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Home My WebLink About04-4106CONRAD O'BRIEN GELLMAN & ROHN BY: John A. Guernsey Kelly G. Huller I.D. Nos. 25730 & 78966 1515 Market Street Sixteenth Floor Philadelphia, PA 19102-1916 (215) 864-9600 Attorneys for Plaintiff Boston Partners Asset Management, L.P. BOSTON PARTNERS ASSET MANAGEMENT, L.P., 28 State Street Boston, MA 02109 Plaintiff, WAYNE ARCHAMBO 1 Boston Place 32na Floor Boston, MA 02108 and BLACKROCK CAPITAL MANAGEMENT INC., 40 E. 52"a Street New York, NY 10022 and BLACKROCK, INC. 40 E. 52nd Street New York, NY 10022 CUMBERLAND COUNTY COURT OF COMMON PLEAS TRIAL DIVISION Term, 2004 Defendants. : PETITION FOR ISSUANCE OF FOREIGN SUBPOENA TO TAKE DEPOSITIONS AND PRODUCE DOCUM~ENTS Pursuant to Pa.R.C.P. 234.1 and 42 Pa.C.S.A. § 5326, the issuance of a subpoena foreign is requested on the following grounds: 1. Petitioner is Boston Partners Asset Management, L.P., plaintiff above named. 2. The action underlying this Petition is a matter currently pending in the Superior Court of Massachusetts captioned as Boston Partners Asset Management. L.P.v. Wayne Archan~bo. et al, Commonwealth of Massachusetts, Superior Court, Suffolk, No. 02-5614. 3. Petitioners, by their Massachusetts counsel, filed for Letters Rogatory, to take the deposition of the following persons and produce documents at 5401 Carlise Pike, Mechanicsburg, PA 17050, at the date and time set forth below: Corporate Designee Highmark, Inc. 1800 Center Street Camp Hill, PA 17011 Joseph F. Reichard Highmark, Inc. 1800 Center Street Camp Hill, PA 17011 9:00 A.M. August 24, 2004 11:00 A.M. August 24, 2004 4. On July 20, 2004, the Superior Court of Massachusetts granted petitioners motion and issued Letters Rogatory concerning the deposition and production of documents of a corporate designee of Higlm~ark, Inc. (a true and correct original of which is attached hereto as Exhibit "A"), and Joseph F. Reichard (a true and correct original of which is attached hereto as Exhibit "B"). The Letters Rogatory request that this Court issue a subpoena for the deposition and production of documents from Mr. Reichard and the corporate designee of Higlunark, Inc. 5. Mr. Reichard and the Highmark, Inc. corporate designee have information relevant to and necessary for the trial of the above action, and the personal attendance of these witnesses cannot be procured at trial; therefore, a deposition and production of documents is required to obtain the relevant information. Petitioner requires the issuance ora subpoena by this Court to compel the attendance of Mr. Reichard and the corporate designee of Highmark, Inc. and production of documents as set forth in Schedules attached to Exhibits "A" and "B", attached hereto. 6. Under the Uniform Interstate and International Procedure Act, 42 Pa.C.S.A. § 5321 et seq., this Court has the authority to "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). 7. Mr. Reichard and the Highmark, Inc. corporate designee will be accorded all courtesies customarily enjoyed by non-party deposition witnesses in a Pennsylvania lawsuit including, but certainly not limited to, the right to be represented by core,scl of their own choosing at the deposition. 8. The depositions will be scheduled for August 24, 2004 at 9:00 a,m. and 11:00 a.m., or at such other date, time and place as is mutually convenient to the petitioners, the witness and opposing parties in the above-referenced action, and will continue from day to day thereafter until completed. 9. The deponents and other parties will be given prompt notice of the deposition and copies of this Petition, the Court's Order sur this Petition and the deposition subpoena. WHEREFORE, plaintiff Boston Partners Asset Management, L.P. respectfully requests that this Court enter an Order directing the issuance of a subpoena for the taking of the oral deposition of and production of documents from Richard F. Reichard and the corporate designee of Highmark, Inc. Respectfully submitted, I.D. Nos. 25730 & 78966 1515 Market Street Sixteenth Floor Philadelphia, PA 19102-1916 (215) 864-9600 Dated: August 18, 2004 Attorneys for Plaintiff Boston Partners Asset Management, L.P. 4 Exhibit A SUFFOLK, ss. NOTIFY COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT C. A. NO. 02-5614 BOSTON PARTNERS ASSET MANAGEMENT, L.P., Plaintiff, WAYNE