Case 1:19-cv-01334-CJB Document 683 Filed 02/26/24 Page 1 of 10 PageID #: 17822
`
`
`
`
`
`
`
`
`
`NOTICE OF SUBPOENAS TO
`RICHARD MACPHERSON AND JOHN PAVLISH
`
`PLEASE TAKE NOTICE that, pursuant to Federal Rules of Civil Procedure 30 and 45,
`
`Defendants CERT Operations II LLC, CERT Operations IV LLC, CERT Operations V LLC,
`
`CERT Operations RCB LLC, Senescence Energy Products, LLC, Springhill Resources LLC,
`
`Buffington Partners LLC, Bascobert (A) Holdings LLC, Larkwood Energy LLC, Cottbus
`
`Associates LLC, Marquis Industrial Company, LLC, and Rutledge Products, LLC, intend to serve
`
`Richard MacPherson (“MacPherson”) and John Pavlish (“Pavlish”) with a Subpoena to Appear
`
`and Testify at Trial. A copy of the MacPherson Subpoena is attached as Exhibit A. A copy of the
`
`Pavlish Subpoena is attached as Exhibit B.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`
`
`
`
`
`C.A. No. 19-1334 (CJB)
`
`
`
`
`)))))))))
`
`)
`
`
`
`MIDWEST ENERGY EMISSIONS CORP.
`and MES INC.,
`
`
`
`
`
`ARTHUR J. GALLAGHER & CO., et al.,
`
`
`
`
`
`
`
`
`
`Plaintiffs,
`
`
`
`v.
`
`
`
`Defendants.
`
`

`

`Case 1:19-cv-01334-CJB Document 683 Filed 02/26/24 Page 2 of 10 PageID #: 17823
`
`
`
`Dated: February 26, 2024
`
`OF COUNSEL:
`
`Jeff Dyess
`Paul Sykes
`Benn Wilson
`BRADLEY ARANT BOULT
`CUMMINGS LLP
`1819 Fifth Avenue North
`Birmingham, AL 35203
`(205) 521-8000
`
`Jessica Zurlo
`BRADLEY ARANT BOULT
`CUMMINGS LLP
`1615 L Street NW
`Ste 1350
`Washington, D.C. 20036
`(202) 393-7150
`
`
`
`
`
`
`
`
`
` /s/ Kenneth L. Dorsney
`Kenneth L. Dorsney (#3726)
`Cortlan S. Hitch (#6720)
`MORRIS JAMES LLP
`500 Delaware Avenue, Suite 1500
`Wilmington, DE 19801
`(302) 888-6800
`kdorsney@morrisjames.com
`chitch@morrisjames.com
`
`
`Attorneys for Defendants CERT Operations IV
`LLC, CERT Operations V LLC, CERT
`Operations RCB LLC, Senescence Energy
`Products, LLC, Springhill Resources LLC,
`Buffington Partners LLC, Bascobert
`(A)
`Holdings LLC, Larkwood Energy LLC, Cottbus
`Associates LLC, CERT Operations II LLC,
`Marquis Industrial Company, LLC, and Rutledge
`Products, LLC.
`
`
`
`
`
`
`
`
`
`
`
`2
`
`

`

`Case 1:19-cv-01334-CJB Document 683 Filed 02/26/24 Page 3 of 10 PageID #: 17824
`Case 1:19-cv-01334-CJB Document 683 Filed 02/26/24 Page 3 of 10 PagelD #: 17824
`
`
`
`
`EXHIBIT A
`EXHIBIT A
`
`

