Free Answering Brief in Opposition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

KENTUCKY SPEEDWAY, LLC Plaintiff, v. NATIONAL ASSOCIATION FOR STOCK CAR AUTO RACING, INC., ET AL., Defendants.

: : : : : : : : : : :

CASE NO: 1:06-mc-00203-KAJ

BRIEF OF NON-PARTY DOVER MOTORSPORTS, INC. IN OPPOSITION TO TRANSFER OF PLAINTIFF'S MOTION TO COMPEL AGAINST THIRD PARTY DOVER MOTORSPORTS INC.

Dated: November 3, 2006

Richard G. Placey (DE I.D. No. 4206) Richard M. Donaldson (DE I.D. No. 4367) MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP 300 Delaware Avenue, Suite 750 Wilmington, DE 19801 Tel: (302) 504-7880 Fax: (302) 504-7820 Attorneys for Non-Party Dover Motorsports, Inc.

Of Counsel: Klaus M. Belohoubek, Esquire Senior Vice President and General Counsel Dover Motorsports, Inc. Concord Plaza 3505 Silverside Road Plaza Centre Bldg., Suite 203 Wilmington, DE 19810
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TABLE OF CONTENTS Page I. INTRODUCTION AND STATEMENT OF NATURE AND STAGE OF THIS PROCEEDING .................................................................................................................. 1 SUMMARY OF ARGUMENT ......................................................................................... 1 FACTUAL STATEMENT ................................................................................................ 2 ARGUMENT..................................................................................................................... 3 A. Transfer of the Motion to Compel is Not Permitted .............................................. 4 1. The Applicable Rule (F.R.Civ. P. 45(c)(2)(B)) Requires That A Motion to Compel Be Adjudicated by the Court Issuing the Subpoena.................................................................................................... 4 Kentucky's Reliance on Rule 26(c) and Motions for Protective Order Is Misplaced ­ Even Such Motions May Not Be "Transferred" Without The Consent of the Non-Party. ............................. 5

II. III. IV.

2.

B.

Even if Transfer Were Authorized, the Court in its Discretion Should Decline to Transfer. ............................................................................................. 10

V.

CONCLUSION................................................................................................................ 12

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TABLE OF AUTHORITIES Page CASES Central States, Southeast and Southwest Areas Pension Fund v. Quickie Transport Co., 171 F.R.D. 50 (E.D. Pa. 1997).......................................................................................... 6, 9, 10 In re Orthopedic Bone Screw Prods. 79 F.3d 46 (7th Cir. 1996) ................................................ 6, 9 In re Sealed Case, 141 F.3d 337 (D.C. Cir. 1998) .................................................. 6, 7, 8, 9, 10, 11 Lampshire v. Proctor & Gamble Co., 94 F.R.D. 58 (N.D. Ga. 1982) .......................................... 11 Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 1998 WL 85319, (U.S. 1998).................................................................................................................................. 8 Socialist Workers Party v. Att'y Gen., 73 F.R.D. 699 (D. Md. 1977) ...................................... 9, 10 U.S. v. Star Scientific, Inc., 205 F. Supp. 482 (D.Md. 2002) ......................................................... 6 STATUTES 28 U.S.C. § 1407............................................................................................................................. 9 RULES F.R. Civ. P. 26........................................................................................................................ Passim F.R. Civ. P. 45........................................................................................................................ Passim F.R. Civ. P. 37............................................................................................................................. 8, 9 OTHER AUTHORITIES 9 Moore's Federal Practice, § 45.50[4] (Matthew Bender, 3d Edition)..............................10

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I.

INTRODUCTION AND STATEMENT OF NATURE AND STAGE OF THIS PROCEEDING This brief is submitted by Third-Party and Respondent Dover Motorsports, Inc.

("Dover") in opposition to Plaintiffs Motion to Compel Against Third Party Dover Motorsports, Inc. ("Motion to Compel"). Dover opposes the motion in its entirety, but in accordance with the Court's direction at the October 26, 2006 telephone conference this initial brief is limited to the issue of transferring the Motion to Compel to the Eastern District of Kentucky. This motion arises out of a non-party subpoena issued by Kentucky Speedway Inc. ("Kentucky) to Dover. Kentucky is the plaintiff in an action in the Eastern District of Kentucky captioned Kentucky Speedway, Inc. v. NASCAR, et al, Civil Action No. 2:05-CV-138 (WOB/JGW)(the "NASCAR Action"). Kentucky has subpoenaed Dover, filed a motion to compel compliance with that subpoena, and requested that the Motion to Compel be transferred to the Eastern District of Kentucky. Dover opposes a transfer. On October 26, 2006 the Court directed that the briefs or the motion be limited to the transfer issue.1 This brief is submitted in accordance with that direction.