ARCHAMBO, ) BLACKROCK CAPITAL MANAGEMENT ) INC., and ) BLACK-ROCK, INC., ) Defendants. ) ) BOSTON PARTNERS ASSET MANAGEMENT, L.L.C.'S MOTION FOR A LETTER ROGATORY PURSUANT TO MASS. GEN. LAWS CH. 223A ~ 10 Pursuant to Mass. Gen. L. c. 223A, § 10(a) and Mass. R. Civ. P. 28(a), Boston Partners Asset Management, L.L.C. ("Boston Partners") moves this Honorable Court to order the issuance by the Clerk of the Court of a Letter Rogatory, in the form attached hereto, to be directed to the appropriate judicial authority in the Commonwealth of Pennsylvania, requesting a subpoena or other court order to compel the production of documents and the deposition upon oral testimony of the corporate designee of Highmark, Inc. ("Highmark"). As grounds for this motion, Boston Partners states: 1. This action involves Boston Partners' claims that Defendants disparaged Boston Panners to certain third parties. 2. Through discovery, Boston Partners has uncovered the identity of third parties to whom Defendants made these disparaging statements and/or the identity of third parties who may have been present when such statements were made. Highmark is a third party who is believed to have knowledge relevant to the disparaging statements made by Defendants. 3. The witness is located outside of the Commonwealth of Massachusetts at 1800 Center Street, Camp Hill, Pennsylvania. 4. Mass. Gen. L. c. 223A, § 10(a) provides that a "deposition to obtain testimony... in an action pending in this commonwealth may be taken outside this commonwealth..." Section 10(b) states that a "letter rogatory shall be issued after notice and application to the court, and on terms that are just and appropriate." The proposed letter rogatory, which is filed herewith, complies with all procedural requirements and is "just and appropriate" given the role of Highmark in this case. WHEREFORE, Boston Partners respectfully requests that the Court allow this motion and enter an order instructing the Clerk of this Honorable Court to issue a Letter Rogatory so that the approval of the Clerk of Courts in Cumberland County, in the Commonwealth of Pennsylvania, may be obtained and so that a subpoena may be issued by the appropriate judicial authority in the jurisdiction compelling the attendance at a deposition to give evidence upon oral examination. I certify that t served the foregoing document on alt counsel of record. Dated: June ~, 2004 BOSTON PARTNERS ASSET MANAGEMENT, L.L.C. By its attorneys, Scott A. Birnbaum (BBO ~(.~/543834) Robert N. Fcldman (BBO # 630734) Mclissa M. Longo (BBO # 647649) BIRNBAUM & ASSOCIATES, P.C. 268 Summer Street Boston, MA 02210-1108 (617) 542-3100 · I*IERI~Y ATTE~'.,~IO CERTIFY ON FOREQOINO I~OCUMENT 18 A FULL, TRUE ANO CORRECT COPY O~ THE ORIGINAL ON FiLE IN MY OFFICE, AND IN MY LEGAL OUSTODY, M;CHAEL JOSEP~H DONOVAN CLERK I MAGISTI~ATE SUFFOLK SUPERIOR CIVIL COURT 2 61 COMMONWEALTH OF MASSACHUSETTS Superior Court Department of the Trial Court Suffolk County 810 U.S. Post Office & Courthouse 90 Devonshire Street Boston, MA 02109 To the Appropriate Authority in Cumberland County, Camp Hill, Pennsylvania Re: Boston Partners Asset Management, L.L.C.v. Wayne Archambo, BlackRock Capital Management, Inc. and BlackRock, Inc. Commonwealth of Massachusetts Trial Court Suffolk County Suffolk Superior Court Civil Action No. 02-5614 LETTER ROGATORY Dear Sir or Madam: The above-captioned civil action is pending before the undersigned justice of the Superior Court of the Commonwealth of Massachusetts. A party to the action, Boston Partners Asset Management, L.L.C., seeks to take the depositio~l~pon oral examination, afl,d, the production of documents, of the/c~rporate designee offl:Iighmark Inc. ("Highmark), who Boston Partners states is a resident of 'Camp Hill, Pennsylvania, and is not expected to come to Massachusetts. Accordingly, the corporate designee of Highmark is not subject to service of a subpoena issued in Massachusetts, and his appearance and the production of documents can be compelled only by process issued by the appropriate authority in Pennsylvania. The Superior Court Department of the Trial Court of the Commonwealth of Massachusetts requests this assistance from you in order to allow Boston Partners to gather evidence and properly prepare for trial. The place, date, and time of taking the deposition are as follows: Tuesday, August 24, 2004, 9:00AM 5401 Carlisle Pike Mechanicsburg, PA 17050 This Letter Rogatory is directed to you pursuant to Massachusetts General Laws, c. 223A, § 10(b), as a formal request for your approval of the taking of the deposition. This Letter Rogatory is also directed to you so that you might issue, or permit to be issued, and/or serve, or permit to be served, as a matter of comity, an appropriate subpoena on the corporate designee of Highmark to appear for the purpose of producing documents or other things described in the attached Schedule A, and giviug evidence upon oral examination on the issues identified in the attached Schedule B. If there are any costs or fees in connection with this request, or the issuance of the service of process, they should be the responsibility of the following counsel for Boston Partners: Scott A. Birnbaum Birnbaum & Associates, P.C. 268 Summer Street Boston, MA 02210 (617) 542-3100 Fax: (617) 542-3111 Thank you for your courtesy and cooperation in this request for assistance. cc: Counsel of record. By the Court ~R~¥ ATTE~$T AND CERllFY ON DOCUMENT 18 A FULL, ~R~T COPY ~ ~E ~ ~ IN MY OFFICE, ~GAL CUSTODZ ~AE[ JOSEPH DONGVAN ~RK I MAG~ST~TE ~FOLK SUPERIOR CIVIL C~URT SCHEDULE A For puq)oses of Schedules A and B, the following definitions shall apply: A. "You", "Your" and "Highmark" mean and refer to Highmark, its officers, directors, employees, agents, and attorneys. B. "Boston Partners" means and refers to means and refers to Boston Partners Asset Management, L.L.C., formerly known as Boston Partners Asset Management L.P., its partners, officers, members, employees and agents. C. "Archambo" means and refers to Wayne Archambo, his agents and attorneys. D. "BlackRock" means and refers to BlackRock, Inc, and/or BlackRock Capital Management, Inc., their officer, directors, employees, agents, affiliates and attorneys. E. The term "communication" means the transmittal of information (in the form of facts, ideas, inquiries, or otherwise) by any and all means. Email is specifically included within "communication." F. The term "document" means and refers to any written or other recorded electronic, graphic or photographic matter or other data compilations from which information can be obtained (or translated, if necessary, by you into reasonably usable form) of every kind or character, however produced or reproduced. Electronically archived and backed-up files are specifically included within this definition. If copies of documents are not identical to the originals for any reason, including handwritten notations, initials or identifying marks, each non-identical copy is a separate document within the meaning of this definition. Relevant Time Period Unless otherwise indicated, documents are requested from January 1, 2001 through the present. Documents Requested 1. All documents and/or communications concerning the termination of Boston Partners as Highmark's investment manager. 2, All documents and/or communications with BlackRock, Wayne Archambo and/or any investment consultant concerning Boston Partners. 3. All documents and/or communications concerning Highmark's decision to invest in funds and/or accounts managed by BlackRock and/or Wayne Archambo. SCHEDULE B I. The termination of Boston Partners as Highmark's investment manager, including all reasons therefor. 2. The retention of BlackRock and/or Wayne Archambo as Highmark's investment manager, including all reasons therefor. 3. Any search for investment managers to replace Boston Partners. 4. Communications either directly with BlackRock and/or Wayne Archambo, or indirectly with investment consultants, concerning Boston Partners. 5. Highmark's assets under management that are managed by BlackRock and/or Amhambo. 6. All management fees paid by Highmark to BlackRock and/or Archambo. 7. Highmark's communications with any investment consultant concerning Boston Partners. Exhibit B SUFFOLK, ss. NOTIFY COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT C. A. NO. 02-5614 BOSTON PARTNERS ASSET MANAGEMENT, L.P., Plaintiff, WAYNE ARCHAMBO, BLACKROCK CAPITAL MANAGEMENT 1NC., and BLACKROCK, INC., Defendants. ) i( ) , ) ) ) BOSTON PARTNERS ASSET MANAGEMENT, L.L.C.'S MOTION FOR A LETTER ROGATORY PURSUANT TO MASS. GEN. LAWS CH. 223A ~ 10 Pursuant to Mass. Gen. L. c. 223A, § 10(a) and Mass. R. Civ. P. 28(a), Boston Partners Asset Management, L.L.C. ("Boston Partners") moves this Honorable Court to order the issuance by the Clerk of the Court of a Letter Rogatory, in the form attached hereto, to be directed to the appropriate judicial authority in the Commonwealth of Pem~sylvania, requesting a subpoena or other court order to compel the deposition upon oral testimony ,and the production of documents, of~*toseph F. Reichard ("Mr. Re/chard"). As grounds for this motion, Boston Partners states: 1. This action involves Boston Partners' claims that Defendants disparaged Boston Partners to certain third parties. 2. Through discovery, Boston Partners has uncovered the identity of third parties to whom Defendants made these disparaging statements and/or the identity of third parties who may have been present when such statements were made. Mr. Reichard is a third party who is believed to have knowledge relevant to the disparaging statements made by Defendants. 3. The witness is located outside of the Commonwealth of Massachusetts at 1800 Center St., Camp Hill, Pennsylvania. 4. Mass. Gen. L. c. 223A, § 10(a) provides that a "deposition to obtain testimony... in an action pending in this commonwealth may be taken outside this commonwealth..." Section 10(b) states that a "letter rogatory shall be issued after notice and application to the court, and on terms that are just and appropriate." The proposed letter rogatory, which is filed herewith, complies with all procedural requirements and is "just and appropriate" given the role of Mr. Reichard in this case. WHEREFORE, Boston Partners respectfully requests that the Court allow this motion and enter an order instructing the Clerk of this Honorable Court to issue a Letter Rogatory so that the approval of the Clerk of Courts in Cumberland County, in the CorrLmonwealth of Pennsylvania, may be obtained and so that a subpoena may be issued by the appropriate judicial authority in the jurisdiction compelling the attendance at a deposition to give evidence upon oral examination. the foregoing documen,* on al{ copnsel of record , Oil . Dated: June J~, 2004 BOSTON PARTNERS ASSET MANAGEMENT, L.L.C. By its attorneys, Scott A. Bimbanm (BBO tt~43834) Robert N. Feldman (BBO # 630734) Melissa M. Longo (BBO # 647649) BIRNBAUM & ASSOCIATES, P.C. 268 Summer Street .~,~v,~.rm~v~o c~m~Fv o~__ ~ Boston, MA 02210-1 I08 (617) 542-31 O0 f-~nlO~l~/~/--~ocu~ ~s ~ C~ COPY ~ m ~ IN ~ ~GAL CUSTODY. ~. ~RK I MAGIS~TE ~ , ~;oc;suP~;OaC~[c°~ZT.T ~; /, ~T ~ THE TR~ 63 COMMONWEALTH OF MASSACHUSETTS Superior Court Department of the Trial Court Suffolk County 810 U.S. Post Office & Courthouse 90 Devonshire Street Boston, MA 02109 To the Appropriate Authority in Cumberland County, Camp Hill, Pennsylvania Re: Boston Partners Asset Management, L.L.C.v. Wa,me Archambo, BlackRock Capital Management, Inc. and BlackRock, Inc. Commonwealth of Massachusetts Trial Court Suffolk County Suffolk Superior Court Civil Action No. 02-5614 LETTER ROGATORY Dear Sir or Madam: The above-captioned civil action is pending before the undersigued justice of the Superior Court of the Commonwealth of Massachusetts. A party to the action, Boston Partners Asset Management, L.L.C., seeks to take the deposition upon oral examination, and the production of documents, of Joseph F. Reichard ("Mr. Reichard"), who Boston Partners states is a resident of Camp Hill, Pennsylvania, and is not expected to come to Massachusetts. Accordingly, Mr. Reichard is not sub,ject to service of a subpoena issued in Massachusetts, and his appearance can be compelled only by process issued by the appropriate authority in Pennsylvania. The Superior Court Department of the Trial Court of the Commonwealth of Massachusetts requests this assistance fi.om you in order to allow Boston Partners to gather evidence and properly prepare for trial. The place, date, and time of taking the deposition are as follows: Tuesday, August 24, 2004, 11:00AM 5401 Carlisle Pike Mcchanicsburg, PA 17050 This Letter Rogatory is directed to you pursuant to Massachusetts General Laws, c. 223A, § 10Co), as a formal request for your approval of the taking of the deposition. This Letter Rogatory is also directed to you so that you might issue, or permit to bo issued, and/or serve, or permit to be served, as a matter of comity, an appropriate subpoena on Mr. Reichard to appear