Exhibit 2

Case: 1:20-cv-03983 Document #: 98-2 Filed: 04/18/22 Page 1 of 10 PageID #:1522
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

PLAINTIFFS’ FIRST AMENDED RESPONSES AND OBJECTIONS TO 

DEFENDANT CONSTELLATION ENERGY GENERATION, LLC’S

FIRST INTERROGATORIES TO ENERGY INTELLIGENCE GROUP, 

INC. AND ENERGY INTELLIGENCE GROUP (UK) LIMITED

Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure, Plaintiffs and 

Counterclaim Defendants Energy Intelligence Group, Inc. and Energy Intelligence Group (UK) 

Limited (collectively, “EIG” or “Plaintiffs”), by and through their undersigned attorneys, hereby 

serve their First Amended Responses and Objections to Defendant and Counterclaim Plaintiff 

Constellation Energy Generation, LLC’s (“Constellation” or “Defendant”) First Set of 

Interrogatories (“Interrogatories”) as follows. 

I. GENERAL RESPONSES 

The following general responses are incorporated, unless otherwise noted, into each and 

every one of Plaintiffs’ responses to the Interrogatories: 

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A. The specific responses set forth below are for the purposes of discovery only, and 

Plaintiffs neither waive nor intend to waive, but expressly reserve, any and all objections they 

may have to the relevance, competence, materiality, admission, admissibility or use at trial of 

any information, documents or writings produced, identified or referred to herein, or to the 

introduction of any evidence at trial relating to the subjects covered by such responses.

B. Plaintiffs expressly reserve their right to rely, at any time including trial, upon 

subsequently discovered information or information omitted from the specific responses set forth 

below as a result of mistake, oversight or inadvertence. 

C. The specific responses set forth below are based upon Plaintiffs’ interpretation of 

the language used in the Interrogatories, and Plaintiffs reserve their rights to amend or 

supplement their responses in the event Defendant asserts an interpretation that differs from 

Plaintiffs’ interpretation. 

D. Plaintiffs provide information responsive to the Interrogatories that Plaintiffs have

in their possession, custody or control as of the date of these Responses. Plaintiffs will continue 

to provide responsive information as such is discovered, if any. Plaintiffs’ failure to object to a 

particular Interrogatory or willingness to provide responsive information pursuant to an 

Interrogatory is not, and shall not be construed as, an admission of the relevance, or admissibility 

into evidence, of any such information, nor does it constitute a representation that any such 

information in fact exists. 

E. Because Plaintiffs may not have discovered all the information that is possibly 

within the scope of the Interrogatories, Plaintiffs expressly reserve their rights to amend or to 

supplement these responses and objections with any additional information that emerges through 

discovery or otherwise. 

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F. Upon request by Defendant, Plaintiffs are willing to meet and confer regarding 

their responses to any of the Interrogatories herein.

G. All references to Exelon Generation Company are understood to refer to 

Constellation Energy Generation, LLC to reflect Defendant’s new name.

RESPONSES AND OBJECTIONS TO INTERROGATORIES

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

Gen. Co., identify the copyright registration number and Asserted NIW Work that was 

allegedly infringed and describe the act that allegedly constituted infringement, including 

the date of such act.

Response: Plaintiffs object to this Interrogatory on the ground that it is premature 

because the information is in the possession of defendant. As such, Plaintiffs reserve their right 

to amend and supplement their Response to this Interrogatory as further information concerning 

the extent of Defendant’s infringement is revealed in discovery. However, upon information 

and belief, Plaintiffs believe that Exelon infringed the registrations listed in paragraph 20 of the 

Complaint.

Without waiver of the foregoing objections, Plaintiffs refer Defendant to Appendix A, 

attached hereto. Appendix A is based on Defendant’s documents that it has produced to date. 

Appendix A lists the NIW works that Defendant has infringed during the time period of 

November 1, 2011 through July 8, 2020, based solely on documents Defendant has produced to 

date, and identifies by Bates number the documents that show infringement of NIW.

Interrogatory No. 2. 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.

Response: Plaintiffs object to this Interrogatory on the basis that it is premature 

pending the completion of discovery as to the full extent of Defendant’s copying and 

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distribution at issue in this litigation. As such, Plaintiffs reserve their right to amend and 

supplement their Response to this Interrogatory as further information concerning the extent of 

Defendant’s infringement is revealed in discovery.

Without waiving the foregoing objections, Plaintiffs respond that they may elect at any 

time before final judgment to recover (1) Plaintiffs’ actual damages and any additional profits of 

the Defendant’s attributable to the infringement, or (2) statutory damages.

