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Home My WebLink About09-2700SAUL EWING LLP Matthew M. Haar (85688) 2 N. Second Street, 7"' Floor Harrisburg, PA 17101 717-257-7508 mhaar@saul.com KEVIN JACKAM and KATHRYN JACKAM, Plaintiffs, V. NATURE'S BOUNTY, INC. and NBTY, INC., Defendants. Attorneys for Movants/Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, : PENNSYLVANIA . No. 0?J- s770? : CIVIL ACTION DEFENDANTS' MOTION FOR ISSUANCE OF A SUBPOENA Pursuant to Pennsylvania Rule of Civil Procedure 234.1 and 42 Pa. C.S.A. § 5326(a), Movants Nature's Bounty, Inc. and NBTY, Inc. ("Defendants") hereby request that the Court order the Prothonotary to issue a subpoena to attend and testify and compel the production of documents and things directed to Rite Aid Corporation ("Rite Aid"), and in support thereof aver as follows: Defendants are parties to a civil action pending before the Supreme Court for the County of Suffolk, New York (the "New York Court"), captioned Kevin Jackam and Kathryn Jackam v. Nature's Bounty, Inc. and NBTY, Inc., Case No. 26817-04 (the "New York Action"). 2. Defendants, by and through their New York counsel, filed in the New York Court an Application for an Open Commission, asking that the New York Court cause the issuance of a subpoena for production of documents to be served upon Rite Aid. 150153.1 4[30/09 3. On April 13, 2009, the Honorable John J.J. Jones, Jr. of the New York Court granted Defendants' application and granted the request for an open commission for the requested production of documents and a deposition. A certified copy of the Order Granting Open commission is attached hereto as Exhibit A. 4. The Order Granting Open Commission requires the deposition of Rite Aid to be conducted within sixty days from the date of the open commission. See Exh. A at p. 2. 5. Section 5326 of the Pennsylvania Judiciary Code provides that 1a] court of record of this Commonwealth may order a person who is domiciled or is found within this Commonwealth to give his testimony or statement or to produce documents or other things for use in a matter pending in a tribunal outside this Commonwealth." 42 Pa. C.S.A § 5326(a). 6. Defendants made a motion for commission in the New York Action. Plaintiffs opposed that motion. The New York Court ruled in favor of the Defendants, and ordered the issuance of the attached Open Commission. 7. No Judge of this Court has had prior involvement in this action. g. Defendants respectfully request that the Court issue an Order directing the Prothonotary to issue the attached subpoena. A copy of the proposed subpoena is attached hereto as Exhibit B. 150153.1 4130/09 -2- WHEREFORE, Defendants respectfully request that the Court grant their motion, order the Prothonotary to issue the attached subpoena, and grant such further relief as the Court deems just and equitable. Respectfully submitted, Dated: April 30, 2009 Matthbw NY. Haar, Escr(85688) SAUL EWING LLP 2 North Second Street, 7'h Floor Harrisburg, PA 17101 (717) 257-7508 Attorneys for Movants/Defendants Of Counsel for Movants/Defendants: John P. McEntee, Esquire David A. Scheffel, Esquire Farrell Fritz, PC 1320 RexCorp Plaza Uniondale, NY 11556-1320 Michael J. Suffern, Esquire Jennifer Snyder Heis, Esquire Ulmer & Berne, LLP 600 Vine Street, Suite 2800 Cincinnati, OH 45202 150153.14130/09 -3- SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK KEVIN JACKAM and KATHRYN JACKAM, Plaintiffs, Against NATURE'S BOUNTY, INC. AND NBTY, INC., Defendants. s 41 k i n IBS IW% PW to ap" 00A of New York, held In W d for VO mak at *002 Cott Mows. K,vfc-IvA Now Yc* an the J1f day of A Index No. 26817-04 OPEN COMMISSION TO: Cumberland County, Pennsylvania Court of Common Pleas FROM: