Free Answering Brief in Opposition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE TESLA INDUSTRIES, INC., Plaintiff, v. DAVID C. WALDMANN, LYNDOL W. HOLLINGSWORTH, CHARLES MINNICK a/k/a CHUCK MINNICK, and NEW MILLENNIUM TOOLS, INC., Defendants. ) ) ) ) C.A. No. 06-055-(GMS) ) ) ) ) ) ) ) )

PLAINTIFF TESLA INDUSTRIES, INC.'S RESPONSE TO NMT DEFENDANTS' MOTION IN LIMINE NO.2: TO PRECLUDE TESLA'S LEAD COUNSEL, BRIAN A. SULLIVAN, ESQUIRE FROM TESTIFYING AT TRIAL Brian A. Sullivan (DE No. 2098) Robert D. Wilcox (DE No. 4321) Amy D. Brown (DE No. 4077) WERB & SULLIVAN 300 Delaware Avenue, 13th Floor P. O. Box 25046 Wilmington, DE 19899 Telephone: (302) 652-1100 Facsimile: (302) 652-1111 and Paul E. Crawford (I.D. # 493) CONNOLLY BOVE LODGE & HUTZ LLP 1107 N. Orange Street P.O. Box 2207 Wilmington, DE 19899-2207 302.658.9141 [email protected]

Dated: April 19, 2007

Attorneys for Tesla Industries, Inc.

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TABLE OF AUTHORITIES

Cases Muldrow v. Brooks, 2002 U.S. App. LEXIS 885 (3d. Cir. 2002) ....................................................................... 5 Crowley v. Chait, 2004 U.S. Dist. LEXIS 27235 (D. N.J. 2004) .................................................................... 5
Cardoni v. Power International, et al., Del.Super., C.A.No. 88C-MY-141 (Del. Super. 1990)..........................................

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Rules Federal Rule of Civil Procedure 26............ .............................................................5 Federal Rule of Civil Procedure 37(c)(1)....................................................................5 Delaware Rules of Professional Conduct 3.7(b)....................................................... 5,6

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TABLE OF CONTENTS INTRODUCTION..................................................................... 4

STATEMENTFACTS..................................................................... 4 ARGUMENT............................................................................... CONCLUSION........................................................................ 5 7

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Plaintiff ,Tesla Industries, Inc.( Tesla) , responds as follows to Defendants Hollingsworth, Minnick, and New Millennium Tools, Inc.'s (collectively the "NMT Defendants") Motion In Limine No.2: To Preclude Tesla's Lead Counsel, Brian A. Sullivan, Esquire From Testifying At Trial (the " NMT MIL 2"). For the reasons grounded in both fact and law set forth below, Tesla urges that this Court deny NMT'S MIL 2 in toto. INTRODUCTION The NMT Defendants assert that Tesla and its counsel improperly coerced the NMT Defendants into signing the Stipulated Restraining Order (D.I 20) which forbade certain activities by them. That asserted coercion was an alleged commitment by Tesla's counsel not to continue this litigation. These assertions are categorically denied.

STATEMENT OF FACTS The existence and consequences of Defendants agreement to sign the Stipulated Restraining Order were explored in a February 3, 2006 telephone conference with this Court. (See transcript of Teleconference attached hereto as Exhibit "A". Defendants Hollingsworth and Minnick participated in that conference and voluntarily agreed to enter into the Stipulated Restraining Order. