[00:00:00] Speaker 01:
Case for argument this morning is 23-2367, Bakertop Licensing versus Canary Connect.

[00:00:10] Speaker 01:
Mr. Finger.

[00:00:11] Speaker 03:
Thank you, Your Honor.

[00:00:13] Speaker 03:
Good morning and may it please the Court.

[00:00:15] Speaker 03:
David Finger representing Appellants Lori LaPray and Backer Top Licensing, LLC.

[00:00:22] Speaker 03:
As the Court is aware, Ms.

[00:00:24] Speaker 03:
LaPray was held in contempt of court by the District Court for failing to obey an order which would require her to travel from Texas to Delaware to testify in an investigation the District Court was undertaking.

[00:00:37] Speaker 01:
Can I ask you a preliminary question, which is not exactly about this, but as we've been able to discern from the record in this case, there were four suits filed in Delaware and apparently others filed in other jurisdictions at approximately the same time.

[00:00:54] Speaker 01:
I think the total is 10.

[00:00:56] Speaker 01:
Do we know if those cases are still pending in those other jurisdictions?

[00:01:06] Speaker 03:
I think a number have been dismissed, but I don't know the numbers.

[00:01:13] Speaker 03:
Thank you.

[00:01:13] Speaker 03:
A fundamental principle of our constitutional system is that in the absence of a statute or minimal context, the court may not compel the presence of someone who lives outside the court's geographic boundaries.

[00:01:29] Speaker 03:
The district court's order is directly contrary to this principle.

[00:01:36] Speaker 01:
What is this principle?

[00:01:40] Speaker 01:
Is it rule 45 that you're referring to?

[00:01:43] Speaker 03:
It is rule 45.

[00:01:43] Speaker 03:
But rule 45, by its exception, is C1B, which states that the person who is subject to subpoena within the state where the person resides is employed or regularly transacts business.

[00:02:02] Speaker 03:
That is ethical where the person

[00:02:05] Speaker 03:
The person being subpoenaed is a party or a party's officer.

[00:02:09] Speaker 03:
And Ms.

[00:02:09] Speaker 03:
McRae is the officer of back or top license.

[00:02:12] Speaker 01:
But we're talking about Rule 45.

[00:02:14] Speaker 01:
But do you disagree that there is any kind of inherent authority that the court has that would expend beyond Rule 45 in these circumstances to say there's nothing the court has the authority to do with?

[00:02:28] Speaker 03:
No, the court has much inherent power in other areas.

[00:02:31] Speaker 03:
But I go back to the Supreme Court cases we cited.

[00:02:35] Speaker 03:
creates this limitation that if it is contrary to a statute, to the Constitution, or to a rule, then the inherent authority is limited, prescribed by those limitations.

[00:02:50] Speaker 01:
But that's the question, right?

[00:02:54] Speaker 01:
Is that authority abrogated by this rule, which is silent about any other

[00:03:00] Speaker 01:
inherent authority the court might have beyond that.

[00:03:03] Speaker 01:
I mean, the rule itself deals with the parties getting subpoenas, right?

[00:03:07] Speaker 03:
Actually, it refers to non-parties getting subpoenas.

[00:03:13] Speaker 01:
There's nothing in there.

[00:03:15] Speaker 01:
I mean, there could have been.

[00:03:16] Speaker 01:
There might have been.

[00:03:17] Speaker 01:
I'm sure there are other statutes where an authority beyond that granted with regard to the whole universe of subpoenas and creating witnesses is cut off in all other respects.

[00:03:28] Speaker 01:
There's nothing like that in Rule 45, right?

[00:03:31] Speaker 01:
There's no specific reference to aggregating or limiting whatever the court's authority might otherwise be.

[00:03:38] Speaker 03:
There is no, and quite honestly, I have not seen any statutes as Your Honor described which specifically refers to inheritance authority and specifically restricts it.

[00:03:51] Speaker 03:
I suggest that

[00:03:54] Speaker 03:
In this case, we have a language that is specifically restrictive.

[00:03:59] Speaker 03:
And it says, as I just read, what is required to bring an out-of-state party to another state.

[00:04:07] Speaker 01:
It has to be restricted with respect to when

[00:04:10] Speaker 01:
The party is seeking subpoena authority for what is correct.

[00:04:16] Speaker 03:
Again, Your Honor, we go back to the, as stated in our papers, the advisory committee's rule identifies the fact that a court order can serve as a subpoena.

