Kenneth D. Friedman, Esq. 

MANATT, PHELPS & PHILLIPS, LLP 

7 Times Square 

New York, New York 10036 

Telephone: (212) 790-4500 

Attorneys for Defendants 

Paging Systems, Inc. and Touch Tel Corporation 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

WARREN HAVENS, SKYBRIDGE 

SPECTRUM FOUNDATION, a Delaware 

nonprofit corporation; TELESAURUS VPC, Civil Action No. 2:11 -CV-00993-KSH-CW 

LLC, a Delaware limited liability company; 

AMTS CONSORTIUM, LLC, a Delaware Motion Returnable: May 19,2014 

Limited Liability Company; INTELLIGENT 

TRANSPORTATION & MONITORING, LLC, 

a Delaware Limited Liability Company; and 

TELESAURUS GB, LLC, a Delaware Limited 

Liability Company, CERTIFICATION OF 

KENNETH D. FRIEDMAN 

Plaintiffs, 

v. 

MOBEX NETWORK SERVICES, LLC, a 

Delaware Limited Liability Company; MOBEX 

COMMUNICATIONS, INC., a Delaware 

corporation; MARITIME 

COMMUNICATIONS/LAND MOBILE, LLC, a 

Delaware Limited Liability Company; PAGING 

SYSTEMS, INC., a California Corporation; 

TOUCH TEL CORPORATION, a California 

corporation; and JOHN DOE Nos. 1-20, 

Defendants. 

KENNETH D. FRIEDMAN, of full age, herby certifies as follows: 

1. I am an attorney at law, licensed to practice in the State of New Jersey and before 

this Court, and a partner at Manatt, Phelps & Phillips, LLP, attorneys for defendants Touch Tel 

Corporation ("Touch Tel") and Paging Systems, Inc. ("Paging Systems") in this action. 

Case 2:11-cv-00993-KSH-CLW Document 223-2 Filed 04/25/14 Page 1 of 19 PageID: 6031
2. I make this Certification in support of Touch Tel's motion to quash trial 

subpoenas to Robert Cooper and David Kling issued by defendant Maritime 

Communications/Land Mobile, LLC ("Maritime") and for sanctions. 

3. Mr. Cooper is the President of Touch Tel, and resides in Northern California. He 

is employed by Touch Tel at its offices in Burlingame, California. 

4. Mr. Kling, Touch Tel's chief engineer, also resides in Northern California and is 

also employed by Touch Tel at its offices in Burlingame, California. 

5. Neither Mr. Cooper nor Mr. Kling regularly transacts business in person in the 

State of New Jersey. 

6. On March 21,2013, plaintiffs took Mr. Cooper's deposition in this action at my 

firm's offices in Palo Alto, California. The previous day, March 20, 2013, plaintiffs had taken 

Mr. Kling's deposition, also at my firm's offices in Palo Alto, California. Maritime's counsel 

appeared at both depositions by telephone, and had a full and unfettered opportunity to ask 

questions of each witness. 

7. On April 8, 2013, Plaintiffs, on the one hand, and Paging Systems and Touch Tel, 

on the other, entered into a binding, written agreement to settle all claims between them 

regarding their AMTS licensing disputes. The consummation of that settlement was contingent 

upon FCC approval of certain of the transactions agreed by the settling parties. 

8. On April 22, 2013, Maritime filed a motion for summary judgment (D.E. 169) 

asking the court to dismiss plaintiffs' remaining claim in this action as a matter of law. 

9. On June 6, 2013, a pretrial conference was conducted in this action. I attended 

that conference because the FCC approvals upon which the settlement between plaintiffs and 

Touch Tel/Paging Systems was contingent had not yet been obtained. On that date, Maritime's 

-2-

Case 2:11-cv-00993-KSH-CLW Document 223-2 Filed 04/25/14 Page 2 of 19 PageID: 6032
counsel purported to serve the subject trial subpoenas to Robert Cooper and David Kling by 

handing an envelope containing those subpoenas, along with a cover letter, to me in the hallway 

outside of MLK Courtroom 4C. A true and correct copy of the subpoena to Robert Cooper 

delivered to me on June 6, 2013 is annexed hereto as Exhibit 1. A true and correct copy of the 

Subpoena to David Kling delivered to me on June 6, 2013 is annexed hereto as Exhibit 2. 

