HomeMy WebLinkAbout06-3070
BENNETT, BRICKLIN & SALTZBURG LLP
BY: SUE Y. SEJDA, ESQUIRE
ATTY. I.D. NO. 91530
FIVE VALLEY SQUARE, SUITE 200
512 TOWNSHIP LINE ROAD
BLUE BELL, PA 19422
(267) 654-1100
ATTOl,lNEY FOR PETITIONER
Digital Insight Corporation
InRe:
COURT OF C MMON PLEAS
CUMBERL D COUNTY, PA
DIGITAL INSIGHT CORPORATION
Civil Action N.: () l.. 30 ') 0 C-WL.l T.....
PRAECIPE TO ISSUE SUBPOENA TO TAKE D POSITIONS
AND PRODUCE DOCUMENTS
To the Prothonotary:
Kindly issue a subpoena for the taking ofthe following depos tion in the Matter of
Federal
Credit Union. Respondent, AAA Case No. 72 1480122205 TNM:
Mark W. Cauley
c/o Jack Henry & Associates
108 Greenbriar Drive
Marysville, P A 17053
You are hereby commanded to come to Carlisle Conference S .tes, 10 South Hanover
Street, Carlisle, P A 17013 on June 15, 2006, at 9:00 a.m. to testify on ehalf of plaintiff, Digital
Insight Corporation, in the above case and bring with you:
a) All Documents prepared between July 1,2004 and Octo er 3, 2005 that
refer to or evidence communications between any repre entative of Jack
Henry & Associates ("JHA") and any representative of errimack Valley
Federal Credit Union ("MV FCU") concerning internet anking or bill
payment services.
b) All Documents prepared between July 1,2004 and Octo er 3, 2005 that
refer to or evidence communications between any repres ntative of
Symitar (a wholly owned subsidiary of JHA) and any re esentative of
MV FCU concerning internet banking or bill payme* services.
c) All Documents prepared between July 1, 2004 and tl(e present that refer or
relate to Digital Insight Corporation.
d)
All Documents prepared between July 1,2004 and
relate to any contract or agreement between Digital
and MY FCU.
present that refer or
sight Corporation
e) All Documents prepared between July 1,2004 and th present that refer or
relate to any tennination fee or other fee that might b owed as a result of
MY FCU's tennination of its contract with Digital I 'ght Corporation.
BENNETT, BRICKLIN & S TZBURG, LLP
BY:
SUE Y. SE A, ES
Attorney {or Petitioner,
Digital Insight Corporati n
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BENNETT, BRICKLIN & SAL TZBURG LLP
BY: SUE Y. SEJDA, ESQUIRE
ATTY. I.D. NO. 91530
FIVE VALLEY SQUARE, SUITE 200
512 TOWNSIDP LINE ROAD
BLUE BELL, PA 19422
(267) 654-1100
ATTO~EY FOR PETITIONER
Digital nsight Corporation
InRe:
Petitioner, Digital Insight Corporation (hereinafter "Digital
DIGITAL INSIGHT CORPORATION
attorneys, Bennett, Bricklin & Saltzburg, LLP, hereby petitions this norable Court pursuant to
42 Pa.C.S.A. S 5326(a) for the issuance ofa subpoena to take the dep sition of Mark William
Cauley and to produce documents, and in support thereof petitioner a rs as follows:
1. On or about November 28, 2005, petitioner, Digital Ins ght, instituted an
arbitration proceeding against Merrimack Valley Federal Credit Union (hereinafter "Merrimack")
to be heard before the American Arbitration Association, entitled the atter of Arbitration
between Di ital In i t Co oration Claima. t and Merrimack Valle Federal Credit Union
Respondent, AAA Case No. 72 148 01222 05 TNM. . A true and corr ct copy of Digital
Insight's Demand for Arbitration is attached hereto as Exhibit "A".
2. The underlying dispute arises out of Merrimack's allege early termination breach
of the services agreement (hereinafter "the Agreement") between Me ack and Digital Insight.
See Exhibit "A".