[00:04:27] Speaker 03:
That definition was accepted by a Black's law dictionary and several cases which we have cited.

[00:04:33] Speaker 01:
Well, do you remove the legal principle?

[00:04:35] Speaker 01:
I don't know if it was chambers, deeds, or whatever cases are cited in one or at least the other side's briefs, that there would have to be some explicit limitation on the court's authority in order for it to prevail.

[00:04:48] Speaker 03:
Yes.

[00:04:48] Speaker 03:
And we believe that section C1 is that explicit restriction.

[00:05:00] Speaker 03:
So a subpoena may command a person to attend a trial hearing of this system.

[00:05:04] Speaker 02:
I find that argument a little problematic, because Rule 45 on its face clearly applies to parties seeking to get subpoenas from the court to compel people to attend depositions and the like, right?

[00:05:20] Speaker 02:
It's not specifically directed at the court.

[00:05:23] Speaker 02:
It's directed at parties seeking a subpoena from the court.

[00:05:28] Speaker 02:
I don't know if it's Chambers or the other Supreme Court case.

[00:05:31] Speaker 02:
But that court case, the one dealing with Rule 11, Rule 11 specifically deals with limits on the court's authorities to award sanctions.

[00:05:39] Speaker 02:
Yet nonetheless, the Supreme Court said there's still an area for inherent powers that's not incompatible with the limits in Rule 11.

[00:05:48] Speaker 02:
So if a rule that's specifically directed to a court

[00:05:52] Speaker 02:
nonetheless doesn't exclude the court's inherent authority.

[00:05:57] Speaker 02:
How does a rule that's not directed to the court exclude the court's inherent authority to summon this person?

[00:06:04] Speaker 03:
I want to push back a little on the fact that it is commonly used as an attorney-issued subpoena does not mean that that is its limitation.

[00:06:15] Speaker 02:
And I'm thinking there are... Well, but that's what it is.

[00:06:18] Speaker 02:
see out of context of the entire rest of the rule, which is directed at parties, isn't it?

[00:06:24] Speaker 02:
I mean, what's the first part of Rule 45 before you get to see?

[00:06:32] Speaker 03:
I'm sorry, I didn't hear the list.

[00:06:33] Speaker 02:
No, it's okay, go on.

[00:06:36] Speaker 03:
Well, again, if you look at the Supreme Court cases, other than the one you mentioned, I don't believe they point to anything.

[00:06:45] Speaker 02:
Well, can you address the one I mentioned?

[00:06:46] Speaker 02:
That one seems pretty on point to me when you have a specific rule of civil procedure that's been adopted by the Supreme Court and from by Congress that says, here's the circumstances in which a court may sanction attorneys.

[00:06:59] Speaker 02:
But nonetheless, the Supreme Court said it can go beyond that rule when it doesn't conflict.

[00:07:06] Speaker 02:
And so this is a rule directed to the power of the court to issue subpoenas on behalf of the parties that wouldn't conflict with the court's own inherent authority to issue orders summoning people itself.

[00:07:21] Speaker 03:
But Your Honor, that is the conclusion.

[00:07:25] Speaker 03:
Unless the court is accepting the principle or the argument that this Rule 45 is limited to lawyer-issued subpoena.

[00:07:36] Speaker 02:
Well, can you point to me something apart from C that seems to suggest that it constrains the court's authority?

[00:07:44] Speaker 02:
Or that it applies to the courts rather than to parties seeking subpoenas from the court?

[00:07:50] Speaker 03:
Again, yes, we go to the case law.

[00:07:54] Speaker 03:
No, in Rule 45 itself.

[00:07:55] Speaker 03:
In Rule 45 itself.

[00:07:57] Speaker 03:
But nor is there anything in Rule 45 which says this does not limit.

[00:08:03] Speaker 02:
But you don't need that, right?

[00:08:04] Speaker 02:
That's what the Rule 11 case from the Supreme Court said.

[00:08:08] Speaker 02:
There's nothing in Rule 11 that says the court still retained the inherent authority, is there?

[00:08:13] Speaker 02:
It's just Rule 11 applies for sanctions.

[00:08:17] Speaker 02:
But yet, the Supreme Court said you can sanction

[00:08:20] Speaker 02:
issue sanctions under your inherent authority for other reasons.