for the purpose of producing documents or other things described in the attached Schedule A, a~u! giving evidence upon oral examination. If there arc any costs or fees in connection with this request, or the issuance of the service of process, they should be the responsibility of the following counsel for Boston Partners: Scott A. Bimbaum Bimbaum & Associates, P.C. 268 Summer Street Boston, MA 02210 (617) 542-3100 Fax: (617) 542-3111 Thank you for your courtesy and cooperation in this request for assistance. By the Court cc: Counsel of record. F~INO DOCUMENT I~ A FULL., TRUE AND DORRECT COPY OF TT4E ORtGINAL ON FILJE IR MY OFFICE, AND IN lAY LEGAL CUSTODY. MICHAEL JOSEI~4 DO~OVAN CLERK ! MAGISTRATE SUFFOLK SUPERIOR CIVIL COURT SCHEDULE A For purposes of Schedule A , the following definitions shall apply: A. "Highmark" mean and refer to Highmark, its officers, directors, employees, agents, and attorneys. B. "Boston Partners" means and refers to means and refers to Boston Partners Asset Management, L.L.C., formerly known as Boston Partners Asset Management L.P., its partners, officers, members, employees and agents. C. "Archambo" means and refers to Wayne Archambo, his agents and attorneys. D. "BlackRock" means and refers to BlackRock, Inc. and/or BlackRock Capital Management, Inc., their officer, d/rectors, employees, agents, affiliates and attorneys. E. The term "communication" means the transmittal of information (in the form of facts, ideas, inquiries, or otherwise) by any and all means. Email is specifically included within "communication." F. The term "document" means and refers to any written or other recorded electronic, graphic or photographic matter or other data compilations from which information can be obtained (or translated, if necessary, by you into reasonably usable form) of every kind or character, however produced or reproduced. Electronically archived and backed-up files are specifically included within this definition. If copies of documents are not identical to the originals for any reason, including handwritten notations, initials or identifying marks, each non-identical copy is a separate document within the meaning of this definition. Relevant Time Period Unless otherwise indicated, documents are requested from January 1, 2001 through the present. Documents Requested I. All documents and/or communications concerning the termination of Boston Partners as Highmark's investment manager. 2. All documents and/or communications with BlackRock, Wayne Archambo and/or any investment consultant concerning Boston Partners. 3. All documents and/or communications concerning Highmark's decision to invest in funds and/or accounts managed by BlackRock and/or Wayne Archambo. CERTIFICATE OF SERVICE I hereby certify that on the date set forth below, a true and correct copy of the following Petition For Issuance Of Foreign Subpoena To Take Deposition And Produce Documents to be served as follows: BY FEDERAL EXI~RESS Joseph F. Reichard Highmark, Inc. 1800 Center Street Camp Hill, PA 17011 Highmark, Inc. 1800 Center Street Camp Hill, PA 17011 Dated: August 18, 2004 5 CONRAD O'BRIEN GELLMAN & ROHN BY: John A. Guernsey Kelly G. Huller I.D. Nos. 25730 & 78966 1515 Market Street Sixteenth Floor Philadelphia, PA 19102-1916 (215) 864-9600 BOSTON PARTNERS ASSET : MANAGEMENT, L.P., : 28 State Street Boston, MA 02109 Plaintiff, WAYNE ARCHAMBO 1 Boston Place 32nd Floor Boston, MA 02108 and BLACKROCK CAPITAL MANAGEMENT 1NC., 40 E. 52"a Street New York, NY 10022 and BLACKROCK, INC. 40 E. 52"a Street New York, NY 10022 Defendants. AUG 2 0 2004 Attorneys for Plaintiff Boston Partners Asset Management, L.P. CUMBERL~ID COUNTY COURT OF COMMON PLEAS TRIAL DIV]2SION Term, 2004 NO. Oq- qld,, AND NOW, this Z 2j ~ day of /q" ~ '- %~J' , 2004, upon consideration of the Petition For Issuance Of Foreign Subpoena To Take Deposition And Produce Documents, it is hereby ORDERED that said Petition is GRANTED. The Prothonotary is hereby directed to issue subpoenas directed to the corporate designee of Highmark, Inc. and Joseph F. Reichard, directing their attendance at a deposition and their production of documents identified in the Schedule attached to Exhibit "A" of the Petition, to be conducted under Massachusetts Civil Procedure and to be held at 5401 Carlisle Pike, Mechanicsburg, PA 17050. BY THE COURT: / ~____~ J. 2