Opinion
Case No. 3:09-cv-1155-J-32MCR.
March 2, 2010
ORDER
THIS CAUSE is before the Court on Plaintiffs' Motion for Issuance of Letters Rogatory (Doc. 56) filed February 9, 2010. Plaintiffs seek to depose three non-party witnesses located in Belgium, the United Kingdom, and Switzerland. As such, Plaintiffs ask the Court to issue letters rogatory or letters of request to the appropriate judicial authorities in Belgium, the United Kingdom, and Switzerland requesting that they issue orders summoning the witnesses to appear for depositions and produce documents.
Rule 28(b) of the Federal Rules of Civil Procedure provides several ways in which to obtain depositions in a foreign country. For example, the court can utilize a treaty or convention or can issue a letter rogatory. As the United States, the United Kingdom, and Switzerland are all signatories to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, (the "Hague Convention"), 23 U.S.T. 2555, reproduced in 28 U.S.C.A. § 1781, the Court will utilize that convention to request assistance with the depositions in the United Kingdom and Switzerland. Belgium, on the other hand, is not a signatory to the Hague Convention. In the case of Belgium, the Court will examine whether it is appropriate to issue a letter rogatory.
In determining whether to issue letters of request pursuant to the Hague Convention, the Court should determine whether the discovery sought falls within the scope of discovery permissible under the Federal Rules of Civil Procedure and should consider issues of comity. The Court finds the information Plaintiffs seek is within the proper scope of discovery and Defendant does not oppose Plaintiffs' requests. Moreover, as the individuals Plaintiffs seek to depose are not parties to the lawsuit, have not voluntarily subjected themselves to discovery, are citizens of other countries, and are not otherwise subject to the jurisdiction of this Court, the undersigned finds the issuance of the Letters of Request pursuant to the Hague Convention is appropriate.
Next, the Court must consider whether to issue a letter rogatory to the proper Belgian authorities. The decision to issue letters rogatory lies within a court's discretion. United States v. Rosen, 240 F.R.D. 204, 214 (E.D. Va. 2007) (citing United States v. Mason, 919 F.2d 139 (4th Cir. 1990) (unpublished per curiam decision)). Letters rogatory should be issued only where "necessary and convenient." Id. (citing 35A C.J.S. Federal Civil Procedure § 614). Here, for the reasons noted above, the undersigned believes the issuance of the Letter Rogatory provided by Plaintiffs is necessary and convenient and therefore, will grant Plaintiff's request and issue the Letter Rogatory to the appropriate Belgian authority.
Accordingly, after due consideration, it is
ORDERED:
1. Plaintiffs' Motion for Issuance of Letters Rogatory (Doc. 56) is GRANTED.
2. The Clerk is directed to mail a certified coy of this Order and the attached Letters of Request and Letter Rogatory to counsel for Plaintiffs.
DONE AND ORDERED in Chambers in Jacksonville, Florida.
REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE PURSUANT TO THE HAGUE CONVENTION OF 18 MARCH 1970 ON THE TAKING OF EVIDENCE IN CIVIL OR COMMERCIAL MATTERS(Items to be included in all Letters of Request.) (Items to be included in all Letters of Request.) (Items to be completed where applicable.) (Items to be included in all Letters of Request.)
I. 1. Sender United States District Court for the Middle District of Florida 300 North Hogan Street Jacksonville, FL 32202 Telephone: (904) 549-1900 2. Central Authority of the Obergericht des Kantons Bern, Rechtshilfe, Requested State Hochschulstrasse 17, Postfach 7475, 3001 Bern 3. Person to whom the executed Robert F. Elgidely, Esq., Genovese, Joblove Battista, request is to be returned P.A., 200 East Broward Boulevard, Fort Lauderdale, FL 33301, Telephone: (954) 453-8000 II. 4. In conformity with article 3 of the Convention, the undersigned applicant has the honour to submit the following request: 5. a. Requesting judicial United States District Court authority (article 3, a) for the Middle District of Florida 300 North Hogan Street Jacksonville, FL 32202 Telephone: (904) 549-1900 b. To the competent authority Switzerland of (article 3. a) 6. Names and addresses of the parties and their represen- tatives (article 3, b) a. Plaintiffs Federico Luzzi, Giorgio Galimberti, Alessio Di Mauro, Potito Starace, and Daniele Bracciali Robert F. Elgidely, Esq. Genovese, Joblove Battista, P.A. 200 East Broward Boulevard, Suite 1110 Fort Lauderdale, FL 33301 Telephone: (954) 453-8000 b. Defendant ATP Tour, Inc. John F. Maclennan, Esq. Smith Hulsey Busey, P.A. 225 Water Street, Suite 1800 Jacksonville, FL 32202 c. Other parties None. 7. Nature and purpose of the Plaintiffs filed a lawsuit against the Defendant for a proceedings and summary of the Declaratory Judgment and for Breach of Fiduciary facts (article 3, c) Duty. In these claims, Plaintiffs seek a determination of whether the 2007 Official Rulebook constituted a contract between them and the Defendant, whether the Defendant's administrative proceedings resulting in their suspensions and fines constituted full and fair hearings, whether the Defendant was required to provide them with a copy of a 2007 Memorandum of Understanding with the European Sports Security Association upon which the administrative proceedings were based, and whether the Defendant was permitted to retroactively obtain information and/or documentation concerning the Plaintiffs pursuant to the 2007 Memorandum of Understanding. Plaintiffs contend that they were discriminatorily targeted for selective enforcement of the 2007 Official Rulebook by the Defendant. Plaintiffs have alleged that the Defendant's actions have caused them to suffer extreme financial, emotional and psychological harm and injury including, but not limited to, extreme anxiety over their inability to perform, significant damages to their names, reputations, good will, loss of existing and potential sponsorship funds and contracts, loss of existing and potential employment opportunities, loss of career advancement opportunities, loss of potential prize money, loss of alternative employment opportunities related to the sport of professional tennis, and other significant compensatory, special and consequential damages. 8. Evidence to be obtained or other Plaintiffs request international judicial assistance to judicial act to be performed effectuate service (and, if necessary, enforcement) of a (article 3, d) Subpoena for Deposition Duces Tecum upon Peter Bratschi. Plaintiffs seek to obtain specified documents and the sworn deposition testimony of Mr. Bratschi pursuant to the Subpoena for use in a civil proceeding before this Court in the above captioned matter III. 9. Identity and address of any Peter Bratschi, Bratschi Wiederkehr Buob, Bollwerk person to be examined (article 15, Postfach 5576, CH-3001 Bern, Switzerland. 3. e) 10. Questions to be put to the Mr. Bratschi's relationship with the Defendant, ATP persons to be examined or Tour, Inc., as well as the administrative hearings statement of the subject-matter conducted by Mr. Bratschi for the Defendant, ATP about which they are to be Tour, Inc., concerning the Plaintiffs examined (article 3, f) 11. Documents or other property to See attached Exhibit "A" for documents to be produced be inspected (article 3, g) and copied. 12. Any requirement that the Evidence is to be given on sworn oath or affirmation evidence be given on oath or and should be transcribed by a court affirmation and any special reporter/stenographer or as otherwise provided by local form to be used (article 3, h) law for the formal taking of evidence. 13. Special methods or procedure Sworn oath or affirmation of witness will be taken and to be followed (articles 3, i and testimony will be transcribed by a court 9) reporter\stenographer or as otherwise provided by local law for the formal taking of evidence. 14. Request for notification of 3 May 2010 at 10:30 a.m. (Local Time) the time and place for the WENGER PLATTNER execution of the Request Rechtsanwälte, Jungfraustrasse 1 and identity and address 3000 Bern 6 of any person to be notified Telephone: +41 31 357 00 00 (article 7) 15. Request for attendance or None. participation of judicial personnel of the requesting authority at the execution of the letter of Request 16. Specification of privilege None. Privilege or duty to refuse to give evidence or duty to refuse to give under the law of the State of execution only. evidence under the law of the State of origin (article 11, b) 17. The fees and costs incurred Plaintiffs which are reimbursable un-der c/o Robert F. Elgidely, Esq. the second paragraph Genovese, Joblove Battista, P.A. of article 14 or under arti-cle 200 East Broward Boulevard, Suite 1110 26 of the Convention Fort Lauderdale, FL 33301 will be borne by Telephone: (954) 453-8000 IV. 18. Date of request March 1, 2010 19. Signature and seal of the requesting authorityEXHIBIT A INSTRUCTIONS AND DEFINITIONS
I. Instructions
A. This document request is continuing in nature. When new knowledge or information comes to your attention you shall supplement the information supplied in the answers to the document request forthwith.B. This request calls for the production of all responsive documents in your possession, custody or control or available to you, your employees, accountants, attorneys, auditors or other persons acting on your behalf, in your employment, and/or under your direction or the direction of your agents and representatives.