[00:08:26] Speaker 02:
Can I ask you this?

[00:08:27] Speaker 02:
If we decide that Rule 45 doesn't apply and that the court hasn't the inherent authority to summon this little prey, do you have other arguments?

[00:08:39] Speaker 02:
I know you've alluded to constitutional arguments, but I don't quite understand what those arguments are and whether you made them below.

[00:08:45] Speaker 02:
I saw them show up at the end of your prelude.

[00:08:49] Speaker 03:
Well, first let me say as a prelude that

[00:08:53] Speaker 03:
Although the words due process don't show up until your heart is said late, the issue of geographic limitations is simply a due process issue.

[00:09:04] Speaker 03:
And the due process clause requires minimum context.

[00:09:08] Speaker 03:
in Rule 45.

[00:09:10] Speaker 02:
Wait, what's your authority for that?

[00:09:11] Speaker 02:
I mean, the due process clause requires minimum contacts to sue a party.

[00:09:16] Speaker 02:
But what case says it requires a minimum contacts for the court to summon a witness?

[00:09:26] Speaker 02:
I mean, the minimum contacts case law you cited, isn't that all venue stuff?

[00:09:30] Speaker 02:
Yes, it is.

[00:09:31] Speaker 02:
But we're not talking about venue here, right?

[00:09:34] Speaker 02:
I mean, the back or top?

[00:09:36] Speaker 02:
sued the defendant.

[00:09:39] Speaker 02:
I mean, they get to choose which court they file in, and she's Backer Top's owner.

[00:09:45] Speaker 02:
I mean, I don't even know why we would have to apply minimums, contacts analysis, but what's the authority that

[00:09:53] Speaker 02:
In exercising the inherent authority, there has to be minimum context.

[00:09:56] Speaker 02:
The venue cases don't do it for me.

[00:09:58] Speaker 03:
No, but the principles stated in Burger King and the lay cases all speak to the sovereignty of independent states and the limitations on court's authority outside their geographic boundaries.

[00:10:12] Speaker 03:
It doesn't make any sense, I respectfully submit, to say, oh, it works for personal jurisdiction in the case.

[00:10:20] Speaker 03:
But you can still grab them and pull them in other circumstances.

[00:10:24] Speaker 02:
I fail to see how that can... How that can... Well, I don't... I mean, what's the analysis for that?

[00:10:32] Speaker 02:
I mean, what's the test for whether it violates procedural due process to summon a witness under courts and hearing authorities?

[00:10:39] Speaker 02:
And why is that violated?

[00:10:41] Speaker 03:
You know, I have submissively...

[00:10:45] Speaker 03:
The standard minimum context case of Burger King and related cases states a legal principle that is applied specifically in the venue case before it, but not limited.

[00:10:55] Speaker 02:
They've never been applied to.

[00:10:58] Speaker 03:
And it's never been rejected as it either.

[00:11:01] Speaker 03:
I see I'm into my level of time, so I thank the court.

[00:11:17] Speaker 00:
Good morning.

[00:11:18] Speaker 00:
The district court had ample authority to order Ms.

[00:11:21] Speaker 00:
LePray, who's the sole owner and officer of an entity that filed multiple cases in Delaware, to appear at a hearing to address serious concerns about potential fraud on the court and other misconduct.

[00:11:33] Speaker 01:
Before you get into that, you were very helpful in the brief.

[00:11:36] Speaker 01:
And I appreciate it.

[00:11:37] Speaker 01:
I guess the two parties aren't disputing whether or not we have a jurisdiction to review.

[00:11:44] Speaker 01:
the contempt order and the merits order, but you agree to help us.

[00:11:47] Speaker 01:
Can we talk about that for a minute?

[00:11:50] Speaker 01:
Yes.

[00:11:50] Speaker 01:
The ability to interview the two for us to consider these interlocutory orders are based on dubbing her a non-partner.

[00:12:00] Speaker 01:
And that's a little odd, right?

[00:12:03] Speaker 01:
Where she's the sole owner of whatever this enterprise is.

[00:12:09] Speaker 01:
And, I mean, she's the type of witness, right, that in a pre-trial conference the judge might easily say, you've got to be here because you're the real party here.

[00:12:20] Speaker 01:
So how do we slice the dice here in saying she's a party for other purposes, or she's perceived as a party for other purposes, but not for the purpose of jurisdiction?