II.

SUMMARY OF ARGUMENT A. Rule 45(c), "Protection of Persons Subject to Subpoena," requires that any motion

to compel be resolved by the Court issuing the subpoena, and transfer of such motions is not authorized by the rules or the case law. B. Even if such a transfer were authorized, the Court in its discretion should decline

to transfer the motion.

1

Dover will file an opposition to the remainder of the Motion to Compel as directed by the Court.

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III.

FACTUAL STATEMENT Putting aside the broader set of facts relevant to the Motion to Compel on the merits, the

basic facts relevant to transfer are as follows: Kentucky is the Plaintiff in the NASCAR action in Kentucky. Dover is located in Delaware, and Kentucky seeks to subpoena documents from Dover to use in the NASCAR action. Kentucky first tried to subpoena Dover with an April 14, 2006 subpoena (Exhibit 1) from the Southern District of Ohio (where no action is pending), and to require Dover to make production at Kentucky's counsel's office in Ohio. Kentucky refused to withdraw this Ohio subpoena (even though Dover offered to accept service of a proper subpoena), and Dover was ultimately forced to expend money serving protective objections. On May 2, 2006, Kentucky then filed a motion in the NASCAR Action seeking "nationwide service of subpoenas" (Exhibit 2). Dover did not hire local counsel or appear in response to that motion, but Dover's Delaware counsel did send an informal letter to the Magistrate Judge in the Kentucky Court objecting to the procedure. Kentucky then withdrew the "nationwide service of subpoenas" motion ­ but again only after more resources had to be expended by non-party Dover even though Dover had offered to accept service of a proper subpoena. Ultimately, Kentucky forced Dover to incur thousands of dollars of unnecessary expenses by means of these ill-founded actions in the Ohio and Kentucky Courts. Kentucky then issued its initial Delaware subpoena, seeking 34 categories of documents, on May 30, 2006 (Exhibit 3). Thereafter, Kentucky withdrew its May 30 subpoena and replaced it with a far narrower subpoena, seeking 9 categories of documents, on July 7 (Exhibit 4). After the July 7 subpoena, efforts to address the requested discovery by agreement followed.

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After much negotiation arising from the narrower July 7 subpoena, Kentucky then reverted to the original May 30 subpoena, narrowed it only slightly, and has now moved to compel and transfer. The primary issues to be resolved on the Motion to Compel are those of the undue burden and expense that the subpoena puts on non-party Dover. For example, the subpoena seeks numerous documents which Kentucky can and presumably has obtained from NASCAR and ISC (the parties to the NASCAR Action) or which are publicly available. See, e.g. May 30 subpoena, ¶¶ 3, 4, 28, 29 and Motion to Compel Exhibit 3 at Items 1, 7, 12, 17. These items do not raise questions of relevance as much as they raise the issue of whether a nonparty should have to do a duplicate search for such items. Other requests are so vague and broad as to impose an undue burden and, in many cases, seek to require Dover to become Kentucky's researcher or expert. An example of this is the request that Dover find and produce "all documents related to any anticompetitive behavior or activity by ISC or NASCAR." May 30 Subpoena, ¶8; Motion to Compel Exhibit 3 at item 13. Simply put, while some issues regarding relevance may arise, the primary issues raised by the Motion to Compel are those surrounding the undue burden and expense placed on Dover. These are a particular concern here given Kentucky's previous demands that Dover respond to the Ohio subpoena and to its ultimately withdrawn motion for "nationwide service of subpoenas" in the NASCAR Action. IV. ARGUMENT Kentucky has filed a Motion to Compel under Rule 45(c)(1)(B); no motion for protective order has been filed. In seeking transfer of the Motion to Compel, Kentucky argues that "Rule 26(c) of the Federal Rules allows `the court in which the action is pending' to rule on a protective order," and allows "transfer" of protective order motions. Motion to Compel, ¶ 18 (emphasis added). -32128108v1