10. The subpoenas handed to me on June 6,2013 did not state a specific date and 

time that the witnesses were to attend and testify. Instead, the box on the face of each subpoena 

for the date and time each witness was to appear and testify was marked "TBD." Id. 

11. In an order dated March 20, 2014 (D.E. 206), Maritime's motion for summary 

judgment was denied. Plaintiffs and Maritime were directed to appear for a bench trial on the 

issues raised by Maritime's motion for summary judgment on May 20-22, 2014. The same day 

(March 20, 2014) a pretrial conference was set for April 1, 2014 (D.E. 208) to discuss the 

conduct of the bench trial. 

12. On March 21, 2014, Maritime's counsel delivered a letter to me, via email, that 

purported to amend the trial subpoenas to Messrs. Cooper and Kling that were handed to me on 

June 6, 2013 "to reflect the new trial dates" established in the Order denying Maritime's motion 

for summary judgment. A true and correct copy of Maritime's counsel's letter to me dated 

March 21, 2014 is annexed hereto as Exhibit 3. 

13. On March 28, 2014,1 sent correspondence to Maritime's counsel objecting to the 

trial subpoenas on the grounds that they are defective and unenforceable, and requesting that 

they be "voluntarily withdrawn by Maritime without need for judicial intervention." A true and 

correct copy of my March 28, 2014 letter to Maritime's counsel is annexed hereto as Exhibit 4. 

-3-

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14. In my March 28 letter I advised Maritime's counsel that I had been authorized by 

Touch Tel, "one of two settled defendants that I represent in this case (the other being Paging 

Systems, Inc.), to represent Mr. Cooper, Touch Tel's President, and Mr. Kling, an employee of 

Touch Tel, with respect to Maritime's subpoenas." Id. 

15. My March 28 letter laid out in great detail the numerous defects in Maritime's 

subpoenas including that they: (i) had not been personally delivered to the witnesses, (ii) violated 

the geographical limitations of Rule 45; and (iii) suffered from several other procedural defects. 

Id. I also reminded Maritime's counsel that the individuals named in the subpoenas had both 

been deposed in this action and, recognizing that those transcripts had been designated 

"Confidential" pursuant to the Discovery Confidentiality Order entered in this action (D.E. 57), 

offered to "consider de-designating those portions of the transcripts of interest to Maritime to 

facilitate their use at trial." Id. 

16. Maritime's counsel responded to my March 28, 2014 letter the same day, by • 

email stating that the subpoenas would not be withdrawn. A true and correct copy of Maritime's 

counsel's March 28, 2014 email to me is annexed hereto as Exhibit 5. 

17. I attended the pretrial conference on April 1, which also took up plaintiff s 

counsel's renewed motion to withdraw. At that time I met and conferred with Maritime's 

counsel and again requested that the two subpoenas be voluntarily withdrawn for the reasons 

stated in my March 28 letter. Maritime's counsel again stated that his client would not withdraw 

the two subpoenas, prompting this motion. 

-4-

Case 2:11-cv-00993-KSH-CLW Document 223-2 Filed 04/25/14 Page 4 of 19 PageID: 6034
I certify that the foregoing statements made by me are true and correct. I am aware that 

any of the foregoing statements made by me are willfully false, I am subject to punishment. 

Executed in New York, New York 

on this 25th day of April, 2014 

312129260.1 

/s/ Kenneth D. Friedman 

Kenneth D. Friedman 

Case 2:11-cv-00993-KSH-CLW Document 223-2 Filed 04/25/14 Page 5 of 19 PageID: 6035
EXHIBIT 1 

Case 2:11-cv-00993-KSH-CLW Document 223-2 Filed 04/25/14 Page 6 of 19 PageID: 6036
AO 88  (Rev. 06/09)  Subpoena to Appear and Testify at a  Hearing or Trial in a Civil  Action 

UNITED STATES DISTRICT COURT 

for the 

SKYBRIDGE SPECTRUM FOUNDATION, et al. 

Plaintiff 

V. Civil Action No.  2:1 l-cv-00993 (KSH)(CW) 

MOBEX NETWORK SERVICES, LLC, et al. 

Defendant 

SUBPOENA TO APPEAR AND TESTIFY 

AT A HEARING OR TRIAL IN A CIVIL ACTION 

To:  Mr. Robert Cooper (defendants Paging Systems, Inc. and Touch-Tel Corp.) c/o Kenneth Friedman, Esq. 

