Free Opening Brief in Support - District Court of Delaware - Delaware

From: Mark Fox
To: lvlichaei Rounds of Watson Rounds
Date: tff!06 2:52PM
Subject: Subpoena to BK
Mike,
l have conducted additional research to confirm that my initial recoiiection ofthe law was correct, i.e., your
new subpoena issued from the district court in Delaware is absolutely, undeniably, unequivocally, and
cornpleteiy invalid and unenforceable. You seem to be confused between the vaiidity of service of
process of a subpoena on a Deiaware corporation and the validity of a subpoena itseif on a witness
iocated in a foreign country.
The Walsh Act, 28 USC. t?83, governs the procedure for obtaining a subpoena for a U.S. witness
located in a foreign county, and you have failed to cornply with any of those requirements. Rule ¢i5(b)(2)
allows witnesses located in foreign countries to be subpoenaed only when aiiowed by a court pursuant to
28 U.S.C. 1783, However, a subpoena cannot be issued to a witness abroad uniess the district court
finds both that the subpoena is necessary in the interest ofiustice and that it is impossible to obtain the
testimony or documents in any other manner. The validity of the Walsh Act has been upheld by the
United States Supreme Court. See, e.g.,Biackmer v. United States, 284 U.S. 421 (1932).
It after a showing is necessity, the district court authorizes the issuance of a subpoena under Secton
1783, it must be served according to the
methods provided in the Federai Ruies of Civil Procedure, and the estimated travei expenses must be
tendered to the witness at the time of service.
You sirnpiy have no argument, let alone a good faith argument, that your latest subpoena to BK is valid or
enforceabie. i‘rn confident that now that you have been advised of the law and your error, you would not
knowingiy maintain that your purported subpoena is valid or that BK is obiigated to cornpiy with it.
Therefore, please fax a letter to Bl<‘s lawyer, with a copy to me, by 12:00 noon, Monday, Januagy 9,
2006, withdrawing your December 29, 20906 subpoena to BK.
Thank you for your anticipated cooperation in this matter.
Mark R. Fox .
Fraser Trebiloock Davis & Dunlap, RC.
1000 Michigan National Tower
124 West Aiiegan Street - Suite 1000 -
Lansing, Mi 48933
(517) 482-5800 - ieiephone
(5i?) 482-0887 - facsimile
CC: [email protected]; Tricia Trevino
ext-nerr no.............W .2