Free Sur-Reply Brief - District Court of Delaware - Delaware

Case 1 :06-mc—OO203-***-l\/I PT Document 34 Filed O3/06/2007 Page 1 of 4
MONTGOMERY, McCRAcKEN, WALKER & RHOADS, LLP
ATTORN EYS AT LAW
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RICHARD G. PLACEY
ADMITTED IN DELAWARE, |LL1r~1ois,
NEw JERSEY & PEN NSYLVANIA
DIRECT DiAL: (302) 504-7880
March 6, 2007
Magistrate Judge Mary Pat Thynge
United States District Court for the District of Delaware
J. Caleb Boggs Federal Building, Room 6100
Wilmington, DE 19801
Re: Kentucky Speedway, LLC v. NASCAR, et al.
Dear Judge Thynge:
This letter is submitted in support of Dover Motorsports, Inc.’s ("Dover") request for
reimbursement of its attorneys’ fees for responding to certain items filed or served by Kentucky
Speedway, Inc. ("Kentucky") that imposed undue burden and expense upon Dover.] The following
items remain at issue: (1) the First Delaware Subpoena (through July 7, 2006), (2) the Second Delaware
Subpoena, (3) Briefing the Motion to Transfer, and (4) the Motion to Strike.
A. Legal Standard
While there has been much discussion of Rule 11 and "sanctions" in the conferences with the
Court, in fact Dover need only meet a lower standard than that of Rules 11, 26 or 37. In that regard,
Rule 45(c) provides:
(1) A party . .. shall take reasonable steps to avoid imposing undue
burden or expense on a person subject to that subpoena. The court on behalf of
which the subpoena was issued shall enforce this duty and impose upon the
party . . . in breach of this duty an appropriate sanction, which may include, but is
not limited to, lost earnings and a reasonable attorney’s fee.
LI. (emphasis added)2 Under this rule, the Courts "sha1l" require reimbursement of a non-party’s costs
and expenses when an undue burden or expense is imposed. SQ Night Hawk Ltd. v. Briarpatch Ltd.,
Q, 2003 WL 23018833 (S.D.N.Y. 2003) (ordering reimbursement of fees); American Int’1 Life
Assurance Co. v. Vasquez, No. 02 Civ. 141, 2003 WL 548736, at *2-3 (S.D.N.Y. Feb. 25, 2003)
(imposing lost wages and awarding attomey’s fees incurred in connection with unduly burdensome
I The items and costs associated with each are spelled out in the Declaration of Richard G. Placey (D.I. 29). For easy reference,
the significant documents referred to herein are collected in an appendix being filed herewith (where necessary to place the
document in context, a cite to the Docket Index Number or Exhibit number will also be given). That Declaration is at App. 1-5
and the definitions used in the Declaration will be used in this letter.
2 Rules 11, 26, and 37 also allow for orders requiring payment of fees but require some showing of bad faith or the like. Rule 45
requires no such showing, rather requiring only that an undue burden or expense was imposed. Since Dover is entitled to an
award under this lower standard, Dover’s argument herein is addressed to the issue of undue burden (failure to meet this undue
burden standard would likely be fatal to a Rule l 1 or similar claim).
A LIMITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA
LOUIS A. PETRONI - NEW JERSEY RESPONSIBLE PARTNER