YOU ARE COMMANDED to appear in the United States district court at the time, date, and place set forth below 

to testify at a  hearing or trial in  this civil action.  When you arrive, you must remain at the court until the judge or a court 

officer allows  you to leave.  If you  are an  organization that is  not a  party in this case,  you must designate one or more 

officers, directors, or managing agents, or designate other persons who consent to testify on your behalf about the following 

matters, or those set forth  in an attachment: 

Place:  United States District Court, District of New Jersey Courtroom No.:  5 

Frank R. Lautenberg U.S.P.O. & Courthouse Bldg. Date and Time:  — 

You must also  bring with you the following documents, electronically stored information, or objects (blank if not 

applicable)'. 

The provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and  Fed. 

R. Civ. P. 45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of not doing 

so, are attached. 

Date:  06/06/2013 

CLERK OF COURT 

OR 

Signature of Clerk or Deputy Clerk 

7" 

The name, address, e­mail, and telephone number of the attorney representing (name of party) 

Maritime Communications/Land Mobile LLC , who issues or requests this subpoena, are: 

defendant 

Robert W. Mauriello, Jr., Esq., Graham Curtin, PA, 4 Headquarters Plaza, Morristown, NJ 07962­1991 

rmauriello@grahamcurtin.com, 973­401­7119 

Case 2:11-cv-00993-KSH-CLW Document 223-2 Filed 04/25/14 Page 7 of 19 PageID: 6037
AO 88  (Rev. 06/09)  Subpoena to Appear and Testify at a  Hearing or Trial in a Civil Action  (page 3) 

Federal Rule of Civil Procedure ^ 

(c) Protecting a Person Subject to a Subpoena. 

(1) Avoiding Undue Burden or Expense; Sanctions.  A party  or 

attorney responsible for issuing and serving a subpoena must take 

reasonable steps to avoid  imposing undue burden or expense on a 

person subject to  the subpoena. The issuing court must enforce this 

duty and impose an appropriate sanction — which may include lost 

earnings and reasonable attorney's fees — on a  party or attorney 

who fails to comply. 

(2) Command to Produce Materials or Permit Inspection, 

(A) Appearance Not Required. A person commanded to produce 

documents, electronically stored information, or tangible things, or 

to pennit the inspection of premises, need not  appear in person at the 

place of production  or inspection unless also commanded  to appear 

for a deposition, hearing, or trial. 

(B) Objections. A person  commanded to produce documents or 

tangible things or to permit inspection may serve on  the party or 

attorney designated  in the subpoena a  written objection to 

inspecting, copying, testing or sampling any  or all of the materials or 

to inspecting the  premises — or to  producing electronically stored 

infonnation in  the form or forms requested. The objection must be 

served before the earlier of the time specified for compliance or 14 

days after the subpoena  is served. If an objection is made, the 

following rules apply: 

(i) At any time, on notice to  the commanded person, the serving 

party may  move the issuing court for  an order compelling production 

or inspection. 

(ii) These acts may be required only as directed in the order, and 

the order must protect a  person who is neither a party nor a party's 

officer from significant expense resulting from compliance. 

(3) Quashing or Modifying a Subpoena. 

(A) When Required. On timely motion, the issuing court must 

quash or modify a subpoena that: 

(i) fails to allow  a reasonable time to comply; 

(ii) requires a  person who is neither a  party nor a party's officer 

to travel more than  100 miles from where that person resides, is 

employed, or regularly transacts business in  person — except that, 

subject to Rule 45(c)(3)(B)(iii), the person may be commanded to 

attend a trial  by traveling from  any such place within the state where 

the trial  is held; 

(iii) requires disclosure of privileged or other protected  matter, if 

no exception or waiver applies; or 

(iv) subjects a person to  undue burden. 

(B) When Permitted. To protect a person subject to or affected by 

a subpoena, the issuing court may, on motion, quash or modify the 

subpoena if it  requires: 

(i) disclosing a trade secret  or other confidential research, 

development, or commercial information; 

(ii) disclosing an unretained  expert's opinion or information that 

does not describe specific occurrences  in dispute and results from 

the expert's study that  was not requested  by a party; or 

(iii) a  person who  is neither a  party nor a  party's officer to incur 

substantial expense to travel more than 100 miles to attend trial. 