C. For each and every Request herein, you shall produce documents in your possession, custody, or control which shall include, but not be limited to, documents, objects or articles described that are in your possession or for which you have the right to secure the original or a copy from another person or entity. The fact that your investigation is continuing or discovery is incomplete is not an excuse for your failure to respond to each request as fully and completely as possible. Your responses should consist of information known to you through yourself, your agents, your attorneys, your employees, or your representatives. If copies or drafts exist of a document, the production of which has been requested herein, produce and submit for inspection and copying each and every copy and draft which differs in any way from the original document or from any copy or draft.
D. Please organize and label (without permanently marking the item produced) the documents being produced to correspond with the numbered paragraph and each subset thereof to which such documents are responsive. If a document is responsive to more than one document request, each document request to which it is responsive should be identified.
E. If at any time you had possession, custody, or control of any document requested herein, and such document has been lost, destroyed, discarded, or is not presently in your possession, any such documents shall be identified as completely as possible by providing the following information:
1. The name(s) of the author(s) of the document;
2. The name(s) of the person(s) to whom the documents or copies were sent;
3. The date of the document;
4. The date on which the document was received by each addressee, copyee, or its recipients;
5. A complete description of the nature and subject matter of the document;
6. The date on which the document was lost, discarded, or destroyed; and
7. The manner in which the document was lost, discarded, or destroyed.
F. With respect to any document that you withhold under claim of privilege, you shall number such documents, hold them separately, and retain them intact pending a ruling by the Court on the claimed privilege. In addition, you shall provide a statement, signed by an attorney representing you, setting forth as to each such document:
1. The name(s) of the sender(s) or the document;
2. The name(s) of the author(s) of the document;
3. The name(s) of the person(s) to whom the document or copies were sent;
4. The job title of every person named in subparagraphs 1, 2 and 3 above;
5. The date of the document;
6. The date on which the document was received by each addressee, copyee, or its recipient;
7. A brief description of the nature and subject matter of the document; and
8. The statute, rule, or decision which is claimed to give rise to the privilege.
G. If, after exercising due diligence to secure or produce the document(s) requested, you cannot secure responsive documents, you must identify which Request(s) for which you do not have a responsive document, and answer the request for production to the fullest extent possible, specifying your inability to produce the document(s), and providing the identity of the person who has possession, custody, or control of the requested document(s).
H. All words, names, and terms in this request for production shall have their plain and ordinary meanings unless specifically defined in Part II herein.
I. Copies of documents which are identical duplicates of other documents which have already been produced for inspection and copying in this action need not be produced again, except that the duplicates must be produced if handwritten or any other type of notes or similar intelligence appear thereon or are attached thereto, including markings on slips indicating the routing of the document to individuals or organizations.
J. The singular and plural forms shall be construed interchangeably so as to bring within the scope of this document request any information which might otherwise be construed as being outside of the scope of such request.
K. "And" and "or" shall be construed interchangeably so as to bring within the scope of this document request any information which might otherwise be construed as being outside of the scope of such request.
L. "Any" and "all" and "each" and "every" shall be construed to bring within the scope of this request any information which might be construed to relate to the subject matter of the request.
M. The use of the singular form of any word includes the plural and vice versa.
N. Unless otherwise stated herein, the time period encompassed by this Request shall be January 1, 2002 through and including the date of this Request.
II. Definitions
Unless otherwise specified, the following words and terms as used herein shall, when utilized, mean as follows:
1. When an entity other than an individual is referred to, such reference includes that entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present). When an individual is referred to, such reference includes any corporation, partnership, trust, unincorporated association or other entity in which the individual had or has any ownership interest or over which the individual exercised or exercises any degree of control (past or present).
2. The phrase " Anti-Corruption Program" means the "Tennis Anti-Corruption Program" contained in the ATP's (as defined below) Rulebook (as defined below) including, but not limited to, each and every draft thereof (first, subsequent, interim and final), each and every revision, modification or amendment proposed thereto (first, subsequent, interim and final), and final versions thereof (whether incorporated into the "Rulebook" (as defined below) or otherwise.
3. The term "ATP," means the ATP Tour, Inc. including, but not limited to, such entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
4. The term "Betfair" means that certain online sports betting company including, but not limited to, such entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
5. The term "Bratschi," "You," or "Your" means Peter Bratschi including, but not limited to, any individual or entity acting or purporting to act on his behalf, individually or collectively, (past or present), and any corporation, partnership, trust, unincorporated association or other entity in which he had or has any ownership interest or over which he exercised or exercises any degree of control, including Bratschi Emch Rechtsanwalte and/or Bratschi Wiederkehr Buob, and their predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
6. The term " Communication" means any written or oral statement, dialogue, colloquialism, discussion, conversation or agreement of any kind or character, including, by way of example and without limitation, any act or instance whereby messages, facts, data or any other information is transmitted orally, visually, in writing, electronically or by any other means or media from natural person or firm to another (e.g., personal conversations, telephone conversations, letters, e-mails, meetings, memoranda, telegraphic and telex communications or transmittals of documents), any manner or form of information, memorandum or notes or message transmission, however produced or reproduced, whether by "document" as herein defined or orally or otherwise, which was distributed or circulated between or among persons, or data storage or processing units and any and all documents containing, consisting of, or relating or referring, in any way, either directly or indirectly to, a communication.
7. The terms " concern" or "concerning" means relating to, referring to, connected with, commenting on, responding to, supporting, mentioning, containing, evidencing, showing, memorializing, describing, analyzing, reflecting, comprising or constituting.
8. The term "Decision" or "Decisions" means the decisions issued by You on or about November 9, 2007 (for Alessio Di Mauro), on or about December 21, 2007 (for Potito Starace), on or about December 21, 2007 (for Daniele Bracciali), on or about February 15, 2009 (for Giorgio Galimberti), and on or about February 29, 2008 (for Federico Luzzi).
9. The term " Document" shall have a synonymous meaning equal in scope to the usage of the term in Rule 34(a) of the Federal Rules of Civil Procedure and shall include, but shall not be limited to, the original and all drafts of all written and graphic matter, however produced or reproduced, of any kind or description, whether or not approved, signed, sent, received, re-drafted or executed, and all copies thereof which are different in any way from the original (whether by interlineation, date-stamp, notation, indication of copies sent or received, or otherwise), including, without limitation, any E-mail(s), paper, letter, correspondence, memoranda (including interoffice and intraoffice memoranda), notes, memoranda for files, memoranda of telephone or other conversation, announcement, bulletin, press release, newspaper or magazine article, pamphlet, circulars, advertising material, studies, analysis, statistics, surveys, drawing, sketch, schematic, chart, graph, investigation, study, working paper, summary, report, opinion, table, schedule, extract, blueprint, portfolio, ledger, worksheet, prospectus, financial projection, financial statement, financial schedule, book, note, notation, message slip, telegram, telex and telecopier message, agreement, contract, object, record, transcript, hearing, meeting, diary, or other communication, chronological data, minutes, agendas, transcriptions, record, report, invoice, receipt, return, computer printout or other computer derived data, schedule, affidavit, cancelled check, check stub, delivery ticket, bill of lading, graph or aural records or representations of any kind, including without limitation, photographic matter, microfiche, microfilm, video-tape, motion picture and electronic, all mechanical or electronic sound recordings or transcripts thereof (including without limitation tapes, cassettes, discs and recordings) in Your possession, custody, and/or control, or Your agents, representatives or attorneys, unless privileged, or of which You have knowledge.