3. The parties to the underlying matter are subject to the arb tration clause contained
i
in the Agreement, and the arbitration is to be conducted in accord~ce with the Commercial
Arbitration Rules of the American Arbitration Association. See the Report of Preliminary
Hearing and Scheduling Order No. 1, ~~ 5-6, attached hereto as E
4. Based on investigation of this matter, petitioner has c ncluded that Mark W.
Cauley, of Jack Henry & Associates, possesses information conce g the underlying early
termination breach of the Agreement which is alleged to have occ
5. The documents sought from Mark W. Cauley of Jack enry & Associates involve
the communications and documents that refer or relate to Merrimack andlor Digital Insight and
the circumstances surrounding the early termination breach of \he Ag eement.
,
6. Richard Mainland, the sole neutral arbitrator in the un erlying matter, has issued
an order in that arbitration proceeding approving the deposition ofM k Cauley and the
production of documents in connection with such deposition. A true d correct copy of
Arbitrator Mainland's Order is attached hereto as Exhibit "C".
7. Accordingly, petitioner, Digital Insight, pursuant to 42 a.C.S.A. S 5326(a),
requests that a subpoena be issued by this Court to take the deposition of Mark W. Cauley as
follows:
Mark W. Cauley
c/o Jack Henry & Associates
108 Greenbriar Drive
Marysville, P A 17053
8. Petitioner further requests that the deponent, Mark W. auley, be required to
bring to the deposition the following:
a) All Documents prepared between July 1,2004 a d October 3, 2005 that
refer to or evidence communications between an representative of Jack
Henry & Associates ("JHA") and any representa ve of Merrimack Valley
Federal Credit Union ("MY FCU") concerning i emet banking or bill
payment services.
b)
All Docwnents prepared between July 1,20
refer to or evidence communications betwee
Symitar (a wholly owned subsidiary of iliA)
MY FCU concerning internet banking or bill
and October 3, 2005 that
any representative of
d any representative of
ayment services.
c) All Docwnents prepared between July 1,200 and the present that refer or
relate to Digital Insight Corporation.
d) All Docwnents prepared between July 1, 200 and the present that refer or
relate to any contract or agreement between D. gitallnsight Corporation
and MV FeU.
e) All Docwnents prepared between July 1,200 and the present that refer or
relate to any termination fee or other fee that ight be owed as a result of
MY FCU's termination of its contract with Di itallnsight Corporation.
WHEREFORE, petitioner, Digital Insight Corporation, respe tfully requests that this
Honorable Court issue a subpoena to take the deposition of Mark W. auley, and for the
production of docwnents as indicated above.
BENNETT, BRICKLIN & S
BY:
S Y. SE A, ES
Attorney for Petitioner,
Digital Insight Corporati
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COMMERCIAL ARBITRA nON RULES
DEMAND FOR ARBITRATION
MEDIA TJON: 1/ you would liM lhe AM 10 .OIIlaclIM alMr pMlle. and attempt to arra~ 0 '(nedl at/OIl. pl.",. check Ihls box. [JI
There i. no addillonal adm/nufrallV/! "'; far lhi. .enice.
Nam.ofRespondent Nam. of Representative (ifkn wn)
M ""'CO" Ii'RnRRH
Address Name at ~Ilm (II appllC8ote)
,,,,,,
Representative's Address
City I~e Zip Code City . r tat. Zip Code
NORTH ANDOVER 01845
Phon. No. Pax No. Phone No. Fax No.
800/536-0067
Email Addres.: Emall Address:
The named claimant. a party 10 an arbitration agoeement dated llIOV _ 10, '00,:( >" I ch provides for arbilration untler lbe
Commercial Arbitration Rules of 1bc American Arbitration Ass<x:iaIloo, hereby demands arbitral 0 n.
THE NATURE Or mE D1SPUTB
RESFOODEN'r BREACHED SERVICES AGREEMENT BY TERMINATING EARLY.