(C) Specifying Conditions as an Alternative. In  the circumstances 

described in Rule 45(c)(3)(B), the court may, instead of quashing or 

modifying a subpoena, order appearance or production under 

specified conditions if the serving party: 

(i) shows a substantial need for the testimony or material that 

cannot be otherwise met without undue hardship; and 

(ii) ensures that the subpoenaed person will be reasonably 

compensated. 

5 (c), (d), and (e) (Effective 12/1/07) 

(d) Duties in Responding to a Subpoena. 

(1) Producing Documents or Electronically Stored Information. 

These procedures apply to  producing documents or electronically 

stored information: 

(A) Documents. A person responding to a subpoena to  produce 

documents must produce them as they  are kept in the ordinary  course 

of business or must organize and label them to correspond to the 

categories in the demand. 

(B) Form for Producing Electronically Stored Information Not 

Specified. If a subpoena does not specify a form for producing 

electronically stored information, the  person responding must  produce 

it in a form or forms  in which it is ordinarily maintained or in a 

reasonably usable form or forms. 

(C) Electronically Stored Information Produced in Only One Form. 

The person responding need  not produce the same electronically stored 

information in more than one form. 

(D) Inaccessible Electronically Stored Information. The person 

responding need not  provide discovery of electronically stored 

information from sources that  the person identifies as not reasonably 

accessible because of undue burden or cost. On motion  to compel 

discovery or for a protective order, the person responding must show 

that the information  is not reasonably accessible because of undue 

burden or cost. If that showing is made, the court may nonetheless 

order discovery from such sources if the requesting  party shows good 

cause, considering the limitations of Rule 26(b)(2)(C). The court may 

specify conditions for the discovery. 

(2) Claiming Privilege or Protection, 

(A) Information Withheld. A person withholding subpoenaed 

infonnation under a claim that it is privileged or subject to protection 

as trial­preparation material must: 

(i) expressly make the claim; and 

(ii) describe the nature of the withheld documents, communications, 

or tangible things in  a manner that,  without revealing information 

itself privileged or  protected, will enable the parties  to assess the 

claim. 

(B) Information Produced. If information produced  in response to a 

subpoena is subject to a claim of privilege or of protection  as trialpreparation material, the person  making the claim may notify any 

party that received the information of the claim and  the basis for it. 

After being notified, a party must promptly return, sequester, or 

destroy the specified information  and any copies it  has; must not use 

or disclose the information until  the claim is resolved; must take 

reasonable steps to retrieve the information if the party disclosed  it 

before being notified; and may promptly  present the information  to the 

court under seal for a determination of the claim. The person who 

produced the information must preserve the information until the claim 

is resolved. 

(e) Contempt. The issuing court may hold in contempt a  person who, 

having been served, fails without adequate excuse to obey the 

subpoena. A nonparty's failure to obey must  be excused if  the 

subpoena purports to require the nonparty to attend or  produce at a 

place outside the limits of Rule 45(c)(3)(A)(ii). 

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EXHIBIT 2 

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AO 88  (Rev. 06/09)  Subpoena to Appear and Testify at  a Hearing or Trial in  a Civil Action 

UNITED STATES DISTRICT COURT 

for the 

SKYBRIDGE SPECTRUM FOUNDATION, et al. 

: Plaintiff 

V. 

MOBEX NETWORK SERVICES, LLC, et al. 

Defendant 

Civil Action No.  2:11 ­cv­00993 (KSH)(CW) 

SUBPOENA TO APPEAR AND TESTIFY 

AT A HEARING OR TRIAL IN A CIVIL ACTION 

To:  Mr. David  Kling (defendants Paging Systems, Inc. and Touch­Tel Corp.) c/o Kenneth Friedman, Esq, 

YOU ARE COMMANDED to appear in the United States district court at the time, date, and place set forth below 

to testify at a  hearing or trial in this civil action.  When you arrive, you must remain at the court until the judge or a court 

officer allows  you  to leave.  If you  are an organization that is  not a  party in this case,  you must designate one or  more 

officers, directors, or managing agents, or designate other persons who consent to testify on your behalf about the following 

matters, or those set forth in an attachment: 

Place:  United States District Court, District of New Jersey 

Frank R. Lautenberg U.S.P.O. & Courthouse Bldg. 

