Free Motion in Limine - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) Plaintiff, ) ) v. ) ) BRETT J. CORMICK and ELAN SUISSE ) INTERNATIONAL HOLDINGS (USA) ) LLC, ) ) Defendants. ) ____________________________________) ELAN SUISSE, LTD., ) ) Plaintiff, ) ) v. ) ) ROBERT D. CHRIST, ) ) Defendant. ) ____________________________________) ROBERT D. CHRIST,

C.A. No. 06-275-GMS

C.A. No. 07-60-GMS

MOTION IN LIMINE TO EXCLUDE THE DEPOSITIONS TESTIMONY OF MR. CHRIST'S PROPOSED WITNESSES Defendants Brett J. Cormick and Elan Suisse International Holdings (USA) LLC, and plaintiff Elan Suisse, Ltd., hereby move in limine to either (i) exclude Mr. Christ's proposed deposition testimony as improper character evidence, and in support thereof state as follows: 1. Mr. Christ proposes to introduce the deposition testimony of four witnesses, each

describing business dealings with Dr. Cormick years before the transaction that gives rise to Mr. Christ's claims: a. Andre Alan Dean, who testified that in early 1995 he hired Dr. Cormick to

obtain funding for his business, and paid him a monthly fee for such services. After six or seven

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months, the funding never emerged. Mr. Dean believes that he was defrauded by Dr. Cormick and filed a complaint with the police1 (Ex. A hereto); b. Graham Lyman, who testified that in 2001 he was referred to Dr. Cormick,

and was told that Dr. Cormick could obtain financing for his technology through South African bankers who had access to United Nations funds for investment in South Africa. Dr. Cormick arranged a meeting with Mr. Lyman and the bankers, who had delegated the negotiations to Dr. Cormick, but Mr. Lyman backed away from the project because it was his view that Dr. Cormick's "structure" for the financing was unethical2 (Ex. B hereto); c. Carl W. Palmer, who testified that around 2000 he attended a meeting in

Switzerland to discuss financing of his business, and that Dr. Cormick, in "association" with DeSean Burkich, prepared written material for the investors which "grossly misrepresented" information to the investors, and that subsequently Mr. Burkich undertook several actions detrimental to Mr. Palmer's business3 (Ex. C hereto);

1

If this testimony is admitted, Dr. Cormick will testify that after a third-party claimed ownership rights to the technology, investors backed away because Mr. Dean was not at the time able to provide adequate proof of ownership.
2

If this testimony is admitted, Dr. Cormick will testify that Mr. Lyman made a presentation of his technology to the bankers, but it did not work, which is why the financing did not go through.
3

If this testimony is admitted, Dr. Cormick will testify that he organized the meeting at the request of Mr. Donald Whitlock , met DeSean Burkich only a few times, and had nothing to do with either the preparation of the written materials or the subsequent activities of Mr. Burkich. 2

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d.

Gordon Subloo, who testified that, around 1996-97, in exchange for a monthly

fee, Dr. Cormick offered to obtain financing for his company, but never succeeded. (Ex. D hereto).4 2. None of these witnesses testifies as to any facts regarding the transaction between Mr.

Christ and Dr. Cormick. Instead, they all provide "character" evidence through specific instances of unrelated conduct seven-to-thirteen years ago, which is controlled by F.R.E. 404 and 405(b). 3. Because evidence of other alleged bad acts has the greatest propensity to arouse

prejudice, confusion, surprise and consume time, such evidence may be used only when the defendant's character is in issue "in the strict sense." F.R.E. 405, advisory committee note. 4. Dr. Cormick assumes that Mr. Christ seeks to introduce this testimony in defense to

the defamation claim. However, in defamation, the issue is not injury to one's character, but rather injury to one's reputation.5 Spence v. Funk, 396 A.2d 967, 969 (Del. 1978); 7 Joubert, W.A., The Law of South Africa §236 (LexisNexis Butterworths 2005) ("defamation is aimed at the protection of a person's reputation, that is the public estimation of the worth or value of a person, as opposed to the individual's personal sense of self-worth or self-esteem...") (italics in original). For this reason, Rule 405(b) does not permit specific instances of other conduct in defamation cases, particularly where such other conduct was not generally known in the community. Foster v. West Dakota Veterinary Clinic, Inc., 689 N.W.2d 366, 382 (N.D.2004); Gosden, 687 N.E.2d at 494-95;

4

If this testimony is admitted, Dr. Cormick will testify that he obtained initial funding through a company called Oakwood Investments, which declined further investment after Mr. Subloo delivered non-voting stock to Oakwood instead of the promised voting stock.
5

The two terms are not synonymous. "Character" is what a person actually is. "Reputation" is what others think a person to be. Proper v. Mowry, 568 P.2d 236, 243 (N.M. App. 1977); Gosden v. Louis, 687 N.E.2d 481, 494-95 n.5 (Ohio App. 1996) 3

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Proper, 568 P.2d at 243. See also Christopher B. Muller & Laird C. Kirkpatrick, Evidence: Practice Under the Rules §4.20 at 315 (Aspen 1999) ("in a defamation action, the plaintiff's reputation, not his character, is the benchmark from which to assess injury and compute damages. FRE 405(b) is inapplicable to such cases, although courts are occasionally confused on this point"). Thus, the depositions are improper and should be excluded. 5. Additionally and alternatively, the depositions should be excluded pursuant to F.R.E.

