Dmarcian, Inc. v. DMARC Advisor BV

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CASE NO.: 1:21-CV-00067
DMARCIAN, INC.,
Plaintiff,
v.
DMARC ADVISOR BV,
f/k/a dmarcian Europe BV,
Defendant.
LETTER OF REQUEST FOR
ORAL EXAMINATION OF HUB
HARMELING
REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE PURSUANT
TO THE HAGUE CONVENTION OF 18 MARCH 1970 ON THE TAKING
OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS
A Request is hereby made by the United States District Court for the
Western District of North Carolina, 200 U.S. Courthouse Building, 100 Otis
Street, Asheville, NC 28801, UNITED STATES OF AMERICA, to the Ministry
of Justice, for assistance in obtaining testimony needed for an upcoming trial
in the above-captioned action. This request is made pursuant to Chapters I
and III of the Hague Convention of 18 March 1970 on the Taking of Evidence
Abroad in Civil or Commercial Matters (the “Hague Convention”). This Court
respectfully 	requests 	this 	Letter 	of 	Request 	from 	this 	Court 	and
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accompanying 	Commission 	be 	recognized, 	and 	that 	Dutch 	Ministry 	of
Justice authorizes the taking of evidence in the territory of the Netherlands
by the commissioners appointed for this purpose as developed below, in
adherence to Article 17 of the Hague Convention and in the interest of comity.
1. Requesting
Judicial Authority
Honorable Martin Reidinger
United States Chief District Judge
United States District Court for the Western
District of North Carolina
200 U.S. Courthouse Building
100 Otis Street
Asheville, NC 28801
UNITED STATES OF AMERICA
2. Central Authority
of the Requested
State
De Officier van Justice
Arrondissenmentsparket Den Haag
Afdeling executie, t.a.v. Ms. J. Booister
Postbus 20302
2500 EH Den Haag
The Netherlands
3. Person to whom
the executed
request is to be
returned
Plaintiff’s US Counsel:
Pamela Duffy
Ellis & Winters LLP
300 N. Greene Street
Suite 800
Greensboro, NC 27401
UNITED STATES OF AMERICA
David Dorey, DE #5283
Blank Rome, LLP
David.dorey@BlankRome.com
1201 Market Street, Suite 800
Wilmington, DE 19801
Telephone: (302) 425-6418
Plaintiff’s Dutch Counsel:
Timo Jansen and Mukesh Hoeba
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Lexence
Postbus 75999
1070 AZ Amsterdam
4. Specification of
date by which
requesting
authority requires
receipt of
response to the
Letter of Request
The requesting authority would greatly
appreciate a response to the Request by July 1,
2024.
Reason for
urgency
Oral examination of Hub Harmeling needed to
obtain necessary evidence in preparation for
trial set for September 3, 2024.
In conformity with Article 3 of the Hague Convention, the undersigned
applicant has the honor to submit the following Request:
5. (a) Requesting
authority
United States District Court for the Western
District of North Carolina
200 U.S. Courthouse Building
100 Otis Street
Asheville, NC 28801
UNITED STATES OF AMERICA
(b) To the
Competent
Authority of
The Netherlands
(c) Name of the
case and
identifying
number
dmarcian, Inc. v. DMARC Advisor, BV, f/k/a
dmarcian Europe BV, Case No.: 1-21-CV-00067
6. (a) Plaintiff 	dmarcian, Inc.
Name and
address of
Plaintiff’s
representatives
Pamela Duffy
Tyler Jameson
Ellis & Winters LLP
300 N. Greene Street
Suite 800
Greensboro, NC 27401
UNITED STATES OF AMERICA
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David Dorey
Blank Rome, LLP
1201 Market Street, Suite 800
Wilmington, DE 19801
UNITED STATES OF AMERICA
(b) Defendant 	DMARC Advisor, BV f/k/a dmarcian Europe BV
Name and
address of
Defendant’s
representatives
Pressly M. Millen
Samuel B. Hartzell
Womble Bond Dickinson (US) LLP
PO Box 831
Raleigh, NC 27602
UNITED STATES OF AMERICA
7. (a) Nature of the
proceedings
Copyright and trademark infringement, theft of
trade secrets, breach of contract
(b) Summary of
Complaint
This civil action was brought to recover for
damages that Plaintiff contends it suffered
through Defendant’s alleged theft of several
types of intellectual property protected by
United States law, including among others
copyright law, trademark law, and trade secrets
(collectively “IP”). Plaintiff is a software
company that helps users authenticate
incoming emails through the Domain-based
Message Authentication Reporting and
Conformance (DMARC) protocol. Defendant
contracted with Plaintiff to engage in a
cooperative joint business which included
authorization to use Plaintiff’s IP.
In or about early 2021, Defendant began to use
Plaintiff’s IP outside of the cooperative
relationship without authority of Plaintiff and
Defendant further asserted its own alleged
intellectual property rights in the IP. Plaintiff
asserts, among other things, that Defendant’s
conduct was a breach of the parties’
agreements.
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In 2020, Defendant filed suit in the Enterprise
Court of the Appellate Court of Amsterdam in
the Netherlands. In September 2020, the
Enterprise Chamber seized control of
Defendant and appointed Mr. Harmeling as
Defendant’s independent director. Mr.