`

`Case 1:19-cv-01334-CJB Document 683 Filed 02/26/24 Page 4 of 10 PageID #: 17825
`
`AO 88 (Rev. 12/13) Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action
`
`UNITED STATES DISTRICT COURT
`for the
` District of Delaware
`__________ District of __________
`
`Civil Action No.
`
`19-1334-CJB
`
`)))))
`
`Midwest Energy Emissions Corp. and MES Inc.,
`Plaintiff
`v.
`Arthur J. Gallagher & Co., et al.,
`Defendant
`
`SUBPOENA TO APPEAR AND TESTIFY
`AT A HEARING OR TRIAL IN A CIVIL ACTION
`
`To:
`
`Richard MacPherson
`c/o Justin Nemunaitis; Caldwell Cassady & Curry, 2121 N. Pearl Street, Suite 1200, Dallas, TX 75201
`(Name of person to whom this subpoena is directed)
`YOU ARE COMMANDED to appear in the United States district court at the time, date, and place set forth below
`to testify at a hearing or trial in this civil action. When you arrive, you must remain at the court until the judge or a court
`officer allows you to leave.
`
`Place:
`
`United States District Court
`District of Delaware
`844 N. King Street; Wilmington, DE 19801
`
`Courtroom No.:
`Date and Time:
`
`CRA
`week of 2/26/2024
`
`You must also bring with you the following documents, electronically stored information, or objects (leave blank if
`not applicable):
`
`The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
`Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
`respond to this subpoena and the potential consequences of not doing so.
`02/26/2024
`Date:
`
`CLERK OF COURT
`
`Signature of Clerk or Deputy Clerk
`
`OR
`
`/s/ Paul Sykes
`Attorney’s signature
`
`The name, address, e-mail address, and telephone number of the attorney representing (name of party)
`, who issues or requests this subpoena, are:
`Paul Sykes, 1819 5th Avenue North, Birmingham, AL 35203, psykes@bradley.com; (205) 521-8000
`
`CERT Defendants
`
`Notice to the person who issues or requests this subpoena
`If this subpoena commands the production of documents, electronically stored information, or tangible things, a notice
`and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is
`directed. Fed. R. Civ. P. 45(a)(4).
`
`

`

`Case 1:19-cv-01334-CJB Document 683 Filed 02/26/24 Page 5 of 10 PageID #: 17826
`
`AO 88 (Rev. 12/13) Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action (page 2)
`19-1334-CJB
`Civil Action No.
`
`PROOF OF SERVICE
`(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
`
`I received this subpoena for (name of individual and title, if any)
`.
`
`on (date)
`
`(cid:117) I served the subpoena by delivering a copy to the named person as follows:
`
`(cid:117) I returned the subpoena unexecuted because:
`
`on (date)
`
`; or
`
`Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
`tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
`$
`.
`
`My fees are $
`
`for travel and $
`
`for services, for a total of $
`
`0.00
`
`.
`
`.
`
`I declare under penalty of perjury that this information is true.
`
`Date:
`
`Additional information regarding attempted service, etc.:
`
`Server’s signature
`
`Printed name and title
`
`Server’s address
`
`

