IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ENERGY INTELLIGENCE GROUP, INC. 

and ENERGY INTELLIGENCE GROUP 

(UK) LIMITED, 

Plaintiffs and 

 Counterclaim Defendants,

v.

CONSTELLATION ENERGY 

GENERATION, LLC.,

Defendant and 

Counterclaim Plaintiff.

Civil Action No. 1:20-cv-03983

Hon. Joan B. Gottschall

Magistrate Judge Heather K. McShain

OPPOSITION OF PLAINTIFFS TO DEFENDANT’S MOTION TO COMPEL

Plaintiffs and Counterclaim-Defendants Energy Intelligence Group, Inc. and Energy 

Intelligence Group (UK) Limited (collectively “EIG”) submit this opposition to the motion 

brought by Defendant and Counterclaim-Plaintiff Constellation Energy Generation, LLC 

(“Constellation”) under Rule 37 of the Federal Rules of Civil Procedure to compel EIG to 

provide further discovery responses and/or documents with respect to seven of Constellation’s 

fifty-six requests for production and five interrogatories namely: (1) EIG’s damages allegedly 

caused by Constellation; (2) the proper means of calculating damages on subscription violations;

(3) EIG’s awareness of Constellation’s alleged infringement; (4) EIG’s access to tracking 

capabilities to monitor alleged infringement; (5) EIG’s relevant financial documents; (6) EIG’s 

policies for monitoring and initiating copyright actions; and (7) EIG’s testimony and expert 

reports in related litigation. Several of these disputes have been resolved or will be rendered 

moot as a result of the production prior to Defendant’s motion and subsequent production of 

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additional documents by EIG. The parties also held a further meet and confer on certain of the 

topics raised by Constellation’s motion to compel on April 27, 2022 but the parties were unable 

to resolve their differences. However, Constellation has refused to withdraw any of its current 

motion.

I. BACKGROUND

EIG, and its predecessors-in-interest, have been engaged in publishing newsletters and 

other publications for the highly-specialized global energy industry for nearly seventy (70) years.

In particular, EIG and its predecessors-in-interest have published the weekly newsletter Nuclear 

Intelligence Weekly (“NIW”) since 2011. D.E. 1 at ¶ 8. EIG maintains an experienced and 

knowledgeable editorial staff of approximately sixty (60) reporters, editors, and analysts at seven 

(7) editorial bureaus located around the world who provide original content reporting and 

industry analysis for the sixteen (16) publications put out by EIG, including NIW. Id., ¶¶12-13. 

None of EIG’s publications feature or have any advertisements or sponsors in order to ensure 

journalistic integrity and objective reporting. EIG is, therefore, dependent on paid subscriptions 

to sustain the viability of its publications. Id. at ¶11. Constellation was one of EIG’s subscribers 

to the NIW publication. Id. at ¶¶ 29 – 34.

From at least as early as November 2011 through to November 2020, Constellation

maintained a subscription for two of its employees to each receive a single-copy of NIW and the 

articles therein by email delivery. Id. at ¶29. The copyright in every single issue of NIW 

provided to Constellation was properly registered with the U.S. Copyright Office and featured 

prominent copyright notices and warnings, both on the publication itself and the delivery email 

as well as in the parties’ subscription agreement. Id. at ¶¶19-28. Despite ample notice of EIG’s 

copyrights and in violation of Constellation’s own corporate policy concerning the proper 

handling of third party copyrighted material, discovery has revealed that Constellation made 

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copies of NIW by forwarding NIW via email to other employees of Constellation far beyond the 

two copies allowed under the subscription. Constellation also saved issues of NIW to an internal 

shared drive to which at least 50 employees of Constellation had access. 

Regrettably, large companies like Constellation, who have the financial resources to pay 

for additional subscriptions, instead deliberately decide to violate the copyrights of EIG as well 

as their own corporate policies against copyright infringement. The infringement is often only 

revealed as a result of litigation as the evidence of infringement is concealed behind a 

subscriber’s corporate firewall. Inevitably, when infringers like Constellation are caught, they 

do not seek to resolve the issue of their intellectual property theft. Rather they resort to 

inflammatory rhetoric seeking to smear an established, reputable publisher by complaining that 

EIG has the audacity to enforce its federally-registered copyrights as allowed under the 

Copyright Act. Efforts to blame the victim of serial copyright infringement that took place for 

nearly a decade should not be countenanced by this Court. 