[00:12:30] Speaker 00:
And I think that's right, that the focus would be on is she a non-party for this specific purpose.

[00:12:35] Speaker 00:
And the Third Circuit in the Emaco distributors case said that even if it's an officer of a party, for purposes of assessing whether they have an appeal here, we consider them a non-party.

[00:12:48] Speaker 00:
And I think the Wallace case from the Third Circuit also speaks to this.

[00:12:52] Speaker 00:
And even if

[00:12:53] Speaker 00:
There it was an attorney representing a party.

[00:12:56] Speaker 00:
But even if there's some sort of overlapping interest between the two, if they're kind of functioning as a witness, as Ms.

[00:13:05] Speaker 00:
LePray was here submitting a declaration about personal facts there to testify as a witness, then functionally we should be considering that as a non-party.

[00:13:16] Speaker 00:
So I think under the Third Circuit's case law, that would be the right analysis here.

[00:13:22] Speaker 01:
And under your view of inherent authority, you mean you agree it's subject to a reasonableist test?

[00:13:28] Speaker 00:
Yes, absolutely.

[00:13:30] Speaker 00:
And the Supreme Court says that in the Dietz case from 2016, that

[00:13:34] Speaker 00:
even if you have an inherent power, it has to be a reasonable exercise to confront the problems before the court.

[00:13:40] Speaker 00:
So on appeal, there would certainly be, could be, although this argument wasn't raised here, an abuse of discretion review of that reasonableness.

[00:13:49] Speaker 00:
That is one limit on the inherent power, including this inherent power to order a witness to appear.

[00:13:53] Speaker 01:
Well, hypothetically, could that have been the case because she was offering ready to leave and able to be videotaped.

[00:14:02] Speaker 01:
So in the absence of the chief judge articulating presumably reasonably that it's a credibility analysis and I need somebody sitting there.

[00:14:13] Speaker 01:
But in the absence of

[00:14:14] Speaker 01:
his having made that argument and this could arguably come with an abusive discretion on reasonableness?

[00:14:20] Speaker 01:
He has to establish a need to have her there, right?

[00:14:24] Speaker 00:
Yes, I think that's right.

[00:14:25] Speaker 00:
And I think, as you said, the district court did that here, analyzed whether a video conference would be sufficient.

[00:14:31] Speaker 00:
The district court found that, no, he really needed to hear from this individual in person to assess credibility.

[00:14:36] Speaker 00:
I think reasonable minds can differ about that.

[00:14:40] Speaker 00:
I think the district court here was well within the bounds of reasonableness under these circumstances.

[00:14:45] Speaker 00:
But in a different case, I think certainly that could cross the line if video conference would really be sufficient for the particular needs in that case.

[00:14:54] Speaker 01:
And what about the amount of the contempt order?

[00:14:56] Speaker 01:
I mean, that too would be reviewable for the abuse of discretion as to whether or not the amount was excessive.

[00:15:02] Speaker 00:
Yes, that's correct.

[00:15:03] Speaker 00:
That's correct.

[00:15:04] Speaker 00:
And I think here, the $200 a day, the district court went through a fairly thorough analysis to reach that number based on the individual's resources and the need for the testimony.

[00:15:14] Speaker 00:
I think $200 a day was appropriate here.

[00:15:16] Speaker 00:
But yes, that would be an abuse of discretion review.

[00:15:20] Speaker 01:
Could you talk for a minute about

[00:15:22] Speaker 01:
The second part of the jurisdictional thing, which is we've got the contempt, and then we've got the underlying merits.

[00:15:28] Speaker 01:
And it certainly would seem to make sense to, I think, most everyone that we would adjudicate both in the same bundle.

[00:15:36] Speaker 01:
But is there a hoop we have to go through in order to do that?

[00:15:40] Speaker 00:
Because Ms.

[00:15:41] Speaker 00:
LePray is a non-party and because the underlying order was interlocutory, the Third Circuit, this court, the Supreme Court have all said that once the individual is held in contempt, there's an immediate right to appeal and you can evaluate the underlying order in the context of that appeal.

[00:15:59] Speaker 00:
So I think that would be the case here.

[00:16:02] Speaker 01:
What happened below was there was an argument of waiver, but then the judge adjudicated it, or at least opined upon it, nonetheless, right?

[00:16:11] Speaker 00:
That's correct.