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Kentucky supports this argument with citations to district court cases involving motions for protective order under Rule 26 (not Motions to Compel under Rule 45). Moreover, in those cases, the moving party either was a party to the main action, or asked the court issuing the subpoena to defer ruling pending action of the court in which the main action was pending. Kentucky makes no argument that Motions to Compel under Rule 45 can be transferred, nor could it. As will be explained below: 1. compel. 2. While Rule 26(c), "Protective Orders," has sometimes been interpreted to allow The applicable rule, Rule 45(c)(2)(B), does not allow "transfer" of a motion to

an issuing court to remit a motion to quash/for protective order under Rule 45(c)(2)(C) to the court in which the action is pending, the case law indicates that even a motion for protective order may not be so remitted over the objection of a non-party. 3. Even if the Court had authority under Rule 45(c)(2)(B) to transfer a motion to

compel, it should not do so here. A. Transfer of the Motion to Compel is Not Permitted 1. The Applicable Rule (F.R.Civ. P. 45(c)(2)(B)) Requires That A Motion to Compel Be Adjudicated by the Court Issuing the Subpoena.

As noted, Kentucky has filed a motion to compel, but in seeking transfer argues that motions for protective order under Rule 26(c) can be decided by the court in which the action is pending. From this, Kentucky claims that Rule 26(c) motions can sometimes be transferred to the Court in which the main action is pending. However, this is not a motion under Rule 26(c) ­ no one has filed a protective order motion and no one has invoked that rule.

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Kentucky's motion is a motion to compel under Rule 45(c)(2)(B). Motion to Compel ¶¶ 7 et seq. An analysis of which court must decide such a motion begins and ends with the text of the applicable rule: (B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded. Id. (emphasis added) The text of the rule makes clear beyond dispute that the Motion to Compel must be filed in and decided by the "court by which the subpoena was issued" ­ this Court. Kentucky cites no case where a motion to compel was transferred to the court in which the main action was pending. In light of the text of the rule, this is not surprising. Accordingly, based on the text of the rule, the transfer request should be summarily denied. 2. Kentucky's Reliance on Rule 26(c) and Motions for Protective Order Is Misplaced ­ Even Such Motions May Not Be "Transferred" Without The Consent of the Non-Party.

Like Motions to Compel, motions to quash or modify a subpoena under Rule 45 must be decided by the issuing Court: On timely motion, the court by which a subpoena was issued shall quash or modify a subpoena if it. . . F.R. Civ. P. 45 (c)(3)(A) (emphasis added). However, Rule 26(c), "Protective Orders," allows "the court in which the action is pending or alternatively, on matters relating to a deposition, the -52128108v1

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court in the district where the deposition is to be taken [to issue a protective order]." Kentucky argues that this Rule allows protective order motions to be transferred to the court in which the action is pending, and cites a few district court cases to support this argument. As noted above, this argument is off point, since no one has filed a motion for protective order under Rule 26(c), and the pending motion is a motion to compel. But Kentucky is not just off-point; its argument is wrong even as applied to protective order motions. Kentucky would have this court rely on two district court cases, U.S. v. Star Scientific, Inc., 205 F. Supp. 2d 482 (D.Md. 2002) and Central States, Southeast and Southwest Areas Pension Fund v. Quickie Transport Co., 174 F.R.D. 50 (E.D. Pa. 1997). However, Kentucky fails to advise the Court that (1) the weight of authority, including appellate authority, is that even Rule 26(c) protective order motions may not be transferred absent consent of the moving party, and (2) in the cases Kentucky cites, the moving party either sought the transfer or was a party to the main action. The key appellate decision on transfers of Rule 26(c) motions is In re Sealed Case, 141 F.3d 337 (D.C. Cir. 1998).2 In that case, the Court of Appeals issued a writ of mandamus barring the District Court's transfer of a Rule 26(c) motion to the Court in which the main action was pending. The Court of Appeals' holding was that the Court that issued the subpoena had no authority to transfer even a motion for protective order under Rule 26(c). Id. at 339. Sealed Case involved an underlying action pending in the Eastern District of Arkansas. The defendant in the Arkansas case wanted documents from a Washington, D.C. law firm, and
2

According to the transcript of the October 26, 2006 telephone conference ("Tr."), counsel for Dover referred to the appellate authority as including authority from the Third Circuit. Tr. 7. Counsel was intending to refer principally to the Sealed Case opinion from the D.C. Circuit, as well as the Orthopedic Bone Screws opinion from the Seventh Circuit, and must have mis-spoken in this reference. Counsel apologizes for the error, and hereby corrects the record as to the intended reference.