II. ARGUMENT

EIG has provided fulsome responses to Constellation’s onerous discovery requests and 

has, or agreed to produce, voluminous documents in response to Constellation’s discovery 

requests at issue. Despite these efforts, including several meet and confers, Constellation

nevertheless resorts to motion practice. An analysis of what Constellation has requested in 

discovery and what EIG has already provided as well as what the law requires demonstrates that 

Constellation’s discovery requests, to the extent they are permissible, have been properly 

responded to and there are no grounds for a motion to compel.

A. EIG Has Elected To Seek Statutory Damages, Which the Jury Decides

Constellation claims that EIG has failed to respond fully to Constellation’s First 

Interrogatory No. 2. That Interrogatory asks:

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Interrogatory No. 1: For each alleged act of copyright infringement by Exelon 

Gen. Co., describe the type(s) (e.g., statutory damages, actual damages) and 

amount of damages sought for each act of alleged infringement and the factual 

and legal bases for your damages calculation.

D.E. 98-2 at pp. 2-3. The issue of damages has been debated in several meet and confers between 

counsel. Constellation has neglected to inform the Court that, on March 25, 2022, three weeks 

before Constellation filed its motion, EIG’s counsel notified Constellation that EIG had elected 

to pursue statutory damages against Constellation in the action, due to the willful nature of 

Constellation’s infringement and the difficulties that EIG would face proving actual damages 

because of the incomplete nature of Constellation’s document production and/or document 

retention practices. Ex. A; 17 U.S.C. § 504(c)(1); UMG Recordings, Inc. v. Stewart, 461 F. Supp. 

2d 837, 843 (S.D. Ill. 2006); Chi-Boy Music v. Charlie Club, Inc., 930 F.2d 1224, 1229 (7th Cir. 

1991) (the copyright plaintiff can elect, at any time before final judgment, to pursue either actual 

damages and the infringer’s profits or statutory damages). Thus the “type” of damages sought by 

EIG is statutory damages as provided in the Copyright Act and has been answered by EIG. Ex. 

A. 

Turning to the amount of damages sought, statutory damages for each act of infringement 

may range from $750 for each infringed work to $30,000 per work. 17 U.S.C. § 504(c)(1). If the

infringement is found to be willful, the maximum allowable statutory damages increases to 

$150,000 per work. 17 U.S.C. § 504(c)(2). In awarding a specific dollar amount in statutory 

damages for each act of infringement, the jury may consider various factors including the

expenses saved and the profits reaped by the defendant; the revenues lost by the plaintiff; the

deterrent effect on the defendant as well as others similarly situated; whether the defendant's 

conduct was innocent or willful; the potential for discouraging the defendant, the value of the 

copyright, the difficulty of proving actual damages, and the circumstances of the infringement. 

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Lorillard Tobacco Co. v. Montrose Wholesale Candies & Sundries, Inc., No. 03-cv-4844, 2008 

WL 1775512, at *2 (N.D. Ill. Apr. 17, 2008); Ali v. Final Call, Inc., 289 F. Supp. 3d 863, 869 

(N.D. Ill. 2017).

The amount of an award of statutory damages is determined by the jury. Feltner v. 

Columbia Pictures Television, Inc., 523 U.S. 340, 353 (1998) (“The right to a jury trial includes 

the right to have a jury determine the amount of statutory damages, if any, awarded to the 

copyright owner. It has long been recognized that ‘by the law the jury are judges of the 

damages.’”). Therefore, EIG can only identify the range of statutory damages as set forth in the 

Copyright Act for each work infringed. To the extent the revenues lost by EIG are a factor for 

the jury in determining statutory damages, EIG has already provided Constellation with all 

licensing rates for each type of subscription and/or method of purchasing the NIW publication.

D.E. 1 at ¶¶17-18, D.E. 98-2 at pp. 3-5. Therefore, Constellation has all the information 

necessary to calculate EIG’s licensing fees lost as a result of Constellation’s infringement. Id. 

