Free Motion for Issuance of Letters Rogatory - District Court of Delaware - Delaware


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Date: August 31, 2006
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Case 1 :05-cv—00434-GIVIS Document 1 14 Filed 08/31 /2006 Page 1 of 4
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DYSON TECHNOLOGY LIMITED )
and DYSON, INC., )
Piaintiffs, )
v. ) Civil Action N0. 05-434-GMS
MAYTAG CORPORATION, ;
Defendant. g
MOTION FOR LETTERS OF REQUEST TO THE JUDICIAL AUTHORITY
IN TI-IE UNITED KINGDOM
TO TI-IE HONORABLE COURT:
NOW APi’EARS Maytag Corporation ("Maytag"), through its undersigned counsel,
respecttully moves this court to issue Letters of Request directed to the appropriate judiciai
authority in the United Kingdom, The Masters Support Unit, Royal Courts of Justice, Strand
London WCA 2LL, England, for the production of documents from BSI, HI Europe, Frazer Nash
Consultancy Ltd., Miles Calcraft Briginshaw, and Walker Media. This application is made
pursuant to, and in conformity with, The Hague Convention on the Taking of Evidence in Civil
or Commercial Matters, T.I.A.S. 7444, 23 Z.U.S.T. 2555, reprinted in 28 U.S.C.A. § l'/Si (the
"i—Iague Evidence Convention"), which is in force between the United States and the United
Kingdom.
Counsel for Maytag has conferred with counsel for Dyson Technology Limited and
Dyson, Inc. (“Dyson") Dyson has indicated that it will not oppose Maytag's Motion for the
issuance of Letters of Request to the Judicial Authority in the United Kingdom as to i-II Europe,
Frazer Nash Consultancy {rd, Miles Calcraft Briginshaw, and Waiker Media. Counsel have not

Case 1 :05-cv—00434-GIVIS Document 1 14 Filed 08/31 /2006 Page 2 of 4
been able to reach an agreement as to BSI. Dyson has expressly reserved all other rights with
respect to the requests.
In support of this Motion, Maytag states as follows:
1. As the Court is aware, Maytag seeks an injunction and damages against Dyson
related to the packaging and advertising U.i.`UCI`LELlI1§1lOd€lS of its upright vacuum cleaners.
Maytag claims that Dyson, through various marketing campaigns, has made false and misleading
statements as to the suction power, cleaning efficiency, and design and performance capabilities
of certain models of its upright vacuums.
2. Maytag seeks the aid of this Court in obtaining the evidence of three advertising
companies, one testing lab, and one national standards body. It is believed that these entities
have documents in their control that are relevant to the issues at hand. Each ofthe three
Advertising Agencies, HI Europe, Miles Calcraft and Waiker Media, have done work for or on
behalf of Dyson in connection with its upright vacuums. The testing agency in question, Frazer
Nash Consultancy, Ltd., has performed testing for or on behalf of Dyson in connection with its
upright vacuums. Upon infomation and belief the national standards body has worked with
Dyson to create standards and protocols for testing upright vacuum cleaners.
3. This Court has previously allowed foreign discovery under 28 U.S.C. § $781
following a showing ofthe necessity of the discovery. See Tu/ip Computers Int ’l' B. VY v. Dell
Computers Corp., 254 F.Supp.2c¥ 469, 474 (D. Del. 2003) (relating to foreign discovery pursuant
to Hague Evidence Convention).
4. Each ofthe parties from whom documents are requested have either been
identified by Dyson in its Initial. Disciosures as a person with knowledge about the facts ofthe
2

Case 1 :05-cv—00434-GIVIS Document 114 Filed 08/31/2006 Page 3 of 4
case or have been identified by Maytag as a company which, upon infomation and belief, may A
have responsive documents.
5. Maytag believes that the documents requested will be critical to proving the A
ailegations it has proffered in these proceedings in that they will show that Dyson’s packaging
and advertising claims are false and misleading.
THEREFORE, MAYTAG RESPECTFULLY REQUESTS:
J A. That the Court issue, and cause to be certified by the Clerk of the U.S. District
Court for District of Delaware, Letters of Request addressed to the "Appropriate
Judicial Authority in the United Kingdom? The Masters Support Unit, Royal
Courts of Justice, Strand, London WCA 2LL, England;
B. That said Letters of Request be issued in the form attached herewith requesting
the summoning of BSI, HI Europe, Frazer Nash Consultancy Ltd., Miles Caicraft
Briginshaw, and Walker Media by said United Kingdonfs proper and usual
process for summoning of production of documents.
Respectfully submitted,
/s/ Francis DiGiovanni
Francis DiGiovanni (#3189)
_ Connolly Bove Lodge & Hutz LLP
The Nemours Building
1007 North Orange St.
P.O. Box 2207
Wilmington, DE 19899
Tel: (302) 658—9l4l
Aftorneysfor Jl/forytog Corporation
Dated: August 3 E , 2006
3

Case 1 :05-cv—00434-GIVIS Document 114 Filed 08/31/2006 Page 4 of 4
CERTIFICATE UF SERVICE
I, Francis I)iGiovanni, hereby certify that on August 3 E, 2006, I caused to be
electronically filed a true and correct copy ofthe foregoing document with the Clerk of the Court
using CM/ECP, which will send notification that such filing is avaiiable for viewing and
downioading to the fcliowing counsel of record:
C. Barr Flinn
John W. Shaw
Young Conaway Stargatt & Tayior LLP
The Brandywine Building —
1000 West Street, 17th Floor
Wilmington, Delaware 19801
I further certify that on August 31, 2006, I caused a copy ofthe foregoing document to be
served by hand delivery and email on the above—1isted cormsel of record, and by U.S. Mail and
email on the following counsel of record:
Gerrard R. Beeney
Richard C. Pepperman, il
James T. Wiliiarns
Keith McKe1u1a
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Steven F. Reich
Jeffrey S. Edelson
Manatt, Phelps & Phillips, LLP
7 Times Square
New York, NY $0004
/s/ Francis Difiiovanni
Francis DiGiovanni (#31 89)
Stephanie O’Byrne (#4446)
Connolly Bove Lodge & Hut; LLP
The Nemours Buiiding
1007 N. Orange Street
Wilmington, DE 19899
Phone (302) 658—9i41
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