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so issued a subpoena from the District Court for the District of Columbia for the documents. The subpoenaed party objected under Rule 45, and both a motion to compel and a motion to quash were filed in the District of Columbia. Id. A motion to transfer the motions to Arkansas was made by the defendant that issued the subpoena, and the District Court granted the transfer motion, reasoning that the motion to quash was essentially a Rule 26(c) protective order motion. The subpoenaed party sought review via mandamus, and the Court of Appeals' issued a writ of mandamus and vacated the transfer order. Id. The Court of Appeals' reasoning and holding makes clear that even protective order motions may not be "transferred" or remitted without the consent of the party seeking protection: The district court rested its conclusion largely on the Advisory Committee's Note to the 1970 amendments to Rule 26(c), but the place to start, whatever the Note's ultimate relevance, is the text of Rule 45. That text offers no authorization to transfer a motion to quash and seems at least implicitly to forbid it. The rule permits, and in some circumstances requires, "the issuing court" to quash or modify a subpoena. See Fed. R. Civ. P. 45(c)(3)(A). It allows enforcement of a subpoena following objections only "pursuant to an order of the court by which the subpoena was issued." Fed. R. Civ. P. 45(c)(2)(B). It provides that failure to obey a subpoena may be deemed contempt "of the court from which the subpoena issued." Fed. R. Civ. P. 45(e)... [citations omitted]. There are other textual difficulties with transfer of motions to quash. Rule 45(c)(3)(A)(ii) directs the issuing court to quash or modify a subpoena that requires a nonparty to travel more than 100 miles from the place where the nonparty "resides, is employed or regularly transacts business in person." This restriction is obviously hard to square with a principle that allows the issuing court to transfer the motion to quash to another district--in this case, the parties tell us, a district 892 miles away. Perhaps more significant, not only would a transferee court lack statutory authority to quash or enforce another court's subpoena, it would often lack personal jurisdiction over the nonparty. * * *

More generally, the rules governing subpoenas and nonparty discovery have a clearly territorial focus. Applications for orders compelling disclosure from -72128108v1

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nonparties must be made to the court in the district where the discovery is to be taken; failure to comply with such an order is a contempt of that court. Fed. R. Civ. P. 37(a)(1); 37(b). Subpoenas for attendance at a trial must issue from the court for the district in which the trial is held; for attendance at a deposition, from the court for the district in which the deposition is to be taken. Fed. R. Civ. P. 45(a)(2). (Rule 34(c) explicitly makes the subpoena process of Rule 45 the route to compelling production of documents from nonparties.) It may well be true, as respondent suggests, that the trial court will be better able to handle discovery disputes. But Congress in the Rules has clearly been ready to sacrifice some efficiency in return for territorial protection for nonparties. Cf. Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 1998 WL 85319, at *9 (U.S. 1998) (acknowledging that broader district court authority to transfer cases might be desirable but observing that "the proper venue for resolving that issue remains the floor of Congress"). What of Rule 26(c), springboard for the Advisory Committee Note on which the district court relied? * * *

We can assume that if Rule 45 were ambiguous, one might look to a clear Advisory Committee Note to resolve that ambiguity . . . But before tackling all the ifs and stretches in that assumption, it is useful first to address the text of the Note. It refers to the possibility that "[t]he court in the district where the deposition is being taken may, and frequently will, remit the deponent or party to the court where the action is pending." Respondent's argument takes "remit the deponent or party" to mean "transfer the motion." But that is not the phrase's meaning unless the Advisory Committee used English incorrectly, or at least eccentrically. "Remit" can indeed mean "to submit or refer (something) for consideration, judgment, decision or action . . . ." Webster's Third New International Dictionary 1920 (1981). That usage would make sense if the motion were the object of "remit." But it isn't. The object of "remit" is an active person or entity, "the deponent or party." Thus the relevant usage supplied by the dictionary is "to refer (a person) for information or help (as to a book or person)." Id. The Advisory Committee Note is thus more naturally read to suggest that the court for the district where the deposition is to be taken may stay its action on the motion, permit the deponent to make a motion for a protective order in the court where the trial is to take place, and then defer to the trial court's decision. See Kearney, 172 F.R.D. at 383. This reading cures the jurisdictional problems; a nonparty that moves for a protective order in the court of the underlying action thereby submits to that court's jurisdiction.

