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Thomas G. Slater, Jr., Esq.
Re: United States v. Smithfield Foods, Inc.
Dear Mr. Slater:
This letter is in follow up to the matters we discussed in our telephone conversation yesterday. Attached is a Notice of Deposition for Daniel G. Stevens, C. Larry Pope, and Lewis R. Little, which is consistent with our understanding as to dates and place. You have agreed to accept the attached Notice in lieu of our issuing subpoenas pursuant to Fed. R. Civ. )P. 45 to the appropriate people, and that the Notice will be sufficient for all purposes applicable to Rule 45 as though each such person had received a subpoena. You agreed that any client appearing by way of this notice will waive the receipt of an appearance fee and mileage as required by the rules.
Yesterday, we proposed to limit the total amount of deposition to 28 hours for all eight of the individuals we would like to depose. Since our conversation, we have come up with an alternative that might be more attractive to your client: DOJ is willing to reduce the number of depositions to six (6). They would include the three noticed by agreement, plus Timothy Seely, Aaron Trub, and one deposition pursuant to Fed. R. Civ. P. 30(b)(6), which would cover the matters anticipated by the depositions of Joseph Luter, IV, Lawrence Shipp, and Robert Slavik. As a further concession to ease any burden of production, we are willing to agree that you will produce documents and respond to interrogatories for the time period starting January 1, 1998, instead of January 1, 1997.
In exchange, we propose that you produce the relevant documents through the date of the filing of the Complaint in this case.
As we discussed, it is our position that the appropriate date for establishing that Smithfield "transacts business" in the District of Columbia is February 28, 2003, the date the complaint was filed. The documents for the dates requested are highly relevant to a determination of the nature and continuity of Smithfield's control over its subsidiaries.
We hope to reach a compromise on this issue so that the scheduled depositions can go forward without further delay. Because of the times allotted for briefing under the rules, any discovery disputes that require resolution by the court may result in an extension of the 60-day discovery period or worse, a situation where depositions have been started but cannot be completed until after the court has ruled and any additional discovery responses and documents have been received.
On a related matter, you advised in our conversation that, notwithstanding your view of the relevant time period in connection with written discovery, you will not object or instruct your clients not to answer questions at their respective depositions on the basis that any question might seek information outside the scope of the time periods you consider relevant.
You have agreed to get back to us on the question of whether Smithfield will produce documents and respond to interrogatories regarding subsidiaries other than Smithfield Packing and Gwaltney that may be transacting business in the District of Columbia.
If we are unable to reach an agreement as to any of these outstanding matters, we agreed to have further discussions on proceeding in the most expeditious way to bring them before the court for resolution.
If you disagree with any of the above, please let me know immediately.
We await your further response.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NOTICE OF DEPOSITION
PLEASE TAKE NOTICE that, pursuant to Fed. R. Civ. P. 30 and Fed. R. Civ. P. 45, by agreement of counsel, Plaintiff will take the depositions upon oral examination of the persons listed below at 500 East Main Street, Suite 1000, Norfolk, VA 23510 (unless otherwise agreed upon by the parties), commencing at the times and on the dates indicated. All depositions will be taken before a notary public or other officer authorized to administer oaths and shall be recorded by sound or stenographic means. If necessary, the depositions shall continue from day to day until completed.
Dated: June 6, 2003
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing Notice of Deposition, noticing the depositions of Daniel G. Stevens, C. Larry Pope, and Lewis R. Little, was sent via first-class mail, postage prepaid, and facsimile to the individuals listed below on this 6th day of June, 2003:
Thomas G. Slater, Jr., Esq.
Fri June 6, 2003
United States Department of Justice
Transportation Energy and Agriculture
325 7th Street N.W.
Washington D.C. 20530
Fax Number: 202/307-2784
Voice Number: 202/307-0892
[The DOJ Seal is to the right of the address.]
The information contained in this facsimile is government privileged and confidential information intended only for the use of the addressee(s) listed on this coversheet. If the reader of this message is not the intended recipient(s), you are hereby notified that any dissemination, distribution or copying of the telecopy is strictly prohibited. If you have received this facsimile in error, please immediately notify the sender at the telephone number listed on this coversheet and the original facsimile must be returned via the United States Postal Service to the address above. Thank you.
FAX COVER SHEET