Constellation’s own records have revealed that it copied issues of NIW onto a shared 

corporate drive since at least as early as 2011 making NIW available to other unidentified 

Constellation employees. By routinely and systematically saving infringing copies of NIW to a 

shared drive, Constellation improperly treated its two-copy subscription to NIW as if it had 

purchased a corporate-wide license that would have allowed it to provide all employees with

copies of the publication. In EIG’s view, the most appropriate method to calculate EIG’s lost 

licensing fees is based on the $200,000 per year single-publication enterprise license described in 

EIG’s first amended response to Interrogatory No. 2, which would also cover all additional 

recipients beyond the two copies permitted under the subscription agreement. D.E. 98-2 at p. 4.

EIG’s lost revenues are therefore $1,800,000 based on the information produced by Constellation

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to date in discovery. The foregoing was communicated to Constellation’s counsel back on 

March 25, 2022 but Defendant nevertheless filed this motion. Ex. A.

EIG has made a complete response to Constellation’s interrogatory. EIG has elected to 

recover statutory damages under the Copyright Act and the amount of statutory damages will be 

decided by the jury based on the range of statutory damages set forth in the Copyright Act. 

Furthermore, EIG has produced documents and interrogatory answers setting forth all methods 

of calculating EIG’s lost licensing fees, and Constellation has all of the information necessary to 

determine to what extent EIG’s lost subscription revenue will factor into any award of statutory 

damages. In answering an interrogatory directed towards a plaintiff’s theory of damages, a party 

does not need to provide a “precise assessment of how the facts connect to the applicable legal 

standard or a calculation of the ultimate damages claims.” Perez v. RUF US, Inc., No. 1:20-cv6158 (N.D. Ill. December 8, 2021), D.E. 53 at *9 (McShain, J.) (quoting Milwaukee Elec. Tool 

Corp. v. Chevron N. Am. Inc., No. 14-cv-1289-JPS, 2017 WL 2445845, at *7 (E.D. Wis. Jun. 6, 

2017). It is sufficient to identify the general legal theory underlying the damage request. Id.

B. Calculations of Copyright Damages Caused By Third Parties in Unrelated 

Litigations is Not Relevant Nor Proportional

In a misguided effort to discover damages estimates made by EIG in other, unrelated 

litigations, Constellation propounded its Request for Production No. 20 which seeks:

All documents related to any assertion (including without limitation litigations, informal 

assertions by letter, and settlement discussions) of copyright infringement by you against 

a third party that contain a calculation or explanation of damages (either by you or by a 

third party), including without limitation initial disclosures, interrogatory responses, 

expert reports, deposition transcripts, hearing/trial transcripts, briefs, letters to the 

accused infringers, letters to mediators, or presentations.

D.E. 98-3, pp 10-11. EIG objected to this Request as it was not proportional to the needs of this

case and is irrelevant and burdensome. Id. The parties ventilated the issues concerning this 

document request in several meet and confers to no effect. 

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EIG has been required to protect its copyrights by bringing suit against over 70 infringers 

of its various publications (notably, not a single case has ever been dismissed under Rules 12 or 

56 of the Federal Rules of Civil Procedure). In each instance, the parties’ arguments regarding

possible damages varied widely depending on the unique facts and circumstances of the 

infringement in each case. The nature and scope of the infringing activity of each of the 70-odd 

defendants varied greatly and any estimate made in a third party litigation would be informed by 

a wide variety of factors including: whether the infringement involves a daily, weekly or 

monthly publication; the length of the infringement; the nature and scope of the infringement, 

whether there was widespread distribution of copies or not; the documentary evidence of 

infringement, or lack thereof; evidence of willfulness; the infringer’s efforts to conceal its 

infringement; the infringer’s intent to make amends, etc. In short, every case presents different 

facts to consider in any “calculation of damages.” Further, the majority of cases have been 

resolved based on future licensing agreements without any calculation of damages for each 

infringed work at all. In two instances, juries have solely decided the statutory damages for each 

work, which Constellation is aware of. However, this is the first case that EIG has ever brought 

for infringement of its copyrights in the NIW publication so no prior litigation has ever evaluated 

the damages associated with the infringement of NIW. 