Dollar Amounl of Claim S Othcc Relief Sought: 0 Allome sPees XJlntemt
249,746 XRI Arbitration Cosu 0 Puniliv 5xempllU)' 0 Other
AMOUNT Of PIUNG FEE ENCLOSED WITH THIS DEMAND (please refer to lb. feo schedule 11l1bc rules for IhCllppropriate fee) $ 4,000
PLEASE DESCItJBE APPROPlUATE QUAlIFlCAT10NS FOR ARBITRATOR(S)TO Bl! APPOINTED TO HllAR'l1 IS DISPUTE:
Hearing locale LOS ANGELES. ell (check one) 0 Requested by Oa!mant lP Locale p vision IlI\;luded In the contract
Estintaled time needed for hearings averall: Type afRuslnes.: Claimanl_ C NLINE BANKING PROVIDER
hours or , days Respondent ~
Is Ibis a dispute between a b..lness and a consumer'l OY A10 No Does IIIls dispute we aut ofan e ployment "Ialionship? 0 Y.. 0 No
tfthis dispute arlscs aut arall employment rclotlonshlp, what wulis lIIe employee's annual wage n ge? Note, This qucstion is required
bv California law. 0Le$. than $100 000 0 $100 000 . $2S0 000 0 Over $2S0 000
Yau are hereby notified thal copies of our arbitration aer-ent and this demand are being filed wi the American Arbitration
A.saclotioll', Close Management Center, 10<lIted in (check OIIe) o Atlanta, GA o Dalla, TX East ProvidCl\llC. Rl
III PmllO. CA 0 I_tlonat Centre, NY. whit a Rquest thal it commence admlnl$\ratIOll af the rbitratian. UndO< the rules, you
mav file an wwerlnll statement wilbln fifteen daYS after notice from the AAA.
Sir 1:'-" ~igned by a representative) .v~~>, NameorR~tativ.
'f /1,.2.0 C>s "n~. ('.
Name afClallllant Name ofPinn (lfappUcable)
DTGI"'Ar. .. IT''
Address (10 be used in conllCCtlon witll thl. case) Representative', Address
"1"1"'1 801. SO. .<:'1' 14'1'<0 ".
City I ~~l' Zip Code City I ~~t= Zip Code
I"'H""~'~ rrlo:! ..~~ <>1\",.,
Phone No. FuNo. Phone Na. FaxNa.
888/344-4674 213/3]7-1""'" ."., '''''''_''''''00
Entail Address: Em.1I Address,
To b~gin pr~ings. please send two copies afthb Demand and the Arbitration Agree met . along with the filing fee as
i proVided for In the Rules to the AAA. Send the orlQinal Demand to the Resoondent.
Pi.... visil our websi.. at www.I><I,..... if""" would IlI<e to file thIS case online. MA Customer Service can!> reached 81800-nl.7879
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EXIlIBIT
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AMERICAN ARRITRATlON ASSOCIAT~orll
In the Maner of the Arbitration between
Digital Insight Corporation,
Claimant,
and
Merrimack Valley Federal Credit Union.
Respondent.
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) AAA Case No.: 7 14801222 OS TNM
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REPO T m- l'RELlMI AllY HEARlN
AND SCHEDULING ORDER 1'10. 1
A telephonic preliminary hearing lIITIong the arbitrator and eo el for the parties was
conducted in this maner pursuant to written notice on February. 7. 2 06. Aaron C. Oundzik,
Esq., appeared for Claimant. and William' Dolan III, Esq., appeare for Respondent. The
following order is made respecting the conduct of this arbitration:
I. Panies and COlU1Sel.
The parties lIIe identified in the clIption and lITe repregented as fo lows:
Aaron C. Gundzik, Esq.
Cotton & Gundzlk LLP
801 South Figueroa Slreet. 14th Floor
Los Angeles_ California 900 17
Telephone: (213) 312-1330
Facsimile; (213) 623-6699
Counsellor Claimant
William Do1811111. Esq.
Blown Rudnick Freed & Gesm.:r
One Providence Wa.,hinglon Plaza
Providence, Rhode Island 02903
Telephone: (401) 276.2600
Facsimile: (401) 276-2601
Counsel for Respondent
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2. Arbitrator.
The sole ncutl'al urbitratol' in Ihis matler is:
Richard R. Mainland, Gsq.
55; South Flower Street, Suite 4100
Los Angeles, California 90071
Telephone: (213) 892-9210
Facsimile: (213) 892.9494
Email: tmainland@fulbright.com
3. b-dministration.