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Such a reading might seem to raise a new question: does it allow the nonparty witness territorial convenience with respect to motions to quash but not with respect to motions for a protective order? They are not obviously so different; in fact there is broad overlap in the grounds for granting the two motions. Compare Fed. R. Civ. P. 26(c)(1)- (4) with Fed. R. Civ. P. 45(c)(3)(A). As it turns out, the differential treatment is only apparent. The operation of the subpoena rules in fact grants nonparty witnesses the privilege of choosing to litigate in their home districts regardless of how relief is sought. Id. at 340-42 (emphasis added; footnotes omitted). In explaining this holding that nonparty witnesses may not be compelled to litigate outside their home districts, "regardless of how relief was sought," the Court of Appeals emphasized the importance of Rule 45's protections of non-parties from undue burden and expense: In the end what affords the nonparty deponent this territorial protection is that the rules vest power to compel discovery from a nonparty, and to impose contempt sanctions for non-compliance, in the subpoena-issuing court. Fed. R. Civ. P. 37(a)(1); Fed. R. Civ. P. 45(e). Rule 26(c) permits that court to stay its proceedings on a nonparty deponent's motion for a protective order pending action by the trial court, and to defer to the trial court's resolution of that motion. The rules may well allow similar abstention on a motion to quash, followed by deference to the trial court's decision on a motion for a protective order; this was the technique used in Kearney. But if the nonparty deponent fails to take the bait and move for a protective order in the trial court, the issuing court must make the decision whether discovery may be had, and its scope, since it is the only court with the power to order enforcement. Other courts have recently adopted this reading of the Advisory Committee Note. See, e.g., Orthopedic Bone Screw Prods., 79 F.3d at 48 (reading the Note's use of "remit" as referring simply to power in court that issued subpoena to stay motion by nonparty witness for protective order and defer to decision of the district court where discovery proceedings in the underlying action were pending under 28 U.S.C. § 1407); Cent. States, Southeast & Southwest Areas Pension Fund v. Quickie Transport Co., 174 F.R.D. 50, 51 n.1 (E.D. Pa. 1997); Kearney, 172 F.R.D. at 383. It appears also to have been the understanding of courts and commentators nearer the time of the 1970 Advisory Note. See Socialist Workers Party v. Att'y Gen., 73 F.R.D. 699, 701 (D. Md. 1977) (quoting 1976 Moore's Federal Practice). Id. at 342-43 (emphasis added). The Court accordingly concluded that there is simply no basis for a transfer, and reversed the transfer order. Id. at 343 There is little to add to the D.C.

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Circuit's analysis of this issue, and as noted in the opinion other Courts, including the Court of Appeals for the Seventh Circuit in Orthopedic Bone Screw, have adopted this view.3 B. Even if Transfer Were Authorized, the Court in its Discretion Should Decline to Transfer.

As shown, Kentucky's argument that transfer is permitted in the Court's discretion is not simply off point as applied to Rule 45 motions to compel, but has been rejected by various appellate courts even as applied to Rule 26(c) motions for protective order. However, even if the Court had such discretion, it should decline to transfer. As the Sealed Case Court pointed out, transfer imposes substantial costs and other burdens on a non-party ­ the very party Rule 45 seeks to protect. This is particularly important here, where Kentucky has already forced Dover to incur the costs of dealing with the completely off base Ohio subpoena, and then the unfounded, improper and ultimately withdrawn "nationwide service of process" motion. Now, it seeks to require Dover to litigate the Motion to
Star Scientific, cited by Kentucky at ¶18, p. 8, was a case in which the non-party (Star) sought and agreed to have the motion decided by the Court in which the main action was pending. 205 F. Supp. 2d at 484-85. In Central States, it was the defendant (a party to the underlying suit) that filed the motion for protective order seeking to prevent production of privileged materials from one of its attorneys. 174 F.R.D. at 57. Neither case allowed transfer of even a Rule 26(c) motion filed by the subpoenaed party over that party's objection. Moreover, while Kentucky purports to rely on Moore's Federal Practice in seeking the transfer, Motion to Compel, ¶ 18 at pp. 8-9, Kentucky does not even point out that what the treatise actually says on this subject flately contravenes Kentucky's position: In many cases in which the issuing court is different from the court in which the action is pending, the subpoena is the issuing court's only connection with the case. Accordingly, there is authority that a motion to quash or modify a subpoena may be transferred from the issuing court to the court in which the action is pending. That interpretation contravenes the text of Rule 45, and is problematic because the requirement to seek relief in the issuing court is designed to serve the convenience of the person subject to the subpoena, who is presumably in the forum of the issuing court. Transferring the dispute to the district in which the underlying action is pending undermines that convenience rationale, and may effectively require the subpoenaed person to litigate the issues in a distant forum. Accordingly, there is contrary and preferable authority that a motion to quash or modify may not be transferred, at least not over the objection of the person subject to the subpoena, and instead must be heard and resolved by the issuing court. 9 Moore's Federal Practice, § 45.50[4] (Matthew Bender, 3d Edition) (emphasis added).
3