Harmeling did not previously have a relationship
with Defendant. Mr. Harmeling’s actions on
behalf of Defendant after his appointment are at
issue in the dispute.
8. (a) Evidence to
be Obtained
The evidence sought to be obtained is the oral
testimony of Hub Harmeling.
(b) Purpose of
the Evidence
The testimony of Hub Harmeling is relevant to
the issues in dispute and needed for the
impending trial scheduled to begin in
September of 2024.
9. Identity and
address of the
person to be
examined
H.J.M. (“Hub”) Harmeling
Paulus Potterlaan 12
2102 CD Heemstede
The Netherlands
10. Statement of
subject matter
about which Mr.
Harmeling is to
be examined
See attached Exhibit A
11. 	Special
methods or
procedure to
be followed
In the interests of justice to enable this Court to
determine the issues pending before it, it is
requested that you please cause and compel
the deposition of Hub Harmeling under oath to
testify truthfully, that counsel for both sides be
given the opportunity to question the witness,
and that a verbatim transcript be prepared.
It is further requested that the deposition take
place by video at a time to be agreed upon by
the attorneys of record in the above-identified
matter and Mr. Harmeling, provided that the
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deposition take place no later than July 31,
2024.
It is further requested that any certified record of
the deposition be sent to:
Pamela S. Duffy and David Dorey
12. Request for
notification of the
time and place
for the execution
of the Request
and identity and
address of any
person to be
notified
This Court respectfully requests that you notify
this court; the representatives of the parties
identified above; and the witness from whom
evidence is requested as indicated above; and
such other persons as you deem proper.
13. Request for
attendance or
participation of
judicial personnel
of the requesting
authority at the
execution of the
Letter of Request
No judicial personnel of the requesting authority
will attend or participate.
14. Specification of
privilege or duty
to refuse to give
evidence under
the law of the
Requesting State
Plaintiffs do on believe that the witness benefits
from any privilege or duty to refuse to give the
requested evidence, and does not endorse the
assertion of any such privilege or duty, except to
the extent that the Defendant in this action may
assert attorney-client privilege as to specific
questions as appropriate.
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15. The fees and costs
incurred which are
reimbursable under the
second paragraph of
Article 14 or under Article
26 of the Convention will
be borne by:
Subject to any later order of the Court
which may be entered in connection
with shifting costs, all costs of the
Hague Convention proceeding for
procedural costs associated with the
depositions requested will be borne by
Plaintiff dmarcian, Inc., provided that
each party will be responsible for the
fees and expenses, if any, of its own
attorneys relating to any Hague
Convention proceedings with respect
to the deposition sought in this Letter
of Request.
This Court expresses its appreciation of the Ministry of Justice for its
courtesy and assistance in this matter and states that it shall be ready and
willing to assist the Ministry of Justice in a similar manner when required.
Asheville, North Carolina, United States of America.
Signed: April 19th
, 2024
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Exhibit A: Topics of Oral Examination
Plaintiff respectfully requests to ask Mr. Harmeling questions regarding
the following topics and requests an opportunity to ask follow up question
as may be required by Mr. Harmeling’s responses:
A. Mr. Harmeling’s qualifications and role as independent director of
Defendant, his appointment, and the process related to such
appointment.
B. All actions taken by Mr. Harmeling in his role as independent director
of Defendant and the scope of his authority.
C. Mr. Harmeling’s knowledge of the dispute between Plaintiff and
Defendant and his efforts to resolve such dispute.
D. Mr. Harmeling’s interactions with Plaintiff, with Defendant and its
advisors or employees, and with Defendant’s shareholders and
directors (Tim Draegen and TDX, through its representatives Martijn
Groeneweg and Herwert Kalkman), including but not limited to those
interactions that led to the actions initiated or taken by Mr. Harmeling
on behalf of Defendant.
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E. Mr. Harmeling’s involvement in actions taken by Defendant which are
the subject of the complaint, including without limitation: obtaining
access to and exercising control over and using Plaintiff’s IP;
establishing a separate website using to operate independently from
Plaintiff; and Defendant’s communications with customers and
prospective customers seeking that they cease using the Plaintiff’s
platform and commence using Defendant’s separate platform.
F. The substance, purpose, and effect of all communications Mr.
Harmeling had with Plaintiff’s and Defendant’s representatives
regarding the dispute.
G. All instructions given by Mr. Harmeling to employees of Defendant to
procure copies of Plaintiff’s source code, trade secrets, customer
information, or other intellectual property in relation to Defendant’s
efforts to conduct business independently from Plaintiff, including the
nature of the instruction, the persons to whom he gave such
instructions, and the date(s) of such instructions.
H. All communications with customers and other third parties asserting
that Plaintiff suffered a data breach requiring notifications to
customers under the GDRP.
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I. 	All statements and contentions set forth in Mr. Harmeling’s
declarations submitted in the above-identified United States action.
J. Mr. Harmeling’s knowledge of and/or participation in Defendant’s
actions in violation of the Preliminary Injunction which led to issuance
of contempt orders.
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