UNITED STATES DISTRICT COURT 

OF THE DISTRICT OF NEW JERSEY 

DEMODULATION, INC., 

Plaintiff, 

v. 

CORNING, INC. ET AL., 

Defendants. 

Civil Action No. 11-296 (WJM) 

AFFIRMATION OF SETH M. 

COHEN IN OPPOSITION TO 

PLAINTIFF’S MOTION TO 

COMPEL AND IN SUPPORT OF 

CROSS-MOTION TO QUASH 

Seth M. Cohen, an attorney admitted to practice, and in good standing, before the courts 

of the State of New York, Court of Appeals for the Second Circuit, Southern District of New 

York, and Eastern District of New York, of full age, affirms under penalty of perjury: 

1. I am an attorney with the law firm of Bracewell & Giuliani LLP, counsel to 

Giuliani Partners LLC (“Giuliani Partners”) and Rudolph W. Giuliani, both non-parties to the 

above-entitled action. I submit this affirmation in connection with Non-Parties Rudolph W. 

Giuliani and Giuliani Partners LLC’s Opposition to Plaintiff’s Motion To Enforce Non-Party 

Subpoenas And In Support of Rudolph W. Giuliani’s Cross-Motion To Quash And For 

Sanctions. 

2. On or about December 11, 2013, Plaintiff Demodulation, Inc. served a subpoena 

duces tecum and ad testificandum on Giuliani Partners (the “Giuliani Partners Subpoena”). A 

true and correct copy of the Giuliani Partners Subpoena is annexed hereto at Exhibit A. 

3. The Giuliani Partners Subpoena seeks information relating to a consulting 

agreement between Giuliani Partners and non-party Applied DNA Sciences, Inc. (“ADNAS”), 

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dated on or around August 6, 2004. Giuliani Partners terminated the engagement with ADNAS 

in April 2005 and has not performed any work for ADNAS since that time. My understanding is 

that while ADNAS was formerly a defendant in the underlying litigation, the Court severed 

ADNAS as a party approximately one year ago. See Docket No. 106. 

4. Following receipt of the Giuliani Partners Subpoena, this office reached out to 

Benjamin Light, counsel to Plaintiff, to meet and confer. We informed Mr. Light that, while 

responsive documents were unlikely to turn up given the nearly ten (10) year-old subject matter 

of the subpoena, Giuliani Partners would nevertheless endeavor to conduct a reasonable search 

of its files. We also urged Plaintiff to withdraw the subpoena given its dubious relevance to the 

underlying litigation. 

5. Contrary to the statement contained in Mr. Light’s certification that Giuliani 

Partners “failed to comply with their non-party subpoena,” at no time did this office inform Mr. 

Light that Giuliani Partners would not produce arguably responsive documents and/or a witness 

for a deposition. See Certification of Benjamin D. Light, dated February 21, 2014 at ¶¶ 4-6. 

6. Giuliani Partners was in the process of conducting its document search when, on 

February 5, 2014, Plaintiff served a subpoena duces tecum and ad testificandum on Rudolph W. 

Giuliani, the Chairman and CEO of Giuliani Partners, in his personal capacity (the “Giuliani 

Subpoena”). The Giuliani Subpoena is dated January 15, 2014. A true and correct copy of the 

Giuliani Subpoena is annexed hereto at Exhibit B. 

7. The requests contained in the Giuliani Partners Subpoena and Giuliani Subpoena 

are identical. 

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8. I reached out to Mr. Light by e-mail and phone on February 5, 2014, to request 

that Plaintiff withdraw the Giuliani Subpoena, given Giuliani Partners’ ongoing compliance. 

9. Mr. Light contacted me by telephone on February 7, 2014 and informed me that 

he was “too busy” and “[did] not have to explain to [me]” the rationale underlying the subpoena 

to Mr. Giuliani, and that he would only withdraw the Giuliani Subpoena on the condition that 

Mr. Giuliani certify in writing that he had “no personal knowledge” regarding the subject matter 

of the subpoena. I conveyed to Mr. Light my view that both the subpoena to Mr. Giuliani and 

the demand for a written certification were unreasonable, had no basis in Rule 45, and bordered 

on harassment. 