403 on the ground that the prejudice outweighs any claimed probative value. For example, Mr. Dean does not provide any evidence that Dr. Cormick did not provide professional service for his fees. Mr. Dean's dissatisfaction with the outcome 13 years ago is all that leads him to conclude that Dr. Cormick was engaged in wrongdoing. This is not sufficient proof of fraud or other wrongdoing to justify using it to tarnish Dr. Cormick in the eyes of the jury. 6. Further, Mr. Dean reviewed notes during his telephonic deposition (Dean Dep. at

9:22, 33:5), which were not produced to Dr. Cormick, thereby precluding full and fair crossexamination. See La Chemise Lacoste v. Alligator Co., Inc., 60 F.R.D. 164, 168 (D. Del. 1973). 7. Although Mr. Lyman offers his opinion that the Dr. Cormick proposed a financing

"structure" that was unethical, he offers no evidence showing the proposed structure, or any supporting basis from which a jury can assess his opinion, and so the testimony does not meet the requirements of F.R.E. 701-705. Dr. Cormick further objects on the ground that Mr. Lyman's testimony about financial structures and the ethics thereof constitutes expert opinion, and Mr. Christ did not identify any experts in response to Dr. Cormick's interrogatories (Ex. E), and did not provide an expert report or any supporting documentation, denying Dr. Cormick a fair opportunity to prepare a meaningful cross-examination. 4

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8.

Similarly, Mr. Palmer provided expert testimony as to financial data about his

company, as to what was correct and what was not, as to which no supporting documentation was provided to Dr. Cormick, and with no prior identification of him as offering expert testimony. Additionally, he did not testify as to any knowledge that Dr. Cormick had any involvement in preparing the written materials. Given that many of Mr. Palmer's conclusions were assumptions based on circumstantial evidence, the risk of prejudice outweighs the slight probative value (if any) of the testimony. 9. Finally, Mr. Subloo relied on notes during at least part of the telephonic deposition.

(Subloo Dep. 15). Dr. Cormick was not afforded access to those notes. La Chemise Lacoste, 60 F.R.D. at 168. Furthermore, Mr. Subloo's testimony is nothing more than his belief that he did not receive the services for which he had contracted. He does not identify any fraudulent statements, or prove their falsity. Nor does he establish that Dr. Cormick did not provide any service, or that he did not make any effort to achieve his client's financial goals, irrespective of the outcome. WHEREFORE, for the foregoing reasons, the Court should not allow the depositions transcripts to be introduced at trial. Dated: March 28, 2008 Respectfully submitted, /s/ David L. Finger David L. Finger (DE Bar ID #2556) Finger & Slanina, LLC One Commerce Center 1201 Orange Street, Suite 725 Wilmington, DE 19801-1155 (302) 884-6766 Attorney for Brett J. Cormick, Elan Suisse International Holdings (USA) LLC and Elan Suisse Ltd. 5

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CONFIDENTIAL
In the Matter Of:

Christ v. Cormick and Elan Suisse International Holdings (USA) LLC
C.A. # 06-275-GMS --------------------------------------------------------------------Transcript of:

Andre Alan Dean
March 3, 2008 -----------------------------------------------------------------------Wilcox & Fetzer, Ltd. Phone: 302-655-0477 Fax: 302-655-0497 Email: [email protected] Internet: www.wilfet.com

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Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) Plaintiff, ) ) v. ) C.A. No. 06-275-GMS ) BRETT J. CORMICK and ELAN ) SUISSE INTERNATIONAL ) HOLDINGS (USA), ) ) Defendants. ) ) CONFIDENTIAL ) ELAN SUISSE LTD., ) ) Plaintiff, ) ) v. ) ) ROBERT D. CHRIST, ) ) Defendant. ) Telephonic deposition of ANDRE ALAN DEAN taken pursuant to notice at the law offices of Reed Smith, LLP, 1201 North Market Street, Suite 1500, Wilmington, Delaware, beginning at 2:03 p.m., on Monday, March 3, 2008, before Kimberly A. Hurley, Registered Merit Reporter and Notary Public. APPEARANCES: THAD J. BRACEGIRDLE, ESQUIRE REED SMITH, LLP, 1201 North Market Street - Suite 1500 Wilmington, Delaware 19801 for Robert D. Christ cont'd... WILCOX & FETZER 1330 King Street - Wilmington, Delaware 19801 (302) 655-0477 www.wilfet.com
Wilcox & Fetzer, Ltd. Registered Professional Reporters 302-655-0477

ROBERT D. CHRIST,

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Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 APPEARANCES (cont'd): DAVID L. FINGER, ESQUIRE FINGER & SLANINA, LLC 1201 North Orange Street - Suite 725 Wilmington, Delaware 19801 for Brett Cormick and Elan Suisse - - - - ANDRE ALAN DEAN, the witness herein, having first been duly sworn on oath, was examined and testified as follows: BY MR. BRACEGIRDLE: Q. As I mentioned earlier, my name is I'm an attorney here in Wilmington,

Thad Bracegirdle.

Delaware, and I represent Robert Christ in a litigation that's pending in the United States Federal Court here. You are giving your deposition in that proceeding. The first thing I'd like you to do, please, is state your full name for the record. A. Q. A. Q. A. Q. A. Andre Alan Dean. Mr. Dean, what country do you currently reside? England. How long have you lived in England? Twenty-one or twenty-two years, thereabouts. Are you a native of England? No, I'm not. I was born in Africa. My mother

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Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 now? Q. A. Q. A. Q. A. No. In that kind of business. was a native of England. Q. A. Q. A. Q. A. Q. Where in Africa were you born? Born in Zambia, Lusaka. Sorry? Northern Rhodesia. Town called Lusaka.