Any possible relevance is heavily outweighed by the enormous burden and expense of 

sifting through the discovery requests, depositions, settlement correspondence, mediation 

statements, etc. for every single litigation (or enforcement effort) that EIG has ever pursued

against a third party “that contains a calculation of damages” particularly when such 

“calculation” is based on disparate facts and circumstances and would be inapposite to the facts 

at bar. Finally, any monetary demands made in settlement by EIG are protected under Rule 408 

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of the Federal Rules of Evidence and are also subject to confidentiality provisions within the 

settlement agreements themselves which were nearly universally included at the defendant’s 

behest. 

Constellation is fishing for documents that are neither relevant nor proportionate to the 

needs of this case while, in the bargain, placing a massive burden on EIG to search through the 

records of 70 plus litigations and enforcement efforts for settlement estimates or demands made 

in factually distinct cases. EIGs counsel sought to resolve the issue by asking Constellation to 

narrow the request and then offering to reconsider its objections to this Request if Constellation 

identified specific litigations from the public record that it believes are analogous and similar to 

Constellation’s willful infringement in the present matter. Constellation did not accept that offer. 

Ex. A; Ex. B at pp. 1-2. 

C. EIG Has Produced All Non-Privileged Information Relating to EIG’s First 

Notice of Constellation’s Infringement 

The core of Constellation’s complaint concerning the sufficiency of EIG’s responses to 

Constellation’s Interrogatory No. 3 and Requests Nos. 6 and 7 is that, after EIG conducted a 

reasonable search for responsive documents, there are no nonprivileged responsive documents 

other than the underlying SendGrid data (that has already been produced) that indicated the 

infringement by Constellation of the NIW publication. In previous meet and confers and in a

March 25, 2022 email to Constellation’s counsel, EIG has explained to Constellation that 

Deborah Brown, a customer service representative whose responsibilities included fulfilment, 

regularly accesses information provided by EIG’s email delivery service vendor SendGrid via its 

web-based “dashboard” to confirm, for instance, that publications were processed and delivered 

to EIG’s subscribers when potential issues with delivery arise. Ex. A. at pp. 2-3. In March of 

2019, Ms. Brown noticed unusual activity with respect to Constellation’s account based on the 

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SendGrid information. Id. Ms. Brown orally reported her findings to John Hitchcock, her 

supervisor at EIG, who then reviewed the SendGrid data with David Babski, a then-employee of 

EIG, as further described in EIG’s first amended responses to Interrogatory No. 3. D.E. 98-2, pp. 

5-6. 

All SendGrid data relating to Constellation subscription to NIW was produced on 

October 22, 2021. Indeed, to resolve this discovery dispute, EIG has agreed to produce all 

SendGrid data in EIG’s possession from all subscribers even though such data relates to EIG’s 

other publications that are not at issue here, and involve all of EIG’s other subscribers, who are 

not relevant. Ex. C at p. 4. The amount of data is considerable (26 gigabytes) and comes at 

considerable cost (approximately $15,000). Constellation was not satisfied however and refused 

to withdraw this part of its motion to compel. Id.

D. EIG Does Not Have the Ability To “Track” Constellation’s Emails

EIG has produced all documents responsive to Constellation First Document Request

Nos. 14 and 15 that were located after a reasonable search. Contrary to the misleading 

impression created by Constellation in its motion papers, EIG does not “track” its subscriber’s 

emails. The only way for EIG to (indirectly) monitor usage of EIG’s publications by its 

subscribers is through SendGrid’s open tracking services as modified in 2018, that relies on 

publicly available information regarding standard internet protocols common to all internet 

marketing and email solicitations. EIG produced the SendGrid data relating to Constellation as 

well as EIG’s communications with SendGrid it was able to locate after a reasonable search

(including “chatlogs” with SendGrid) on October 22, 2021 and March 11, 2022, and have also 

referred Constellation to SendGrid’s website for more information about SendGrid’s services. As 

EIG advised Constellation on March 25, 2022, SendGrid’s abilities to monitor delivery email 

openings is the same for Constellation as for any other third party. EIG has already produced all 

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SendGrid data relating to Constellation, including the data which EIG reviewed and relied upon 

to bring this lawsuit. EIG also stated that Constellation could ask for further detail from Deborah 

Brown at deposition. It bears noting that Constellation also received documents from SendGrid 

pursuant to a subpoena and will be receiving, as indicated above, all SendGrid data in EIG’s

possession relating to all of its publications for all of its subscribers. Constellation has been 

advised nothing further exists and yet persists with the present motion.

