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GRAHAM K. CRABTFQEE DOUGLAS L,. MENi
·- December 28, 2005
Michael D. Rounds, Esq.
Watson Rounds -
5371 Kietzke Lane
Reno, NV 89511
. Re: ]?·`ortuNet, Inc. v. Melange Computer Services, Inc., et. al.
Case No. CV-S~0·¢l~l4»48-Pl•¢IP—(PAL)
Honorable Philip M. Pro
Dear Mr. Rounds:
We just received your purported subpoena duces tecum directed to BK Entertainment,
Inc., a Canadian corporation, with a return date of Ianuary 6, 2006 at 5:00 p.m. in Wilmington,
Delaware. We were, to say the least, quite surprised by this improper subpoena. As an
experienced federal litigator, we would have assumed that you are aware that your purported
subpoena is completely invalid, facially and otherwise. However, in the event that you were not
so aware, we want to advise you so that you can promptly withdraw the subpoena.
Your purported subpoena duces tecum was issued in violation of the requirements of F.
R. Civ. P. 45(a)(2) because it was issued by you under the auspices of the U.S. District Court for
the District of Nevada. However, "a subpoena for production or inspection shall issue from the
court for the district in which the production or inspection is to be made. †Id. Your purported
subpoena duces tecum also seeks to require compliance in a venue not authorized pursuant to F.
R. Civ. P. 45(b)(2), (c)(3)(A)(ii),or (c)(B)(iii). You may wish to carefully review Rule 45 and
also 28 U.S.C. § 1783 (which sets forth the procedure for subpoenaing a witness who is a
national or resident of a foreign country), both of which were violated by your issuance of the
subpoena.}
I Even if the subpoena were facially valid, we are unable to determine whether it was actually and properly served
and accompanied by the witness fee and mileage check as required by Rule 45(b)(l) and (2). The purported
subpoena also trees not allow for reasonable time for compliance as required by Rule 45(c)(3)(A)(i), ___,__ ____
exutatr ig};
l Case 1:06-mc—OOOO7-KAJ Document 2-4 Filed O1/10/2006 Page 2 of 3
Michael D. Rounds, Esq.
December 28, 2005
Page 2
Typically, a party has no standing to challenge a subpoena to a third party. However, if
the subpoena is issued in violation of law or court order, a party such as Melange does have
standing to quash a subpoena. See, e. g., In re Letter Rogatozjvfrom the Justice Court, District of
Montreal, Canada, 523 F.2d 562 (6* Cir. 1975) ("a party against whom the requested
information is to be used has standing to challenge the validity of such a subpoena on the ground
that it is in excess of the terms ofthe applicable statute, here 28 U.S.C, § 1782. We hold that
Fecarotta has standing to challenge the validity of the subpoena on the theory that it is not
authorized by section 1782, the governing statute."); Integra Lyle Sciences L Ltd v. Merck KGaA,
190 F.R.D. 556 (S.D. Cal. 1999) ("A1thougl1 Rule 45 only appears to authorize such a motion by
the subpoenaed party, any party to the litigation would have the right to move for a protective
order where the subpoena was in violation of case management orders issued under Fed.R.Civ.P.
16 and 26.")
It is our position that your purported subpoena constitutes (we assume unknowingly) an
abuse of process and a misuse ofthe auspices of the federal court in Nevada. However, we know
you will new wish to immediately rectify this inadvertent error. Therefore, kindly contirm in
writing by December 30, 2006 that you have withdrawn your invalid and improper subpoena
duces tecurn and that you have so advised and notiiied BK Entertainment, Inc. of its withdrawal.
Thank you for your attention to this matter. n
Sincerely,
FRASER TRE VIS & D P_(j_ ·
· Mark R. ox
cc: Client
Jeffrey L. Weiss, Esq.
Karen J. Sepura, Esq.
violates the provisions of Rule 45(c)(1). However, given the facial and fatal defects, we need not even discuss its
over breadth and lack of relevance.
FRASER Tasszrcocx Davis & DUMLAP, P.C.
12/28/G5 14:47 FAX S1'? 482 0887 l~’RASl:JR 'l‘t
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