Courtroom No.: 5 

Date and Time: 

You must  also bring with you the following documents, electronically stored information, or objects (blank if not 

applicable)'. 

The provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Fed. 

R. Civ. P. 45 (d) and (e), relating to your duty  to respond to this subpoena and the potential consequences of not doing 

so, are attached. 

Date:  06/06/2013 

CLERK OF COURT 

Signature of Clerk or Deputy Clerk Attorney's signature 

The name, address, e­mail, and telephone number of the attorney representing (name of party) defendant 

Maritime Communications/Land Mobile LLC  , who issues or requests this subpoena, are: 

Robert W. Mauriello, Jr., Esq., Graham Curtin, PA, 4 Headquarters Plaza, Morristown, NJ 07962­1991 

rmauriello@grahamcurtin.com, 973­401­7119 

Case 2:11-cv-00993-KSH-CLW Document 223-2 Filed 04/25/14 Page 10 of 19 PageID: 6040
AO 88  (Rev. 06/09)  Subpoena to Appear and Testify at  a Hearing or Trial  in a Civil  Action (page 3) 

Federal Rule of Civil Procedure ^ 

(c) Protecting a Person Subject to a Subpoena. 

(1) Avoiding Undue Burden or Expense; Sanctions, A party  or 

attorney responsible for issuing and serving a subpoena must take 

reasonable steps to avoid imposing undue burden or expense on a 

person subject to the subpoena. The issuing court must enforce this 

duty and impose an appropriate sanction — which may include lost 

earnings and reasonable attorney's fees — on a  party or attorney 

who fails to comply. 

(2) Command to Produce Materials or Permit Inspection. 

(A) Appearance Not Required\ A person commanded to produce 

documents, electronically stored information, or tangible things, or 

to permit the inspection of premises, need not  appear in person at the 

place of production or inspection  unless also commanded to appear 

for a deposition, hearing, or trial. 

(B) Objections. A person  commanded to produce documents or 

tangible things or to permit  inspection may serve on the party or 

attorney designated in  the subpoena a written objection to 

inspecting, copying, testing or sampling any or all of the materials or 

to inspecting the  premises — or to producing electronically stored 

information in  the form or forms requested. The objection must be 

served before the earlier of the time specified for compliance or 14 

days after the subpoena is served. If an  objection is made, the 

following rules apply: 

(i) At any time, on notice to the commanded person, the serving 

party may  move the issuing court for an order compelling production 

or inspection. 

(ii) These acts may be required  only as directed in the order, and 

the order must  protect a person who is neither a  party nor a  party's 

officer from significant expense resulting from compliance. 

(3) Quashing or Modifying a Subpoena. 

(A) When Required. On  timely motion, the issuing court must 

quash or modify  a subpoena that: 

(i) fails to allow a reasonable time to comply; 

(ii) requires a person  who is neither a  party nor a party's officer 

to travel more than  100 miles from where that person resides, is 

employed, or regularly transacts  business in person — except that, 

subject to Rule 45(c)(3)(B)(iii), the person may  be commanded to 

attend a trial by traveling from any such place within the state where 

the trial is held; 

(iii) requires disclosure of privileged or other protected matter, if 

no exception or waiver applies; or 

(iv) subjects a person  to undue burden. 

(B) When Permitted. To protect a  person subject to or  affected by 

a subpoena, the issuing court may, on motion, quash or modify the 

subpoena if it  requires: 

(i) disclosing a trade secret or other confidential research, 

development, or commercial information; 

(ii) disclosing an unretained  expert's opinion or information that 

does not describe specific occurrences in dispute and results from 

the expert's study that was not requested by a party; or 

(iii) a person  who is neither a party nor a party's officer to incur 

substantial expense to travel  more than 100 miles to attend trial. 

(C) Specifying Conditions as an Alternative. In the circumstances 

described in  Rule 45(c)(3)(B), the court may, instead of quashing or 

modifying a subpoena, order appearance or production under 

specified conditions if the serving  party: 

(i) shows a substantial need for the testimony or material that 

cannot be otherwise met without undue  hardship; and 

(ii) ensures that the subpoenaed  person will  be reasonably 

compensated. 

5 (c), (d), and (e) (Effective 12/1/07) 

(d) Duties in Responding to a Subpoena. 

(1) Producing Documents or Electronically Stored Information. 

