Case 1:17-cv-00770-JDW Document 259-3 Filed 11/02/23 Page 1 of 3 PageID #: 29185
`Case 1:17-cv-00770-JDW Document 259-3 Filed 11/02/23 Page 1 of 3 PagelD #: 29185
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`EXHIBIT 29
`EXHIBIT 29
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`Case 1:17-cv-00770-JDW Document 259-3 Filed 11/02/23 Page 2 of 3 PageID #: 29186
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`February 21, 2022
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`Via Email
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`Mr. James Yoon
`WILSON SONSINI GOODRICH & ROSATI
`650 Page Mill Road
`Palo Alto, CA 94304
`jyoon@wsgr.com
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`RE: Notice of Failure of Subpoena to Third-Party
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`Dear James,
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`We write today on behalf of Wirtgen America, Inc. (“WA”), which received a subpoena that
`appears to be directed to Wirtgen GmbH (“WGmbH”) “c/o [care of] Wirtgen America” on
`February 11, 2022. WA does not plan to respond to the subpoena or forward the subpoena to
`Wirtgen GmbH or any other third party as this subpoena is invalid and unenforceable. The
`subpoena is invalid and unenforceable for three reasons: WA is not the same entity as WGmbH
`and is not so close as to be subject to service of process for WGmbH; CAT did not properly
`serve WGmbH; and, WA does not have “possession, custody, or control” of the specific
`WGmbH documents sought by CAT with a few exceptions.
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`CAT did not achieve proper service against WGmbH by serving a subpoena to WGmbH “care
`of” WA.
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`CAT did not achieve proper service against WGmbH by serving a subpoena to WGmbH care of
`WA because they are separate entities, WA is not obliged to seek documents from its sister
`company, and they are not in an agency relationship. WA and WGmbH’s relationship is one of
`distinct corporate entities, neither controlling the other. As distinct corporate entities, their
`separate identities must be respected.
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`Service was not properly made on WGmbH.
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`Service was not properly made on WGmbH because CAT did not “deliver[] a copy to the named
`person [WGmbH]” as required by Rule 45. FRCP 45(b)(1). Moreover, even looking to the
`methods for service allowed under Rule 4, service was not properly made on WGmbH because
`CAT did not use a method authorized under either Tennessee or Delaware state law.
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`WA does not have “possession, custody, or control” of the WGmbH documents sought by CAT.
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`Finally, it is unclear why this subpoena is being served “c/o Wirtgen America.” To the extent the
`subpoena was served on WGmbH “c/o Wirtgen America” under the belief that WA has
`“possession, custody, or control” of the WGmbH documents sought by CAT and would respond
`on behalf of WGmbH , this belief is incorrect. WA does not have “possession” or “custody” of
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` 1600 Division Street | Suite 500 | Nashville, TN 37203 | iplawgroup.com | 615.242.2400
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`Case 1:17-cv-00770-JDW Document 259-3 Filed 11/02/23 Page 3 of 3 PageID #: 29187
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`Mr. James Yoon
`WILSON SONSINI GOODRICH &ROSATI
`February 21, 2022
`Page 2
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`any of the documents, except for communications between WA and WGmbH that are responsive
`to Subpoena RFP Nos. 1, 2, 3, 4, 5, and 6 and which are already encompassed by RFPs served on
`WA.
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`WA does not have the right to obtain the documents requested by the subpoena, does not accept
`service on behalf of WGmbH, and will not be responding to the subpoena beyond the courtesy of
`this letter.
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`This notice is provided as a courtesy. Given the above, WA will take no further action in relation
`to the February 11 subpoena.
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`Sincerely,
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`PATTERSON INTELLECTUAL PROPERTY LAW, P.C.
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`Ryan D. Levy
`rdl@iplawgroup.com
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`RDL/kac
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