Case 1 :06-mc—OO203-***-IVIPT Document 34 Filed O3/06/2007 Page 2 of 4
Magistrate Judge Mary Pat Thynge
March 6, 2007; Page 2 of 4 ‘
subpoena). As will be demonstrated below, each of the remaining items at issue imposed undue burden
and expense on Dover.
B. Argument
In evaluating this issue, the totality of Kentucky’s conduct must be borne in mind. This includes
the burden and expense imposed on Dover by the earlier (and invalid) efforts to subpoena Dover before
Kentucky even came to Delaware. Prior to serving its Delaware subpoenas, Plaintiff had already
imposed significant expense upon Dover by the improper Ohio subpoena and the completely unfounded
Kentucky nationwide subpoenas motion. Kentucky has now agreed that Dover is entitled to be
reimbursed for the fees involved in responding to these items (in the amount of $5,720.).
However, it cannot be overlooked that, despite repeated requests during discussions of the various
subpoenas throughout the summer, fall and winter, it was only on February 27, 2007 (the date of a
conference with the Court to address Dover’s fee request) that Kentucky first offered to pay even for
these items. Moreover, by the time it served the 22 items list (the subject of the motion to compel),
Kentucky had served and abandoned or withdrawn the Ohio subpoena, the Kentucky Motion, the First
Delaware Subpoena and the Second Delaware Subpoena. It then later withdrew the Motion to Transfer as
well. Thus, there were five (5) withdrawn or abandoned subpoenas or motions in connection with this
matter to which Dover had to respond.
The remaining items for which Dover is entitled to reimbursement under the undue burden
standard are:
l. First Delaware Subpoena (through July 7, 2006) (fees: $5,265.00). This subpoena (App.
6-18) sought 34 categories of documents (not including sub-parts) over almost l5 years, including such
multiple sub-part items (emphasis added) as:
26. Documents sufficient to show the following for each racetrack owned by you :
>l< >l< *
b. The seating capacity for the racetrack broken down by general
admission/grandstand, luxury suites, club seats;
c. Parking capacity . . .
=l< * =l=
fi The ticket sales for the Nextel Cup event;
g. The advertising revenue for the Nextel Cup event;
h. The facilities amenities for the Nextel Cup event, including but not limited to
concession sales, program and merchandise sales, fees for hospitality tents,
and fees for souvenir trailers;
i. The racetrack safety records;
j. Complaints or suggestions about the racetrack by drivers, owners, crew and
spectators;
k. Comments about the track by NASCAR;
l. Comments about the track by any other racetrack;
* =l< >l<
x. The decision whether or not to allow the racetrack to host ....
This subpoena also included, at item 8, the completely improper request for all documents concerning
"anticompetitive behavior" that Kentucky refused to withdraw and which was stricken by the Court from
the 22 items list.

Case 1 :06-mc—OO203-***-IVIPT Document 34 Filed O3/06/2007 Page 3 of 4
Magistrate Judge Mary Pat Thynge
March 6, 2007; Page 3 of 4
Kentucky can be expected to claim that its Motion to Compel cited this subpoena, and was
granted in part, thereby validating this First Delaware Subpoena. But that is not so: The First Delaware
Subpoena was withdrawn on July 7, 2006 (ge App. 22-30). The Motion to Compel actually sought to
compel production of a much narrower 22 item list that was not even served until September 6, 2006
(App. 19-21; Exhibit 3 to the Motion to Compel). See Motion to Compel {M11 1 and 14. At a minimum,
this narrower 22 item list should have been served in the first place. Dover seeks its fees through the date
this subpoena was withdrawn on July 7, 2006; it does not seek its fees for this item thereafter or for
dealing with the 22 item list (App. 19-21) and upon which Kentucky actually based the Motion to
Compel.
2. Second Delaware Subpoena (fees: $5,005.00l — This subpoena (App. 22-30) was served
on July 7, 2006 (upon withdrawal of the First Delaware Subpoena, g App. 22), and was itself withdrawn
(implicitly) by the September 6, 2006 email serving the 22 items list (App. 19-21). Dover tried hard to
reach an agreement with Kentucky on the basis of this narrower subpoena, g App. 31-33/Motion to
Compel Exhibit 6, only to have Kentucky withdraw this subpoena as well and start over. Thus, Dover’s
efforts to respond to and reach agreement on this subpoena were also wasted, and represent an undue
burden on Dover.
3. Briefing the Motion to Transfer (fees: $8,761.00 Q. While it has been claimed that Dover
(or the Court) had a particular interest in this motion, all of that is irrelevant because Kentucky
withdrew this motion with prejudice (see D.I. 11) after forcing Dover to brief it.3 Put simply, it was
an undue burden for Kentucky to require this motion to be briefed by Dover if- as it turned out- transfer
was impractical in Kentucky’s view.
Kentucky claimed that it was withdrawing the transfer motion because it was concemed
that a transfer would take too much time and/or that there might be an appeal (D.I. 10). However, Dover
said in the very first conference that it would oppose transfer. If Kentucky did not intend to pursue this
motion, it should have told everyone so right then and there and taken the issue off the table. The expense
of briefing this was unnecessary, and all of the resources expended by Dover on the transfer were
wasted. It was an undue and unnecessary burden and expense to wait until after Dover briefed the
transfer issue to withdraw the motion.
4. Motion to Strike (fees: $8,933.00) — Dover was required to file this motion because it
had no other way (besides submitting to jurisdiction in Kentucky) to respond to the redacted arguments.
When the issue of the confidentially order first came up, on October 11, 2006 Dover’s Delaware counsel
signed the agreement to be bound by the Kentucky Confidentiality Order to resolve this problem (App.
34-35). Nevertheless, Kentucky got into a dispute with the defendants in the main case over this issue,
and ultimately claimed it could not serve an "unredacted" motion on Dover’s counsel even though he
had signed the agreement to be bound. Dover did everything that it reasonably could to resolve this
issue, only to be told that it would have to appear in Kentucky to get the redacted portions of a motion
filed against it in Delaware. Kentucky’s position was a trap, as the case law on transfer of motions of this
type allows transfer where the non-party has voluntarily sought relief in the main case. Until this Court
indicated it would not consider the redacted portions, Dover had no way to know whether those portions
would be persuasive to the Court — and had no way to respond, necessitating the filing of the Motion to
Strike.

