Free Declaration - District Court of Delaware - Delaware

_ Case1:O5-mc—0OO85-GIVIS Document 4-4 Filed 05/O2/2005 Page10f3
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Case 1 :05-mc—OOO85-GIVIS Document 4-4 Filed 05/O2/2005 _ Page 2 of 3
· BINGHAM McCUTCH EN
. Tom Clifford
Direct Phone: (415) 393-2702 _
Direct Fax: (415) 393-2286 I
tom. [email protected]
April 21, 2005 A
Via Facsimile & U.S. Mail A
Christine Royce Lewis
I Visa Europe Services, Inc. ·
Bingham McCutchen LLP 1 Sheldon Squarc
Three Embarcadero Center L°‘}d°“ _ I
San Francisco, CA Unltcd Klngdom
941 1 l-4067 _ _ _ _
Visa v. Fu·st Data: Subpoena to Visa Europe Services, Inc.
415.393.2000 Dear Christine:
M5.3932286 lax
_ This letter follows up on our conversation earlier this week regarding the obligation of
t""""°""°°'" Visa Europe Services, Inc. ("VES1") to immediately produce person(s) to testify on the
deposition topics identified in the subpoena served last month upon VESI’s registered
B°"°" agent for service of process. That subpoena was issued by First Data Corporation ("First
H°"F°'d Data"), under the authority of the District Court ofthe State of Delaware, in the matter of
*°"d°" Visa USA. v. First Data Corporation et al., Case No. C02-1786 (N .D.Cal.).
Los Angeles
New *0** During our telephone call, you stated that the appropriate deponent for the topics in the
Or¤¤9e Ccunly subpoena is not VESI, a Delaware corporation, but rather Visa Europe Ltd., 3 separate
$¤¤ Ft¤¤¤l=¤¤ English entity. You base this claim on your assertion that the entity formerly known as
$*l¤<¤¤ V¤l*¤v Visa International’s EU region (to which certain of the topics relate) did not become
tokyo VESI, but Visa Europe Ltd.
Walnut Creek
wmhangren Your assertion is directly contradicted by Visa International’s 2004 audited financial
statements, which state that on July l, 2004, the entity formerly known as Visa
Intemational's EU regionwas incorporated as VESL· "Visa Internationa1’s EU region
was separately incorporated in Delaware on July l, 2004 as Visa Europe Services `
Inc.("VESI")." In choosing to depose VESI, instead of Visa Europe Ltd., First Data
relied on this representation. Please let us know at once if VESI contends that Visa
International’s audited financial statements contain a misstatement in this respect. _
We also understand that on July 1, 2004, Visa Intemational’s EU region transferred all of
its assets and liabilities to VESI. Does VESI claim that, notwithstanding the fact that it
holds all of the assets and liabilities of the former Visa International EU region, VESI
knows nothing of the region? And that all such knowledge is possessed solely by Visa
Europe Ltd. in London'? If so, the two entities are merely playing a corporate shell game, ·
sheltering their assets under the laws of the United States while attempting to evade their
discovery obligations under those laws. Such gamesmanship will not be countenanced
by the courts of this country.
SF/21613777.2 1

Case 1 :05-mc—OOO85-GIVIS Document 4-4 Filed 05/O2/2005 _ Page 3 of 3
Christine Royce Lewis
April 21, 2005
Page 2
Although the above-referenced question of identity was the focus of our conversation,
there were other objections raised in Carol Walsh’s letter dated April 7, 2005. I’ll
address several of those quickly: .
In her letter, Ms. Walsh objected to the subpoena on the grounds that First Data
Corporation has taken too many depositions in the above—referenced lawsuit. I am
uncertain why Visa International would involve itself in this issue that has been a point of
Bi¤ch¤¤· M¤€¤t¤h¤¤ LLP dispute between First Data and Visa USA - the actual parties to the lawsuit.
b*¤s*~¤¤·-¤<>·¤ Nonetheless, this dispute has been resolved, and Visa USA agrees that the deposition of
VESI may proceed.
` Ms. Walsh also objected on jurisdictional grounds, arguing that the district of Delaware
lacks jurisdiction over VESI because it has no offices, employees, or operations in the
United States. But VESI is incorporated in Delaware. The notion that VESI can seek
the protection of the state for some purposes, but then claim that the state has no
jurisdiction over it for others, is not just unfair but also incorrect under the law.
Ms. Walsh objected on the basis that one of the topics seeks information about "YOUR
agreement(s) with Fair, Isaac and Company, Incorporated, HNC Software, Inc., OR any
of their respective affiliates," claiming that VESI has not signed any such agreements.
But the "defmitions" section of the subpoena makes clear that "YOUR" includes VESI’s
predecessors and successors — which would include the former Visa Intemational EU
region. And that region did sign one or more agreements with Fair Isaac and/or HNC
Software. VESI’s argument in this regard is particularly off-point, as these contracts
would have been among the assets and liabilities transferred to VESI on July l, 2004.
Finally, Ms. Walsh suggested that the subpoena seeks testimony not relevant to this case.
But the subpoena topics cover Private Arrangements, use of the Visa mark, and fraud -
all critical topics in this litigation. This particular objection reflects either an absence of
knowledge about the case, or an effort to assert every objection regardless of merit.
VESI must immediate produce one or more FRCP 30(b)(6) witnesses on the
aforementioned topics. To the extent VESI wishes to produce an employee of Visa
Europe Ltd. on one of more of these topics, that is acceptable to First Data. Also, while _
First Data has every right to demand that these deponents be produced in Delaware —
` VESI’s state of incorporation — First Data is willing to have these depositions proceed at
a location that is more convenient to VESI or Visa Europe Ltd. as part of a negotiated
compromise of the objections raised by VESI. To the extent First Data must instead
spend its resources proceeding before the court in Delaware to enforce its rights, it will
demand that the depositions proceed as noticed in that state.
Sincerely yours,
ae?
Tom Clifford
SF/21613777.2