Free Motion to Compel - District Court of Delaware - Delaware

Case 1:07-mc-00197-GMS

Document 1

Filed 11/15/2007

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LABS OF VIRGINIA, INC., Plaintiff, v. CLINTRIALS BIORESEARCH, LTD., and BIO-RESEARCH LABORATORIES, LTD., Defendants. ) ) ) ) ) ) ) ) ) )

Misc. No. ______________________ Case No. 2:06mc4 (Eastern District of Virginia)

L.O.V. SHAREHOLDERS, LLC'S MOTION TO COMPEL L.O.V. Shareholders, LLC ("LOV"), assignee of and successor in interest to LABS of Virginia, Inc. ("LABS") with respect to the judgment identified below, by and through its undersigned counsel and pursuant to Federal Rule of Civil Procedure 45, hereby moves for an order compelling the production of documents pursuant to the subpoenas duces tecum served upon Inveresk Research Group, LLC, Inveresk Holdings, LLC, and Charles River Laboratories International, Inc. (the "Subpoenas") (copies of the Subpoenas are attached hereto as Exhibits A, B and C, respectively), and in support thereof, states as follows. 1. On April 4, 2000, judgment was entered in favor of LABS against ClinTrials

BioResearch, Ltd. and Bio-Research Laboratories, Ltd. in the principal amount of $116,660.00, by the United States District Court for the District of South Carolina, Beaufort Division (the "Judgment"). $200,000.00. 2. The Judgment was subsequently assigned by LABS to LOV by an assignment With accrued interest, the total judgment amount is now in excess of

affective as of December 31, 2003 (Exhibit D).

Case 1:07-mc-00197-GMS

Document 1

Filed 11/15/2007

Page 2 of 7

3.

On April 11, 2006, LOV registered the Judgment in the Eastern District of

Virginia pursuant to 28 U.S.C. § 1963. The clerk in the Eastern District of Virginia registered the judgment in that District by stamping a copy thereof "filed" and endorsing it with a miscellaneous action number. No new caption was assigned to the Judgment to reflect that it had been assigned from LABS to LOV. (A copy of the registered Judgment is attached as Exhibit E hereto.) 4. Thereafter, LOV issued the Subpoenas from this Court to Inveresk Research

Group, LLC, Inveresk Holdings, LLC, and Charles River Laboratories International, Inc. (collectively, the "Subpoena Recipients"). 5. The Subpoenas were issued in accordance with Federal Rule of Civil

Procedure 45 and Federal Rule of Civil Procedure 69(a)(2), which provides: Obtaining Discovery. In the aid of the judgment or execution, the judgment creditor or a successor in interest whose interest appears of record may obtain discovery from any person--including the judgment debtor--as provided in these rules or by the procedure of the state where the court is located. 6. The Subpoenas required that the Subpoena Recipients produce documents related

to judgment debtor ClinTrials BioResearch, Ltd., now known as Charles River Laboratories Preclinical Services Montreal, Inc. ("CRLPSM"), which documents are being sought to aid LOV in executing upon the Judgment. 7. The Subpoena Recipients are each parent entities of CRLPSM and are all

Delaware corporations or limited liability companies. 8. The Subpoena Recipients served the Objection to Subpoenae Duces Tecum

(the "Objection") (Exhibit F), stating four purported objections to the Subpoenas. In an effort to resolve the dispute, LOV's Virginia counsel discussed the Objection with the Subpoena

#117432

2

Case 1:07-mc-00197-GMS

Document 1

Filed 11/15/2007

Page 3 of 7

Recipients' counsel on August 27, 2007, and followed that conversation with a letter on August 28, 2007 (Exhibit G). 9. First, the Subpoena Recipients objected that the Subpoenas sought production of

the requested documents in Virginia (where counsel for both LOV and the Subpoenaed Parties are located), as opposed to Delaware. In response to this objection, counsel for LOV advised that LOV would be amenable to "the documents being produced at any reasonable, publicly accessible place in Delaware." LOV's Virginia counsel further offered, "I would also be happy to pick them up from your office." On November 1, 2007, LOV also offered to accept service at the office of undersigned Delaware counsel. 10. Second, the Subpoena Recipients objected by erroneously stating that the

Subpoenas had been issued by LABS, the original judgment creditor, instead of by LOV as assignee. This objection is erroneous because each of the Subpoenas states that it was issued by counsel for "L.O.V. Shareholders LLC, assignee of the Plaintiff." In a subsequent telephone conference between counsel held on September 10, 2007 for the purpose of resolving these discovery disputes, the Subpoena Recipients' counsel continued to maintain that the Subpoenas were not properly drafted. 11. Third, the Subpoena Recipients objected that the Subpoenas were "overly broad

and unduly burdensome and unlikely to lead to the discovery of admissible evidence." Counsel for the Subpoena Recipients did not articulate--and still has not articulated--how the documents sought or their production are overly broad or unduly burdensome, has not requested to limit the scope of the production in any manner, and has refused to provide even a single document in response to the Subpoenas. The third part of this objection, "unlikely to lead to the discovery of