3 Dover believes that the transfer motion (D.I. 1 at 1l1ll8-19 on p. 8) was also legally ill founded. It was based on district court
opinions "transfeiring" motions for protective order where the non-party had also appeared in the main case and filed such a
motion there. Even worse, Kentucky did not even advise Judge Jordan of the Court of Appeals’ decision in In re Sealed Case,
141 F.3d 337 (D.C. Cir. 1998) holding that transfers of motions to compel are barred by Rule 45. However, the real issue under
the undue burden analysis is whether Kentucky imposed an undue burden by waiting to withdraw this motion until after Dover
had to expend resources briefing it.

Case 1 :06-mc—OO203-***-IVIPT Document 34 Filed O3/06/2007 Page 4 of 4
Magistrate Judge Mary Pat Thynge
March 6, 2007; Page 4 of 4
Finally, Kentucky has claimed orally that it should be entitled to reimbursement of some fees or
expenses from Dover, but has to this time neither served any written document specifying the basis for
that claim nor filed any affidavit listing such costs or expenses. Based on oral conversations, counsel
believes that Kentucky will claim that Dover should have agreed to Kentucky’s February 22, 2007 fee
offer (the very first time Kentucky offered to reimburse any attorneys’ fees was on that date) or should
have agreed to produce in response to the 22 items list without a motion. Both of these claims are
wrong4.
For the reasons set forth above, particularly given that Kentucky served and then abandoned or
‘ withdrew five subpoenas or motions after Dover was required to respond, Dover is entitled under the
undue burden standard to reimbursement for more than just the Ohio Subpoena and Kentucky Motion.
Indeed, Kentucky’s uncompromising position on the fees point has been a major stumbling block to any
agreement in this matter.
Moreover, any claim that Dover should have agreed simply to produce everything on the 22 items
list (and avoid the Motion to Compel) is factually and legally baseless. When Kentucky served Dover
with the 22 item list on September 6, Dover had just made an offer to resolve everything based on the
Second Delaware Subpoena (E App. 31-33) — but Kentucky decided to withdraw that subpoena and
start over yet again with broader requests (App. 19-21). Kentucky’s claim that it was entitled to the 22
items based on the "confidential" documents was impenetrable -- even after Dover’s counsel signed onto
the Order in Kentucky, Kentucky would not discuss the information that it claimed justified its request,
making meaningful negotiations difficult or impossible. In addition, as Dover pointed out in its earlier
brief (D.I 13 at p. 17) and appendix, Kentucky had admittedly breached a confidentiality agreement with
Dover in the past; for that reason highly specific to Kentucky, Dover took issue with producing certain
confidential information to Kentucky. While the Court did not accept this position, Dover had good
reason to advance it. Finally on hearing the motion, the Court limited most ofthe 22 items and rejected
some outright (like item 13: documents related to anticompetitive behavior). Thus, no claim can be made
that Dover should have simply produced in response to this list, or that fees should be awarded because
Dover did not do so.
For these reasons, Dover should be awarded fees for the Lmdue burden of dealing with the
remaining four items (a total of $27,964., in addition to the agreed amount of $5,720.), and Kentucky is-
entitled to no award.
Re tfulp ours,
I y '
Ric ar . Placey (DE ·* 206)
cc: John M. Seaman (w/encl) — via e-mail
Justin A. Nelson, Esquire (w/encls.) — via mail
Kimberly S. Amrine, Esquire (w/encls.) — via mail
Robert B. Craig, Esquire (w/encls.) - via mail .
Guy Wade, Esquire (w/encls.) - via mail
Helen Maher, Esquire (w/encls.) - via mail

4 Note that, unlike Kentucky, Dover does not seek fees for litigating that Motion to Compel, recognizing that such motion was
not withdrawn and that each side had some of its positions upheld by the Court. In that regard, Dover’s fee request is based on
the undue burden and expense imposed by Kentucky’s various ill-founded, abandoned and withdrawn filings.