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Compel in a forum 500 miles away, requiring Dover to incur substantial additional unnecessary expense. As the Court held, Rule 45's territorial protections are designed for the very purpose of relieving the non-party of the burden and costs of litigating elsewhere, and "Congress in the Rules has clearly been ready to sacrifice some efficiency [in deciding discovery disputes] in return for territorial protection for nonparties." Id. at 341. Given this, even cases which assumed that transfer was possible -- decided before the 1991 revision of Rule 45 (to better protect non-parties) and Sealed Case ­ held that deferring ruling upon or transferring a Rule 26(c) motion, . . .should be the exceptional, rather than the normal occurrence. The court where the motion is filed should determine the merits of the protective order request except in those unusual circumstances where only the trial judge has the necessary background information to rule on the motion. If the court in which a motion for a protective order was filed always deferred to the trial judge, the 1970 amendment to Rule 26(c) would have been futile. Proposed non-party deponents would be unable to avoid the burden and expense of traveling to faraway courts to litigate the merits of a discovery dispute if all such disputes were deferred to the court in which the main action were pending. Lampshire v. Proctor & Gamble Co., 94 F.R.D. 58, 59 (N.D. Ga. 1982) (transfer denied). Even if transfer were available, this is not such an unusual or exceptional case as to justify transfer and the accompanying abrogation of Rule 45's territorial protections for nonparties. As noted above, while relevance issues may come up, the primary issues on this motion are likely to be those of undue burden and expense on Dover. Examples of such problems are Kentucky's efforts to force Dover to look for documents that defendants possess and have presumably produced if relevant, to look for publicly available materials, and to try to identify for Kentucky's benefit such things as documents "related to anticompetitive behavior [by defendants]." -112128108v1

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Kentucky makes no argument, nor could it, that the instant Motion to Compel involves such exceptional circumstances and issues that only the trial judge can decide the motion. In fact, the motion plainly does not involve such issues. Accordingly, even if a Motion to Compel under Rule 45 could be transferred, this Court should decline to do so. V. CONCLUSION For all the reasons above, the request to transfer the Motion to Compel to the Eastern District of Kentucky should be denied. Respectfully submitted,

Dated: November 3, 2006

/s/ RGPlacey Richard G. Placey (DE I.D. No. 4206) Richard M. Donaldson (DE I.D. No. 4367) MONTGOMERY, McCRACKEN, WALKER & RHOADS, LLP 300 Delaware Avenue, Suite 750 Wilmington, DE 19801 Tel: (302) 504-7880 Fax: (302) 504-7820 Attorneys for Non-Party Dover Motorsports, Inc.

Of Counsel:

Klaus M. Belohoubek, Esquire Senior Vice President and General Counsel Dover Motorsports, Inc. Concord Plaza 3505 Silverside Road Plaza Centre Bldg., Suite 203 Wilmington, DE 19810

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

KENTUCKY SPEEDWAY, LLC Plaintiff, v. NATIONAL ASSOCIATION FOR STOCK CAR AUTO RACING, INC., ET AL., Defendants.

: : : : : : : : : : :

CASE NO: 1:06-mc-00203-KAJ

EXHIBIT 1

Exhibit 1 To The Brief Of Non-Party Dover Motorsports, Inc. In Opposition To Transfer Of Plaintiff's Motion To Compel Against Third Party Dover Motorsports Inc.

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

KENTUCKY SPEEDWAY, LLC Plaintiff, v. NATIONAL ASSOCIATION FOR STOCK CAR AUTO RACING, INC., ET AL., Defendants.

: : : : : : : : : : :

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EXHIBIT 2

Exhibit 2 To The Brief Of Non-Party Dover Motorsports, Inc. In Opposition To Transfer Of Plaintiff's Motion To Compel Against Third Party Dover Motorsports Inc.