#117432

3

Case 1:07-mc-00197-GMS

Document 1

Filed 11/15/2007

Page 4 of 7

admissible evidence," is utterly inapposite to these post-judgment Subpoenas, as the documents are being sought to aid in execution, not to be used as evidence in any proceeding. 12. Finally, the Subpoena Recipients objected that the Subpoenas sought the

production of confidential and proprietary information. In response, both in the telephone conversation of August 27, 2007 and the confirming letter of August 28, 2007, LOV's Virginia counsel indicated that LOV "would agree to any reasonable protective order to deal with concerns regarding privacy, confidentiality and the like." The Subpoena Recipients refused to make any production despite this offer. 13. In a telephone conversation between counsel to resolve these discovery disputes

held on September 10, 2007, counsel for the Subpoena Recipients stated an additional objection, not found in the Objections. Counsel argued, without providing any authority, that it was somehow improper to seek discovery from the parent entities of the debtor as opposed to the debtor itself. However, contrary to counsel's argument, Federal Rule of Civil Procedure 69(a)(2) explicitly authorizes post-judgment discovery from "any person." See also British Int'l Ins. Co., Ltd. v. Seguros La Republica, S.A., 200 F.R.D. 586, 590 (W.D.Tex. 2000) ("There is no doubt that third parties can be examined in relation to the financial affairs of the judgment debtor"). This objection is designed to evade compliance with the Subpoenas, as the debtor is a Quebec entity that has opposed enforcement of the judgment in Quebec and that has claimed that it is not subject to the jurisdiction of the United States District Court for the District of South Carolina. 14. In a continuing effort to resolve or narrow this discovery dispute, LOV's

Delaware counsel contacted counsel for the Subpoena Recipients in October. (See Exhibit H). During a telephone conversation on November 1, 2007, counsel for the Subpoena Recipients agreed that the Objection on the bases of location of production and confidentiality have been

#117432

4

Case 1:07-mc-00197-GMS

Document 1

Filed 11/15/2007

Page 5 of 7

cured by LOV's offer to accept service in Delaware and by LOV's offer to sign a reasonable confidentiality order governing any documents produced pursuant to the Subpoenas. (See Exhibit I at 1). In a subsequent letter, however, counsel for the Subpoena Recipients took the position that new subpoenas would be required in order to resolve its objections. (See Exhibit J at 1). 1 15. During and following counsels' November conversation, counsel for the

Subpoenaed Parties argued that LOV could not issue the Subpoenas because LOV was not a party to the Judgment and/or was not listed in the caption of the Subpoenas. (Exhibit J at 1). This argument is in direct conflict with the Subpoenaed Parties' second argument set forth in the Objection, which was that LABS could not issue the Subpoenas because the Judgment had been assigned to LOV. Accordingly, it appears that when counsel for the Subpoenaed Parties

believed the Subpoenas has been issued by LABS, he objected that LABS could not issue the Subpoenas, but when he realized that the Subpoenas had, in fact, been issued by LOV, he changed his position and argued that only LABS could issue the Subpoenas. This change of position reveals that the Subpoenaed Parties are not raising legitimate objections, but rather, are merely attempting to avoid having to produce the requested documents. Because the Judgment has been assigned to LOV, it is blackletter law, that LOV (and not LABS) is the party entitled to issue the Subpoenas. See, e.g., 46 Am. Jur. 2d Judgments § 439 ("With a valid assignment of the judgment, the assignee assumes the rights, remedies, and benefits of the assignor, and the assignment divests the assignor of all interest in the judgment . . . . Therefore, the assignee of a

The parties appear to agree that the entry of a reasonable confidentiality order governing any documents produced pursuant to the Subpoenas is appropriate.

1

#117432

5

Case 1:07-mc-00197-GMS

Document 1

Filed 11/15/2007

Page 6 of 7

judgment receives the right to enforce the judgment, using every remedy, lien, or security available to the assignor as a means of enforcing the judgment . . ."). 16. Finally, on November 1, counsel for LOV again requested that the Subpoena