As a measure of actual damages, Plaintiffs’ lost licensing fees and/or subscription fees 

can be calculated in the following ways: (1) Nuclear Intelligence Weekly’s current pay-perarticle rate of $24.00 for a copy of a single article, multiplied by the total number of articles that 

were infringed by Defendant, multiplied by the total number of copies of each article made by 

Defendant; (2) Nuclear Intelligence Weekly’s current pay-per-publication rate of $395.00 for a 

single copy of a single issue, multiplied by the total number of issues of Nuclear Intelligence 

Weekly that were infringed by Defendant, multiplied by the total number of copies of each issue 

made by Defendant; (3) Plaintiffs’ current annual single publication global enterprise license 

rate of $200,000, multiplied by the number of years that Defendant infringed Nuclear 

Intelligence Weekly; and/or (4) for each annual subscription period in which Defendant 

infringed Nuclear Intelligence Weekly, the cost of Nuclear Intelligence Weekly’s annual 

subscription rate at that time for a single copy of Nuclear Intelligence Weekly for that annual 

period multiplied by the number of subscriptions needed to account for Defendant’s 

infringement during that annual subscription period. Notwithstanding the foregoing, at the time, 

Plaintiffs are not certain as to the most accurate method to calculated the actual and/or statutory 

damages in this matter until further discovery regarding Defendant’s copying is made available.

Statutory damages under the Copyright Act are based on the number of infringed works 

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multiplied by the applicable statutory award for each infringed work. The range of statutory 

damages can increase from the minimum of $750 up to $150,000 for each work infringed if 

Defendant’s infringement of Nuclear Intelligence Weekly is found to be willful under Section 

504(c) of the Copyright Act. Plaintiffs note that the final determination as to the applicable 

statutory award for each infringed work will be made by the finder of fact, not by Plaintiffs. In 

determining the amount of statutory damages awarded for each infringed work, the finder of fact 

may consider a number of factors, including but not limited to: the defendant acting with reckless 

disregard for, or willful blindness to, the copyright holder’s rights; the benefits obtained by the 

infringer from its infringement; the copyright owner’s lost revenues, which are measured by lost 

licensing and/or subscription fees due to the infringement; the difficulty of proving actual 

damages; the circumstances of the infringement; and deterrence. See 17 U.S.C. § 504(c)(2); 

Energy Intelligence Grp., Inc. v. Kayne Anderson Capital Advisors, L.P., 948 F.3d 261, 269 (5th 

Cir. 2020). Statutory damages “are intended not only to compensate copyright owners but also to 

deter copyright infringers.” Id. at 273.

In addition, Plaintiffs further respond that they will seek to recover their costs and 

attorneys’ fees in this case pursuant to 17 U.S.C. § 505.

Interrogatory No. 3. Describe all facts and circumstances around your first 

awareness that Exelon Gen. Co. did, or may have, allegedly infringed the copyright of 

each Asserted NIW Work, including without limitation the date of such awareness, how 

you became aware, and the persons involved.

Response: Plaintiffs object to this Interrogatory on the ground that the term 

“awareness” is vague, ambiguous, subject to speculation and subjective judgment as to its 

meaning, and calls for a legal conclusion. Plaintiffs object to this Interrogatory because it calls 

for information protected from disclosure by the attorney-client privilege, the attorney work 

product doctrine, or other applicable privilege or immunity. 

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Without waiver of the foregoing objections, Plaintiffs respond that they learned of 

Defendant’s infringement of Nuclear Intelligence Weekly on or about March 28, 2019 by 

examining data provided by Plaintiffs’ email delivery service SendGrid. Plaintiffs’ employees

David Babski and John Hitchcock reviewed the data including examining the number of times 

delivery emails were opened, when those openings occurred, the number of devices involved in 

the email openings, the IP addresses of the devices opening the emails, and the physical location 

of the devices (based on IP address data), among other things. From Plaintiffs’ review of the 

aforementioned data, Plaintiffs believed Defendant was distributing copies of NIW.

Interrogatory No. 4. Describe all facts and circumstances around the analysis and 

conclusions discussed in Paragraphs 35–38 of the Complaint. Your answer should 

include at least the following information: (i) the dates when such analysis occurred, 

including the dates when “data reflecting Defendant’s activity on the servers of the thirdparty email delivery service (the ‘Delivery Service’) that delivers NIW to Defendant” was 

requested from the Delivery Service, when it was delivered, when it was examined, and 

when conclusions were reached; (ii) the entities and natural persons involved in 

requesting, collecting, delivering, examining, and reaching conclusions from such data; 

(iii) how the analysis was performed and the conclusions were reached.