10. The phrase "Electronic Data" includes, by way of example only, all electronic data storage documents, electronic mail (commonly referred to as "e-mails") and any related attachments, computer programs, programming notes or instructions, activity listings of electronic mail receipts and/or transmittals, output resulting from the use of any software program, including word processing documents, spread sheets, data base files, charts, graphs and outlines, operating systems, source code of all types, peripheral drivers, batch files, and any and all miscellaneous files and/or file fragments, regardless of the media on which they reside and regardless of whether said electronic data consists in any active file, deleted file or file fragment, including deleted electronic data if such data can be undeleted or recovered by any means. Your search for Electronic Data shall include, but shall not be limited to, all of your computer hard drives, floppy or compact disks, backup and archival tapes, removable media such as zip or external hard drives, password protected and encrypted files, databases, electronic calendars, personal digital assistants, proprietary software and inactive or unused computer disc storage areas. All Electronic Data produced shall be produced in its native format, and all requests expressly include requests for all metadata associated with the files to be produced.
11. The term "ESSA" means the European Sports Security Association including, but not limited to, such entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
12. The phrase "Gunn-Rees Report" means that certain report authored by Ben Gunn and Jeff Rees entitled "Environmental Review of Integrity in Professional Tennis" including, but not limited to, each and every draft there of (first, subsequent, interim and final), each and every revision, modification or amendment proposed thereto (first, subsequent, interim and final), and final versions thereof.
13. The term "Interwetten" means that certain online sports betting company including, but not limited to, such entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
14. The phrase "Memorandum of Understanding" means that certain Memorandum of Understanding by and between ESSA and the ATP that concerns, refers, relates to, reflects, and/or evidences interactions, transactions, and/or activities between the Players, the Other Players, and/or online sports betting companies including, but not limited to, each and every draft thereof (first, subsequent, interim and final), each and every revision, modification or amendment proposed thereto (first, subsequent, interim and final), and final versions thereof.
15. The phrase "Notices of Commencement" means those certain correspondence authored by Gayle David Bradshaw in his capacity as the Executive Vice President Rules and Competition for the Defendant addressed to the "Plaintiffs" (as defined below) dated on or about July 25, 2007 (for Alessio Di Mauro), on or about October 9, 2007 (for Federico Luzzi), on or about October 9, 2007 (for Giorgio Galimberti), on or about October 9, 2007 (for Potito Starace), and on or about October 18, 2007 (for Daniele Bracciali).
16. The phrase "Other Players" means current or former, active or inactive, members of the ATP other than the "Players" (as defined below) including, but not limited to, any individual or entity acting or purporting to act on their behalves, individually or collectively, (past or present), and any corporation, partnership, trust, unincorporated association or other entity in which they, individually or collectively, had or have any ownership interest or over which they, individually or collectively, exercised or exercises any degree of control, including its/their predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
17. The term "person" includes natural persons, proprietorships, partnerships, firms, corporations, institutions, bodies, joint ventures, estates, trusts, receivers, public corporations, other forms of legal entity, municipal corporations, federal, state and local governments, all departments and agencies thereof, and any other governmental agencies, political subdivisions, groups, associations or organizations, and any other group or combination acting as an entity including, but not limited to, "Betfair," "ESSA," "Interwetten," and "Unibet" (as defined herein).
18. The term "Players" means Federico Luzzi, Giorgio Galimberti, Alessio Di Mauro, Potito Starace, Daniele Bracciali, individually and/or collectively, including, but not limited to, any individual or entity acting or purporting to act on their behalves, individually or collectively, (past or present), and any corporation, partnership, trust, unincorporated association or other entity in which they, individually or collectively, had or have any ownership interest or over which they, individually or collectively, exercised or exercises any degree of control, including its/their predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
19. The terms "possession," "custody," or "control" include the joint or several possession, custody or control not only by the person or entity to whom these requests are directed, but also the joint and several possession, custody or control by each or any other person or entity acting or purporting to act on behalf of said person or entity, whether as an employee, attorney, accountant, agent, sponsor, spokesperson, or otherwise.
20. The term "Rees" means Jeff Rees or any individual or entity acting or purporting to act on his behalf, individually or collectively, (past or present), and any corporation, partnership, trust, unincorporated association or other entity in which he had or has any ownership interest or over which he exercised or exercises any degree of control, including its/their predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
21. The phrase "Related to" means directly or indirectly, concerning, referring to, reflecting, describing, evidencing, constituting, pertaining to, arising out of or in connection with, or in any way legally, logically or factually be connected with the matter discussed.
22. The phrase "Relevant Period" includes the period from January 1, 2002 through and including the date of this Request (unless otherwise stated herein).
23. The term "Rulebook" means the ATP Official Rulebook and the ATP By-Laws and which contain(s) the ATP's rules, regulations, policies, procedures, and penalties including, but not limited to, each and every draft thereof (first, subsequent, interim and final), each and every revision, modification or amendment proposed thereto (first, subsequent, interim and final), and final versions thereof.
24. The term "Unibet" means that certain online sports betting company including, but not limited to, such entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
III. DOCUMENTS REQUESTED
IMPORTANT-(REFER TO ABOVE DEFINITIONS FOR MEANING OF TERMS). You ATP You ATP You Players You Other You Betfair You Interwetten You You ESSA You Rees You Person
1. Each and every Communication, Document, and/or Electronic Data by and between and the during the Relevant Period concerning, referring, reflecting, relating to, and/or evidencing the personal and/or professional relationship which existed between You and the ATP (including, but not limited, Your selection and appointment as the ATP's administrative hearing officer and compensation paid to You for such services). 2. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between and the concerning, referring, relating to, reflecting, and/or evidencing the Anti-Corruption Program, ESSA, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Rees, Betfair, Unibet, Interwetten, the Decisions, and/or the Notices of Commencement. 3. Each and every Communication, Document, and/or Electronic Data in the Relevant Period which you received, reviewed, considered, relied upon, obtained or were provided concerning, referring, reflecting, relating to, and/or evidencing the Decisions. 4. Each and every Communication, Document, and/or Electronic Data in the Relevant Period which you received, reviewed, considered, relied upon, obtained or were provided subsequent to your receipt of the Notices of Commencement. 5. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between and the concerning, referring, relating to, reflecting, and/or evidencing the Anti-Corruption Program, ESSA, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Rees, Betfair, Unibet, Interwetten, the Decisions, and/or the Notices of Commencement. 6. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between and the Players concerning, referring, relating to, reflecting, and/or evidencing the Anti-Corruption Program, ESSA, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Rees, Betfair, Unibet, Interwetten, the Decisions, and/or the Notices of Commencement. 7. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between and concerning, referring, relating to, reflecting, and/or evidencing the ATP, the Anti-Corruption Program, ESSA, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Rees, Betfair, Unibet, Interwetten, the Decisions, and/or the Notices of Commencement. 8. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between and concerning, referring, relating to, reflecting, and/or evidencing the ATP, the Anti-Corruption Program, ESSA, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Rees, Betfair, Unibet, Interwetten, the Decisions, and/or the Notices of Commencement. 9. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between and Unibet concerning, referring, relating to, reflecting, and/or evidencing the ATP, the Anti-Corruption Program, ESSA, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Rees, Betfair, Unibet, Interwetten, the Decisions, and/or the Notices of Commencement. 10. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between and concerning, referring, relating to, reflecting, and/or evidencing the ATP, the Anti-Corruption Program, ESSA, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Rees, Betfair, Unibet, Interwetten, the Decisions, and/or the Notices of Commencement. 11. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between and concerning, referring, relating to, reflecting, and/or evidencing the Anti-Corruption Program, ESSA, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Rees, Betfair, Unibet, Interwetten, the Decisions, and/or the Notices of Commencement. 12. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and any Person concerning, referring, relating to, reflecting, and/or evidencing the Anti-Corruption Program, ESSA, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Rees, Betfair, Unibet, Interwetten, the Decisions, and/or the Notices of Commencement. 13. Each and every Communication, Document, and/or Electronic Data in the Relevant Period concerning, referring, relating to, reflecting, and/or evidencing any suggested or required guidelines, instructions, directions, policies, protocols, or procedures You were permitted or required to follow in connection with your services as the ATP's Administrative Hearing Officer. 14. Each and every Communication, Document, and/or Electronic Data in the Relevant Period concerning, referring, relating to, reflecting, and/or evidencing proposed, draft, and/or final press or media releases, publications or announcements pertaining to the Decisions and/or to suspected, alleged, or confirmed violations of the Anti-Corruption Program by the Plaintiffs and/or Other Players. 15. Each and every Communication, Document, and/or Electronic Data by and between and any in the Relevant Period concerning, referring, relating to, and/or evidencing suspected, alleged, or confirmed violations of the Anti-Corruption Program by the Players and/or the Other Players. REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE PURSUANT TO THE HAGUE CONVENTION OF 18 MARCH 1970 ON THE TAKING OF EVIDENCE IN CIVIL OR COMMERCIAL MATTERS (Items to be included in all Letters of Request.) (Items to be included in all Letters of Request.) (Items to be completed where applicable.) (Items to be included in all Letters of Request.) I. 1. Sender United States District Court for the Middle District of Florida 300 North Hogan Street Jacksonville, FL 32202 Telephone: (904) 549-1900 2. Central Authority of the Senior Master of the Supreme Court, Queen's Bench Requested State Division, Royal Courts of Justice, Strand London WC2A 2LL, England, U.K. 3. Person to whom the executed Robert F. Elgidely, Esq., Genovese, Joblove Battista, request is to be returned P.A., 200 East Broward Boulevard, Fort Lauderdale, FL 33301, Telephone: (954) 453-8000 II. 4. In conformity with article 3 of the Convention, the undersigned applicant has the honour to submit the following request: 5. a. Requesting judicial United States District Court authority (article 3, a) for the Middle District of Florida 300 North Hogan Street Jacksonville, FL 32202 Telephone: (904) 549-1900 b. To the competent authority United Kingdom of (article 3, a) 6. Names and addresses of the parties and their representatives (article 3, b) a. Plaintiffs Federico Luzzi, Giorgio Galimberti, Alessio Di Mauro, Potito Starace, and Daniele Bracciali Robert F. Elgidely, Esq. Genovese. Joblove Battista, P.A. 200 East Broward Boulevard, Suite 1110 Fort Lauderdale, FL 33301 Telephone: (954) 453-8000 b. Defendant ATP Tour, Inc. John F. Maclennan, Esq. Smith Hulsey Busey, P.A. 225 Water Street, Suite 1800 Jacksonville, FL 32202 c. Other parties None. 7. Nature and purpose of the Plaintiffs filed a lawsuit against the Defendant for a proceedings and summary of the Declaratory Judgment and for Breach of Fiduciary facts (article 3, c) Duty. ln these claims, Plaintiffs seek a determination of whether the 2007 Official Rulebook constituted a contract between them and the Defendant, whether the Defendant's administrative proceedings resulting in their suspensions and fines constituted full and fair hearings, whether the Defendant was required to provide them with a copy of a 2007 Memorandum of Understanding with the European Sports Security Association upon which the administrative proceedings were based, and whether the Defendant was permitted to retroactively obtain information and/or documentation concerning the Plaintiffs pursuant to the 2007 Memorandum of Understanding. Plaintiffs contend that they were discriminatorily targeted for selective enforcement of the 2007 Official Rulebook by the Defendant. Plaintiffs have alleged that the Defendant's actions have caused them to suffer extreme financial, emotional and psychological harm and injury including, but not limited to, extreme anxiety over their inability to perform, significant damages to their names, reputations, good will, loss of existing and potential sponsorship funds and contracts, loss of existing and potential employment opportunities, loss of career advancement opportunities, loss of potential prize money, loss of alternative employment opportunities related to the sport of professional tennis, and other significant compensatory, special and consequential damages. 8. Evidence to be obtained or other Plaintiffs request international judicial assistance to judicial act to be performed effectuate service (and, if necessary, enforcement) of a (article 3, d) Subpoena for Deposition Duces Tecum upon Jeff Rees. Plaintiffs seek to obtain specified documents and the sworn deposition testimony of Mr. Rees pursuant to the Subpoena for use in a civil proceeding before this Court in the above captioned matter. III. 9. Identity and address of any Jeff Rees, Tennis Integrity Unit, c/o International person to be examined (article Tennis Federation, Bank Lane, Roehampton, London 3, e) SW15 5XZ, United Kingdom. 10. Questions to be put to the persons to be examined or Information obtained in connection with the preparation statement of the subject-matter of the study "Environmental Review of Integrity in about which they are to be Professional Tennis." examined (article 3, f) 11. Documents or other property to See attached Exhibit "A" for documents to be produced be inspected (article 3, g) and copied. 12. Any requirement that the Evidence is to be given on sworn oath or affirmation evidence be given on oath or and should be transcribed by a court affirmation and any special reporter/stenographer or as otherwise provided by local form to be used (article 3, h) law for the formal taking of evidence. 13. Special methods or procedure Sworn oath or affirmation of witness will be taken and to be followed (articles 3, i and testimony will be transcribed by a court 9) reporter\stenographer or as otherwise provided by local law for the formal taking of evidence. 14. Request for notification of 30 April 2010 at 10:30 a.m. (Local Time) the time and place for the Schultze Braun LLP execution of the Request 33 Throgmorton Street and identity and address GB — London EC2N 2BR of any person to be notified Telephone: +44 (0) 2071/565029 (article 7) 15. Request for attendance or None. participation of judicial personnel of the requesting authority at the execution of the letter of Request 16. Specification of privilege None. Privilege or duty to refuse to give evidence or duty to refuse to give under the law of the State of execution only. evidence under the law of the State of origin (article 11, b) 17. The fees and costs incurred Plaintiffs which are reimbursable under c/o Robert F. Elgidely, Esq. the second paragraph Genovese, Joblove Battista, P.A. of article 14 or under article 200 East Broward Boulevard, Suite 1110 26 of the Convention Fort Lauderdale, FL 33301 will be borne by Telephone: (954) 453-8000 IV. 18. Date of request March 1, 2010 19. Signature and seal of the requesting authorityEXHIBIT A INSTRUCTIONS AND DEFINITIONS
I. Instructions
A. This document request is continuing in nature. When new knowledge or information comes to your attention you shall supplement the information supplied in the answers to the document request forthwith.B. This request calls for the production of all responsive documents in your possession, custody or control or available to you, your employees, accountants, attorneys, auditors or other persons acting on your behalf, in your employment, and/or under your direction or the direction of your agents and representatives.
C. For each and every Request herein, you shall produce documents in your possession, custody, or control which shall include, but not be limited to, documents, objects or articles described that are in your possession or for which you have the right to secure the original or a copy from another person or entity. The fact that your investigation is continuing or discovery is incomplete is not an excuse for your failure to respond to each request as fully and completely as possible. Your responses should consist of information known to you through yourself, your agents, your attorneys, your employees, or your representatives. If copies or drafts exist of a document, the production of which has been requested herein, produce and submit for inspection and copying each and every copy and draft which differs in any way from the original document or from any copy or draft.