These procedures apply to  producing documents or electronically 

stored information: 

(A) Documents. A person responding to a subpoena to produce 

documents must produce them  as they are kept in  the ordinary course 

of business or must organize and label them to correspond to the 

categories in the demand. 

(B) Form for Producing Electronically Stored Information Not 

Specified. If a subpoena does not specify a form for producing 

electronically stored information, the person responding must  produce 

it in a form or forms in  which it is ordinarily maintained or in a 

reasonably usable form or forms. 

(C) Electronically Stored Information Produced in Only One Form. 

The person responding need not produce the same electronically stored 

information in more than one form. 

(D) Inaccessible Electronically Stored Information. The person 

responding need not  provide discovery of electronically stored 

information from sources that  the person identifies as not reasonably 

accessible because of undue burden or cost. On motion to compel 

discovery or for a protective order, the person responding must show 

that the information  is not reasonably accessible  because of undue 

burden or cost. If that showing is made, the  court may nonetheless 

order discovery from such sources if the requesting party shows good 

cause, considering the limitations of Rule  26(b)(2)(C). The court may 

specify conditions for the discovery. 

(2) Claiming Privilege or Protection. 

(A) Information Withheld. A person withholding subpoenaed 

information under a claim that it is privileged or subject to protection 

as trial­preparation material must: 

(i) expressly make the claim; and 

(ii) describe the nature of the withheld documents, communications, 

or tangible things in  a manner that, without revealing information 

itself privileged or protected, will  enable the parties to assess the 

claim. 

(B) Information Produced. If information  produced in response to a 

subpoena is subject to a claim of  privilege or of protection as trialpreparation material, the person  making the claim may notify any 

party that received the information of the claim and the basis for it. 

After being notified, a party must promptly return, sequester, or 

destroy the specified information  and any copies it  has; must not use 

or disclose the information until the claim is resolved; must take 

reasonable steps to retrieve the information if the  party disclosed it 

before being notified; and may  promptly present the  information to the 

court under seal for a determination of the claim. The person who 

produced the information must preserve the information  until the claim 

is resolved. 

(e) Contempt. The issuing court may  hold in contempt  a person who, 

having been served, fails without adequate excuse to obey  the 

subpoena. A nonparty's failure to obey must be excused if the 

subpoena purports to require the nonparty to attend or produce  at a 

place outside the limits of Rule 45(c)(3)(A)(ii). 

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EXHIBIT 3 

Case 2:11-cv-00993-KSH-CLW Document 223-2 Filed 04/25/14 Page 12 of 19 PageID: 6042
GRAHAM CURTIN 

A Professional Association 

Robert W. Mauriello, Jr. 

Direct Dial 973­401­7119 

rmau riello@G raha mCu rtin.com 

March 21,2014 

By Electronic Mail 

Kenneth D. Friedman, Esq. 

Manatt Phelps & Phillips, LLP 

7 Times Square 

New York, New York 10036 

Re:  Skybridge Spectrum Foundation, et al. 

v. Mobex Network Services., LLC, et al. 

Civil Action No.: ll­cv­00993 fKSH¥CLW) 

As you know, the trial in this action has been set for May 20, 21 and 22, 2014. 

The trial notices that I previously served upon you for your clients, Mr. Robert Cooper and Mr. 

David Kling, are hereby amended by this letter to reflect the new trial dates.  As you may recall, 

these trial notices were hand delivered to you on June 6, 2013. 

Of course, should you have any questions, please do not hesitate to call me. 

RWM:ems 

cc:  R.N. Tendai Richards, Esq. (by electronic mail) 

Dear Ken: 

Very truly yours, 

Robert W. Mauriello, Jr. 

4 Headquarters Plaza • P.O. Box 1991 • Morristown • New Jersey 07962­1991 

T 973.292.1700 • F 973.292.1767 • GrahamCurtin.com 

Case 2:11-cv-00993-KSH-CLW Document 223-2 Filed 04/25/14 Page 13 of 19 PageID: 6043
EXHIBIT 4 

Case 2:11-cv-00993-KSH-CLW Document 223-2 Filed 04/25/14 Page 14 of 19 PageID: 6044
4 r m %Kenneth  0«  Friecfmsn 

I  I   lai laLl  •   ' Manatt, Phelps & Phillips, LLP 

manatt | phelps | phillips Direct Dial: (

212) 830­7184 

E­mail: kfriedman@manatt.com 

March 28, 2014 

BY REGULAR AND 

ELECTRONIC MAIL 

Robert W. Mauriello, Esq. 