Could you spell the town for me, please? L-u-s-a-k-a. Thank you. In what line of business do you

currently work? A. I manage an IT department that deals in the

connectivity of customers to trade stocks and shares, bond exchange, etcetera. Q. A. How long have you worked in that business? In that type of business or specific role right

Since 1993, thereabouts. Are you familiar with Brett Cormick? I am indeed. When did you first meet Mr. Cormick? I first met him -- I believe the first time I I can't

came across him must have been in 1994, '95. remember the exact date. with him.

I know when my dealings started

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Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ready to talk. plan. up. Q. When you first met Mr. Cormick, were you in the

IT line of business that you were describing earlier? A. Q. Yes, I was. Specifically what was your job or what company

did you work for at the time that you met Mr. Cormick? A. which was I was a contractor contracting with a company Network Bank. They owned a subsidiary company

and I was contracting to the bank. Q. Can you describe to the best of your

recollection the circumstances under which you first met Mr. Cormick? A. I had been to a financial marketing seminar

where I met somebody who understood what I was doing and said they had met this fellow in England who specialized in getting funds for small companies, companies like myself. And they introduced me to him. This young lady

introduced me to him. I had a brief chat with him. We weren't

We went away and produced a business

That's when he came back and started to fill him I met him after -- it was probably latter part of

1994, early part of 1995 I would have met him for the very first time. Q. Where was this conference where you met

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Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Mr. Cormick? A. I didn't meet him. I met an individual who

previously had dealings with him and recommended that I look him up when I get back to England. was in Palm Springs, U.S.A. Q. Then, when you returned to England from the That conference

conference, did you call Mr. Cormick? A. I made contact with him. I can't remember

exactly when.

It had certainly been after the

conference, because that's where I was given the details. But I do know that I engaged with him to do business, finalizing that roundabout the end of the first quarter of 1996. Q. A. That's when I engaged him. What is it that you engaged Mr. Cormick to do? To seek funds. We had been developing software

and we were looking to take to market and we were looking to raise the money to take the product to market, to finish it and take it to market. Q. When you say that "we were" getting ready to

take a product to market, who is the "we" that you're referring to? A. Well, it was for myself and there was people

that we had paid to develop technology, and what we had done is we had put together an entity and given them

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Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 stock in the entity. They continued developing the And I'm the guy that There was a

product which I designed.

interfaced with Cormick to raise the money.

group of people that had all contributed to the development of the software over a period. Q. Can you describe for me the software that you

were taking to market at that time? A. The core component was a work flow engine.

What we discovered was taking work flow to the market was not what people were interested in. They were interested

in something that actually, one, they could relate to the business they were in, and, two, it was something they could use to either make money with or to manage down their costs. A sales or company management system to

track the leads from customers, improve the way people work, those typical systems that are out there. The work

flow engine that we had developed was something that we would have used to have built that sort of capability for a company. What we discovered was we needed to build an

end-user product using our engine and we started to build a dealing system because that's where you could make money, not manage down the costs. Q. A. I'm sorry. Yes. Were you finished?

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Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. I'd like to focus on the point at which you

engaged Mr. Cormick to raise funds for your company. Between the time that you first started communicating with Mr. Cormick and when you finally engaged him, what was it that convinced you to retain him to raise funds for your company? A. I was certainly out of my debt. I had no idea

how one goes and looks for money.

On the recommendation

we were told this guy was a specialist, dealt with high-net-worth individuals and he had focused on small Internet companies. When we went and spoke to him or two or three of us went to go and speak to him the first time, he made it sound as though it's something he does all the time. He's full of confidence. And we were all We weren't

technicians.

We weren't business people.

chief executives of companies.

He told us he had done

this numerous times before and this is exactly the thing that he does; he can raise the money for us. So we went away from that knowing that we had to develop a business plan and we could come back and this was a guy that could go and talk to the people with money and present our case on our behalf. Q. At that time did Mr. Cormick discuss with you

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Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 what his background or his experience was? A. He did. He painted a pretty rosy picture to us He painted himself as a

about what his background was.

leader in this space in Europe, European venture finance. And we had no way of benchmarking that other than he gave us a business card with his name on it from another large company. company. kosher. Q. What was the company on his business card, if We took the card away. We looked up the It looked

They were a large organization.

you recall? A. I would have to look it up for you, but I will I'll have to do

come back to you with that in a moment. a quick search. Q.

Did Mr. Cormick discuss with you what his

educational background was? A. Yes. He said he was -- he had a doctorate; And he had an M.B.A. or along

hence, he was Dr. Cormick. those lines.

Basically he put himself out as highly

educated and a specialist in this space. Q. These meetings with Mr. Cormick leading up to

his engagement, where did they take place? A. They took place in offices which were presented In fact, he presented us

to us as BMI, the BMI business.

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Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 fee? A. We did once we signed the initial documentation So we with a second business card he gave us, his name on a BMI card where he was supposed to be some senior executive of this company BMI. Almost all the meetings took place at

the BMI offices after the first meeting. Q. A. Q. Are those offices in London? They are, yes, near Victoria. When you engaged Mr. Cormick to raise funds,

what were the terms under which you engaged him, if you recall? A. In this type of business, to know that we were

serious and we weren't going to go to other people while he was doing a whole lot of legwork and bringing his contacts to the table, there would be a 10,000-pound-a-month fee and within three months he should have the money in place for us. Q. Did you then pay him that $10,000-per-month

which was presented to us on BMI letterhead.

thought we were dealing with a company called BMI. If I can take you back on the education piece, I have just looked up my notes. What he told us

was a B.A., a BE (hons), an MAE (hons), a Ph.D. MR. FINGER: Can we go off the record for a

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Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 second? MR. BRACEGIRDLE: Yes. We're going off the

record for just a minute, Mr. Dean. (Discussion off the record.) BY MR. BRACEGIRDLE: Q. Just so the record's clear, Mr. Dean, in my

last question I was asking you about the fees you paid to Mr. Cormick. I may have accidentally said "dollars."