E. EIG’s Financial Records are Not Relevant to any Claim, Defense or 

Counterclaim in this Proceeding

As a threshold matter, EIG has no documents responsive to Constellation’s Second 

Document Request No 15 which seeks “[d]ocuments sufficient to show the revenue achieved and 

costs incurred from enforcing copyright infringement claims to NIW.” D.E. 98-5 at p. 9. As 

mentioned above, this case is the first case brought by EIG that involves the copyrights in the 

NIW publication and therefore there are no documents responsive to this Request.

Second, EIG has agreed to produce what documents it has, after a reasonable search, that 

are responsive to Second Document Request No. 14. That Request seeks “[d]ocuments sufficient 

to show the quantity sold, gross revenue, and profits from the sales of, subscriptions and licenses 

to NIW.” D.E. 98-5 at p. 8. EIG will produce documents that reflect the “quantity sold” and 

“revenue received” from the licensing and sale of the NIW publication. However, there are no 

responsive documents that reflect the profit attributable to the licensing of NIW. All sixteen EIG 

publications are created and produced through the collaborative efforts of EIG’s personnel, 

including reporters and editors as well as support and IT staff, regardless of their location in 

EIG’s worldwide offices. The standard operating expenses, such as salaries, rent, cost of 

business equipment and other business expenses, are shared across all 16 publications. The costs 

attributable to the creation of NIW, or any of the other 15 EIG publications, is not separated out 

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from the overall costs of EIG’s publishing business. As such, there are no responsive documents 

that reflect any profit solely attributable to NIW, as EIG explained to Constellation during the 

meet and confer process.

Finally, EIG maintains its objections with respect to Second Document Request 18. D.E. 

98-5 at p. 10. That Request seeks: “Documents sufficient to show your revenues, costs, and 

profits for each year since 2011.” Id. Although the parties have met and conferred numerous 

times on this issue, Constellation has failed to articulate the relevance of EIG’s overall revenues, 

costs and profits to the claims, defenses and counterclaims at issue in this case. The only 

relevant financial information of EIG is the lost licensing revenue EIG lost due to the acts of 

infringement of Constellation. See Section II.A., supra. That information has some relevance to 

one of several factors considered by the jury in determining the award of statutory damages. E.g., 

Lorillard Tobacco Co. v. Montrose Wholesale Candies & Sundries, Inc., No. 03-cv-4844, 2008 

WL 1775512, at *2 n. 3 (N.D. Ill. Apr. 17, 2008) (the revenues lost by the plaintiff is a factor in 

determining statutory damages). As noted above, EIG has produced all responsive documents 

and information from which Constellation may determine EIG’s licensing revenue lost as a result 

of Constellation’s infringement. Request No. 18 therefore is excessive. Cf., Ocean Atlantic 

Woodland Corp. v. DRH Cambridge Homes, Inc., 262 F.Supp.2d 923, 926 (N.D. Ill. 2003)

(Request for broader discovery into all of developer’s business activities anywhere was 

excessive). In any event, at a meet and confer held on April 27, 2022 to resolve this impasse, 

EIG offered to produce its corporate tax returns for the years 2011 through 2020 and request an 

extension of time to respond to the instant motion to give Constellation time to review the tax 

returns to evaluate whether production of the tax returns would resolve the dispute, but 

Constellation’s counsel declined. Ex. C at p. 4.

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Courts have previously found that EIG’s finances and the “[d]etails regarding the 

expenses EIG incurs to run its business” were “neither relevant nor proportional to the needs of 

the case.” See Energy Intelligence Grp., Inc. v. Kayne Anderson Capital Advisors, LP, No. 14-

cv-1903, 2017 WL 363004, at *9 (S.D. Tex. Jan. 24, 2017). 

