Case 6:21-cv-00569-ADA Document 95-4 Filed 10/12/22 Page 1 of 6
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`Exhibit D
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`Exhibit D
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`Case 6:21-cv-00569-ADA Document 95-4 Filed 10/12/22 Page 2 of 6
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`TOUCHSTREAM TECHNOLOGIES, INC.,
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`GOOGLE LLC,
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`Defendant.
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`Plaintiff,
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`v.
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`§
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`Civil Case No. 6:21-cv-569-ADA
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`JURY TRIAL DEMANDED
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`DECLARATION OF REMO DECURTINS
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`1.
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`I, Remo Decurtins, pursuant to 28 U.S.C. § 1746, hereby declare under penalty of
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`perjury under the laws of the United States, as follows:
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`2.
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`I submit this declaration in support of the motion for issuance of a letter of request
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`for international judicial assistance in relation to a planned deposition of witness Janos Levai in
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`Switzerland.
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`3.
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`Unless otherwise indicated, all facts set forth in this declaration are based upon my
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`personal knowledge.
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`A.
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`4.
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`BACKGROUND AND QUALIFICATIONS
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`I am an Associate in the Swiss office of Quinn Emanuel Urquhart & Sullivan, LLP
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`(“Quinn Emanuel”), a global law firm focused on litigation and dispute resolution. I was called
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`to the Swiss Bar in 2013 and to the New York Bar in July 2018. I hold a MLaw degree from the
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`University of Lucerne and a Master’s Degree from New York University.
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`1
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`Case 6:21-cv-00569-ADA Document 95-4 Filed 10/12/22 Page 3 of 6
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`5.
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`I have served in the capacity of “Swiss Commissioner” appointed by the Swiss
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`authorities to supervise remote depositions in Switzerland for use in proceedings in the U.S. (in
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`accordance with the procedures described hereinafter).
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`B.
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`6.
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`DEPOSITION OF A WITNESS LOCATED IN SWITZERLAND
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`Swiss law requires foreign litigants to obtain permission from the Swiss Federal
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`Office of Justice (“FOJ”) before taking deposition testimony (in-person or remote via a live video
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`conference) of a witness located in Switzerland.
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`7.
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`Switzerland and the United States are both parties to the Convention of 18 March
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`1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (“Hague Convention”).
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`Thus, for obtaining the permission of the FOJ for a deposition to be used in court proceedings in
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`the United States (“U.S. Proceedings” or “U.S. Court”), the requirements under the Hague
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`Convention must be complied with.
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`8.
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`In fact, non-compliance with the rules under the Hague Convention and conducting
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`a deposition for use in U.S. Proceedings without permission from the FOJ may result in criminal
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`penalties for the involved parties, as it may be deemed to be an “unlawful activity on behalf of a
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`foreign state,” which is a criminal offense according to Article 271 of the Swiss Criminal Code.
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`9.
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`In a situation where the witness voluntarily consents to attend to such deposition,
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`the requirements of Chapter II of the Hague Convention (“Taking of evidence by diplomatic
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`officers, consular agents and commissioners”) (“Chapter II Deposition”) apply.
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`10.
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`In a Chapter II Deposition, the deposition is supervised by a so-called “Swiss
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`Commissioner” who typically is an attorney admitted to the Swiss bar (“Swiss Commissioner”).
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`The Swiss Commissioner is entrusted with ensuring that the deposition is conducted in accordance
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`with Swiss laws.
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`2
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`Case 6:21-cv-00569-ADA Document 95-4 Filed 10/12/22 Page 4 of 6
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`11.
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`The deposition itself is conducted by commissioners representing the parties,
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`typically the parties’ attorneys in the U.S. Proceedings (“Party Commissioners”).
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`12.
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`Both the Swiss Commissioner and the Party Commissioners need to be appointed
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`by the U.S. Court. The U.S. Court will then request judicial assistance from the applicable Swiss
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`authorities by way of a so-called “Letter of Request.”
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`13.
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`The necessary application for authorization with
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`the FOJ (the “Swiss
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`Application”), with the relevant order(s) of the U.S. Court attached to it, must be filed by the
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`Swiss Commissioner with a designated authority in the canton where the evidence is to be taken.
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`14.
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`The Swiss authorities typically take 1 to 3 weeks to process such application. Upon
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`approval from the FOJ and subject to the terms contained in the relevant order(s) from the U.S.
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`Court and the Swiss Application, the Swiss Commissioner will formally invite the witness to
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`appear for a Chapter II Deposition.
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`15.
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`At the outset of a Chapter II Deposition, the Swiss Commissioner verifies the
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`identity of the witness. He/she then makes preliminary remarks in which he/she advises the witness
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`of his/her rights in accordance with the authorization by the FOJ and the Hague Convention.
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`Among others, the Swiss Commissioner will pose the following questions to the witness:
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`i. Mr./Ms. XY, do you understand that you have the right to be represented by a
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`lawyer in this deposition?
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`ii. Mr./Ms. XY, do you understand that you are under no legal obligation to appear
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`today to this deposition and that this deposition may be ended at any point, if you
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`wish so?
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`iii. Mr./Ms. XY, do you understand that you may invoke the rights to refuse testimony
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`or the prohibition of testimony under both Swiss and U.S. law?
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`3
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`Case 6:21-cv-00569-ADA Document 95-4 Filed 10/12/22 Page 5 of 6
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`iv. Mr./Ms. XY, this deposition will be conducted in English. Are you comfortable
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`with this, or do you require the services of a translator?
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`v. Mr./Ms. XY, do you swear or affirm that the testimony you are about to provide is
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`the truth, the whole truth, and nothing but the truth?
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`vi. Mr./Ms. XY, do you understand that this deposition is transcribed and
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`videotaped?
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`vii. Mr./Ms. XY, do you understand that you will have the chance to correct any
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`errors in the transcript and that you will then be asked to sign such transcript?
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`viii. Mr./Ms. XY, do you understand that such signed, transcribed and videotaped
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`testimony will then be transmitted to the parties’ U.S. counsel for submission and
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`use before the United States District Court of XY?
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`16.
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`The witness is required to answer each of the above questions with YES before the
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`Swiss Commissioner can proceed with administering a Chapter II Deposition.
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`17.
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`The Swiss Commissioner will be present during the entire time of the Chapter II
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`Deposition as a neutral party whose role is to ensure that the testimony is conducted in accordance
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`with the rights and obligations outlined in paragraph 15 above. As long as this is the case, the
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`Swiss Commissioner will remain passive during the course of the Chapter II Deposition. The
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`deposition questioning is conducted solely by the Party Commissioners.
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`18.
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`This procedure will not restrict the scope of the questions that may be asked to the
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`witness, as otherwise permissible under the Federal Rules of Civil Procedure. Moreover,
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`undertaking a deposition remotely in accordance with Swiss law will not impose an undue
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`logistical burden or prejudice on any of the parties.
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`Case 6:21-cv-00569-ADA Document 95-4 Filed 10/12/22 Page 6 of 6
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`19.
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`As with U.S. depositions,
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`the Chapter II Deposition can be videotaped and
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`transcribed stenographically. Following the Chapter Il Deposition, the witness will be given an
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`opportunity to review and correct his/her testimony,as if he/she weretestifying from within the
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`US.
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`I declare under penalty of perjury pursuant to 28 U.S.C. § 1746 under the laws of the
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`United States that the foregoing is true and correct.
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`Executed on this 12" day of October, 2022
`Switzerland.
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