Free Letter - District Court of Delaware - Delaware

Case :,:05-cv—OOO22-MPT Document 165 Filed O4/18/2008 Page 1 of 3
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‘ Chad J. Toms
. ATTORNEYS AT LAW A¤S§>A¤mi¤¤¤¤¤NJ
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April 18, 2008
.
Via Electronic Filing and Hand Delivery
The Honorable Mary Pat Thynge
J. Caleb Boggs Federal Building
.2 844 N. King Street, Room 6100
‘_ Lockbox 8
fj Wilmington, DE 19801
J. Re: St. Paul Mercury Insurance Company, et al. v. Maly Yan, et al.
..1 C.A. No 05-22-MPT
Dear Judge Thynge:
On April 16, 2008, Plaintiffs received several documents from opposing counsel, each
I.) identified as a "Notice to Appear in Lien of Subpoena.” These documents were directed to
‘_- Cheryl Stanisziewsky, Sterling Newsome, Steven Ames, Robert Macknis, Susi Hadi, John Leer
fj., and Mike Warren in care of Francis Deasey at the law firm of Deasey, Mahoney & Valentini.
[1 (Copies of these notices are attached hereto for the Court’s reference.)
With these documents, it appears Defendants’ intention is to force Plaintiffs to secure the
jif; trial attendance and testimony of these witnesses. Plaintiffs are unaware of any provision in the
Federal Rules of Civil Procedure that allows a party to secure the trial testimony of witnesses in
if this manner. Thus, it is Plaintiffs’ position that the Federal Rules do not permit these notices,
and that Defendants cannot compel Plaintiffs to make any of these persons available through
these means.
By correspondence dated April 17, 2008, Plaintiffs° counsel advised Defendants’ counsel
of Plaintiffs’ opposition to the "Notice to Appear in Lieu of Subpoena." Plaintiffs’ counsel
further advised Defendants’ counsel that it was Plaintiffs’ present intention to have Cheryl
Stanisziewsky, Sterling Newsome and Steven Ames available to testify at trial. Therefore, the
Wilmington Ofiice
800 N. King Street
fi P.O. Box 2165 Newark Office Lewes Ofhce
Wilmington, DE 19899-2165 100 Biddle Avenue, Suite 100 119 West Third Street
ja} Courier Zip: (19801) Newark, DE 19702 Lewes, DE 19958
Phone: (302) 429-1900 Phone: (302) 429-1900 Phone: (302) 644-0302
il" Main Fax: (302) 429-8600 Main fax: (302) 832-7540 Main Fax: (302) 644-0306
ecrreruxro eenntorrn tic

? Case 1 :05-cv-00022-MPT Document 165 Filed O4/18/2008 Page 2 of 3
Bifferato Gentilotti LLC
V 2 of 3
_ April 18, 2008
l .
- trial attendance of Ms. Stanisziewsky, Mr. Newsome and Mr. Ames should be a non-issue for the l
- parties in this Court (a copy of which is attached hereto for the Court’s reference). lt is still
Plaintiffs’ intention to have these witnesses available to testify at trial. However, Plaintiffs have l
, been unable to contact Sterling Newsome by telephone (disconnected) or by utilization of two ,
Z.; private investigators. Thus, Plaintiffs’ counsel will provide Defendants’ counsel with
designations from Sterling Newsome’s deposition.
1
g However, Plaintiffs object to the extent that Defendants — through these documents —
require Plaintiffs to produce Robert Macknis, Susi Hadi, John Leer or Mike Warren for trial. Mr.
Macknis, Ms. Hadi and Mr. Leer are not parties, nor are they officers or employees of Plaintiffs.
‘ They are non-party witnesses, and they are not under the control of Plaintiffs in any manner.
‘ Thus, the proper method for Defendants to secure their trial attendance is through a subpoena
issued pursuant to Federal Rules of Civil Procedure 45.
if Mr. Warren, although an employee of Travelers Insurance Company, resides in Duluth,
Georgia. He is not a party, nor is he an officer of Plaintiffs. Defendants cannot require Plaintiffs
to present Mr. Warren at trial with this improper notice. Plaintiffs also cannot secure his trial
attendance by subpoena. Pursuant to Rule 45(c)(3)(A)(iii), the Court should quash any subpoena
served upon a non-party, or an employee of a party who is not an officer, if that subpoena would
require that witness to travel more than 100 miles "fron1 where that person resides, is employed,
or regularly transacts business in person." it is self-evident that Duluth, Georgia is more than
ig 100 miles from Wilmington, Delaware. Accordingly, Defendants cannot subpoena Mr. Warren
ii for trial.
Prior to corresponding with Defendants’ counsel on April 17, 2008, Plaintiffs’ counsel
attempted to contact Defendants’ counsel without success. P1aintiffs’ counsel left a detailed
voice message for Defendants’ counsel regarding the issues addressed in this correspondence.
;iQ Earlier today, Plaintiffs’ counsel again attempted to contact Defendants’ counsel without
if success. Thus, Plaintiffs respectfully request a conference call with the Court to resolve these
issues. Further, Plaintiffs request that the Court summarily quash the Notices and enter a
protective order that Defendants may not require Mr. Warren’s trial attendance, based upon Fed.
ng, R. Civ. P. 45(c)(3)(A)(iii).
Respect - . ubmitted, A
Chad I. Toms (# 155)
CIT/yd
z Attachments

g Case 1:05-cv—OOO22-MPT Document 165 Filed O4/18/2008 — Page 3 of 3
Bifferato Gentilotti LLC _
3 oi`3
U April IS, 2008
O i
il
Qi cc: Via Electronic Mail
ii Michael L. Sensor, Esquire
f Yvonne Takvorian Saville, Esquire
R Francis J. Deasey, Esquire
cj Henri Marcel, Esquire ‘
is Jonathan Cohen, Esquire
Steven M. Dranofi Esquire
‘ Richard Costigan, Esquire
Q Warren L. Siegel, Esquire
_; Robert S. Miller, Esquire
- Royce Smith, Esquire