Was it $10,000? A. Q. It was pounds. I'm sorry, yes, thank you. How many of those monthly payments did you make to Mr. Cormick? A. Q. All in all, it was seven of them. So then you had engaged him for a total of

seven months; is that correct? A. Yes. After the first three months, he said, You just got to do a couple of The next

"The money's there. things first."

He got us to do more work.

month rolls, the next month.

Each time he told us,

they're coming over, we got to do this stuff, but you need to pay the money. And he always arranged those And

meetings at the beginning of the next month.

literally rolled us over, rolled us over, rolled us over

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Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 him. to the point where we eventually said something is wrong. Q. If my math is correct, then, you paid

Mr. Cormick a total of 70,000 pounds? A. Q. It was 70, yes. During this time that you were paying him the

fee, it sounds like through your testimony you had ongoing communications with him? A. We did. There were times we couldn't contact But we discovered when

He was just noncontactable.

we looked at our diary and looked at all the meetings and all the notes, we discovered there was a pattern. Towards the end of each month, the hype would step in. "Yes," he said, "they got the money. They bumped some We

other funding exercise to make some money available. have got to meet with them on the 2nd or 3rd of next month. They're coming for a weekend to Geneva.

The deal

is done," etcetera, etcetera. So what would happen is the buildup towards the end of the month, he would bring in the hype, we would have to pay him the next 10,000 for those meetings. I'd go to those meetings and their people were the Antichrist summit. When I would say to them, "So when

can we get the funding put on the table?" And they would say, "Well, Brett just asked

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Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 what was said. BY MR. BRACEGIRDLE: Q. Mr. Dean, Mr. Finger may occasionally make to have this meeting with you. mean about funding." And after we had a few of those, towards the end of this six-, seven-month period, we realized something was drastically wrong. Q. So let me focus on those meetings you just Did Mr. Cormick ever identify to you who I'm not sure what you

referred to.

these potential investors were? A. Q. Yes, he did. So what did you do then with that information

once you received it? A. Well, he set up these meetings. There were numerous people. We would go On a few

and see them.

occasions, not all of them, a few occasions, they were a little bit bemused as to why the meeting had been set up and had come clean, saying, well, they had done this as a favor for Mr. Cormick. MR. FINGER: THE WITNESS: I want to object to hearsay. It's not hearsay. That's

objections, but I won't go at any length as to what the hearsay objection is about, but you can provide your

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Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 testimony and I'll ask questions and then you can respond to my questions instead of responding to Mr. Finger's objections. So when you say that you realized that something was wrong, what did you do next? A. We started to question him and he started My wife went and saw him, He

giving us various responses.

and we did a complete transcript of what he said.

literally told us the money was there, the $6 million was there, it was just a matter of due diligence that we had to go through. He introduced us to someone called Barry Stants and said that they had to go through and do the due diligence. And there was a company that they

used, Technology something, which I believe Mr. Stants had a relationship with these people before and got them to look at the tape. And this was yet another way of

delaying the process and putting the onus on us to do some work so that he could extend it to the end of the month. MR. FINGER: BY MR. BRACEGIRDLE: Q. As a result of Mr. Cormick's efforts, was any Objection. Lay opinion.

money ever invested in your company?

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Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. Q. Never. Nothing.

Did you ever receive any of the 70,000 pounds

that you had paid him back? A. Q. Nothing. So then what happened at the end of the seven

months after you had made these payments to Mr. Cormick and still had no investment? A. We had put some pressure on him, saying that we He was very difficult to And my wife saw him and

weren't happy with this. contact.

Literally avoided us.

we stated the case to him that we weren't happy with this whole episode and we wanted the money back. virtually impossible to contact. police. Q. police? A. The exact dates I don't have in my head, but I Do you recall when it was that you went to the He was

But we then went to the

would be able to look them up. Q. A. Q. A. Just roughly, do you remember what year it was? 1996, I think. Why was it that you went to the police? Because first we thought something was

definitely wrong about the way this was looking and we went to the police and explained what happened and they

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Andre Alan Dean Page 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 said this is advanced fee fraud, what you described to us is advanced fee fraud. And they said that they would

engage the fraud office, which they did, then Scotland Yard eventually contacted us and said, give us the address. We went through the details with them and they

said, yes, this is definitely a case of advanced fee fraud here. Q. Where, then, did you go to the police? What

location did you go to the police? A. Hampshire. Local in Hampshire. We went to a local in

And then they referred it to the fraud

office, who then referred it to Scotland Yard in London. Q. Do you recall what kind of information you

provided to the authorities? A. Statement and lots of reams of evidence, We pointed them to a

physical pieces of paper and faxes.

Web site which they looked at and then as soon as it was registered, Cormick was approached by the police. Q. When you say that you provided reams of

evidence and documents, can you remember with any specificity what kind of documents you provided to the authorities? A. Mostly e-mails. In fact, documentation we were

asked to prepare, any communications, invoices, anything

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Andre Alan Dean Page 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 that actually went on between the two parties. Q. After you provided this information to the

authorities and eventually Scotland Yard informed you that it was an advanced fee fraud, what steps did the authorities take next? A. They needed a more detailed statement from us.