D. Please organize and label (without permanently marking the item produced) the documents being produced to correspond with the numbered paragraph and each subset thereof to which such documents are responsive. If a document is responsive to more than one document request, each document request to which it is responsive should be identified.
E. If at any time you had possession, custody, or control of any document requested herein, and such document has been lost, destroyed, discarded, or is not presently in your possession, any such documents shall be identified as completely as possible by providing the following information:
1. The name(s) of the author(s) of the document;
2. The name(s) of the person(s) to whom the documents or copies were sent;
3. The date of the document;
4. The date on which the document was received by each addressee, copyee, or its recipients;
5. A complete description of the nature and subject matter of the document;
6. The date on which the document was lost, discarded, or destroyed; and
7. The manner in which the document was lost, discarded, or destroyed.
F. With respect to any document that you withhold under claim of privilege, you shall number such documents, hold them separately, and retain them intact pending a ruling by the Court on the claimed privilege. In addition, you shall provide a statement, signed by an attorney representing you, setting forth as to each such document:
1. The name(s) of the sender(s) or the document;
2. The name(s) of the author(s) of the document;
3. The name(s) of the person(s) to whom the document or copies were sent;
4. The job title of every person named in subparagraphs 1, 2 and 3 above;
5. The date of the document;
6. The date on which the document was received by each addressee, copyee, or its recipient;
7. A brief description of the nature and subject matter of the document; and
8. The statute, rule, or decision which is claimed to give rise to the privilege.
G. If, after exercising due diligence to secure or produce the document(s) requested, you cannot secure responsive documents, you must identify which Request(s) for which you do not have a responsive document, and answer the request for production to the fullest extent possible, specifying your inability to produce the document(s), and providing the identity of the person who has possession, custody, or control of the requested document(s).
H. All words, names, and terms in this request for production shall have their plain and ordinary meanings unless specifically defined in Part II herein.
I. Copies of documents which are identical duplicates of other documents which have already been produced for inspection and copying in this action need not be produced again, except that the duplicates must be produced if handwritten or any other type of notes or similar intelligence appear thereon or are attached thereto, including markings on slips indicating the routing of the document to individuals or organizations.
J. The singular and plural forms shall be construed interchangeably so as to bring within the scope of this document request any information which might otherwise be construed as being outside of the scope of such request.
K. "And" and "or" shall be construed interchangeably so as to bring within the scope of this document request any information which might otherwise be construed as being outside of the scope of such request.
L. "Any" and "all" and "each" and "every" shall be construed to bring within the scope of this request any information which might be construed to relate to the subject matter of the request.
M. The use of the singular form of any word includes the plural and vice versa.
N. Unless otherwise stated herein, the time period encompassed by this Request shall be January 1, 2002 through and including the date of this Request.
II. Definitions
Unless otherwise specified, the following words and terms as used herein shall, when utilized, mean as follows:
1. When an entity other than an individual is referred to, such reference includes that entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present). When an individual is referred to, such reference includes any corporation, partnership, trust, unincorporated association or other entity in which the individual had or has any ownership interest or over which the individual exercised or exercises any degree of control (past or present).
2. The phrase "Anti-Corruption Program" means the "Tennis Anti-Corruption Program" contained in the ATP's (as defined below) Rulebook (as defined below) including, but not limited to, each and every draft thereof (first, subsequent, interim and final), each and every revision, modification or amendment proposed thereto (first, subsequent, interim and final), and final versions thereof (whether incorporated into the "Rulebook" (as defined below) or otherwise.
3. The term "ATP," means the ATP Tour, Inc. including, but not limited to, such entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
4. The term "Betfair" means that certain online sports betting company including, but not limited to, such entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
5. The term "Bratschi" means Peter Bratschi including, but not limited to, Bratschi Emch Rechtsanwalte or any individual or entity acting or purporting to act on his behalf, individually or collectively, (past or present), and any corporation, partnership, trust, unincorporated association or other entity in which he had or has any ownership interest or over which he exercised or exercises any degree of control, including its/their predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
6. The term "Communication" means any written or oral statement, dialogue, colloquialism, discussion, conversation or agreement of any kind or character, including, by way of example and without limitation, any act or instance whereby messages, facts, data or any other information is transmitted orally, visually, in writing, electronically or by any other means or media from natural person or firm to another (e.g., personal conversations, telephone conversations, letters, e-mails, meetings, memoranda, telegraphic and telex communications or transmittals of documents), any manner or form of information, memorandum or notes or message transmission, however produced or reproduced, whether by "document" as herein defined or orally or otherwise, which was distributed or circulated between or among persons, or data storage or processing units and any and all documents containing, consisting of, or relating or referring, in any way, either directly or indirectly to, a communication.
7. The terms "concern" or "concerning" means relating to, referring to, connected with, commenting on, responding to, supporting, mentioning, containing, evidencing, showing, memorializing, describing, analyzing, reflecting, comprising or constituting.
8. The term "Document" shall have a synonymous meaning equal in scope to the usage of the term in Rule 34(a) of the Federal Rules of Civil Procedure and shall include, but shall not be limited to, the original and all drafts of all written and graphic matter, however produced or reproduced, of any kind or description, whether or not approved, signed, sent, received, re-drafted or executed, and all copies thereof which are different in any way from the original (whether by interlineation, date-stamp, notation, indication of copies sent or received, or otherwise), including, without limitation, any E-mail(s), paper, letter, correspondence, memoranda (including interoffice and intraoffice memoranda), notes, memoranda for files, memoranda of telephone or other conversation, announcement, bulletin, press release, newspaper or magazine article, pamphlet, circulars, advertising material, studies, analysis, statistics, surveys, drawing, sketch, schematic, chart, graph, investigation, study, working paper, summary, report, opinion, table, schedule, extract, blueprint, portfolio, ledger, worksheet, prospectus, financial projection, financial statement, financial schedule, book, note, notation, message slip, telegram, telex and telecopier message, agreement, contract, object, record, transcript, hearing, meeting, diary, or other communication, chronological data, minutes, agendas, transcriptions, record, report, invoice, receipt, return, computer printout or other computer derived data, schedule, affidavit, cancelled check, check stub, delivery ticket, bill of lading, graph or aural records or representations of any kind, including without limitation, photographic matter, microfiche, microfilm, video-tape, motion picture and electronic, all mechanical or electronic sound recordings or transcripts thereof (including without limitation tapes, cassettes, discs and recordings) in Your possession, custody, and/or control, or Your agents, representatives or attorneys, unless privileged, or of which You have knowledge.
9. The phrase "Electronic Data" includes, by way of example only, all electronic data storage documents, electronic mail (commonly referred to as "e-mails") and any related attachments, computer programs, programming notes or instructions, activity listings of electronic mail receipts and/or transmittals, output resulting from the use of any software program, including word processing documents, spread sheets, data base files, charts, graphs and outlines, operating systems, source code of all types, peripheral drivers, batch files, and any and all miscellaneous files and/or file fragments, regardless of the media on which they reside and regardless of whether said electronic data consists in any active file, deleted file or file fragment, including deleted electronic data if such data can be undeleted or recovered by any means. Your search for Electronic Data shall include, but shall not be limited to, all of your computer hard drives, floppy or compact disks, backup and archival tapes, removable media such as zip or external hard drives, password protected and encrypted files, databases, electronic calendars, personal digital assistants, proprietary software and inactive or unused computer disc storage areas. All Electronic Data produced shall be produced in its native format, and all requests expressly include requests for all metadata associated with the files to be produced.
10. The term "ESSA" means the European Sports Security Association including, but not limited to, such entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
11. The phrase "Gunn-Rees Report" means that certain report authored by Ben Gunn and Jeff Rees entitled "Environmental Review of Integrity in Professional Tennis" including, but not limited to, each and every draft thereof (first, subsequent, interim and final), each and every revision, modification or amendment proposed thereto (first, subsequent, interim and final), and final versions thereof.
