January 14, 1998
VIA UPS OVERNIGHT
Hon. Ronald N. Boyce
U.S. District Court for the
District of Utah, Central Division
350 South Main Street
Salt Lake City, Utah 84101
Re: Procter & Gamble v. Haugen, et al.
Case No. 95-CV-0094 S
Our File No. 704679-2
Dear Judge Boyce:
I represent Sidney Schwartz, who is the subject of a motion filed with you
by Amway's counsel in Procter & Gamble, et al. v. Randy L. Haugen, et al,
Case No. 95-CV-0094 S on December 19, 1997. The motion was not served on me
or Mr. Schwartz when it was filed and was only very recently sent to me by
Amway's counsel, Timothy Q. Delaney.
Mr. Schwartz cannot afford to be represented in the Utah proceeding. He has
therefore asked me to set forth his position in this letter. This
communication is in the nature of a special appearance because we do not
believe Mr. Schwartz is subject to the exercise of personal jurisdiction in
Utah and we do not wish to waive that position.
Mr. Schwartz's involvement in this proceeding stems from a subpoena issued
from the United States District Court in Oregon and served upon Mr. Schwartz
at his Oregon residence.
Mr. Schwartz objected to the subpoena served upon him as permitted under
FRCP 45 for a number of reasons, including that he had been engaged by
Procter & Gamble as an expert not expected to testify at trial. Judge Malcom
Marsh of the United States District Court for the District of Oregon
permitted the deposition to proceed on a limited basis. A portion of that
deposition is enclosed for your ease of reference (Enclosure No. 1). Amway's
counsel offered and was instructed to limit the inquiry of Mr. Schwartz to
matters related to Amway's claim that Procter & Gamble used Mr. Schwartz in
a disparagement campaign against Amway (Schwartz Depo at 12-13, 15-16, 17-
19).
At the conclusion of the deposition, Amway was permitted to have its
computer expert, EED, make a copy of the hard drive from Mr. Schwartz's
computer for the purpose of retrieving e-mail communications between Mr.
Schwartz and Procter & Gamble's outside counsel (Schwartz Depo at 196-201).
Mr. Schwartz deleted that and other e-mail from his computer as a matter of
routine (Schwartz Depo at 23-29).
Amway's computer experts turned over the fruits of the search of Mr.
Schwartz's hard drive to Judge Jones in December. They retained the copy of
Mr. Schwartz's hard drive, contrary to the agreement between counsel
(Enclosure No. 2). Mr. Delaney represented that EED would either return the
copy of Mr. Schwartz's hard drive to him or destroy it after completing its
search (Delaney letter of September 24, 1997, Enclosure No. 2). I confirmed
that the copy should be returned to Mr. Schwartz in my letter of September
25, 1997 to Mr. Delaney (Enclosure No. 2).
United States District Judge Robert E. Jones, in his December 19, 1997
letter to counsel and to Amway's computer expert (Enclosure No. 3) directed
that the printout of the data from Mr. Schwartz's hard drive be submitted to
you for review. He further directed that Amway return the copy of Mr.
Schwartz's hard drive to him within ten days of December 19, 1997. Judge
Jones permitted Amway's counsel to apply to the Utah court for an expedited
order "* * * if Amway has reasons pertinent to the underlying lawsuit for
retaining the hard drive for further investigation * * *".
The motion Amway's counsel filed in Utah has very little to do with Judge
Jones' instruction. The only stated justification for retention of Mr.
Schwartz's hard drive is the false and irresponsible charge that Mr.
Schwartz "destroyed evidence" called for by subpoena. Amway's counsel
withdrew its April subpoena shortly after Mr. Schwartz objected to it. The
later subpoena was substantially limited by agreement. Mr. Schwartz, as a
matter of routine, deleted e-mails from his computer, all e-mails, not just
those between him and Procter & Gamble's counsel (Schwartz Depo at 23-30).
Those e-mails have now presumably been retrieved by EED and that is all EED
was permitted to do with Mr. Schwartz's hard drive. The copy should now be
returned to him.
Now Amway's counsel is asking the Utah court to permit discovery of Mr.
Schwartz the Oregon court prohibited, such as telephone records not related
to communications between Mr. Schwartz and Procter & Gamble or its
representatives or lawyers. It is asking the Utah court to authorize the
issuance of subpoenas against Mr. Schwartz, an Oregon resident, with respect
to cases in which the Utah court has not interest or involvement. The
grotesque impropriety of this request can be swiftly demonstrated by a
reading of FRCP 45.
This statement of Mr. Schwartz's position is intended as a special
appearance for the limited purpose of partially responding to the motion
directed against Mr. Schwartz without notice to him and not as a submission
to the personal jurisdiction of the Utah court.
Respectfully submitted,
Very truly yours,
O. Meredith Wilson, Jr.