Graham Curtin, PA 

4 Headquarters Plaza 

P.O. Box 1991 

Morristown, New Jersey  07962­1991 

rmauriello@grahamcurtin. com 

Re:  Havens v. Mobex Network Servs., LLC, 2:1 l­cv­993­KSH­CLW 

Dear Rob: 

Please accept this letter in lieu of a more formal objection to the trial subpoenas to Mr. 

Robert Cooper and Mr. David Kling issued on behalf of Maritime Communications/Land Mobile 

LLC ("Maritime"), originally without date for appearance and purportedly amended by your 

letter of March 21, 2014 to "reflect" the dates for the bench trial in the above­referenced action 

established by the Court's Order dated March 20, 2014 (ECF No. 206).  As explained below, the 

subpoenas are defective, unenforceable, and should be voluntarily withdrawn by Maritime 

without need for judicial intervention. 

As an initial matter, I have been authorized by Touch Tel Corporation ("Touch Tel"), one 

of two settled defendants that I represent in this case (the other being Paging Systems, Inc.), to 

represent Mr. Cooper, Touch Tel's President, and Mr. Kling, an employee of Touch Tel, with 

respect to Maritime's subpoenas. 

The subject subpoenas were not served on Messrs. Cooper and Kling.  Instead, they were 

hand­delivered to me on June 6, 2013 in the King Fed. Bldg. & U.S. Courthouse in Newark.  No 

action was taken with respect to the subpoenas at that time because they did not command the 

witnesses' attendance on a specific date and time (the Date and Time for the witnesses to appear 

was set forth as "TBD") and, as such, were unenforceable.  The fact that the witnesses have not 

been served, however, is but one of a myriad of defects requiring that the subpoenas be 

withdrawn in keeping with the issuing party's affirmative duty to avoid imposing undue burden 

or expense.  See Fed. R. Civ. P. 45(d)(1). 

The primary defect warranting withdrawal is that the subpoenas violate the geographical 

limits of Rule 45(c).  That section states that "[a] subpoena may command a person to attend a 

trial, hearing or deposition only as follows: 

7 Times Square, New York, New York 10036 Telephone: 212.790,4500 Fax; 212.790.4545 

Albany | Los Angeles | New York | Orange County | Palo Alto | Sacramento | San Francisco | Washington, D.C. 

Case 2:11-cv-00993-KSH-CLW Document 223-2 Filed 04/25/14 Page 15 of 19 PageID: 6045
manatt 

manatt | phelps | phillips 

Robert W. Mauriello, Esq. 

March 28, 2014 

Page 2 

(A) within 100 miles of where the person resides, is employed or regularly 

transacts business in person; or 

(B) within the state where the person resides, is employed or regularly 

transacts business in person, if the person 

(i)  is a party or a party's officer; or 

(ii) is commanded to attend a trial and would not incur substantial 

expense." 

Fed. R. Civ. P. 45(c)(1) (emphasis supplied). 

Under the Rule, then, Messrs. Cooper and Kling cannot be compelled to attend trial in the 

District of New Jersey: they are both residents of the State of California, are both employed in 

the State of California; both regularly transact business in person in the state of California; and 

neither Mr. Cooper nor Mr. Kling regularly transacts business in person in the State ofNew 

Jersey. 

The violation of the geographical limitation is reason enough to withdraw the subpoenas 

without requiring a court order, which will be granted based on the mandatory nature of Rule 

45(d), which states that the court "must" quash a subpoena that "requires a person to comply 

beyond the geographical limits specified in Rule 45(c)."  Fed. R. Civ. P. 45(d)(3)(A)(ii).  They 

are unenforceable on several other grounds, however, each of which also warrant their 

withdrawal: 

•  they do not state the court from which they issued as required by Fed. R. Civ. P. 

45(a)(l)(A)(i); 

•  they do not set out the text of Rule 45(d) and (e) as required by Fed. R. Civ. P. 

45(a)(l)(A)(iv); 

•  they were not delivered to the named persons as required by Fed. R. Civ. P. 45(b)(1); 

and 

•  the fees for 1 day's attendance and the mileage allowed by law were not tendered as 

required by Fed. R. Civ. P. 45(b)(1). 