The cases Constellation rely on are inapposite. Fields v. Gen. Motor Corp., No. 94-cv4066, 1996 WL 14040 (N.D. Ill. Jan. 14, 1996) involved a contractual dispute between a car 

dealership and a car manufacturer. The car dealership claimed damages based in part on the lost 

value of one of its franchise dealerships due to the defendant’s breach. Id. at *1. Because the 

plaintiff claimed damages to the value of its business, the Court found that the defendant was 

entitled to discovery regarding the businesses’ value, and ordered production of financial 

documents. Id. at *3-5. Here, in contrast, EIG is not claiming damage to the value of its company 

as a result of Constellation’s infringement. Instead, as discussed in Section II.A above, EIG has 

elected statutory damages. To the extent that EIG’s actual damages are relevant to the calculation 

of statutory damages, actual damages are measured solely on the basis of lost licensing fees: that 

is, the cost of the subscriptions that Constellation should have purchased to cover its unlawful 

copying and distribution of NIW. Constellation knows the extent of its infringement, and, as 

further discussed in Section II.A above, EIG has produced all documents necessary for 

Constellation to calculate EIG’s lost licensing fees, including pricing documents for every 

license option offered by EIG. EIG’s overall finances and subscription sales have no relevance to 

its lost licensing fees Constellation should have paid but for its infringement. The Fields decision 

is inapposite.

The cases Constellation cites relating to bias and motive are no help to Constellation. 

Both United States v. Abel, 469 U.S. 45, 52, (1984), and United States v. Jamison, 635 F.3d 962, 

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965 (7th Cir. 2011), are concerned with evidence relating to a witness’s bias for or against a 

party, in other words the “relationship between a party and a witness which might lead the 

witness to slant, unconsciously or otherwise, his testimony in favor of or against a party.” Abel, 

469 U.S. at 52. These cases are entirely inapposite to Constellation’s motion, which seeks EIG’s 

financial documents for the purposes of its fraud counterclaims purportedly to show that EIG had 

a motive to “entrap” Constellation, even though, after a year of discovery, Constellation has no 

evidence that EIG actually “entrapped” Constellation into infringing its publications.1

Constellation’s reliance on its counterclaims as the basis for the relevance of EIG’s 

financial information is misplaced. Constellation cannot sustain its counterclaim assertion that it 

is somehow fraud or a deceptive or unfair business practice to enforce one’s federal copyrights 

against infringers as provided for and in full compliance with the Copyright Act, 17 U.S.C. § 

101, et seq. Constellation asserts through its counterclaims that owners of federally-registered 

copyrights, who seek to enforce their rights against infringers, are in violation of Illinois law 

unless they satisfy additional conditions that are far beyond the requirements articulated by the 

U.S. Congress in the Copyright Act. Furthermore, the Court dismissed Constellation’s original 

fraud counterclaims, and EIG will move again to dismiss Constellation’s repleaded fraud claims. 

Accordingly, in order to preserve the time and resources of the Court and the parties, EIG 

respectfully submits that any decision on Constellation’s document requests relating to EIG’s 

finances should be stayed pending the resolution of EIG’s forthcoming Motion to Dismiss 

Constellation’s First Amended Counterclaims.

1 The sole source for Constellation’s “entrapment” allegations is a single email from Mark Hoff written in 2007, 

discussed in further detail below. When asked at a later deposition what he meant by EIG’s “entrapment efforts” Mr. 

Hoff responded that he simply meant EIG’s attempts to elicit further information from a subscriber when 

infringement is suspected, typically by asking the subscriber how they use the publication. Constellation has been 

provided with a complete copy of Mr. Hoff’s deposition and is aware of his testimony. See Section II.F below. 

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F. EIG Has Produced Its Copyright Enforcement Policy

EIG has fully responded to Constellation’s First Document Request No. 25 by producing, 

after a reasonable search, documents responsive to its document request, including the February 

19, 2010 memo from John Hitchcock, Managing Director of Sales, Marketing and Business 

Development of EIG to “All Sales, Account Development and Account Services Staff”. The

copyright enforcement policy outlined in that memo was instituted in 2010 and EIG has been 

vigilant in defending its copyrights – its most important asset – from infringers, like 

Constellation. EIG also produced to Constellation the subscription agreements that were sent to 

Constellation as well as the copyright notices and warnings that appeared within each issue of 

NIW and every email delivering NIW to Constellation. Those documents reflect EIG’s 

corporate policy that, among other things, stated that unauthorized copying will be considered 

willful copyright infringement.