The Case Manager at the American Arbitration Association (" ssociation") is:
Ms. Terri MllItinez. Case MllIlageT
Americllll Arbitration Assoclalion
6795 North Palm Avenue, Floor 2
Fresno. California 93704
Telephone: (877) 528-0880
facsimile: (559) 490.1919
rnarline:uftuadr.org
4. Clllims and Defen~es or me l'anies.
The claims of Claimant arc set forth in the Demand for ATbilr don daled November 28,
2005. 'Ine allegations of the Demand are deemed denied by Responde .
5. Al!reemenl to Arbitrate. The parties' agreement I arbitrate is contained
paragraph 7.3 of II Services Agreement between tbe panies. A cop>, \> the arbitralion clause in
said agreement is attached 10 the Demand. Counsel for claimant will p vide the arbitrator with a
complete cop>, of the Services Agrct'lllenl.
6. ADDlicable Rules. The Commercial Arbitration ules of the American
Arbitration Association ("AM"), as amended 2IJ\d effective July 1, 2 3 ("AAA Rules) shall
apply in this proceeding.
7. Exchanlle of Information.
(a) The parties may serve requests for production 0 documents on or before
Febmary 27. 2006.
(b) The parties shall serve responses \0 each other' dQ<:\I\llCnt requests and
pruducc any documents requested bUll101 objt'Cled 10 on ur before Marc 20.2006.
(e) If any dispUtes ariS\) concerning document produc on that cannOl, after tbe
parties ('onfer. be resolved. the parties shall submit the issues to the arbi ator for resolution. The
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moving party may SeNe a letter brief sening forth its position. lIIlde opposing party shall then
have five (5) days to file a responsive letter brief. If either party equests oral argument the
maner shall promptly be scheduled for a telephonic hearing. If either party requests oral
argument the arbitrator will rule on the issues in dispute without a he ing.
8. Pl1!hearinl! Exchanl!cs.
(a) On or before May 5. 2006, each parlY shall ad se the other psny whether
it intends 10 call cxpen witnesses BllIte hearing und, if so. the idenli of any sueh experts and
the subject nlaner uf their antitipsled testimony. If MY expens are sa designaled, me parties
shall confer respecting \hc pre-hearing exchange of expert informatio ,including expert reports
and/or depositions. in a good faith effort to reach al1.reement on such exchanges. If the parties
cannot reach Such agreement, they may submit their dbputc tolhe arbi TO\Or for resolution.
(b) On or before June 2, 2006, the parties shall exe nge lists of wilnesses to
be called. bricfsummaries of Ihe witncsses' anticipated testimony, an lists oftbe exhibits to be
inlroduced ill evidellce at the hearing, excepting only witnesses and e hiblts to be offered solely
for rebunal or impcacluuent. On or beror~ the same date the parties shall exchange copies of
such proposed hearing Cl<'hibits.
(c) The parties may file and exchange pre-hearing b . ers not later than June 2.
20Q6.
9. j:learinll. and Hearin!! Procedure.
(II) 1111: parties and tbe arbitrator have reserved two ) days for the arbitratiO'il
hearing, namely, JIUle 20 and 21, 2006. Proceedings will begin at 9: 0 a.m., unless otherwise
ordered. The parties shall notify me Case Manllger promptly if Ihe r estimated time for the
hearing changes.
(h) A joint exhlbillisl shull be provided at the: heari g. The hearing cxhibits
shall be pre-marked with consecutive Arabic numerals. The panies s II jndi~'8te on their joint
exhibit lisl any objeclions 10 tbe inlrOduction of any exhibil. Indusio of proposed exhibits on
the exhibil list will not be deemed a waivcr, and all objeclions will be ruled un when such
propose<i exhibits aTe offcred allhe hearing. ExhibitS not objected to ~all ~ deemed admitted
at the commcncelnent of the hearing. One set of exhibits shall be prep ed for the arbilT8tor and
one for Ihe witnesses In addition to copies fOt counsel.
(e) If eilher plIIty inlenQs to use the services of a cou reporter, notice thereof
shall be given by June 2, 2006. The parties shall stipulate as to wh ther the expense of Ihe
stenographic record, if any, shllll be an allocated arbitration cost.
(d) The panics shall advise the arbitrator at the outsel fthe hearing I1s to their
preferred f'onn of Award.
