Free Declaration - District Court of Delaware - Delaware


File Size: 89.2 kB
Pages: 3
Date: May 2, 2005
File Format: PDF
State: Delaware
Category: District Court of Delaware
Author: unknown
Word Count: 704 Words, 4,420 Characters
Page Size: Letter (8 1/2" x 11")
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Case1:O5-mc—0OO85-GIVIS Document 4-9 Filed 05/O2/2005 Page10f3
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- gl _- E Tom Clifford
·.... »' Bingham McCut.chen
San Fransciso CA
USA
29 April 2005
Dear Tom

This letter responds to your April 21, 2005 letter.
As described below, your letter is incorrect in several respects.
First, as detailed in our April 7, 2005 letter and in our phone conversations, Visa Europe
Services, Inc. ("VESI“) does not have information responsive to the topics set forth in
your subpoena. As I have already explained, the entity with principal operational control
of the Visa system within certain geographic regions in Europe is Visa Europe Ltd.
Whatever First Data may read into the annual report of third party Visa International does
not change these undisputed facts.
Second, your assertions regarding the July 1, 2004 reorganization of Visa Inter¤atioual’s
EU region are both wrong and not germane. The fact that VESI holds certain assets and
liabilities formerly held by Visa I.I1tE1'!1B'Il.0I1B.i°S EU region is not the same as saying that
VESI has operational control over or knowledge about the operations of Visa. Europe Ltd.
Again, and notwithstanding the hyperbolic charges in your letter, the fact remains rhs:
VESI does not have information responsive to the topics set out in your subpoena. (ln
addition, I note that the suggestion that VESI ‘produce an employee of Visa Europe Ltd. "
again misapprehends the point — VESI is distinct from, and does not control, Visa Europe
Ltd.).
Third, I understand from counsel for Visa USA that you are incorrect in claiming that the
parties to the litigation have resolved the issue of First Data’s request for 31 depositions.
VESI is not required - even if the subpoena were otherwise proper — to spend the time
» and incur the expense of preparing for a deposition that is contrary to the governing order
of the US court.
Fourth, the fact that VESI is incorporated in Delaware is not necessarily dispositive of the
issue of whether — notwithstanding that it has no employees or operations in, or other
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contact with, Delaware —- VESI is properly within that court’s jurisdiction. If you have
US authorities on that point, I will be happy to consider them.
Fifth, it appears to VESI that the information sought by the subpoena is at most very
tangentially relevant to the dispute between First Data and Visa USA. I tmderstand that
the dispute involves actual and potential "intraproccssing“ of Visa branded transactions _
wholly within the United States, and claims under US intellectual property and antitrust
laws. European transactions are not part of that lawsuit, and operations of the Visa
payment system outside the US are not involved. I understand that under US law third
parties are not required to give evidence when the burden of doing so outweighs the value
of that evidence.
Finally, while I appreciate your agreement that any deposition take place in London, such
agreement does not eliminate the substantial burden of preparing for and participating in
the requested deposition.
While not addressing the issue of the subpoena I should just like to set the record straight
in relation our communications. The phone call to which you refer being made on 22
April was made towards the end of your day, by which time it was 01.30 am on Saturday
morning here. I responded to your call on 25 April and advised that we would reply to
your letter by close of business London, today. I have been in meetings earlier today.
For your information, Monday 2 May will be a public holiday in the UK and the ofhces
will be closed.
Yours sincerely,
Christine Royce-Lewis
Senior Vice President &
Senior Legal Adviser
Visa Europe
·