`

`Case 1:19-cv-01334-CJB Document 683 Filed 02/26/24 Page 6 of 10 PageID #: 17827
`
`(c) Place of Compliance.
`
`AO 88 (Rev. 12/13) Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action (page 3)
`Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
`(ii) disclosing an unretained expert’s opinion or information that does
`not describe specific occurrences in dispute and results from the expert’s
`study that was not requested by a party.
`(C) Specifying Conditions as an Alternative. In the circumstances
`described in Rule 45(d)(3)(B), the court may, instead of quashing or
`modifying a subpoena, order appearance or production under specified
`conditions if the serving party:
`(i) shows a substantial need for the testimony or material that cannot be
`otherwise met without undue hardship; and
`(ii) ensures that the subpoenaed person will be reasonably compensated.
`
` (1) For a Trial, Hearing, or Deposition. A subpoena may command a
`person to attend a trial, hearing, or deposition only as follows:
` (A) within 100 miles of where the person resides, is employed, or
`regularly transacts business in person; or
` (B) within the state where the person resides, is employed, or regularly
`transacts business in person, if the person
` (i) is a party or a party’s officer; or
` (ii) is commanded to attend a trial and would not incur substantial
`expense.
`
` (2) For Other Discovery. A subpoena may command:
` (A) production of documents, electronically stored information, or
`tangible things at a place within 100 miles of where the person resides, is
`employed, or regularly transacts business in person; and
` (B) inspection of premises at the premises to be inspected.
`
`(d) Protecting a Person Subject to a Subpoena; Enforcement.
`
` (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
`responsible for issuing and serving a subpoena must take reasonable steps
`to avoid imposing undue burden or expense on a person subject to the
`subpoena. The court for the district where compliance is required must
`enforce this duty and impose an appropriate sanction—which may include
`lost earnings and reasonable attorney’s fees—on a party or attorney who
`fails to comply.
`
` (2) Command to Produce Materials or Permit Inspection.
`(A) Appearance Not Required. A person commanded to produce
`documents, electronically stored information, or tangible things, or to
`permit the inspection of premises, need not appear in person at the place of
`production or inspection unless also commanded to appear for a deposition,
`hearing, or trial.
`(B) Objections. A person commanded to produce documents or tangible
`things or to permit inspection may serve on the party or attorney designated
`in the subpoena a written objection to inspecting, copying, testing, or
`sampling any or all of the materials or to inspecting the premises—or to
`producing electronically stored information in the form or forms requested.
`The objection must be served before the earlier of the time specified for
`compliance or 14 days after the subpoena is served. If an objection is made,
`the following rules apply:
`(i) At any time, on notice to the commanded person, the serving party
`may move the court for the district where compliance is required for an
`order compelling production or inspection.
` (ii) These acts may be required only as directed in the order, and the
`order must protect a person who is neither a party nor a party’s officer from
`significant expense resulting from compliance.
`
` (3) Quashing or Modifying a Subpoena.
`(A) When Required. On timely motion, the court for the district where
`compliance is required must quash or modify a subpoena that:
` (i) fails to allow a reasonable time to comply;
`(ii) requires a person to comply beyond the geographical limits
`specified in Rule 45(c);
`(iii) requires disclosure of privileged or other protected matter, if no
`exception or waiver applies; or
`(iv) subjects a person to undue burden.
`(B) When Permitted. To protect a person subject to or affected by a
`subpoena, the court for the district where compliance is required may, on
`motion, quash or modify the subpoena if it requires:
`(i) disclosing a trade secret or other confidential research,
`development, or commercial information; or
`
`(e) Duties in Responding to a Subpoena.
`
` (1) Producing Documents or Electronically Stored Information. These
`procedures apply to producing documents or electronically stored
`information:
`(A) Documents. A person responding to a subpoena to produce documents
`must produce them as they are kept in the ordinary course of business or
`must organize and label them to correspond to the categories in the demand.
`(B) Form for Producing Electronically Stored Information Not Specified.
`If a subpoena does not specify a form for producing electronically stored
`information, the person responding must produce it in a form or forms in
`which it is ordinarily maintained or in a reasonably usable form or forms.
`(C) Electronically Stored Information Produced in Only One Form. The
`person responding need not produce the same electronically stored
`information in more than one form.
`(D) Inaccessible Electronically Stored Information. The person
`responding need not provide discovery of electronically stored information
`from sources that the person identifies as not reasonably accessible because
`of undue burden or cost. On motion to compel discovery or for a protective
`order, the person responding must show that the information is not
`reasonably accessible because of undue burden or cost. If that showing is
`made, the court may nonetheless order discovery from such sources if the
`requesting party shows good cause, considering the limitations of Rule
`26(b)(2)(C). The court may specify conditions for the discovery.
`
`(2) Claiming Privilege or Protection.
`(A) Information Withheld. A person withholding subpoenaed information
`under a claim that it is privileged or subject to protection as trial-preparation
`material must:
`(i) expressly make the claim; and
`(ii) describe the nature of the withheld documents, communications, or
`tangible things in a manner that, without revealing information itself
`privileged or protected, will enable the parties to assess the claim.
`(B) Information Produced. If information produced in response to a
`subpoena is subject to a claim of privilege or of protection as
`trial-preparation material, the person making the claim may notify any party
`that received the information of the claim and the basis for it. After being
`notified, a party must promptly return, sequester, or destroy the specified
`information and any copies it has; must not use or disclose the information
`until the claim is resolved; must take reasonable steps to retrieve the
`information if the party disclosed it before being notified; and may promptly
`present the information under seal to the court for the district where
`compliance is required for a determination of the claim. The person who
`produced the information must preserve the information until the claim is
`resolved.
`
`(g) Contempt.
`The court for the district where compliance is required—and also, after a
`motion is transferred, the issuing court—may hold in contempt a person
`who, having been served, fails without adequate excuse to obey the
`subpoena or an order related to it.
`
`For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
`
`

`

`Case 1:19-cv-01334-CJB Document 683 Filed 02/26/24 Page 7 of 10 PageID #: 17828
`Case 1:19-cv-01334-CJB Document 683 Filed 02/26/24 Page 7 of 10 PagelD #: 17828
`
`
`
`
`EXHIBIT B
`EXHIBIT B
`
`