[00:16:11] Speaker 00:
So we have the district court's analysis of the Rule 45 argument.

[00:16:15] Speaker 00:
In addition, Ms.

[00:16:17] Speaker 00:
LePray presented the argument in the context of the civil contempt proceedings and a motion to dismiss those proceedings.

[00:16:23] Speaker 00:
It was timely raised at that point in the case.

[00:16:26] Speaker 00:
The district court did not find waiver.

[00:16:28] Speaker 00:
The district court didn't address the argument for other reasons, but it was not a waiver issue.

[00:16:31] Speaker 00:
So it was presented.

[00:16:33] Speaker 00:
We have the district court's view.

[00:16:34] Speaker 00:
There was no need for further factual development, anything along those lines.

[00:16:39] Speaker 00:
I don't think waiver forfeiture would apply here.

[00:16:45] Speaker 01:
happens in these cases, not in the bank.

[00:16:48] Speaker 01:
The fine isn't that steep.

[00:16:50] Speaker 01:
This could go on for years, right?

[00:16:52] Speaker 01:
Although the district court, I guess, at some point could say, well, this ain't doing the trick, and I'm going to up the fees.

[00:17:00] Speaker 01:
Would you care to speculate on how this goes forward?

[00:17:04] Speaker 00:
I do think if the court affirms the contempt sanction here, obviously, hopefully the outcome would be Ms.

[00:17:13] Speaker 00:
Leprey shows up in court and this is taken care of.

[00:17:16] Speaker 00:
The district court hasn't completed its sort of investigation of these issues.

[00:17:20] Speaker 00:
That is still ongoing.

[00:17:22] Speaker 00:
And so I think it would be up to the district court to decide

[00:17:25] Speaker 00:
if Miss LePray is continuing to refuse to show up, whether that is necessary to finish its inquiry or not.

[00:17:33] Speaker 00:
And if it finishes the inquiry, then maybe there's some discretion to stop the fine from accruing.

[00:17:39] Speaker 00:
But at this point, it is still ongoing.

[00:17:42] Speaker 01:
This is a little stupid maybe, but you know, we talk about it.

[00:17:45] Speaker 01:
We all agree this is an interlocutory appeal.

[00:17:48] Speaker 01:
What's the ultimate final judgment?

[00:17:51] Speaker 01:
I mean, the merits case is itself gone.

[00:17:53] Speaker 01:
It's dismissed.

[00:17:54] Speaker 01:
So there's not going to be any further adjudication or judgment with respect to the merits case.

[00:17:59] Speaker 01:
So what's the final judgment in the context of what we're talking about here?

[00:18:05] Speaker 00:
So I can point to the other related cases in this sort of Nimitz saga because those have been concluded in the district court where the district court based on the information gathered through document productions and hearings determined to refer the case to the PTO for the fraud aspect of things.

[00:18:24] Speaker 00:
refer to the state bar associations for potential disciplinary action, and wrap things up that way.

[00:18:29] Speaker 00:
So I think that could be the outcome here.

[00:18:31] Speaker 00:
The court could find a third.

[00:18:33] Speaker 01:
And that would be considered a final judgment.

[00:18:35] Speaker 01:
Is there a docket number associated with this adjudication now that we've got going on outside of the merits case?

[00:18:41] Speaker 00:
It is all under the original case numbers.

[00:18:45] Speaker 00:
Has the court issued a final judgment in this case, or they just filed a motion, or a stipulation?

[00:18:51] Speaker 00:
Just the Rule 41 stipulation.

[00:18:53] Speaker 00:
There has not been a final judgment beyond that.

[00:18:57] Speaker 00:
I'm presumably just waiting for the witnesses, right?

[00:18:59] Speaker 00:
That would be my guess, yes.

[00:19:01] Speaker 01:
Do you know if there are other witnesses that have been ordered to appear by the court?

[00:19:08] Speaker 00:
There were, yes, earlier in the hearings that the court held in the fall of 2022, not in the backer top cases, but the related cases, there were other owners, officers of these entities that were called to testify, like Ms.

[00:19:22] Speaker 00:
Leprey, who appeared to testify in the fall of 22 as well.

[00:19:26] Speaker 02:
Were there any problems in the Nimitz proceedings that you know, didn't, if I recall, it seems like everybody showed up there.

[00:19:34] Speaker 00:
That, as far as I know, yes, everybody showed up there.