(e) The parties are not in agreement as to the location i.the hearing, and hllve
agreed to submit thai issue to the arbitralor for decision. Re5p!)ndent sh 11 serve a letter brief on
or b~fore February 27. 2006, in support of its proposed location. Claimant shall file its
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opposition l~ucr bric:C on or before March 8, 2006, and Responde~t shall serve its rc:ply letter
brief on or before March 13, 2006. A telephonic bearing will be hel on this issue on March 17,
2006 at 10:00 a.m., Pacific Time.
10. Miscellaneous.
(8) The parties will be IequeSled to deposit tees ffieient to compensate the
lIIbitratol' for the scheduled hearing days, preparuion of the award a d other anticipated services
by dates to be established by the Association.
(b) l'he parties have agreed to participate in the Association's Accelerated
Exchange Progl'llm. whe~by docllments may be submitted directly to the arbitrator by fax or
email. The Case Ml\1Iaser shall contaCt the parties to fonnally stipulat to this program.
(c) The parties are reminded that it is the practice j'the arbitrator to keep no
file respecting a malwr aftc:r its conclusion. If at the conclusion of e hearings in this matter,
citl\er of Ih~ ponies wishes 10 colleet il~ cJlhibils. ;1 Shlllllldvisc the asc M1l1lll8er accordingly.
Olherwis.:. all of the documents. including exhibits. will bt: destroyed neT Ih-. IIWard is rende~d.
(d) All deadlines herein shall be slriclly enfotceCl. This Order shall continue
in effect unless lll1d umil amended by ~ubscqu"nl order (If till: arbitrlltD .
DATED: February 8, 2006
Richard R. Mainland
Murator
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EXHIBI
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AARON C. GUNDZIK (Cat. Bar No. 132137)
COTTON & GUNDZIK LLP
2 80 I South Figueroa Street
12'" Floor
3 Los Angeles, CA 90017
Telephone: 213/312-1330
4 Telecopy: 213/623-6699
5 Attorneys for Claimant Digital Insight Corporation
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II DIGITAL INSIGHT CORPORATION,
BEFORE THE
AMERICAN ARBITRATION ASS IA TION
Case No. 72 1480122205 TNM
15
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Respondent.
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Arbitrato
Richard R. Mainland
12 Claimant, .
13 v.
14 MERRIMACK V ALLEY FEDERAL
CREDIT UNION,
ORDER PPROVING DEPOSITION OF
MARK C ULEY
17 IT IS HEREBY ORDERED that pursuant to Californi Code of Civil Procedure section
18 1283, Claimant Digital Insight Corporation may take the depo ition of Mark Cauley of
19 Cumberland County, Pennsylvania, and obtain the production f documents in connection with
20 such deposition. Such deposition is to betaken for use as evid ce and not for discovery.
21 Respondent does not waive any objections to the admis ibility of any testimony or
22 documents produced in connection with the deposition.
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24 Dated: l1'71 ~ ,).'1>Of,
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26
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28
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Richard Mainland
Arbitration
ORDER APPROVING DEPOSITION OF M RK CAULEY
I
VERIFICATION
I, Sue Y. Sejda, Esquire, hereby verify that I am the attorneyl for Digital Insight
I
Corporation, petitioner herein, and that the facts set forth in the fore oing Petition for the
Issuance of Subpoena are true and correct tot eh best of my knowle ge, information and belief. I
understand that falsse statements made herein are subject to the pen ties of IS Pa.C.S. 94904
relating to unsworn falsifications to authorities.