We had to go to London and we met with somebody from their offices. We had to take all the evidence with us They took a

that we still had that they hadn't seen yet. much more detailed statement.

We believe they then

approached Cormick and started discussing with him. Q. Do you have any knowledge of when the

authorities approached Mr. Cormick? A. That would be hearsay because I certainly

wasn't present when they did. Q. Did Mr. Cormick ever have communications with

you in which he talked about the authorities visiting him? A. Q. Can you ask me that again? Sorry.

Did Mr. Cormick ever have discussions with you

or communications in which he indicated that the authorities had visited him or contacted him? A. No. As I said, he started to become very

evasive, uncontactable, basically he was finished with

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Andre Alan Dean Page 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 us. We had run out of money and we were of no use to The police, I can't

him, so he didn't contact us.

remember exact dates, but I believe it was over a period of three or four months possibly that they did their investigation. Q. Then after that investigation started, did you

have any further communications with Mr. Cormick? A. Q. Only via lawyers. When you say, "Only via lawyers," can you

explain what you mean by that? A. Cormick had been making representations on my

behalf to his -- to people about me being an employee of EVF and that trying to set up meetings for me to go and talk to them. MR. FINGER: BY MR. BRACEGIRDLE: Q. A. How did you become aware of that? Because he printed business cards for me and Objection. Hearsay.

asked me to attend meetings initially, and I was very curious as to why and he said, "This is how it's done. It's all part of the family. These people see you as the

guru" were the words he used, and "they want to leverage you in meetings they had with other people so you can do due diligence on their behalf," etcetera. So that's the

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Andre Alan Dean Page 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 line he spun. Q. Did you attend meetings where Mr. Cormick made

his representations? A. On a few meetings that were called, he asked me

to attend the meetings under -- when I was spoken to, it was about these guys that got funding, he's got funding on the back of them, and they've got to pull money out of that funding. When we got to the meetings, it turned out

that he was doing something similar with them and getting me to technically vet their stock. And when I spoke to

those parties independently, we began to smell a rat, because they said that's not what they thought the meeting was about, and I said I had the exact same impression. Q. So then after you made your claim to the

authorities and they were investigating Mr. Cormick, did Mr. Cormick take any further actions with respect to you or your company or the technology you were marketing? A. Cormick had written to the main individuals

that he had spoken to and said that we are seeking to deal with him. This was sometime down the track. Again,

I can't remember the exact dates without referring to my notes. He then did a libel case against me, saying I And he used the libel exercise to extract

libeled him.

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Andre Alan Dean Page 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. all the evidence that I had given the police. Q. Do you recall if that libel case -- how did

Mr. Cormick allege that you libeled him? A. Because we had gone to a solicitor, explained

to him what was going on and said that I was being misrepresented to the authorities. They then dropped a

letter for me which we sent to the main individuals to say that I no longer have any dealings with Cormick. On

the strength of that, he went and pushed the libel charge which he never followed through in the end which all along we knew it was just a tactic of his to get access to the evidence. Q. Did Mr. Cormick make any allegations about the

ownership rights to the technology of your company? MR. FINGER: Objection. Form, leading.

MR. BRACEGIRDLE: He did.

You can answer.

There was an incident where an

individual that we had paid money to had gone off with technology, hawking the benefits, and we were pursuing that individual. Australia. He fled the country and went to

And Cormick eventually got ahold of him and

used him to go around and bad-mouth us with our customers. MR. FINGER: Objection. Assumes facts not

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Andre Alan Dean Page 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 in evidence. BY MR. BRACEGIRDLE: Q. How did you learn of what Mr. Cormick had said

to your customers? A. That individual called me and told me. He said

Cormick was his new best friend. Q. What's your understanding of what Mr. Cormick

told your customers? A. Q. A. Not Cormick, this individual. Who is this individual? This was a technician that we had used to

develop some of the dealing software, because we had been pretty open with Cormick. everything. We had pretty much given him Basically he

We were an open book to him.

could share anything he wanted, the information, to turn it against us. We put our absolute faith in Cormick. He

just looked for something that he could use to hurt us with. Q. Eventually whatever happened to the

authorities' investigation of the charges that you had filed? A. I don't know what the official line is. We

were told that it wasn't in the public interest to pursue the prosecution, the amount of money was too low, and if

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Andre Alan Dean Page 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 it was more than a million, they would pursue it. what we were told. That's

The reality of what they told Cormick

or what they said, we have no idea. Q. Do you recall when that happened? How long

after you initiated the proceedings did they tell you that? A. I think it was during the course of '97 when we Mid-to-late '97.

were told that. Q.

After that point do you know if the authorities

did anything else to pursue the case? A. Q. No, not that I'm aware of. At the time that they closed the case, do you

know where Mr. Cormick was living? A. Q. A. Q. We were told he had left the country. Who told you that? The police. Whatever happened with the libel lawsuit that

Mr. Cormick had filed against you? A. through. Q. through"? A. What do you mean by "it wasn't carried Can you expand on that? He used the whole exercise to get us to put the Everything the As predicted by the lawyer, it wasn't carried

evidence at the disposal of his lawyers.