[00:19:39] Speaker 00:
There were, of course, objections to the document production orders that this court addressed in a mandamus posture, but no issues with the witnesses appearing that I'm aware of.

[00:19:49] Speaker 01:
And in terms of, again, assuming there's a level of inherent authority and it goes beyond what we're talking about in Rule 45, we talked earlier about the unreasonableness of the case and yada da.

[00:20:04] Speaker 01:
What about just in that bucket, is it included where

[00:20:08] Speaker 01:
One would adjudicate whether or not the investigation itself is excessive.

[00:20:14] Speaker 01:
Is that something that would be reviewable?

[00:20:18] Speaker 00:
I think as an exercise of an inherent power, yes, that could be reviewed under the same reasonableness, abusive discretion standard.

[00:20:27] Speaker 00:
This court did address that in the Nimitz Mandamus petition, finding that at the fundamental level, the district court had authority to be asking the questions that the district court was asking.

[00:20:36] Speaker 00:
But yes, I think that could also be part of the review in a different case.

[00:20:41] Speaker 00:
And I do think that the due process does apply here as well.

[00:20:46] Speaker 00:
The Supreme Court and Chamber said, yes, due process is a limit on the court's inherent authority.

[00:20:52] Speaker 00:
But in this case, as the Chief pointed out, it was not actually raised below.

[00:20:56] Speaker 00:
It was not raised until their gray brief here.

[00:20:59] Speaker 00:
And in addition to that, I think Ms.

[00:21:01] Speaker 00:
LePray pretty clearly consented to personal jurisdiction, including the due process component of that.

[00:21:06] Speaker 00:
by voluntarily appearing at the fall 22 hearing, by objecting and litigating the order for document productions, by litigating this order to appear, just like a defendant can consent to personal jurisdiction by appearing and participating.

[00:21:21] Speaker 00:
So too, Ms.

[00:21:21] Speaker 00:
LePray here.

[00:21:22] Speaker 02:
If she hadn't done that, how would we look at a due process analysis here in the context of the inherent authority?

[00:21:31] Speaker 02:
Because I think the district court would conclude that

[00:21:34] Speaker 02:
it still have authority to summon her even if she hadn't appeared once.

[00:21:39] Speaker 00:
Absolutely.

[00:21:40] Speaker 00:
Had she raised this objection right away, I still think there would be jurisdiction and due process would be satisfied.

[00:21:46] Speaker 00:
The Supreme Court hasn't squarely addressed what standard applies to non-parties as opposed to parties.

[00:21:53] Speaker 00:
Some courts have, by analogy, applied the minimum contacts type analysis.

[00:21:58] Speaker 00:
I think here, as Judge Yuzi pointed out, as the sole owner and officer of this entity that voluntarily files for lawsuits in the District of Delaware, under any standard, that is a sufficient minimum contact purposefully availing of the benefits and protections of that jurisdiction.

[00:22:14] Speaker 02:
How does the reasonable limitation on this inherent authority coincide with the due process?

[00:22:19] Speaker 02:
Are they kind of coexistent, or are they different analysis?

[00:22:23] Speaker 00:
I think they are separate analyses, the way the Chamber's decision addressed them.

[00:22:30] Speaker 00:
There is yes, you need to have a reasonable exercise to review that for abuse of discretion, but also fundamentally there needs to be, the process needs to be satisfied here.

[00:22:40] Speaker 00:
So I think those are two limits in future cases on this exercise of inherent authority to call in witnesses as part of an investigation into fraud on the court or other misconduct.

[00:22:53] Speaker 01:
So going back to the fact that she appeared once and not a second time, I guess I'm not clear.

[00:22:58] Speaker 01:
Does that mean once you appear for all time, you're under her umbrella?

[00:23:04] Speaker 01:
Or can't someone change their minds and consult with an attorney and say, whoops, I shouldn't have done that, so now I'm going to exercise my right not to appear?

[00:23:13] Speaker 01:
I mean, that shouldn't be too prejudiced for having appeared once, right?

[00:23:17] Speaker 00:
Well, I think using the analogy of how a party or a defendant can consent to personal jurisdiction, the analysis there is, have they voluntarily appeared and actively litigated the case without raising a personal jurisdiction objection?

[00:23:31] Speaker 00:
The same would be true here.