12. The term "Interwetten" means that certain online sports betting company including, but not limited to, such entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
13. The phrase "Memorandum of Understanding" means that certain Memorandum of Understanding by and between ESSA and the ATP that concerns, refers, relates to, reflects, and/or evidences interactions, transactions, and/or activities between the Players, the Other Players, and/or online sports betting companies including, but not limited to, each and every draft thereof (first, subsequent, interim and final), each and every revision, modification or amendment proposed thereto (first, subsequent, interim and final), and final versions thereof.
14. The phrase "Other Players" means current or former, active or inactive, members of the ATP other than the "Players" (as defined below) including, but not limited to, any individual or entity acting or purporting to act on their behalves, individually or collectively, (past or present), and any corporation, partnership, trust, unincorporated association or other entity in which they, individually or collectively, had or have any ownership interest or over which they, individually or collectively, exercised or exercises any degree of control, including its/their predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
15. The term "person" includes natural persons, proprietorships, partnerships, firms, corporations, institutions, bodies, joint ventures, estates, trusts, receivers, public corporations, other forms of legal entity, municipal corporations, federal, state and local governments, all departments and agencies thereof, and any other governmental agencies, political subdivisions, groups, associations or organizations, and any other group or combination acting as an entity including, but not limited to, "Betfair," "ESSA," "Interwetten," and "Unibet" (as defined herein).
16. The term "Players" means Federico Luzzi, Giorgio Galimberti, Alessio Di Mauro, Potito Starace, Daniele Bracciali, individually and/or collectively, including, but not limited to, any individual or entity acting or purporting to act on their behalves, individually or collectively, (past or present), and any corporation, partnership, trust, unincorporated association or other entity in which they, individually or collectively, had or have any ownership interest or over which they, individually or collectively, exercised or exercises any degree of control, including its/their predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
17. The terms "possession," "custody," or "control" include the joint or several possession, custody or control not only by the person or entity to whom these requests are directed, but also the joint and several possession, custody or control by each or any other person or entity acting or purporting to act on behalf of said person or entity, whether as an employee, attorney, accountant, agent, sponsor, spokesperson, or otherwise.
18. The term "Rees," "You," or "Your," means Jeff Rees or any individual or entity acting or purporting to act on his behalf, individually or collectively, (past or present), and any corporation, partnership, trust, unincorporated association or other entity in which he had or has any ownership interest or over which he exercised or exercises any degree of control, including its/their predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
19. The phrase "Related to" means directly or indirectly, concerning, referring to, reflecting, describing, evidencing, constituting, pertaining to, arising out of or in connection with, or in any way legally, logically or factually be connected with the matter discussed.
20. The phrase "Relevant Period" includes the period from January 1, 2002 through and including the date of this Request (unless otherwise stated herein).
21. The term "Rulebook" means the ATP Official Rulebook and the ATP By-Laws and which contain(s) the ATP's rules, regulations, policies, procedures, and penalties including, but not limited to, each and every draft thereof (first, subsequent, interim and final), each and every revision, modification or amendment proposed thereto (first, subsequent, interim and final), and final versions thereof.
22. The term "Unibet" means that certain online sports betting company including, but not limited to, such entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
III. DOCUMENTS REQUESTED
IMPORTANT-(REFER TO ABOVE DEFINITIONS FOR MEANING OF TERMS).
1. Each and every Communication, Document, and/or Electronic Data in the Relevant Period concerning, referring, relating to, reflecting, and/or evidencing Your commission, retention, and/or hiring in connection with the preparation of the Gunn-Rees Report. 2. Each and every Communication, Document, and/or Electronic Data in the Relevant Period concerning, referring, relating to, reflecting, and/or evidencing any suggested or required guidelines, instructions, directions, policies, protocols, or procedures You were permitted or required to follow in connection with the preparation of the Gunn-Rees Report. 3. Each and every Communication, Document, and/or Electronic Data in the Relevant Period concerning, referring, relating to, reflecting, and/or evidencing any information You obtained, were provided, reviewed, and/or considered in connection with the preparation of the Gunn-Rees Report. 4. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and the ATP concerning, referring, relating to, reflecting, and/or evidencing the Anti-Corruption Program, Bratschi, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Betfair, Interwetten, and/or Unibet. 5. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and the ATP concerning, referring, relating to, reflecting, and/or evidencing offers or proposals to sponsor, or negotiations concerning the sponsorship of, tennis matches, tennis tournaments, and/or tennis events by any Person. 6. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and the Players concerning, referring, relating to, reflecting, and/or evidencing the Anti-Corruption Program, Bratschi, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Betfair, Interwetten, and/or Unibet. 7. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and the Other Players concerning, referring, relating to, reflecting, and/or evidencing the Anti-Corruption Program, Bratschi, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Betfair, Interwetten, and/or Unibet. 8. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and ESSA concerning, referring, relating to, reflecting, and/or evidencing the ATP, the Anti-Corruption Program, Bratschi, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Betfair, Interwetten, and/or Unibet. 9. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and ESSA concerning, referring, relating to, reflecting, and/or evidencing offers or proposals to sponsor, or negotiations concerning the sponsorship of, tennis matches, tennis tournaments, and/or tennis events by any Person. 10. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and Betfair concerning, referring, relating to, reflecting, and/or evidencing the ATP, the Anti-Corruption Program, Bratschi, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Betfair, Interwetten, and/or Unibet. 11. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and Betfair concerning, referring, relating to, reflecting, and/or evidencing offers or proposals to sponsor, or negotiations concerning the sponsorship of, tennis matches, tennis tournaments, and/or tennis events by any Person. 12. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and Interwetten concerning, referring, relating to, reflecting, and/or evidencing the ATP, the Anti-Corruption Program, Bratschi, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Betfair, Interwetten and/or Unibet. 13. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and Interwetten concerning, referring, relating to, reflecting, and/or evidencing offers or proposals to sponsor, or negotiations concerning the sponsorship of, tennis matches, tennis tournaments, and/or tennis events by any Person. 14. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and Unibet concerning, referring, relating to, reflecting, and/or evidencing the ATP, the Anti-Corruption Program, Bratschi, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Betfair, Interwetten, and/or Unibet. 15. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and Unibet concerning, referring, relating to, reflecting, and/or evidencing offers or proposals to sponsor, or negotiations concerning the sponsorship of, tennis matches, tennis tournaments, and/or tennis events by any Person. 16. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and Bratschi concerning, referring, relating to, reflecting, and/or evidencing the ATP, the Anti-Corruption Program, Bratschi, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Betfair, Interwetten and/or Unibet. 17. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and Bratschi concerning, referring, relating to, reflecting, and/or evidencing offers or proposals to sponsor, or negotiations concerning the sponsorship of, tennis matches, tennis tournaments, and/or tennis events by any Person. 18. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and any Person concerning, referring, relating to, reflecting, and/or evidencing the ATP, the Anti-Corruption Program, Bratschi, the Gunn-Rees Report, the Players, the Other Players, the Memorandum of Understanding, the Rulebook, Betfair, Interwetten and/or Unibet. 19. Each and every Communication, Document, and/or Electronic Data in the Relevant Period by and between You and any Person concerning, referring, relating to, reflecting, and/or evidencing offers or proposals to sponsor, or negotiations concerning the sponsorship of, tennis matches, tennis tournaments, and/or tennis events by any Person. 20. Each and every Communication, Document, and/or Electronic Data in the Relevant Period concerning, referring, relating to, reflecting, and/or evidencing proposed, draft, and/or final press or media releases, publications or announcements pertaining to the Gunn-Rees Report. 21. Each and every Communication, Document, and/or Electronic Data by and between You and any Person in the Relevant Period concerning, referring, relating to, and/or evidencing suspected, alleged, or confirmed violations of the Anti-Corruption Program by the Players and/or the Other Players.LETTER ROGATORY
The United States District Court, Middle District of Florida, Jacksonville Division, 301 North Hogan Street, Jacksonville, Florida 32202 to the Appropriate Judicial Authority in Brussels, Belgium, Greetings:An action for Declaratory Judgment and Breach of Fiduciary Duty is pending in our district court for the Middle District of Florida, in which Federico Luzzi, Giorgio Galimberti, Alessio Di Mauro, Potito Starace, and Daniele Bracciali are plaintiffs and ATP Tour, Inc. is defendant, and it has been suggested to us that justice cannot be completely done between the parties without obtaining the testimony, for use at trial, of the corporate representative of the European Sports Security Association ("ESSA"), who does business at 11 Rond Point Schuman, B-1040, Brussels, Belgium located within your jurisdiction.