For all these reasons, then, we respectfully ask Maritime to formally withdraw its 

subpoenas to Messrs. Cooper and Kling. As you know, both men were deposed in this action. 

Maritime participated in those depositions and had a full and fair opportunity to examine each 

witness on matters relevant to this dispute.  In situations like this one, where witnesses cannot be 

compelled to attend a trial because of the geographical limitations specified in Rule 45(c), the 

Rules expressly provide that deposition testimony may be used at trial.  See Fed. R. Civ. P. 

32(a)(4)(D) (permitting the deposition of a witness to be used for "any purpose" where "the party 

Case 2:11-cv-00993-KSH-CLW Document 223-2 Filed 04/25/14 Page 16 of 19 PageID: 6046
manatt 

manatt | phelps [  phiilfps 

Robert W. Mauriello, Esq. 

March 28, 2014 

Page 3  , 

offering the deposition could not procure the witness's attendance by subpoena").  To that end, 

while Messrs. Cooper's and Kling's depositions were designated "Confidential" pursuant to the 

Discovery Confidentiality Order entered in this action (ECF No. 57), and certain testimony was 

designated "Attorney's Eyes Only," we are willing to consider de­designating those portions of 

the transcripts of interest to Maritime to facilitate their use at trial. 

As noted above, those employing subpoenas have an affirmative duty to take reasonable 

steps to avoid imposing undue burden and expense.  See Fed. R. Civ. P. 45(d)(1). The only 

reasonable step here, in light of the defects catalogued above, is for Maritime to voluntarily 

withdraw its subpoenas.  If it does not, and the Court is asked to intervene, the Rule states that 

the district court "must enforce this duty and impose an appropriate sanction" on those who fail 

to comply.  Id. It shouldn't have to come to that, however, particularly when the deposition 

transcripts are available. 

I look forward to further discussing this matter when we are in court on April 1, 2014. 

Please feel free to contact me, however, should you have any questions that cannot wait until 

then. 

Very Truly Yours, 

Kenneth D. Friedman 

KDF:sbs 

Cc:  R.N. Tendai Richards, Esq. (by electronic mail) 

Eugene L. Hahm, Esq. (by electronic mail) 

312021016.1 

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EXHIBIT 5 

Case 2:11-cv-00993-KSH-CLW Document 223-2 Filed 04/25/14 Page 18 of 19 PageID: 6048
Friedman, Kenneth 

Sent: 

To: 

Cc: 

Subject: 

From: Robert Mauriello <RMauriello@grahamcurtin.com> 

Friday, March 28, 2014 4:09 PM 

Friedman, Kenneth 

Richards, R.N. Tendai; Eugene L. Hahm (eugene.hahm@ltlattorneys.com) 

RE: Havens v. Mobex Network Servs., LLC, 2:ll-cv-993-KSH-CLW 

KenThanks but I will not be withdrawing the notices upon your client, which is still a party to this action, under FRCP 

45(c)(1)(B). 

Robert W. Mauriello, Jr. | Web Profile 

Graham Curtin. A Professional Association | RMauriello@GrahamCurtin.com | 

4 Headquarters Plaza | P.O. Box 1991 | Morristown, NJ 07962-1991 

T: 973.401.7119 F: 973-292.1700 

From: Friedman, Kenneth rmailto:KFriedman@manatt.coml 

Sent: Friday, March 28, 2014 3:59 PM 

To: Robert Mauriello 

Cc: Richards, R.N. Tendai; Eugene L. Hahm Ceuaene.hahm@Itlattorneys.com) 

Subject: Havens v. Mobex Network Servs., LLC, 2:ll-cv-993-KSH-CLW 

I've attached correspondence responding to your letter sent last Friday (3/21). 

Regards, 

KDF 

Kenneth D. Friedman 

Partner 

Manatt, Phelps & Phillips, LLP 

7 Times Square 

New York, NY 10036 

D (212) 830-7184 F(212) 830-3012 

KFneclman@manatt.com 

manatt.com 

CCMFVDENTiALITY NOTICE: This e-maii transmission, and any documents, files or previous e-maii messages attached to it, may contain confidential information that is 

legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, 

Of course, if you have any questions, please do not hesitate to call me. 

Rob 

Rob: 

1 

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