitts v. Francis,

No. 5:07cv169/RS/EMT, 2008 U.S. Dist. LEXIS 41894, 2008 WL 2229524, at *2

(N.D. Fla. May 28, 2008); Hmied v. Timpano Acquisition, LLC, 2014 U.S. Dist.

LEXIS 191962, at *3-4 (M.D. Fla. Apr. 3, 2014); Wyanmoor Comm. Council, Inc.

v. QBE Ins. Corp., 280 F.R.D. 681, (S.D. Fla. 2012). RareBreed and ABC have

wholly failed to object to RFP’s 121–126 and, therefore, have not stated with

specificity any ground of objecting to these requests pursuant to Rule 34. Plaintiffs

have already produced numerous documents demonstrating their inability to satisfy

order for forced reset triggers and their capacity for making said triggers. Plaintiffs

have moreover produced redacted versions of documents relating to distributor

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requests for the FRT-15, including those detailing numerous customer issues

stemming from the trigger devices. As previously contended, Plaintiffs have

produced redacted versions of these documents, thereby admitting that those

documents were discoverable. Issues relating to distributor preferences, customer

issues, and warranty repairs are relevant in assessing noninfringing prior art and

improvements made to the FRT-15 trigger by Defendants. In addition, this

information is relevant in assessing Plaintiffs’ claims for reasonable royalties and

lost profits. The best method by which to assess the veracity of these claims is to

identify and communicate with these unknown individuals. Thus, the Plaintiffs may

not now raise an objection based on relevance and should be ordered to produce

documents fully responsive to these requests in unredacted form.

CONCLUSION

Defendants respectfully ask this Court to compel Plaintiffs to produce

unredacted versions of all requested documents.

CERTIFICATE OF ATTORNEY CONFERENCE

In accordance with L.R. 7.1(B) and (C), a conference occurred on

September 1, 2022, between the undersigned counsel for Defendants and attorneys

Glenn Bellamy and Charles Pfister on behalf of Plaintiffs, during which the topic of

producing unredacted documents was discussed. The attorney conference was

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conducted through several emails. No agreement was reached on those issues and,

thus, this Motion is being filed.

CERTIFICATE OF WORD COUNT

Undersigned counsel certifies per L.R. 7.1(F) that this memorandum

contains 3,748 words.

September 1, 2022 Respectfully submitted,

s/ Adam V. Floyd
Adam V. Floyd
Texas Bar No. 00790699
Floyd IP
3203 Bluffs Lane
Parker, Texas 75002
Tel. No.: (512) 497-7500
Email: [email protected]

Attorney for Defendants

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