The United States District Court, Middle District of Florida, has jurisdiction to adjudicate the controversy pending before it, has the power to compel the attendance of witnesses and the production of documents, and is empowered to direct the taking of testimony both inside and outside its jurisdiction.
Plaintiffs, by their counsel of record, have submitted an affidavit that: (i) they intend to use the testimony to be taken and/or the documents to be produced by offering them in evidence at the trial of this action; and (ii) the testimony and documents are not to be used only for a discovery purpose or to support the initiation of a foreign proceeding.
The admissibility of the offer in evidence of such testimony and documents will be ruled on by this Court at the trial.
Plaintiffs contend in the action pending before us that Defendant, ATP Tour, Inc. breached its fiduciary duty with respect to the Plaintiffs. Plaintiffs seek a determination of whether the 2007 Official Rulebook constituted a contract between them and the Defendant, whether the Defendant's administrative proceedings resulting in their suspensions and fines constituted full and fair hearings, whether the Defendant was required to provide them with a copy of a 2007 Memorandum of Understanding with the European Sports Security Association upon which the administrative proceedings were based, and whether the Defendant was permitted to retroactively obtain information and/or documentation concerning the Plaintiffs pursuant to the 2007 Memorandum of Understanding. Plaintiffs contend that they were discriminatorily targeted for selective enforcement of the 2007 Official Rulebook by the Defendant. Plaintiffs have alleged that the Defendant's actions have caused them to suffer extreme financial, emotional and psychological harm and injury including, but not limited to, extreme anxiety over their inability to perform, significant damages to their names, reputations, good will, loss of existing and potential sponsorship funds and contracts, loss of existing and potential employment opportunities, loss of career advancement opportunities, loss of potential prize money, loss of alternative employment opportunities related to the sport of professional tennis, and other significant compensatory, special and consequential damages.
The evidence sought from the corporate representative at ESSA is relevant to the matter now pending before this Court concerning the negotiation, preparation or drafting, execution, and use of the Memorandum of Understanding with the Defendant, ATP Tour, Inc.
Plaintiffs seek to obtain the documents described in the attached Exhibit A.
The evidence is required in order that a just and speedy trial in this matter may ensue and is necessary in the interests of justice to enable this district court to determine the issues pending before it.
WE THEREFORE RESPECTFULLY REQUEST that in the interests of justice, you issue an order by your power and the usual process summoning the corporate representative for ESSA and to bring with him/her all books, papers, or other articles as described in Exhibit A attached, to appear before counsel for Plaintiffs and a duly authorized individual capable of securing an appropriate oath for the procurement of sworn testimony, at Matray Matray Hallet, Allee du Cloitre, 7, B-1000 Bruxelles, for the purpose of giving testimony under oath by question and answers upon oral deposition, to be conducted as an American-style deposition with American counsel present and participating and conducting the examination until completion, on 28 April, 2010 at 10:30 a.m. Brussels standard time if appropriate, or at some other time as established by you with notification of said date and time provided to the undersigned as well as:
Robert F. Elgidely, Esq. John F. Maclennan, Esq. Genovese, Joblove Battista, P.A. Smith Hulsey Busey, P.A. 200 East Broward Boulevard, Suite 1110 225 Water Street, Suite 1800 Fort Lauderdale, Florida 33301 Jacksonville, Florida 32202 Telephone (954) 453-8000 Counsel for Defendant Counsel for Plaintiffs WE FURTHER REQUEST that you cause the examination to be reduced to writing, and that such books, papers, or other articles that said witnesses may identify at the oral examination be marked as exhibits and attested. We request that you cause the materials to be returned to us under cover duly sealed and addressed to the Clerk of the United States District Court for the Middle District of Florida, United States of America. We shall be ready and willing to do the same for you in a similar case when required. We shall reimburse you for any costs incurred in executing the instant Letter Rogatory.EXHIBIT A INSTRUCTIONS AND DEFINITIONS
I. Instructions
A. This document request is continuing in nature. When new knowledge or information comes to your attention you shall supplement the information supplied in the answers to the document request forthwith.
B. This request calls for the production of all responsive documents in your possession, custody or control or available to you, your employees, accountants, attorneys, auditors or other persons acting on your behalf, in your employment, and/or under your direction or the direction of your agents and representatives.
C. For each and every Request herein, you shall produce documents in your possession, custody, or control which shall include, but not be limited to, documents, objects or articles described that are in your possession or for which you have the right to secure the original or a copy from another person or entity. The fact that your investigation is continuing or discovery is incomplete is not an excuse for your failure to respond to each request as fully and completely as possible. Your responses should consist of information known to you through yourself, your agents, your attorneys, your employees, or your representatives. If copies or drafts exist of a document, the production of which has been requested herein, produce and submit for inspection and copying each and every copy and draft which differs in any way from the original document or from any copy or draft.
D. Please organize and label (without permanently marking the item produced) the documents being produced to correspond with the numbered paragraph and each subset thereof to which such documents are responsive. If a document is responsive to more than one document request, each document request to which it is responsive should be identified.
E. If at any time you had possession, custody, or control of any document requested herein, and such document has been lost, destroyed, discarded, or is not presently in your possession, any such documents shall be identified as completely as possible by providing the following information:
1. The name(s) of the author(s) of the document;
2. The name(s) of the person(s) to whom the documents or copies were sent;
3. The date of the document;
4. The date on which the document was received by each addressee, copyee, or its recipients;
5. A complete description of the nature and subject matter of the document;
6. The date on which the document was lost, discarded, or destroyed; and
7. The manner in which the document was lost, discarded, or destroyed.
F. With respect to any document that you withhold under claim of privilege, you shall number such documents, hold them separately, and retain them intact pending a ruling by the Court on the claimed privilege. In addition, you shall provide a statement, signed by an attorney representing you, setting forth as to each such document:
1. The name(s) of the sender(s) or the document;
2. The name(s) of the author(s) of the document;
3. The name(s) of the person(s) to whom the document or copies were sent;
4. The job title of every person named in subparagraphs 1, 2 and 3 above;
5. The date of the document;
6. The date on which the document was received by each addressee, copyee, or its recipient;
7. A brief description of the nature and subject matter of the document; and
8. The statute, rule, or decision which is claimed to give rise to the privilege.
G. If, after exercising due diligence to secure or produce the document(s) requested, you cannot secure responsive documents, you must identify which Request(s) for which you do not have a responsive document, and answer the request for production to the fullest extent possible, specifying your inability to produce the document(s), and providing the identity of the person who has possession, custody, or control of the requested document(s).
H. All words, names, and terms in this request for production shall have their plain and ordinary meanings unless specifically defined in Part II herein.
I. Copies of documents which are identical duplicates of other documents which have already been produced for inspection and copying in this action need not be produced again, except that the duplicates must be produced if handwritten or any other type of notes or similar intelligence appear thereon or are attached thereto, including markings on slips indicating the routing of the document to individuals or organizations.
J. The singular and plural forms shall be construed interchangeably so as to bring within the scope of this document request any information which might otherwise be construed as being outside of the scope of such request.
K. "And" and "or" shall be construed interchangeably so as to bring within the scope of this document request any information which might otherwise be construed as being outside of the scope of such request.