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Andre Alan Dean Page 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 police were going to use in their case he had previous view of. Q. Do you mean to say that his lawyers had

requested that you produce those documents in the litigation? A. As part of the whole libel exercise, step by

step they went through and made sure everything was just -- he wanted to see what everyone else was looking at. They asked for everything. Literally the whole

criminal case was eroded because the evidence was taken by his lawyers as part of their discovery for the libel. Q. Then once that discovery was taken, did

anything further happen with the case? A. Nothing. It just fizzled out. I'm not sure

how the law works, but our lawyers said that it probably won't come to anything. They came back to the bench and

said done and nothing happened. Q. Did you have any further contact with

Mr. Cormick after that? A. No. We did ask the police for his address and We asked our lawyers if

they wouldn't give it to us.

they were able to get the address and they said no, they didn't have the address. And that was it. We were under

the impression he had left the country.

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Andre Alan Dean Page 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 BY MR. FINGER: Q. Mr. Dean, my name is David Finger. I am Q. What, if any, were the consequences of your

dealings with Mr. Cormick? A. What were the consequences? Is that what

you're asking? Q. A. Yes. Besides the fact that I had drained what cash I

had available, my house had gone south as I was battling to keep the software company running that had its entire coffers eroded by the salacious acts of that individual who claims he was acting on Cormick's behalf. Literally

nearly ended in divorce from my wife because it was so stressful. Our lives were pretty ruined and it took a

long while to recover and get myself a job. Q. A. How long did it take you to get another job? I think I was unemployed for at least a year.

My reputation was pretty trashed after that incident. MR. BRACEGIRDLE: the questions I have for now. have some questions to ask you. time. THE WITNESS: No problem. Mr. Dean, those are all As I said, Mr. Finger may But I thank you for your

representing Brett Cormick and Elan Suisse.

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Andre Alan Dean Page 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 BY MR. FINGER: Q. Did you have that name change legally part, please? THE WITNESS: P-i-l-l-i-e-r-s. At the outset, Mr. Dean, have you ever gone by any other name? A. I was born with a different name and I dropped

the fourth name in my title. Q. A. What was the name given to you at birth? Andre Alan Dean Pilliers. MR. BRACEGIRDLE: Could you spell that last

formalized? A. I did. It was given to the police, given to my Employers, sorry.

lawyers, given to my employees. Q.

You mentioned that Dr. Cormick had set up

meetings with financiers on a couple of occasions at which you attended, correct? A. Q. That's correct. Do you have any reason to say now that those

were not really financiers? A. I can't answer the question whether they were They were presented as financiers or

financiers or not.

presented as fund managers or people who dealt with high-net-worth individuals' investments. That's how they

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Andre Alan Dean Page 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 were represented to me. Q. A. Are you familiar with the Algonquin Trust? The name rings a bell. I have a feeling that's

the one in Switzerland. Q. Do you recall discussing an investment in your

technology with the Algonquin Trust? A. Do you happen to have the name of the

individual of the company? Q. A. I'm afraid I do not, sir. I'm sorry.

I recall talking with a gentleman called

Alec Steffan and I think he may have been the person in Algonquin Trust. But I can't be sure now. I have to

refer back to my notes. Q. Do you recall what came of your conversations

with this gentleman? A. Q. No, I don't. Did he tell you that his organization was

declining to invest? A. Q. Give me the name of the individual. I'm going with the individual you just

identified, sir. A. Sorry. You're going with the individual I

identified. Q. You just identified a gentleman whose name has

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Andre Alan Dean Page 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 already slipped my mind. If you will just bear with me a

second, I'll ask the court reporter to locate that. A. Q. Alec Steffan? Yes. Thank you. Did he ever say to you that

he or whatever entity he was representing was declining to invest in your technology? A. I don't know if Algonquin Trust -- I don't

recall -- I can't remember if he's the man from Algonquin Trust. But Alec Steffan was one of the people who came

clean to me and said, "We were never going to invest in your company. Q. We did this as a favor to Brett."

Now, you mentioned an ex-employee of yours, if

I'm characterizing him correctly, who made claims of ownership of your technology? A. Yeah. Do I have that correctly?

He literally took a version of the Made a

software and restated it as his own in Australia. claim of ownership.

He just said -- he passed it off to

Cormick that the technology we were representing was not ours, which clearly we had proved that it was. Q. A. How did you prove that? Because we had some of the original architects

that developed the technology put affidavits in to the lawyers. Intellectual property lawyers got involved.

And they looked at it and said, there is no case here,

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Andre Alan Dean Page 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 it's a total waste of time, please. Q. A. called. Q. I'm sorry. My question was the name of the What are the names of these architects? The lawyers were Bird & Bird I think they were

architects of the software. A. One of the architects that did the affidavit

was a guy called David Sinfield. Q. A. Q. How do you spell that last name, please? S-i-n-f-i-e-l-d. Thank you. Do you have any other names of

architects? A. Q. Not offhand, no. What was the name of the gentleman who was

making the claim or passed -- did you say passed off a version of the software to Dr. Cormick? A. Q. A. Q. A. Q. currently? A. No, I don't. Gentleman called Chris Ferri. F-e-r-r-i? You have the details more than I do. No, sir, I don't. That's why I'm asking.