The Honorable John J.J. Jones, Jr., Supreme Court of the State of New York, County of Suffolk The above-styled action is pending in the Supreme Court of New York, County of Suffolk. The undersigned Hon. John J.J. Jones, Jr. is the judge assigned to the action. Defendants Nature's Bounty, Inc., and NBTY, Inc. ("Defendants"), have advised the undersigned that they have a need to obtain production of documents from Rite Aid Corporation and an oral deposition from the person most knowledgeable regarding the inventory procedures of Eckerd Drug Stores (now owned by Rite Aid Corporation) during 2003. Rite Aid Corporation is headquartered in Camp Hill, Cumberland County, Pennsylvania. Defendants have made an application for an open commission under the applicable provisions of New York law, asking that the undersigned request you to cause the issuance of a subpoena for production of documents and a deposition to be served upon Rite Aid Corporation. The undersigned has granted the request for an open commission, and hereby issues the same. ? ? e ? 5Vp & .. Therefore, pursuant to 42 Pa. C.S. §5326, the undersigned requests that you cause a subpoena for the production of documents and for appearance at deposition to issue to Rite Aid Corporation. Such deposition shall be conducted within sixty (60) days from the date of this open commission. Expenses incurred in connection with the examination shall be paid by the respective parties and may be taxed as disbursements by the prevailing litigant. _f r ! Dated Z3 o_6%3 fiHE H J+oe' eme Cork, Judge he Supr County of Su-Wolk Requesting Attorneys for Defendants: Gl ANWD John McEntee APR 13 2009 Brian Doyle FARRELL FRITZ, PC JUDITH A. PASCALE EAB Plaza CLERK OF SUFFOLK COUNTY 1320 RexCorp Plaza Uniondale, New York 11556-1320 (516) 227-0700 Fax: (516) 227-0777 Michael J. Suffern (pro hac vice) Jennifer Snyder Heis (pro hac vice) ULMER & BERNE LLP 600 Vine Street, Suite 2800 Cincinnati, Ohio 45202 (513) 698-5000 Fax: (513) 698-5001 2 CC # : C09-16444 COUNTY CLERK'S OFFICE STATE OF NEW YORK COUNTY OF SUFFOLK I, JUDITH A. PASCALE, Clerk of the County of Suffolk and the Court of Record thereof do hereby certify that I have compared the annexed with the original COMMISSION filed in my office on 0411512009 and, that the same is a true copy thereof, and of the whole of such original. In Testimony Whereof, I have hereunto set my hand and affixed the seal of said County and Court this 04/24/2009 SUFFOLK COUNTY CLERK JUDITH A. PASCALE SEAL COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND KEVIN JACKAM and KATHRYN JACKAM, Plaintiffs, V. , No. NATURE'S BOUNTY, INC. and NBTY, INC., Defendants. CIVIL ACTION SUBPOENA TO ATTEND AND TESTIFY TO: Rite Aid Corporation 30 Hunter Lane Camp Hill PA 17011 **Pursuant to Pa R Civ. P 4007 1(ee) the matters to be inquired into are described in the attached Exhibit A. You are ordered by the court to come to Saul Ewing LLP 2 North Second Street 7`h Floor Harrisburg PA 17101 (Specify Courtroom or other place) on Max 28 2009 at 9:00 o'clock, A.M., to testify on behalf of Defendants Nature's Bounty, Inc. and NBTY. Inc. in the above case, and to remain until excused. 2. And bring with you the following: See Exhibit B for documents requested If you fail to attend or to produce the documents or things required by this subpoena, you may be subject to the sanctions authorized by Rule 234.5of the Pennsylvania Rules of Civil Procedure, including but not limited to costs, attorney fees and imprisonment. REQUESTED BY A PARTY/ATTORNEY IN COMPLIANCE WITH Pa.R.C.P.No.234.2(a): Name: Matthew M. Haar, Esquire Address: 2 N. Second Street, 7" Floor Harrisburg, PA 17101 Telephone: 717-257-7508 Supreme Court ID# 85688 BY THE COURT: Prothonotary/Clerk, Civil Division Date: Seal of the Court Deputy 150153.14/30/09 EXHIBIT A Pursuant to Pa. R. Civ. P. 4007.1(e) you are required to serve a designation of one or more officers, directors or managing agents, or other persons who consent to testify on behalf of Rite Aid Corporation, regarding each of the following matters to be inquired into: 1) Inventory procedures of Eckerd Drug stores located in Georgia in 2003, and 2) Procedures regarding return of ephedra-containing products to their manufacturers. 