`

`Case 1:19-cv-01334-CJB Document 683 Filed 02/26/24 Page 8 of 10 PageID #: 17829
`
`AO 88 (Rev. 12/13) Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action
`
`UNITED STATES DISTRICT COURT
`for the
` District of Delaware
`__________ District of __________
`
`Civil Action No.
`
`19-1334-CJB
`
`)))))
`
`Midwest Energy Emissions Corp. and MES Inc.,
`Plaintiff
`v.
`Arthur J. Gallagher & Co., et al.,
`Defendant
`
`SUBPOENA TO APPEAR AND TESTIFY
`AT A HEARING OR TRIAL IN A CIVIL ACTION
`
`To:
`
`John Pavlish,
`c/o Justin Nemunaitis; Caldwell Cassady & Curry, 2121 N. Pearl Street, Suite 1200, Dallas, TX 75201
`(Name of person to whom this subpoena is directed)
`YOU ARE COMMANDED to appear in the United States district court at the time, date, and place set forth below
`to testify at a hearing or trial in this civil action. When you arrive, you must remain at the court until the judge or a court
`officer allows you to leave.
`
`Place:
`
`United States District Court
`District of Delaware
`844 N. King Street; Wilmington, DE 19801
`
`Courtroom No.:
`Date and Time:
`
`CRA
`week of 2/26/2024
`
`You must also bring with you the following documents, electronically stored information, or objects (leave blank if
`not applicable):
`
`The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
`Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
`respond to this subpoena and the potential consequences of not doing so.
`02/26/2024
`Date:
`
`CLERK OF COURT
`
`Signature of Clerk or Deputy Clerk
`
`OR
`
`/s/ Paul Sykes
`Attorney’s signature
`
`The name, address, e-mail address, and telephone number of the attorney representing (name of party)
`, who issues or requests this subpoena, are:
`Paul Sykes, 1819 5th Avenue North, Birmingham, AL 35203, psykes@bradley.com; (205) 521-8000
`
`CERT Defendants
`
`Notice to the person who issues or requests this subpoena
`If this subpoena commands the production of documents, electronically stored information, or tangible things, a notice
`and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is
`directed. Fed. R. Civ. P. 45(a)(4).
`
`

`

`Case 1:19-cv-01334-CJB Document 683 Filed 02/26/24 Page 9 of 10 PageID #: 17830
`
`AO 88 (Rev. 12/13) Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action (page 2)
`19-1334-CJB
`Civil Action No.
`
`PROOF OF SERVICE
`(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
`
`I received this subpoena for (name of individual and title, if any)
`.
`
`on (date)
`
`(cid:117) I served the subpoena by delivering a copy to the named person as follows:
`
`(cid:117) I returned the subpoena unexecuted because:
`
`on (date)
`
`; or
`
`Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
`tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
`$
`.
`
`My fees are $
`
`for travel and $
`
`for services, for a total of $
`
`0.00
`
`.
`
`.
`
`I declare under penalty of perjury that this information is true.
`
`Date:
`
`Additional information regarding attempted service, etc.:
`
`Server’s signature
`
`Printed name and title
`
`Server’s address
`
`