L. "Any" and "all" and "each" and "every" shall be construed to bring within the scope of this request any information which might be construed to relate to the subject matter of the request.
M. The use of the singular form of any word includes the plural and vice versa.
N. Unless otherwise stated herein, the time period encompassed by this Request shall be January 1, 2002 through and including the date of this Request.
II. Definitions
Unless otherwise specified, the following words and terms as used herein shall, when utilized, mean as follows:
1. When an entity other than an individual is referred to, such reference includes that entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present). When an individual is referred to, such reference includes any corporation, partnership, trust, unincorporated association or other entity in which the individual had or has any ownership interest or over which the individual exercised or exercises any degree of control (past or present).
2. The phrase "Anti-Corruption Program" means the "Tennis Anti-Corruption Program" contained in the ATP's (as defined below) Rulebook (as defined below) including, but not limited to, each and every draft thereof (first, subsequent, interim and final), each and every revision, modification or amendment proposed thereto (first, subsequent, interim and final), and final versions thereof (whether incorporated into the "Rulebook" (as defined below) or otherwise.
3. The term "ATP," means the ATP Tour, Inc. including, but not limited to, such entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
4. The term "Betfair" means that certain online sports betting company including, but not limited to, such entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
5. The term "Communication" means any written or oral statement, dialogue, colloquialism, discussion, conversation or agreement of any kind or character, including, by way of example and without limitation, any act or instance whereby messages, facts, data or any other information is transmitted orally, visually, in writing, electronically or by any other means or media from natural person or firm to another (e.g., personal conversations, telephone conversations, letters, e-mails, meetings, memoranda, telegraphic and telex communications or transmittals of documents), any manner or form of information, memorandum or notes or message transmission, however produced or reproduced, whether by "document" as herein defined or orally or otherwise, which was distributed or circulated between or among persons, or data storage or processing units and any and all documents containing, consisting of, or relating or referring, in any way, either directly or indirectly to, a communication.
6. The terms "concern" or "concerning" means relating to, referring to, connected with, commenting on, responding to, supporting, mentioning, containing, evidencing, showing, memorializing, describing, analyzing, reflecting, comprising or constituting.
7. The term "Document" shall have a synonymous meaning equal in scope to the usage of the term in Rule 34(a) of the Federal Rules of Civil Procedure and shall include, but shall not be limited to, the original and all drafts of all written and graphic matter, however produced or reproduced, of any kind or description, whether or not approved, signed, sent, received, re-drafted or executed, and all copies thereof which are different in any way from the original (whether by interlineation, date-stamp, notation, indication of copies sent or received, or otherwise), including, without limitation, any E-mail(s), paper, letter, correspondence, memoranda (including interoffice and intraoffice memoranda), notes, memoranda for files, memoranda of telephone or other conversation, announcement, bulletin, press release, newspaper or magazine article, pamphlet, circulars, advertising material, studies, analysis, statistics, surveys, drawing, sketch, schematic, chart, graph, investigation, study, working paper, summary, report, opinion, table, schedule, extract, blueprint, portfolio, ledger, worksheet, prospectus, financial projection, financial statement, financial schedule, book, note, notation, message slip, telegram, telex and telecopier message, agreement, contract, object, record, transcript, hearing, meeting, diary, or other communication, chronological data, minutes, agendas, transcriptions, record, report, invoice, receipt, return, computer printout or other computer derived data, schedule, affidavit, cancelled check, check stub, delivery ticket, bill of lading, graph or aural records or representations of any kind, including without limitation, photographic matter, microfiche, microfilm, video-tape, motion picture and electronic, all mechanical or electronic sound recordings or transcripts thereof (including without limitation tapes, cassettes, discs and recordings) in Your possession, custody, and/or control, or Your agents, representatives or attorneys, unless privileged, or of which You have knowledge.
8. The phrase "Electronic Data" includes, by way of example only, all electronic data storage documents, electronic mail (commonly referred to as "e-mails") and any related attachments, computer programs, programming notes or instructions, activity listings of electronic mail receipts and/or transmittals, output resulting from the use of any software program, including word processing documents, spread sheets, data base files, charts, graphs and outlines, operating systems, source code of all types, peripheral drivers, batch files, and any and all miscellaneous files and/or file fragments, regardless of the media on which they reside and regardless of whether said electronic data consists in any active file, deleted file or file fragment, including deleted electronic data if such data can be undeleted or recovered by any means. Your search for Electronic Data shall include, but shall not be limited to, all of your computer hard drives, floppy or compact disks, backup and archival tapes, removable media such as zip or external hard drives, password protected and encrypted files, databases, electronic calendars, personal digital assistants, proprietary software and inactive or unused computer disc storage areas. All Electronic Data produced shall be produced in its native format, and all requests expressly include requests for all metadata associated with the files to be produced.
9. The term "ESSA," "You" or "Your" means the European Sports Security Association including, but not limited to, such entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
10. The term "Interwetten" means that certain online sports betting company including, but not limited to, such entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
11. The phrase "Memorandum of Understanding" means that certain Memorandum of Understanding by and between ESSA and the ATP that concerns, refers, relates to, reflects, and/or evidences interactions, transactions, and/or activities between the Players, the Other Players, and/or online sports betting companies including, but not limited to, each and every draft thereof (first, subsequent, interim and final), each and every revision, modification or amendment proposed thereto (first, subsequent, interim and final), and final versions thereof.
12. The phrase "Other Players" means current or former, active or inactive, members of the ATP other than the "Players" (as defined below) including, but not limited to, any individual or entity acting or purporting to act on their behalves, individually or collectively, (past or present), and any corporation, partnership, trust, unincorporated association or other entity in which they, individually or collectively, had or have any ownership interest or over which they, individually or collectively, exercised or exercises any degree of control, including its/their predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
13. The term "person" includes natural persons, proprietorships, partnerships, firms, corporations, institutions, bodies, joint ventures, estates, trusts, receivers, public corporations, other forms of legal entity, municipal corporations, federal, state and local governments, all departments and agencies thereof, and any other governmental agencies, political subdivisions, groups, associations or organizations, and any other group or combination acting as an entity including, but not limited to, "Betfair," "ESSA," "Interwetten," and "Unibet" (as defined herein).
14. The term "Players" means Federico Luzzi, Giorgio Galimberti, Alessio Di Mauro, Potito Starace, Daniele Bracciali, individually and/or collectively, including, but not limited to, any individual or entity acting or purporting to act on their behalves, individually or collectively, (past or present), and any corporation, partnership, trust, unincorporated association or other entity in which they, individually or collectively, had or have any ownership interest or over which they, individually or collectively, exercised or exercises any degree of control, including its/their predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).
15. The terms "possession," "custody," or "control" include the joint or several possession, custody or control not only by the person or entity to whom these requests are directed, but also the joint and several possession, custody or control by each or any other person or entity acting or purporting to act on behalf of said person or entity, whether as an employee, attorney, accountant, agent, sponsor, spokesperson, or otherwise.
16. The phrase "Related to" means directly or indirectly, concerning, referring to, reflecting, describing, evidencing, constituting, pertaining to, arising out of or in connection with, or in any way legally, logically or factually be connected with the matter discussed.
17. The phrase "Relevant Period" includes the period from January 1, 2002 through and including the date of this Request (unless otherwise stated herein).
18. The term "Rulebook" means the ATP Official Rulebook and the ATP By-Laws and which contain(s) the ATP's rules, regulations, policies, procedures, and penalties including, but not limited to, each and every draft thereof (first, subsequent, interim and final), each and every revision, modification or amendment proposed thereto (first, subsequent, interim and final), and final versions thereof.
19. The term "Unibet" means that certain online sports betting company including, but not limited to, such entity's predecessors, successors, parents, subsidiaries (direct or indirect), affiliates, divisions, groups and other operational or functional units, each officer, director, employee, agent, or representative of any of the foregoing entities, and each person acting or authorized to act on behalf of any of the foregoing (past or present).