Response: Plaintiffs object to this Interrogatory because it calls for information protected 

from disclosure by the attorney-client privilege, the attorney work product doctrine, or other 

applicable privilege or immunity. Plaintiffs object to this Interrogatory on the ground that it is 

overly broad, unduly burdensome and not proportional to the needs of the case because it calls 

for a lengthy narrative response, and any non-privileged information sought can be obtained by 

more practical means by deposition of a corporate representative. 

Without waiving the foregoing objections, Plaintiffs refer Defendant to Plaintiffs’ 

response to Interrogatory No. 3. 

Interrogatory No. 5. For each email delivery service, software, or vendor that 

delivered NIW to Exelon Gen. Co. (collectively, “email delivery services”) on or after 

November 1, 2011, identify the time period in which such email delivery service delivered 

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NIW to Exelon Gen. Co. and describe its ability within or after that time period to collect 

or analyze data regarding the number of times an email sent to Exelon Gen. Co. was 

opened, the number of unique devices on which such email was opened, or alleged 

copying of NIW.

Response: Plaintiffs object to this Interrogatory to the extent that it seeks information 

that is at least as readily available to Defendant regarding services delivering email to Defendant. 

Plaintiffs further object to this Request as it calls for information protected from disclosure by 

the attorney-client privilege, the attorney work product doctrine, or other applicable privilege or 

immunity.

Without waiving the foregoing objection, and only to the extent Plaintiffs understood the 

“data” provided by a delivery service, if any, Plaintiffs respond that, from on or after November 

1, 2011 to June 2015, American Technology Services, LLC (“ATS”) was utilized by Plaintiffs to 

deliver Nuclear Intelligence Weekly to Defendant. To the best of Plaintiffs knowledge, ATS did 

not have the capability to collect or analyze any tracking data and did not provide such data to 

EIG.

SendGrid was the email delivery service utilized by Plaintiffs to deliver Nuclear 

Intelligence Weekly to Defendant commencing on or about June 2015 through to the present. 

SendGrid’s services do not detect copying of PDF attachments, and SendGrid does not market its 

services as a copyright enforcement tool. As such, SendGrid’s data does not directly show 

whether a PDF attachment to an email, such as Nuclear Intelligence Weekly, was opened, copied, 

or infringed. 

In addition, the amount of information SendGrid made available to EIG changed over 

time. From on or about June 2015 to mid-2018, SendGrid’s logs provided generic information 

when an email was “processed” by SendGrid, “delivered” to the recipient or when delivery was 

“deferred” for some reason, and when an email was “opened.” See EIG005498.

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EIG gained access to the newly available “open tracking” data on or about July 20, 2018, 

as a result of SendGrid upgrading its systems and services. See EIG005498. This additional data 

now included information about all the devices opening the subscription email and the internet 

protocol address (“IP address”) of the devices opening the email. This additional information,

available on or about July 20, 2018 for the first time, provided EIG with information that

multiple devices were opening the emails delivering Nuclear Intelligence Weekly. The exact data 

SendGrid provided EIG before and after July, 2018 has been produced under Bates Nos. 

EIG005498.

Dated: March 14, 2022 By: /s/ Stephen M. Ankrom

Robert L. Powley (Attorney-In-Charge)

rlpowley@powleygibson.com

James M. Gibson 

jmgibson@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

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CERTIFICATE OF SERVICE

On behalf of Plaintiffs Energy Intelligence Group, Inc. and Energy Intelligence Group 

(UK) Limited, I hereby certify that a true and correct Copy of PLAINTIFFS’ FIRST 

AMENDED RESPONSES AND OBJECTIONS TO DEFENDANT CONSTELLATION 

ENERGY GENERATION, LLC’s FIRST INTERROGATORIES TO ENERGY 

INTELLIGENCE GROUP, INC. AND ENERGY INTELLIGENCE GROUP (UK) LIMITED

was served was served via email upon counsel of record for Defendant on this 14th day of 

March, addressed as follows:

Sondra A. Hemeryck

Rodney Perry

Louis A. Klapp

Rachel F. Sifuentes

RILEY SAFER HOLMES & CANCILA LLP

70 W. Madison, Suite 2900

Chicago, Illinois 60602

shemeryck@rshc-law.com

rperry@rshc-law.com

lklapp@rshc-law.com

rsifuentes@rshc-law.com

/s/ Stephen M. Ankrom

Stephen M. Ankrom

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