Just talk to him directly. Thank you. Do you know where Mr. Ferri is

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Andre Alan Dean Page 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. What is the name of the company with which you

are currently employed? A. I don't think that's relevant to this. MR. BRACEGIRDLE: Mr. Dean, what I'm going

to do is once you answer the question, I'm going to designate your answer as highly confidential under the terms of the protective order that we have, which means that under court order it can be disclosed to Mr. Finger and to myself but to no one else. So based on that -THE WITNESS: I've heard this before. My

entire life was turned upside-down by this gentleman and I was given that promise as well. The lawyers said they I have been

will never give him the stuff, but they did. there before. BY MR. FINGER: Q. Notwithstanding that, sir, this is a

deposition -A. Q. A. That's what they told me last time. Are you declining to answer? What I'm saying is I have no control over how I know from various

you will use this information.

experience in the past that this stuff was used maliciously against me and it all turned out to be

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Andre Alan Dean Page 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 unfounded. Q. A. Sir, will you answer the question? I don't see the relevance of who I'm employed

with now has to what your case is. Q. The relevance is not a question for you to I'll ask you one more time. Will

judge in this court.

you answer the question? A. I'm still not convinced why I have to answer And I have explained to you why I don't

that question.

want to answer that question because it's been used maliciously in the past when I put this information at your disposal. Q. or no? A. Q. A. Q. A. I understand that, sir. Will you answer, yes Sir?

Are you going to answer the question? I hear you. I'm waiting for an answer, yes or no. I know you're waiting for an answer.

Why do you decline to say "yes" or "no," sir? Because I want to talk with the other lawyer I want to know

first before I disclose this information.

that there's going to be some compensation if this is used maliciously because it cost me all my livelihood the last time I did this. MR. BRACEGIRDLE: Mr. Dean, I'm not your

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Andre Alan Dean Page 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 lawyer, I don't represent you, so I can't technically give you legal advice, but I can tell you, and Mr. Finger would, I think, agree with me, that the two of us are both under court order to maintain any information that we designate as highly confidential for our eyes only and are not to communicate them to our clients. There would

be serious repercussions for either of us if we were to violate that order. can give you. I believe that's the best comfort I

And Mr. Finger -THE WITNESS: I have to know that I can

come for punitive damages against Mr. Finger and his company if this is used maliciously against me because it happened before and my life was ruined. You must

understand how I would rather cut my throat now and bleed to death on my desk before I put my wife through the hell we were put through last time. I need to know: Will there be a chance for

me to get punitive damages if this is used maliciously against me? Because if I hear just one inkling like last

time with the discredited information and salacious absolute bumps that came down that line which I have a tape-recording of, I will come for damages. MR. FINGER: THE WITNESS: That is your right, sir. Thank you.

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Andre Alan Dean Page 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 BY MR. FINGER: Q. Now will you answer the question?

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Andre Alan Dean Page 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. You mentioned when you were in Palm Beach Do you remember

someone recommended Dr. Cormick to you. the name of that person? A. Q. Offhand, no. I apologize.

It was Palm Springs. Sir, you mentioned some notes you

were looking at earlier and we had a discussion about that. Did you review any other documents to prepare for

today's deposition? A. No. And purposely not. I could have pulled

the entire ream of documentation that we gave the lawyers and gave to the police, but I didn't do it because I didn't really want to bring up the past and go through the hell I went through last time. Q. Sir, did I hear you correctly earlier you made

a reference to Electra Inovatech? A. I did a quick search in my mailbox to look for

the company that was registered originally with Electra Inovatech I think it was called. Q. A. When you say "registered" -It was a fairly large company here in the U.K.

May still be. Q. What was the connection that you found between

Electra Inovatech and Dr. Cormick? A. He presented himself in one of his business

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Andre Alan Dean Page 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 cards. The first time I met him he gave me the business

card which I gave to the police. Q. Did you find anything that indicated that that

was not the case? A. Yes. Later on, obviously not in the beginning

because we had no reason to doubt the guy, but later on when we started to investigate in our defense for the libel, he was not employed by them and he misrepresented us. Q. A. How did you make that determination? We found out and asked somebody in the company

and they said, no, nobody's worked there by that name. We said we got a business card, blah, blah, blah. asked for details and they said, no, that's a misrepresentation. Q. Do you recall the name of the individual with They

whom you spoke? A. No, but I'm sure it must be on record with the

lawyer who did the libel. Q. Do you recall the department with which the

person you spoke was employed? A. No. It was the same -- the first meeting was

in their building. Q. I heard you use the word "transcript" in

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Case 1:06-cv-00275-GMS
CONFIDENTIAL

Document 102-2

Filed 03/28/2008

Page 35 of 49

Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 connection with you said one of the meetings you had with Dr. Cormick, you or your wife made a transcript. recall using that word? A. Yes, we did. We basically made detailed notes Do you

of conversations. Q. This was based on your memory of the

conversation; is that correct? A. Q. Yes. Did you make these notes immediately after the

conversation? A. Q. We did. And we gave that to the lawyers.

You said you went to the police in around 1996;

is that correct? A. It's thereabouts. 1997, it was certainly

around that period. Q. I'm not trying to play a game of got you, just

your best memory. You said you went to the local Hampshire police originally; is that correct? A. Q. Yes. I believe it was Hamble, H-a-m-b-l-e. Do you remember the name of the

Thank you.

police officer with whom you spoke? A. Q. Again, from memory, no. You had meetings with Scotland Yard you said;

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Electronically signed by Kim Hurley (501-043-872-4654)

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Case 1:06-cv-00275-GMS
CONFIDENTIAL

Document 102-2

Filed 03/28/2008

Page 36 of 49

Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 did. A. Q. A. is that correct? A. Yes. They referred it to fraud squad. The They

fraud squad -- I believe the fraud squad in Hamble. then referred it to Scotland Yard. the sequence of events. Q. How many conversations do you recall having

I believe that was

with someone from Scotland Yard? A. There was several conversations. I think there

may have been between two and four fairly lengthy meetings. Q. Do you remember the names of any of the

officers of Scotland Yard with whom you spoke? A. There was a primary officer, a female officer. Christine Smith.