BENNETT, BRICKLIN & SALTZBURG LLP
BY: SUE Y. SEJDA, ESQUIRE
ATTY. I.D. NO. 91530
FIVE VALLEY SQUARE, SUITE 200
512 TOWNSHIP LINE ROAD
BLUE BELL, PA 19422
(267) 654-1100
ATTO EY FOR PETmONER
Digital nsight Corporation
In Re:
COURT OF C MMON PLEAS
CUMBERL DCOUNTY,PA
DIGITAL INSIGHT CORPORATION
Civil Action N .:
CERTIFICATE OF SERVICE
I, Sue Y. Sejda, Esquire, counsel for petitioner, Digital Insig t Corporation, hereby certifY
that I have served a true and correct copy of the foregoing Petition f< Issuance of Subpoena
upon all counsel and unrepresented parties by regular mail, postage repaid, as follows:
William M. Dolan III, Esquire
Brown, Rudnick, Freed & Gesmer
One Providence Washington Plaza
Providence, RI 02903
BENNETT, BRICKLIN & S TZBURG, LLP
,
BY:
SU Y. SE
Attorney fo etitioner,
Digital Insight Corporati n
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RECEIVED JUN 022006 j--
BENNETT, BRICKLIN & SAL TZBURG LLP
BY: SUE Y. SEJDA, ESQUIRE
ATTY. I.D. NO. 91530
FIVE VALLEY SQUARE, SUITE 200
512 TOWNSIDP LINE ROAD
BLUE BELL, P A 19422
(267) 654-11 00
ATTORNEY FOR PETITIONER
Digital Insight Corporation
InRe:
DIGITAL INSIGHT CORPORATION
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Civil Action No.: O~. 3 0'70 ~ ..,- tp....
ORDER
AND NOW, this ..s Itday of :rv-. e- ,2006, upon consideration of the Petition for
Issuance of Subpoena Pursuant to 42 Pa.C.SA. ~ 5326(a) of Digital Insight Corporation, it is
hereby ORDERED and DECREED that said Petition is GRANTED. The deposition of Mark W.
Cauley will be held and documents produced at the time and place, as indicated on the attached
Praecipe for Issuance of Subpoena.
BY THE COURT:
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BENNETT, BRICKLIN & SAL TZBURG LLP
BY: SUE Y. SEJDA, ESQUIRE
ATTY. I.D. NO. 91530
FIVE VALLEY SQUARE, SillTE 200
512 TOWNSHIP LINE ROAD
BLUE BELL, P A 19422
(267) 654-1100
ATTORNEY FOR PETITIONER
Digital Insight Corporation
In Re:
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
DIGITAL INSIGHT CORPORATION
Civil Action No.: 6/".30'10 ~ T~
MEMORANDUM OF LAW IN SUPPORT OF PETITION FOR
ISSUANCE OF SUBPOENA PURSUANT TO 42 P A.C.S.A. ~ 5326(a)
Petitioner, Digital Insight Corporation, files the instant petition for issuance of a subpoena
pursuant to 42 Pa.C.S.A. ~ 5326(a) before the Honorable Court for disposition and respectfully
requests that the Court grant the within petition.
I. FACTS
Petitioner incorporates by reference the factual averments as set forth in the instant
petition for issuance of subpoena as though set forth at length herein.
II. ARGUMENT
Pennsylvania law provides that a person within Pennsylvania may be ordered by this
Court to appear for deposition or produce documents for use in a matter pending outside of
Pennsylvania:
General Rule. A 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. The order may be made upon the
application of any interested person or in response to a letter
rogatory and may prescribe the practice and procedure, which may
be wholly or in part the practice and procedure of the tribunal
."
;"
outside this Commonwealth, for taking the testimony or statement
or producing the documents or other things....
42 Pa.C.S.A. ~ 5326(a).
A "tribunal" is defmed as "a court, magisterial disrict judge or other judicial officer
vested with the power to enter an order in a matter." 42 Pa. C.S.A. ~ 102. "Judicial officers" is
defined as "judges, magisterial district judges and appointive judicial officers. Id. "Appointive
judicial officers" is defined to include arbitrators. Id. Therefore, ~ 5326(a) applies to arbitration
proceedings held outside of Pennsylvania.
The individual whom petitioner seeks to depose and from whom documents are sought
resides and is employed within the Commonwealth of Pennsylvania. The underlying arbitration
matter was commenced in California. Accordingly, only through a subpoena issued by this Court
can petitioner obtain the complete and investigative materials regarding Merrimack Valley
Federal Credit Union, the respondent in the arbitration matter, for the purpose of establishing
petitioner's claim.
m. RELIEF
Petitioner, Digital Insight Corporation, respectfully requests this Honorable Court issue a
subpoena for the deposition and production of documents as indicated on the attached Praecipe
for Issuance of Subpoena.
BENNETT, BRlCKLIN & SAL TZBURG, LLP
.....
BY:
SUE Y. S
Attorney Petitioner,
Digital Insight Corporation
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