Constellation seeks to confuse the issue by suggesting that two other documents that were 

produced in the Kayne litigation are also EIG’s “policies.” The documents referenced clearly 

indicate that these emails are not stated corporate policies of EIG nor directed to all EIG staff. 

The emails make proposals, suggestions and observations: one made in 2005 by Tom Wallin to 

management; and one in 2007 by Mark Hoff to EIG’s Chief Financial Officer. These emails are

not, and do not constitute, the corporate policies of EIG and are not responsive to Constellation’s 

First Document Request No. 25. John Hitchcock’s February 19, 2010 memo is EIG’s corporate 

policy as communicated to EIG staff and was produced. There are no other corporate copyright 

policies and Constellation motion to compel on this issue should be denied. 

It bears noting that Constellation’s sole source for its risible “entrapment” claim is based 

on the 2007 email written by former EIG employee Mark Hoff. As a threshold matter, it is 

Constellation’s choice and within its power whether or not to commit copyright infringement 

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(despite its own corporate policy). The claim that EIG entrapped Constellation to infringe 

NIW’s copyrights is without any basis in fact or law and no court has concluded that there is 

merit to such a claim, often dismissing the same at the pleadings stage or on summary judgment. 

In any event, in a deposition taken in the Kayne case, Mr. Hoff testified under oath that he used 

the wrong word in the email and that by “entrap” he meant efforts undertaken by EIG to elicit 

further information from a subscriber in order to determine whether a subscriber is infringing 

EIG’s copyrights. That was done “typically by asking [the subscriber] who was on the 

distribution list.” Energy Intelligence Group, Inc. v. Kayne Anderson, No. 4:14-cv-01903 (S.D. 

Tex.), D.E. 171-20, Depo. Tr. of Mark Hoff at 80:2 – 81:15. The transcript of the Hoff

deposition is publicly available and has been produced to Constellation yet Constellation

nevertheless claims that Mr. Hoff’s email is corporate policy when it is evidently not. 

G. Constellation’s Request for All Testimony and Expert Reports Is Moot As 

EIG has Produced the Requested Documents

On March 28, and April 29, 2022, EIG produced all transcripts of deposition testimony of 

its own representatives and expert reports despite the fact that such litigations did not involve the 

NIW publication, were brought against unrelated third parties and involved entirely different 

facts and circumstances. Nevertheless, EIG has produced all documents in its possession, 

custody and control responsive to Constellation’s Third RFP Nos. 1-4 and Constellation’s

motion is moot on this point.

III. CONCLUSION

In view of the foregoing arguments, EIG respectfully requests that the Court deny 

Constellation’s Motion To Compel on the grounds that Constellation’s motion is either moot or 

lacks merit as the discovery requested is neither relevant nor proportional to the needs of the 

case.

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Dated: May 2, 2022 By: /s Stephen M. Ankrom

Robert L. Powley (Attorney-In-Charge)

rlpowley@powleygibson.com

James M. Gibson 

jmgibson@powleygibson.com

Thomas H. Curtin

thcurtin@powleygibson.com

Stephen M. Ankrom

smankrom@powleygibson.com

POWLEY & GIBSON, P.C.

60 Hudson Street, Suite 2203

New York, NY 10013

Telephone: (212) 226-5054

Facsimile: (212) 226-5085

and

Binal J. Patel

bpatel@bannerwitcoff.com

Katherine Laatsch Fink

kfink@bannerwitcoff.com 

BANNER & WITCOFF, LTD.

71 South Wacker Drive

Suite 3600

Chicago, IL 60606

Telephone: (312) 463-5000

Facsimile: (312) 463-5001

Case: 1:20-cv-03983 Document #: 100 Filed: 05/02/22 Page 16 of 16 PageID #:1703