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY AT COVINGTON CASE NO. 2:05-CV-138 WOB FILED ELECTRONICALLY KENTUCKY SPEEDWAY, LLC v. NATIONAL ASSOCIATION OF STOCK CAR AUTO RACING, INC., et al. DEFENDANTS PLAINTIFF

PLAINTIFF'S MOTION FOR LEAVE TO MAKE NATIONWIDE SERVICE OF THIRD-PARTY DOCUMENT SUBPOENAS Comes now the Plaintiff, Kentucky Speedway, LLC, by and through counsel, and hereby moves the Court for leave to make nationwide service of document subpoenas on third parties in this action. As the Court is aware, this is an antitrust case and federal antitrust law provides for nationwide service of process. Section 12 of the Clayton Act, 15 U.S.C. § 22, states as follows: "Any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district in which it is an inhabitant, or wherever it may be found." (emphasis added) So long as a company is doing business in the United States, it may be served in the United States in an antitrust case such as this case. See, e.g., In Re: Electric & Musical Industries, Ltd., Middlesex, England, 155 F. Supp. 892 (D.C.N.Y. 1957) (service of subpoena on British corporation doing business in the United States). Similarly, 15 U.S.C. § 23 states as follows: In any suit, action, or proceeding brought by or on behalf of the United States, subpoenas for witnesses who are required

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to attend a court in the United States in any judicial district in any case, civil or criminal, arising under the antitrust laws may run into any other district: Provided, That in civil cases no writ of subpoena shall issue for witnesses living out of the district in which the court is held at a greater distance than 100 miles from the place of holding the same without the permission of the trial court being first had upon proper application and cause shown. In this regard, FRCP 45(b)(2) makes clear that "a subpoena may be served at any place within the district of the court in which it is issued, or at any place without the district that is within 100 miles of the place of the deposition, hearing, trial, production, or inspection . . . ." The Rule adds, however, that "[w]hen a statute of the United States provides therefor, the court upon proper application and cause shown may authorize the service of a subpoena at any other place." Based on these authorities, Plaintiff hereby requests authorization from the Court to serve the document subpoenas attached hereto as Attachments A-F upon non-parties doing business beyond 100 miles of the designated place of production (i.e., Crestview Hills, Kentucky). Judicial economy, efficiency and consistency will best be served by having this Court (which is now or will be knowledgeable about the particular issues surrounding this case and, in particular, the proper scope of discovery) determine the appropriate scope of the subject document subpoenas. Accordingly, Plaintiff requests authorization to serve the attached six (6) document subpoenas on a nationwide basis. A proposed Order is tendered herewith. Respectfully submitted, s/Mark D. Guilfoyle Mark D. Guilfoyle (27625) DETERS, BENZINGER & LAVELLE, P.S.C. 207 Thomas More Parkway Crestview Hills, Kentucky 41017-2596 Telephone: (859) 341-1881 Facsimile: (859) 341-4879 2

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CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct of the foregoing was delivered via U.S. Mail or ECF Notice on May 2, 2006, to all counsel of record. s/Mark D. Guilfoyle

93273.1

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY AT COVINGTON CASE NO. 2:05-CV-138 WOB FILED ELECTRONICALLY KENTUCKY SPEEDWAY, LLC v. NATIONAL ASSOCIATION OF STOCK CAR AUTO RACING, INC., et al. ORDER Upon Plaintiff's Motion for Leave to Make Nationwide Service of Third-Party Document Subpoenas, the Court having heard arguments of counsel and being in all respects sufficiently advised, IT IS HEREBY ORDERED that Plaintiff is granted leave to make nationwide service of the tendered document subpoenas on the following: 1. Speedway Motorsports, Inc.; 2. Dover Motorsports, Inc.; 3. Indianapolis Motor Speedway; 4. New Hampshire International Speedway; 5. Milwaukee Mile Holdings, LLC; and 6. Pocono Raceway. DATED THIS ______ DAY OF __________________, 2006. DEFENDANTS PLAINTIFF

_____________________________ Judge, U.S. District Court
93331.1

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

KENTUCKY SPEEDWAY, LLC Plaintiff, v. NATIONAL ASSOCIATION FOR STOCK CAR AUTO RACING, INC., ET AL., Defendants.

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CASE NO: 1:06-mc-00203-KAJ

EXHIBIT 3

Exhibit 3 To The Brief Of Non-Party Dover Motorsports, Inc. In Opposition To Transfer Of Plaintiff's Motion To Compel Against Third Party Dover Motorsports Inc.

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

KENTUCKY SPEEDWAY, LLC Plaintiff, v. NATIONAL ASSOCIATION FOR STOCK CAR AUTO RACING, INC., ET AL., Defendants.