[00:23:33] Speaker 00:
And in the interest of the court is, if there is a personal jurisdiction or due process objection, really that should be raised at the beginning of the case before we spend a year operating under the assumption that everybody is here voluntarily.

[00:23:49] Speaker 02:
How far afield is this inherent authority now?

[00:23:55] Speaker 02:
I mean, based upon Judge Connolly's orders and stuff, it appears like there is entities like Max Sevier and IP Edge that are involved.

[00:24:06] Speaker 02:
Can you summon witnesses from those parties to appear in Delaware that they ever get identified, even though they've never appeared as parties and participated in

[00:24:19] Speaker 02:
haven't done anything with the case?

[00:24:23] Speaker 00:
So I think the first question would be the same reason as inquiry.

[00:24:30] Speaker 00:
What is their testimony?

[00:24:32] Speaker 00:
What is their connection to the case?

[00:24:34] Speaker 00:
What's the burden on them to appear in this court?

[00:24:38] Speaker 00:
And so I think it would be a case-by-case analysis of whether that reasonableness standard is met.

[00:24:43] Speaker 00:
And then again, I do think there would need to be a question about, does this comply with the due process clause?

[00:24:48] Speaker 00:
So by their involvement in this scheme that the court has identified, is that enough to find they've purposely availed themselves of this jurisdiction such that due process is not offended?

[00:25:00] Speaker 00:
I think that would be the two steps in the analysis.

[00:25:18] Speaker 03:
Thank you, Your Honor.

[00:25:19] Speaker 03:
I'll be very brief.

[00:25:20] Speaker 03:
First, Judge Hughes, to respond to your question about use of inherent powers and restrictions of 45 in the context of court-called witnesses, I respectfully refer Your Honor to page 19 and 20 of our opening before.

[00:25:36] Speaker 03:
We cite three cases, one from the seventh wicked, which was overruled on other grounds by the Supreme Court, and two district court cases, which all state that

[00:25:47] Speaker 03:
Courts cannot use their inherent power to compel witnesses to appear when the witness is outside the court's subpoena power.

[00:25:55] Speaker 03:
So there is no gap in logic, at least from a precedential basis.

[00:25:59] Speaker 02:
But do those cases involve the court using its inherent authority to determine whether the circumstances here are using the court's inherent authority to issue a subpoena on behalf of one

[00:26:11] Speaker 02:
the parties.

[00:26:12] Speaker 02:
I believe in this case it was the court issuing the subpoena, but it was the request in those cases to some of those witnesses on behalf of the party.

[00:26:23] Speaker 02:
I understand the difference because clearly, if Rule 45 limits the ability of a party to seek subpoenas of non-party witnesses outside the jurisdiction, the court can't fill that gap with its inherent authority because it would directly conflict because there is a limitation on the party.

[00:26:45] Speaker 02:
And that's the way I read those cases, unless you're telling me it was specifically the court, sua sponte, exercising its inherent authority, not at the request of the party.

[00:26:57] Speaker 03:
And is it OK?

[00:26:58] Speaker 03:
I cannot recall the answer to that question.

[00:26:59] Speaker 03:
I apologize.

[00:27:05] Speaker 03:
I have the other point about her voluntary appearance.

[00:27:08] Speaker 03:
I believe the law to be that one appearance is not a waiver of all time, for all time.

[00:27:16] Speaker 03:
And I will leave it at that.

[00:27:19] Speaker 01:
Can I just ask, leaving aside what John here, if a judge has a party such as your client, and he wants to have a pre-trial conference, and as judges frequently do, they say, I want the client here.

[00:27:35] Speaker 01:
Would he not, in your view, have the authority to order her to come to a pre-trial conference?

[00:27:40] Speaker 03:
Yes, he may well have that authority.

[00:27:42] Speaker 03:
However, in this particular case, she's not acting on behalf, being called as a representative of Backertop.

[00:27:51] Speaker 03:
She has been called in her own name.

[00:27:53] Speaker 03:
And at least Delaware courts, and I think that the district courts does as well, recognizes the independent legal significance of a commercial entity as opposed to the person just as like a stockholder would not be able to be called or a director would not be able to call for independently of the corporation.

[00:28:14] Speaker 01:
I thank you, Your Honor.

[00:28:16] Speaker 01:
Thank you.

[00:28:16] Speaker 01:
And I thank both sides and very much appreciate the input from the amicus here.