Advanced Internet Technologies, Inc. v. Dell, Inc. et al

Filing 5

Declaration of Darren T. Kaplan in Support of 3 MOTION to Compel Compliance and Hold Non-Party Exponent, Inc. in Contempt of Subpoenas filed byAdvanced Internet Technologies, Inc.. (Related document(s) 3 ) (Schubert, Dustin) (Filed on 4/1/2010)

Advanced Internet Technologies, Inc. v. Dell, Inc. et al

Doc. 5

1 2 3 4 5 6 7 8 9 S C H U B E R T JONCKHEER & KOLBE LLP 10 11
Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 [phone]

DARREN T. KAPLAN (To Be Admitted Pro Hac Vice) CHITWOOD HARLEY HARNES LLP 185 Great Neck Road, Suite 340 Great Neck, NY 11021 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Counsel for Plaintiff Advanced Internet Technologies, Inc. ROBERT C. SCHUBERT (S.B.N. 62684) WILLEM F. JONCKHEER (S.B.N. 178748) DUSTIN L. SCHUBERT (S.B.N. 254876) SCHUBERT JONCKHEER & KOLBE LLP Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 Telephone: [phone] Facsimile: [phone] Email: [e-mail] Local Counsel for Plaintiff Advanced Internet Technologies, Inc.

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ADVANCED INTERNET TECHNOLOGIES, INC., Plaintiff, v. DELL, INC. and DELL FINANCIAL SERVICES, INC., Defendants. Case No. CV-10-80078 MISC DECLARATION OF DARREN T. KAPLAN IN SUPPORT OF MOTION TO HOLD NON-PARTY EXPONENT, INC. IN CONTEMPT OF SUBPOENAS AND TO COMPEL COMPLIANCE FRCP 45(e) (Master Case Pending in the Eastern District of North Carolina, Case No. 5:07-CV-426-H) Date: Time: Dept: Judge: May 7, 2010 9:00 a.m. Courtroom 10 Hon. Susan Illston

DECLARATION OF DARREN T. KAPLAN IN SUPPORT OF MOTION TO HOLD NON-PARTY EXPONENT, INC. IN CONTEMPT OF SUBPOENAS AND TO COMPEL COMPLIANCE (Fed. R. Civ. P. 45(e))
Dockets.Justia.com

1 2 3 4 5 6 7 8 9 S C H U B E R T JONCKHEER & KOLBE LLP 10 11
Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 [phone]

I, DARREN T. KAPLAN declare as follows: 1. I am over the age of 18 and a resident of New York. I make this declaration of my

personal and first-hand knowledge, and if called and sworn as a witness, I would and could testify competently thereto. 2. I am a partner with the law firm Chitwood Harley Harnes LLP, and I am admitted

to practice law in the states of New York, Connecticut and Georgia. 3. I represent Plaintiff Advanced Internet Technologies, Inc. ("AIT"), and I have been

admitted pro hac vice in master case pending in the Eastern District of North Carolina. 4. I respectfully submit this Declaration in support of Plaintiff's Motion to Hold Non-

Party Exponent Inc. ("Exponent") in Contempt of Subpoenas validly served upon it ("Plaintiff's Motion for Contempt"), filed concurrently herewith. 5. The action's allegation in chief is that certain Dell-brand computers sold and leased

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to AIT by Dell, Inc. ("Dell") and Dell Financial Services, LLP1 ("DFS") suffered from defective capacitors installed on the motherboards of the computers. 6. My colleagues and I reviewed documents produced by Dell in connection with this

action, and certain of the documents indicate that Exponent was retained by Dell to study the problem of the defective capacitors in Dell-brand computers. A copy of one such document is attached hereto as Exhibit A. 7. By order of the United States District Court for the Eastern District of North

Carolina, the date for discovery to be completed in this action was February 5, 2010. 8. On January 11, 2010, pursuant to Federal Rule of Civil Procedure 45, AIT properly

served a subpoena duces tecum on Exponent ("Subpoena #1"). See Exhibit B (Subpoena #1), and Exhibit C (Affidavit of Service for Subpoenas), attached hereto. 9. On January 11, 2010, pursuant to Federal Rule of Civil Procedure 45, AIT properly

served a subpoena ad testificandum on Exponent ("Subpoena #2"). See Exhibit D (Subpoena #2), and Exhibit C (Affidavit of Service for Subpoenas), attached hereto.

Dell Financial Services LLP was misidentified in the original caption. -1DECLARATION OF DARREN T. KAPLAN IN SUPPORT OF MOTION TO HOLD NON-PARTY EXPONENT, INC. IN CONTEMPT OF SUBPOENAS AND TO COMPEL COMPLIANCE (Fed. R. Civ. P. 45(e))

1 2 3 4 5 6 7 8 9 S C H U B E R T JONCKHEER & KOLBE LLP 10 11
Three Embarcadero Center, Suite 1650 San Francisco, CA 94111 [phone]

10.

On January 15, 2010, counsel for Exponent responded to Subpoena #1 and

Subpoena #2 with separate objections in writing. See Exhibits E and F, attached hereto. 11. I spoke by telephone with counsel for Exponent several times after receiving the

objections. Without conceding my agreement to the objection that the Subpoenas did not permit adequate time for compliance, I offered to work with counsel for Exponent to find an alternate date by which Exponent could gather and provide responsive documents. During these several telephone conversations, counsel for Exponent told me that it would produce responsive documents as soon as possible, and that it would identify another employee who could be produced for deposition in the place and stead of the employee who was on maternity leave. 12. Despite this agreement, Exponent has failed to produce any documents in response

to Subpoena #1, or to arrange for deposition of an employee in response to Subpoena #2. An email chain reflecting these facts is attached hereto as Exhibit G. 13. Without conceding my agreement to the privilege or protection, I addressed another

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of Exponent's objections to both subpoenas, that the materials were privileged as "attorney-work product" and were subject to a confidentiality agreement, by informing counsel for Exponent that AIT and Dell have already stipulated to a protective order in the underlying action that governs documents produced by a nonparty. The stipulated protective order in the underlying action is attached hereto as Exhibit H. 14. Further, I informed counsel for Exponent that to the extent Exponent is unsatisfied

with the protective order in place in the underlying litigation, AIT was willing to enter into another protective order that more specifically addresses Exponent's concerns. I also informed counsel for Exponent that AIT does not intend to use Exponent's documents in any forum except the underlying litigation. 15. Exponent has never sought a protective order, has not produced a single document,

and has not produced a deponent, in response to the Subpoenas. 16. To date, Exponent has not complied with AIT's Subpoenas. Absent an improperly

issued subpoena or an "adequate excuse" by the non-party, failure to comply with a

-2DECLARATION OF DARREN T. KAPLAN IN SUPPORT OF MOTION TO HOLD NON-PARTY EXPONENT, INC. IN CONTEMPT OF SUBPOENAS AND TO COMPEL COMPLIANCE (Fed. R. Civ. P. 45(e))