Free Letter - District Court of Delaware - Delaware

Case 1:08-mc-00063-JJF

Document 18

Filed 05/19/2008

Page 1 of 2
Suite Iloo 919 N. Market Street P.O. Box 1114 Wilmington, Delaware 19899-1114 Telephone 302 652-5070

FISH & RICHARDSON P.C.

Frederick P. Fish 1855-1930 W.K. Richardson 1859-1951

May 19, 2008

Facsimile 302 652-0607 Web Site www.fr.com

Via E-Filing The Hon. Joseph J. Farnan, Jr.

William J. Marsden, Jr. 302 778-8401 Email [email protected]

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ATLANTA AUSTIN BOSTON DALLAS DELAWARE MUNICH NEW YORK SAN DIEGO SILICON VALLEY TWIN CITIES WASHINGTON, DC

U.S. DISTRICT COURT FOR THE DISTRICT OF DELAWARE 844 North King Street, Lock Box 27

Wilmington, Delaware 19801 Re: DigaComm, LLC v. Vehicle Safety & Compliance, LLC, et al. D. Del. No. 08-00063-JJF

Dear Judge Farnan: In light of the evidentiary hearing scheduled for tomorrow, as well as the testimony given and evidence presented at the evidentiary hearing held on May 7, 2008, I write on behalf of Fish & Richardson P.C. ("F&R") to make corrections to certain statements made in our opposition papers to the petition to show cause (the "Petition") filed by DigaComm, LLC ("DigaComm") on March 31, 2008. (D.I. 1). First, on page 5, footnote 1 of our opposition brief, we stated that due to an administrative error F&R did not receive Mr. Hackney's letter dated February 21, 2008, which enclosed, among several other items, a request for documents directed to F&R and inquired whether F&R would voluntarily accept service of this document request. (D.I. 5 at 5 n.1). This footnote should have stated, consistent with the Declaration of Cathy Reese (D.I. 6 at ¶ 6), that due to an administrative error and the fact that Ms. Reese was out of the office at a trial in San Diego, California, Ms. Reese did not receive and review Mr. Hackney's February 21st letter and its enclosures until after the Petition was filed. Second, on pages 3-5, paragraphs 5 and 6 of the Declaration of John Steele (D.I. 7 at ¶¶ 5-6), Mr. Steele declared that Mr. Hackney never responded to his March 27, 2008 email inquiring whether Mr. Hackney was available for a telephone call the following day to discuss DigaComm's subpoena. This representation was also repeated on pages 7, 10 and I1 of our opposition brief. (D.I. 5 at 7, 10-11). Mr. Steele has now determined that Mr. Hackney did in fact respond to his March 27th email, although Mr. Steele did not realize that at the time. When Mr. Steele initially searched for a response from Mr. Hackney, he did not find the email in the email folders where he

Case 1:08-mc-00063-JJF

Document 18

Filed 05/19/2008

Page 2 of 2

FISH & RICHARDSON P.C.

The Hon. Joseph J. Farnan, Jr. May 19, 2008 Page 2

would have expected to see any response. Thus, this representation in Mr. Steele's declaration and in our opposition brief is incorrect. We regret these inaccuracies and apologize for any confusion they may have caused the Court, DigaComm, and DigaComm's counsel. The oversight was inadvertent and F&R never intended to mislead the Court, DigaComm, or DigaComm's counsel. Respectfully,

Cc:

Reed S. Oslan, Esquire (via email) Stephen C. Hackney, Esquire (via email) Matthew E. Nirider, Esquire (via email) James O'Neill, Esquire (via email)