`

`Case 1:19-cv-01334-CJB Document 683 Filed 02/26/24 Page 10 of 10 PageID #: 17831
`
`(c) Place of Compliance.
`
`AO 88 (Rev. 12/13) Subpoena to Appear and Testify at a Hearing or Trial in a Civil Action (page 3)
`Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
`(ii) disclosing an unretained expert’s opinion or information that does
`not describe specific occurrences in dispute and results from the expert’s
`study that was not requested by a party.
`(C) Specifying Conditions as an Alternative. In the circumstances
`described in Rule 45(d)(3)(B), the court may, instead of quashing or
`modifying a subpoena, order appearance or production under specified
`conditions if the serving party:
`(i) shows a substantial need for the testimony or material that cannot be
`otherwise met without undue hardship; and
`(ii) ensures that the subpoenaed person will be reasonably compensated.
`
` (1) For a Trial, Hearing, or Deposition. A subpoena may command a
`person to attend a trial, hearing, or deposition only as follows:
` (A) within 100 miles of where the person resides, is employed, or
`regularly transacts business in person; or
` (B) within the state where the person resides, is employed, or regularly
`transacts business in person, if the person
` (i) is a party or a party’s officer; or
` (ii) is commanded to attend a trial and would not incur substantial
`expense.
`
` (2) For Other Discovery. A subpoena may command:
` (A) production of documents, electronically stored information, or
`tangible things at a place within 100 miles of where the person resides, is
`employed, or regularly transacts business in person; and
` (B) inspection of premises at the premises to be inspected.
`
`(d) Protecting a Person Subject to a Subpoena; Enforcement.
`
` (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
`responsible for issuing and serving a subpoena must take reasonable steps
`to avoid imposing undue burden or expense on a person subject to the
`subpoena. The court for the district where compliance is required must
`enforce this duty and impose an appropriate sanction—which may include
`lost earnings and reasonable attorney’s fees—on a party or attorney who
`fails to comply.
`
` (2) Command to Produce Materials or Permit Inspection.
`(A) Appearance Not Required. A person commanded to produce
`documents, electronically stored information, or tangible things, or to
`permit the inspection of premises, need not appear in person at the place of
`production or inspection unless also commanded to appear for a deposition,
`hearing, or trial.
`(B) Objections. A person commanded to produce documents or tangible
`things or to permit inspection may serve on the party or attorney designated
`in the subpoena a written objection to inspecting, copying, testing, or
`sampling any or all of the materials or to inspecting the premises—or to
`producing electronically stored information in the form or forms requested.
`The objection must be served before the earlier of the time specified for
`compliance or 14 days after the subpoena is served. If an objection is made,
`the following rules apply:
`(i) At any time, on notice to the commanded person, the serving party
`may move the court for the district where compliance is required for an
`order compelling production or inspection.
` (ii) These acts may be required only as directed in the order, and the
`order must protect a person who is neither a party nor a party’s officer from
`significant expense resulting from compliance.
`
` (3) Quashing or Modifying a Subpoena.
`(A) When Required. On timely motion, the court for the district where
`compliance is required must quash or modify a subpoena that:
` (i) fails to allow a reasonable time to comply;
`(ii) requires a person to comply beyond the geographical limits
`specified in Rule 45(c);
`(iii) requires disclosure of privileged or other protected matter, if no
`exception or waiver applies; or
`(iv) subjects a person to undue burden.
`(B) When Permitted. To protect a person subject to or affected by a
`subpoena, the court for the district where compliance is required may, on
`motion, quash or modify the subpoena if it requires:
`(i) disclosing a trade secret or other confidential research,
`development, or commercial information; or
`
`(e) Duties in Responding to a Subpoena.
`
` (1) Producing Documents or Electronically Stored Information. These
`procedures apply to producing documents or electronically stored
`information:
`(A) Documents. A person responding to a subpoena to produce documents
`must produce them as they are kept in the ordinary course of business or
`must organize and label them to correspond to the categories in the demand.
`(B) Form for Producing Electronically Stored Information Not Specified.
`If a subpoena does not specify a form for producing electronically stored
`information, the person responding must produce it in a form or forms in
`which it is ordinarily maintained or in a reasonably usable form or forms.
`(C) Electronically Stored Information Produced in Only One Form. The
`person responding need not produce the same electronically stored
`information in more than one form.
`(D) Inaccessible Electronically Stored Information. The person
`responding need not provide discovery of electronically stored information
`from sources that the person identifies as not reasonably accessible because
`of undue burden or cost. On motion to compel discovery or for a protective
`order, the person responding must show that the information is not
`reasonably accessible because of undue burden or cost. If that showing is
`made, the court may nonetheless order discovery from such sources if the
`requesting party shows good cause, considering the limitations of Rule
`26(b)(2)(C). The court may specify conditions for the discovery.
`
`(2) Claiming Privilege or Protection.
`(A) Information Withheld. A person withholding subpoenaed information
`under a claim that it is privileged or subject to protection as trial-preparation
`material must:
`(i) expressly make the claim; and
`(ii) describe the nature of the withheld documents, communications, or
`tangible things in a manner that, without revealing information itself
`privileged or protected, will enable the parties to assess the claim.
`(B) Information Produced. If information produced in response to a
`subpoena is subject to a claim of privilege or of protection as
`trial-preparation material, the person making the claim may notify any party
`that received the information of the claim and the basis for it. After being
`notified, a party must promptly return, sequester, or destroy the specified
`information and any copies it has; must not use or disclose the information
`until the claim is resolved; must take reasonable steps to retrieve the
`information if the party disclosed it before being notified; and may promptly
`present the information under seal to the court for the district where
`compliance is required for a determination of the claim. The person who
`produced the information must preserve the information until the claim is
`resolved.
`
`(g) Contempt.
`The court for the district where compliance is required—and also, after a
`motion is transferred, the issuing court—may hold in contempt a person
`who, having been served, fails without adequate excuse to obey the
`subpoena or an order related to it.
`
`For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
`
`