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CASE NO: 1:06-mc-00203-KAJ

EXHIBIT 4

Exhibit 4 To The Brief Of Non-Party Dover Motorsports, Inc. In Opposition To Transfer Of Plaintiff's Motion To Compel Against Third Party Dover Motorsports Inc.

Case 1:06-mc-00203-***-MPT Placey, Richard
From: Sent: To: Subject: Follow Up Flag: Flag Status:

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Justin A. Nelson [[email protected]] Friday, July 07, 2006 7:25 PM Placey, Richard Revised Subpoena Follow up Flagged

33012.pdf (548 KB)

Richard -Please find attached a revised subpoena for your client. We withdraw our previous subpoena to you issued from the District of Delaware. You have informed me that you are authorized to accept service on behalf of your client. Best Regards, Justin A. Nelson Susman Godfrey 1201 Third Avenue Suite 3800 Seattle, WA 98101 206-516-3867 This message is intended only for the people to whom it is addressed and is intended to be a confidential attorney-client communication. If this message is not addressed to you, please delete it and notify me. .

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

KENTUCKY SPEEDWAY, LLC Plaintiff, v. NATIONAL ASSOCIATION FOR STOCK CAR AUTO RACING, INC., ET AL., Defendants.

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CASE NO: 1:06-mc-00203-KAJ

ORDER Whereas, Plaintiff and Movant herein Kentucky Speedway, LLC ("Kentucky Speedway") filed Plaintiff's Motion to Compel Against Third Party Dover Motorsports, Inc. (Motion to Compel") (D.I. #1) on October 24, 2006; WHEREAS, Kentucky Speedway has requested that its Motion to Compel be transferred to the Eastern District of Kentucky, which request is opposed by Third Party and Respondent herein Dover Motorsports, Inc. ("Dover Motorsports"); WHEREAS, during a telephone conference conducted by the Court on October 26, 2006 (Transcript at D.I. #6) the Court directed that the parties submit briefing limited to the question of whether or not the Motion to Compel should be transferred to the Eastern District of Kentucky for disposition; and WHEREAS, upon consideration of that briefing and the arguments of counsel, IT IS HEREBY ORDERED this ___ day of _______________, 2006, AS FOLLOWS: 1. Kentucky Speedway's request that its Motion to Compel be transferred to the Eastern District of Kentucky is hereby DENIED; and 2. The parties are directed to submit to this Court for approval a proposed scheduling order for the remaining briefing and argument on Plaintiffs Motion to Compel Against Third Party Dover Motorsports, Inc. no later than ten (10) days from the date of this Order. BY THE COURT:

______________________________________ Judge Kent A. Jordan

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE KENTUCKY SPEEDWAY, LLC Plaintiff, v. NATIONAL ASSOCIATION FOR STOCK CAR AUTO RACING, INC., ET AL., Defendants. : : : : : : : : : : CASE NO: 1:06-mc-00203-KAJ

CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of November, 2006, I caused a true and correct copy of the Brief of Non-Party Dover Motorsports, Inc. in Opposition to Plaintiffs Motion to Compel Against Third Party Dover Motorsports, Inc. and exhibits to be served via electronic notice to the parties as provided by the electronic filing system and via United States First Class Mail, postage prepaid, upon the following at the addresses listed below: John M. Seaman Bouchard Margules & Freidlander PA 222 Delaware Avenue, Suite 1400 Wilmington DE 19801 and Justin A. Nelson Susman Godfrey 1201 Third Avenue, Suite 3800 Seattle, WA 98101
Attorneys for Plaintiff

Helen M. Maher Boies, Schiller & Flexner LLP ­ New York 333 Main Street Armonk, NY 10504
Attorneys for Defendant National Association of Stock Car Auto Racing, Inc.

Robert B. Craig Taft, Stettinius & Hollister, LLP - Covington 1717 Dixie Highway, Suite 340 Covington, KY 41011-4704
Attorneys for Defendant International Speedway Corporation

Kimberly S. Amrine Frost Brown Todd LLC - Cincinnati 201 E. Fifth Street 2200 PNC Center Cincinnati, OH 45202
Attorneys for Defendant National Association of Stock Car Auto Racing, Inc.

Guy I. Wade, III Jenkens & Gilchrist, P.C. ­ Dallas 1445 Ross Avenue, Suite 3700 Dallas, TX 75202-2799
Attorneys for Defendant International Speedway Corporation

/s/ RGPlacey Richard G. Placey
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