150153.2 4/30109 EXHIBIT B Produce the following categories of documents: 1. All documents regarding the shipment, sale, or return of ephedra-containing Xtreme Lean from March 1, 2003, through September 30, 2003, pertaining to the following Eckerd stores: • Eckerd 42157, Fayetteville, Georgia • Eckerd #0203, Riverdale, Georgia • Eckerd #8234, Decatur, Georgia • Eckerd #3366, Decatur, Georgia • Eckerd #3490, Fayetteville, Georgia 2. All inventory records for ephedra-containing Xtreme Lean from March 1, 2003, through September 30, 2003, pertaining to the following Eckerd stores: • Eckerd #2157, Fayetteville, Georgia • Eckerd #0203, Riverdale, Georgia • Eckerd #8234, Decatur, Georgia • Eckerd #3366, Decatur, Georgia • Eckerd #3490, Fayetteville, Georgia 3. All records regarding Eckerd's response to Nature's Bounty's March 14, 2003, notice that it had discontinued ephedra-containing Xtreme Lean and deleted all outstanding orders for the product. 3. All records regarding discontinuation of the sale of ephedra-containing products in Eckerd stores. 4. All records regarding Eckerd's procedures for returning ephedra-containing products to their manufacturers. 150153.2 4/30/09 -2- CERTIFICATE OF SERVICE I hereby certify that on April 30, 2009,1 served a true and correct copy of the foregoing Defendants' Motion for Issuance of a Subpoena via first class mail, postage prepaid, upon the following counsel of record: Theodore Oshman, Esquire Oshman & Mirisola, LLP 90 Williams Street New York, NY 10039 Attorneys for Plaintiffs John P. McEntee, Esquire David A. Scheffel, Esquire Farrell Fritz, PC 1320 RexCorp Plaza Uniondale, NY 11556-1320 Attorneys for Defendants Michael J. Suffern, Esquire Jennifer Snyder Heis, Esquire Ulmer & Berne, LLP 600 Vine Street, Suite 2800 Cincinnati, OH 45202 Attorneys for Defendants Matthew M. Haar 150153.14/30/09 "T THE Ir"TARY 20 09 APR 30 Ail 11 r PKrt is??vsi 5 APR 3 0 2009 KEVIN JACKAM and KATHRYN : IN THE COURT OF COMMON PLEAS OF JACKAM, : CUMBERLAND COUNTY, Plaintiffs, : PENNSYLVANIA V. No.(// -d 7d64 NATURE'S BOUNTY, INC. and NBTY, INC., Defendants. CIVIL ACTION ORDER AND NOW, this _1day of2009, upon consideration of the Defendants' Motion for Issuance of a Subpoena, IT IS HEREBY ORDERED that the Motion is GRANTED. The Prothonotary is directed to issue the subpoena attached to the Motion upon presentation of a copy by counsel and the payment of applicable fees. BY THE COURT J. tribution: ?Matthew M. Haar, Esq., Saul Ewing LLP, 2 N. Second Street, 7th Floor, Harrisburg, PA 17101 - 717-257-7508 - mhaar@saul.com (Counsel for Movants/Defendants) ,,?Ohn P. McEntee, Esquire, David A. Scheffel, Esquire, Farrell Fritz, PC, 1320 RexCorp Plaza, Uniondale, NY 11556-1320 - (516) 227-0700 - jmcentee@farrellfritz.com (Counsel for Movants/Defendants) /Michael J. Suffern, Esquire, Jennifer Snyder Heis, Esquire, Ulmer & Berne LLP, 600 Vine Street, Suite 2800, Cincinnati, OH 45202 - (513) 698-5058 -jheis@ulmer.com (Counsel for Movants/Defendants) ,,-1 eodore Oshman, Esquire, Oshman & Mirisola, LLP, 90 Williams Street, New York, NY 10039 - (800) 400-8182 - oshmanlaw@yahoo.com (Counsel for Plaintiffs) Olop I 'CS /Y ZLt2 k 150153.1 4130109 a S d ?t- kvw 6001