Minnesota, State of v. CMI of Kentucky, Inc.

Filing 126

Minnesota, State of v. CMI of Kentucky, Inc.

Doc. 126

UNITED STATES DISTRICT COURT
FOR THE

DISTRICT OF MINNESOTA
Chambers of DONOVAN W. FRANK DISTRICT JUDGE Warren E. Burger Federal Building 316 North Robert Street, Suite 724 St. Paul, Minnesota 55101 [phone]

April 16, 2009

VIA ECF ONLY Emerald A. Gratz Alan I. Gilbert Assistant Attorneys General Minnesota Attorney General's Office 445 Minnesota St., Suite 1800 St Paul, MN 55101 Charles A. Ramsay, Esq. Daniel J. Koewler, Esq. Charles A. Ramsay & Associates, P.L.L.C. 450 Rosedale Towers 1700 West Highway 36 Roseville, MN 55113 Re: John J. Gores, Esq. Gores Law Office 7091 Hwy 65 NE, Suite 201 Fridley, MN 55432 William A McNab, Esq. David M Aafedt, Esq. Jessica Slattery Karich, Esq. Winthrop & Weinstine, PA 225 S. 6th St., Suite 3500 Minneapolis, MN 55402-4629

State of Minnesota, by Michael Campion, its Commissioner of Public Safety v. CMI of Kentucky, Inc. Civil No. 08-603 (DWF/AJB)

Dear Counsel: At its hearing on February 27, 2009, the Court indicated that it would consider approaching Chief Justice Eric J. Magnuson to discuss the issues raised by the conflict regarding the Source Code and, particularly, would suggest that the state courts conduct a test case regarding the issue of the reliability of the Intoxilyzer 5000EN. All parties indicated they were amenable the Court's suggestion. Accordingly, on March 9, 2009, the Court sent the attached correspondence to Chief Judge James T. Swenson of the Fourth Judicial District and Chief Judge Kathleen R. Gearin of the Second Judicial District to solicit their thoughts and to ask whether they wished to join this Court in such an approach, given that the underlying issues regarding the Source Code are being heard and decided by state courts. The Court received responsive correspondence from both Chief Judges which it also attaches for the parties' review. Based upon the Chief Judges' statements, it does not appear that either of them wish to engage Chief Justice Magnuson regarding the Source Code issue at this time, and both indicate their opinion that
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Counsel April 16, 2009 Page 2

the state courts lack the resources to conduct a test case proceeding regarding reliability issues. Given their response, this Court has determined that it will not approach the Chief Justice at this time, but will instead concentrate on the issues in the case before it. I continue to believe, as I expressed in my letter of March 9, 2009, to Chief Judges Gearin and Swenson, that all parties would be well served by engaging in negotiations with a view to agreeing on a reasonable protective order that could be utilized by the state courts in criminal and driver's license revocation proceedings. I believe this would go far in resolving the issues of access to the Source Code, as well as addressing discovery and evidentiary issues, regardless of the Minnesota Supreme Court's decision in the pending Underdahl case. Consequently, I remain hopeful that parties may well conclude that it is in their best interests, as well as in the best interests of all parties concerned, to negotiate a reasonable protective order. Very truly yours, s/Donovan W. Frank DONOVAN W. FRANK Judge of United States District Court DWF:rlb Attachments