Recipients clarify their objections to the scope of the Subpoenas, and identify the specific respects in which they contend that the Subpoenas were unduly burdensome or overly broad, and also identify any respects in which the Subpoenas were not objectionable, so as to narrow the scope of the dispute. (Exhibit I at 1-2). The Subpoena Recipients refused to do so, and still have not provided any indication of in what respect the Subpoenas are supposedly overly broad or unduly burdensome. Instead, the Subpoenaed Parties' only response is to reiterate nonspecific boilerplate objections, and offer to negotiate only in the event that LOV issues new subpoenas. (Exhibit J at 1). 17. In essence, the Subpoenaed Parties position is that the parties cannot negotiate a

resolution to dispute concerning the Subpoenas, and, instead LOV must begin the process anew with new subpoenas. (Id. ("I do not believe that the above deficiencies can be rectified with the above subpoenae")). The Subpoenaed Parties' arguments should be rejected as contrary to the policies of the Federal Rules of Civil Procedure and the practices of this Court, which are designed to encourage cooperation in resolving discovery disputes. See Fed. R. Civ. Pro. 1 (stating that the Federal Rules should be "construed and administered to secure the just, speedy and inexpensive determination of every action"); Local Rule 7.1.1 (requiring reasonable effort to resolve disputes before seeking the Court's assistance); Akzona Inc. v. E.I. DuPont De Nemours & Co., 607 F.Supp. 227, 236 (D.Del. 1984) (stating that discovery rules are construed liberally and the parties "should be guided accordingly as they attempt to resolve discovery disputes without the Court's intervention").

#117432

6

Case 1:07-mc-00197-GMS

Document 1

Filed 11/15/2007

Page 7 of 7

18.

Each of the Subpoena Recipients' objections are without merit. LOV's counsel,

through numerous telephone conversations, letters and e-mail messages have made a good faith effort to resolve any legitimate objections that the Subpoena Recipients might have. Through these interactions, it has become clear that the Subpoena Recipients will not agree to any resolution of any of their objections because their sole objective is to avoid having to make any production that might assist LOV in collecting on the Judgment owed by their subsidiary entity, and therefore the Court's intervention is necessary to resolve this dispute. WHEREFORE, L.O.V. Shareholders, LLC respectfully requests that the Court enter an Order, substantially in the form attached hereto: A. Compelling the full and complete production of documents pursuant to the

Subpoenas within 7 days of the date of such Order; B. Requiring the Subpoena Recipients, based upon their lack of any adequate excuse

for refusal to comply with Subpoenas, and in accordance with Federal Rule of Civil Procedure 45(e), to pay the reasonable expenses, including attorney's fees, incurred in bringing this motion; and C. Granting such other and further relief as this Court deems appropriate. ASHBY & GEDDES /s/Andrew D. Cordo Philip Trainer, Jr. (#2788) Andrew D. Cordo (#4534) 500 Delaware Ave., 8th Floor P.O. Box 1150 Wilmington, DE 19899 (302) 654-1888 [email protected] Attorneys for L.O.V. Shareholders, LLC

OF COUNSEL: Joshua M. David DAVID KAMP & FRANK, L.L.C. 739 Thimble Shoals Boulevard, Suite 105 Newport News, Virginia 23606 (757) 595-4500 Dated: November 15, 2007
185164.1

#117432

7

Case 1:07-mc-00197-GMS

Document 1-3

Filed 11/15/2007

Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE LABS OF VIRGINIA, INC., Plaintiff, v. CLINTRIALS BIORESEARCH, LTD., and BIO-RESEARCH LABORATORIES, LTD., Defendants. ) ) ) ) ) ) ) ) ) )

Misc. No. ______________________ Case No. 2:06mc4 (Eastern District of Virginia)

ORDER GRANTING L.O.V. SHAREHOLDERS, LLC'S MOTION TO COMPEL AND NOW, upon consideration of L.O.V. Shareholders, LLC's motion under Federal Rule of Civil Procedure 45 to compel the production of documents pursuant to the Subpoenas (the "Subpoenas") served upon Inveresk Research Group, LLC, Inveresk Holdings, LLC, and Charles River Laboratories International, Inc. (the "Subpoenaed Parties"), and any response thereto, it is hereby ORDERED that: 1. 2. The Motion is GRANTED; Within 7 days of the date of this Order, the Subpoenaed Parties shall serve upon

counsel for L.O.V. Shareholders, LLC full and complete responses to the Subpoenas and the documents requested thereby; and 3. The Subpoenaed Parties, jointly and severally, shall reimburse L.O.V.

Shareholders, LLC in the amount of $________________ for its expenses, including attorneys fees, reasonably incurred in bringing this motion.