Detective Smith I believe it was. Q. Yard? A. Q.

You're quite sure that she was with Scotland

She was with Scotland Yard, yes. I may have misheard again, and I apologize if I You mentioned you saw Dr. Cormick on some Web site? No. His Web site.

You saw his Web site. Yes. He had his own Web site where he made

various representations which we referred the police to which they saw and then, of course, it all vanished.

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Case 1:06-cv-00275-GMS
CONFIDENTIAL

Document 102-2

Filed 03/28/2008

Page 37 of 49

Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. I'm curious. After three months and 30,000

pounds, why did you continue to keep paying? A. Because he hung the carrot just into the next

month and said the money's there. Q. A. Did you ask for any proof of that? That's what we had to go to the meeting for.

And we had to go and he said, they want to have confidence in investing in you as individuals, along those lines. Each time without fail he hung it just into

the next month. Q. Help me here. You said you went to the meeting

and you got bemused looks from people who then confessed that they had no intention of financing? A. Yes. What happened in the beginning, in the

beginning, towards the middle and end of this exercise which started getting me these problems of people saying, hang on, why are we having this meeting. And I'd

explain, well, Dr. Cormick had said X, he had talked about the technology and you're interested in the business. Brett." One of them said, "We did this as a favor to Those were his words. The gentleman,

Barry Stants I mentioned earlier, we saw him on two separate occasions, he was the guy I believe was asked to do the due diligence towards the end of the process.

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Case 1:06-cv-00275-GMS
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Document 102-2

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Page 38 of 49

Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Q. Let's turn to your attempt to seek criminal You agree that there was no criminal

prosecution.

prosecution of Dr. Cormick, correct? A. It didn't go to court, no. But there was an

investigation and I believe he was arrested. Q. A. Q. A. But you believe he was arrested. Well, I wasn't there when they did it. You only know it from somebody telling you? Yes. The police informed us that they had

arrested him. Q. A. Q. police? A. I wouldn't have been privy to that information. Do you know around when that was? From memory, I can't recall. Do you know how long he was detained by the

The police don't share that sort of stuff. Q. Let me ask you this, then: How long was it

between the time you learned of his arrest to the police coming to tell you that they were not going to prosecute? A. Q. Several months. You said they told you that the reason that

they were not going to prosecute is that the value was too low. A. Correct? I think the exact words that they used were

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Document 102-2

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Page 39 of 49

Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 A. "It's not in the public interest to pursue this. We

would have to go and interview all these witnesses all over Europe and Australia," etcetera, etcetera. "The

cost would be huge compared to the amount of money that was stolen. It's not in the public interest" -- "public

interest, public purse to spend that money pursuing this crime," because the amount was too small. If it was in

excess of a million or so, it may well have been worthwhile. Q. A. Q. Who was the person who told that to you? That was the Detective Smith. You said that was the line you were told, but

you don't know what the truth is, correct? MR. BRACEGIRDLE: Objection.

I have no idea other than we were told it

wasn't in the public interest to pursue it because of the cost of it. That may have been the line they gave to us I have no idea. You

just to get us off their backs. Q.

You know that Dr. Cormick left England.

don't know the date, do you? A. No, I don't. We were just told by the police

that they believe he had left the country. Q. A. They believed, not that they knew? I do recall asking for the address and they

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Case 1:06-cv-00275-GMS
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Document 102-2

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Page 40 of 49

Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 did. Q. You have no idea what reasons they gave him for said no, they don't have it. knew or not. Q. Do you have any knowledge of whether he left I had no idea whether they

before or after the police determined not to prosecute him? A. Q. No idea. Do you know if the police told Dr. Cormick they

were not going to prosecute him? A. No idea. Wouldn't have been present if they

not prosecuting? A. Q. Absolutely not. You know that your name had been used in

Mr. Christ's Web site, correct? A. Yes. I became aware of that and that's how I We contacted him and explained to him that

came to know.

we were unhappy to have our dirty laundry in the public domain. Q. A. Q. A. Q. He agreed to remove your name, correct? He did. Yes, he did.

Have you been helping him since then? What do you mean by "helping"? Have you given him documents relating to

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Electronically signed by Kim Hurley (501-043-872-4654)

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Case 1:06-cv-00275-GMS
CONFIDENTIAL

Document 102-2

Filed 03/28/2008

Page 41 of 49

Christ v. Cormick and Elan Suisse International Holdings (USA) LLC

Andre Alan Dean Page 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 yes. Q. A. Dr. Cormick? A. I talked about documents. I can do a quick

search through my e-mail to see if I sent him documents attached. Q. I believe I did. I just prefer you work through your memory.

For example, you spoke of reams of evidence you gave to Scotland Yard. A. Q. A. Q. No. -- Mr. Christ? No. Did you give Mr. Christ copies of business Did you give any of that evidence to --

cards; for example, Dr. Brett Cormick business card from Electra Inovatech? A. I believe we sent a scanned image of the cards, I believe we did do that. Why did you do that? Because Mr. Christ, when he spoke with me, had

difficulty believing some of the claims I had made. Q. A. Q. So you sent him that as proof of your claims? Correct. Did you also send him a European venture

investment finance memorandum? A. Q. The brochure? Yes, the brochure.

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