10. Given the impending compliance date of the Giuliani Subpoena, and in an effort 

to resolve all outstanding issues without the Court’s intervention, I requested, and Mr. Light 

consented to, an extension of the response deadline of the Giuliani Subpoena to February 26, 

2014. A true and correct copy of the e-mail memorializing that extension, dated February 7, 

2014, is attached hereto at Exhibit C. 

11. On or around February 12, 2014, I confirmed to Mr. Light by letter, dated 

February 14, 2014, that Mr. Giuliani had no specific knowledge or present recollection relating 

to the consulting agreement between Giuliani Partners and ADNAS or the topics covered by the 

Giuliani Subpoena. I requested that Mr. Light confirm by February 19, 2014, that, given 

counsel’s representations, the subpoena as to Mr. Giuliani was withdrawn. A true and correct 

copy of the February 14, 2014 letter is annexed hereto at Exhibit D. 

12. My February 14 letter also identified two arguably responsive documents 

discovered by Giuliani Partners in connection with its reasonable search. Those documents were 

subsequently produced on February 24, 2014. 

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13. On February 19, 2014, I received a call from Matthew Major, an associate with 

Mr. Light’s firm. Mr. Major restated Plaintiff’s condition of withdrawal of the Giuliani 

Subpoena: Mr. Giuliani must certify in writing that he has “no knowledge” of the matters in the 

Giuliani Subpoena. I reiterated the unreasonableness of this requirement given my prior 

representations (to both Mr. Light and Mr. Major by telephone) that Mr. Giuliani has no unique 

or superior knowledge relating to the ADNAS engagement. Moreover, I stated that any 

continued insistence for a deposition from Mr. Giuliani was wholly unreasonable given that 

Giuliani Partners was in the process of identifying a suitable witness to be deposed. 

14. Just a few hours later, we received a letter from Mr. Major purporting to represent 

Plaintiff’s “final good-faith attempt to resolve these discovery issues before we seek the court’s 

intervention by way of motion(s). A true and correct copy of Mr. Major’s February 19, 2014 

letter is annexed hereto as Exhibit E. 

15. On Friday, February 21, 2014, Plaintiff filed the instant Motion to Enforce NonParty Subpoenas. 

16. On Monday, February 24, 2014, we sent a letter to Mr. Major: (1) clarifying a 

number of inaccuracies contained in both the Plaintiff’s motion papers and his February 19, 2014 

letter; (2) enclosing a written certification from Mr. Giuliani regarding his limited knowledge 

relating to ADNAS; (3) enclosing Giuliani Partners’ document production; and (4) indicating 

that Giuliani Partners was in the process of identifying a witness to be deposed. Given the 

above, we requested that Plaintiff withdraw both the Motion (which we believed to be moot) and 

the Giuliani Subpoena. A true and correct copy of the February 24, 2014 letter and the 

Certification of Rudolph W. Giuliani, dated February 24, 2014, is annexed hereto as Exhibits F 

and G, respectively. 

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17. Over the course of the next several days following Plaintiff's filing of the Motion, 

we continued to articulate to Plaintiffs counsel the inappropriateness and futility of the 

deposition of Mr. Giuliani in an effort to avoid the need to seek the Court's intervention. See, 

e.g. emails dated February 25, 2014, February 27, 2014, and February 28, 2014, annexed hereto 

at Exhibits H, I, and J, respectively. 

18. Other than agreeing to an extension by Mr. Giuliani to respond to the subpoena 

until March 5, 2014, Plaintiffs counsel rejected all of our efforts to resolve all outstanding issues 

without the Court's intervention. A true and correct copy of the February 25, 2014 email 

memorializing the extension is annexed hereto as Exhibit K. 

\ Seth M.Cohen 

DATED: March 3, 2014 

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