Dated:

, 2007 United States District Judge

Case 1:07-mc-00197-GMS

Document 1-4

Filed 11/15/2007

Page 1 of 1

CERTIFICATION OF COUNSEL PURSUANT TO LOCAL RULE 7.1.1 I hereby aver that, as set forth in greater detail in the attached Motion to Compel, a reasonable effort has been made to reach agreement with the opposing party on the matters set forth in this motion. ASHBY & GEDDES /s/Andrew D. Cordo Philip Trainer, Jr. (#2788) Andrew D. Cordo (#4534) 500 Delaware Ave., 8th Floor P.O. Box 1150 Wilmington, DE 19899 (302) 654-1888 [email protected] Attorneys for L.O.V. Shareholders, LLC Dated: November 15, 2007

Case 1:07-mc-00197-GMS

Document 1-5

Filed 11/15/2007

Page 1 of 1

CERTIFICATE OF SERVICE I hereby certify that, on November 15, 2007, the attached L.O.V. Shareholders, LLC's Motion to Compel was served upon the following counsel of record in the manner indicated. By FedEx and E-mail Robert W. McFarland, Esquire McGuireWoods LLP World Trade Center 101 West Main Street Suite 9000 Norfolk, VA 23510-1655 [email protected]

/s/Andrew D. Cordo Andrew D. Cordo (#4534)

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 1 of 34

Exhibit A

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 2 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 3 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 4 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 5 of 34

Exhibit B

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 6 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 7 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 8 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 9 of 34

Exhibit C

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 10 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 11 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 12 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 13 of 34

Exhibit D

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 14 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 15 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 16 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 17 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 18 of 34

Exhibit E

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 19 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 20 of 34

Exhibit F

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 21 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 22 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 23 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 24 of 34

Exhibit G

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 25 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 26 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 27 of 34

Exhibit H

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 28 of 34

October 19, 2007

By E-Mail & Facsimile Robert W. McFarland, Esquire McGuireWoods, LLP World Trade Center 101 West Main Street, Suite 9000 Norfolk, VA 23510-1655

Re:

Subpoenas to Inveresk Holdings, LLC, Charles River Laboratories International, Inc. and Inveresk Research Group, LLC

Dear Mr. McFarland: I write on behalf of L.O.V. Shareholders, LLC, the assignee of LABS of Virginia, Inc. ("L.O.V."), the judgment creditor in miscellaneous action 2:06mc4, currently pending in the United States District Court for the Eastern District of Virginia. This firm been retained as Delaware counsel to L.O.V. to assist with resolution of the ongoing dispute concerning the subpoenas that were served upon Inveresk Holdings, LLC, Charles River Laboratories International, Inc. and Inveresk Research Group, LLC (the "Subpoenaed Parties") out of the United States District Court for the District of Delaware on June 28, 2007. We hope that this dispute can be resolved without seeking the assistance of the Court. To that end, please give me a call at your first convenience so that we can discuss the Subpoenaed Parties' objections. Very truly yours,

Andrew D. Cordo
185123.1

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 29 of 34

Exhibit I

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 30 of 34

From: To: CC: Subject: Date: Attachments:
Robert:

ACordo "McFarland, Robert W."; "[email protected]"; District of Delaware Subpoenas Friday, November 02, 2007 10:09:00 AM

I write to summarize our conversation of yesterday evening, during which we discussed your objections to the subpoenas (the "Subpoenas") served by LOV Shareholders, LLC ("LOV") on Charles River Laboratories International, Inc., Inveresk Holdings, LLC and Inveresk Research Group, LLC. As to your objections regarding service of documents in Delaware and the confidentiality of the documents sought by the Subpoenas, I understand those objections to have been cured, respectively, by our offer to accept service of the documents at my office or their being made available at any reasonable public place in Delaware, and by our offer to agree to a reasonable confidentiality stipulation concerning any documents that are produced in response to the Subpoenas. As to your objection concerning the identity of the party serving the Subpoenas, I reiterate that LOV, not LABS of Virginia, Inc. ("Labs"), served the Subpoenas. Your assertion in the objections to the Subpoenas, evidently based upon the caption on the Subpoenas, that Labs is the party seeking the production of documents is incorrect. On their face, the Subpoenas indicate that the "issuing officer" thereof is counsel for LOV. We do not view the caption of a subpoena as conclusive as to who served a subpoena, or as giving rise to an excuse for non-compliance therewith. In the interest of resolving this objection, please refer me to the authority on which it is based. As to your objection to the effect that the Subpoenas are overly broad and seek documents that are not likely to lead to the discovery of admissible evidence, I noted that your blanket objection does not identify the respects in which you specifically contend that the Subpoenas are objectionable. You agreed that you would consult with your client and let me know whether there are any aspects of the Subpoena that are not, in your view, overly broad, so that we could narrow the scope of the present dispute. I look forward to receiving this information

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 31 of 34

soon in hopes that this objection can be resolved without the assistance of the Court.
Andrew D. Cordo ASHBY & GEDDES 500 Delaware Ave. 8th Floor P.O. Box 1150 Wilmington, DE 19899 (302) 654-1888 [email protected] This e-mail message may contain legally privileged and/or confidential information. If you are not the intended recipient, or the employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution, or copying of this e-mail message is strictly prohibited. If you have received this message in error, please immediately notify the sender and delete this e-mail message from your computer.

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 32 of 34

Exhibit J

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 33 of 34

Case 1:07-mc-00197-GMS

Document 1-6

Filed 11/15/2007

Page 34 of 34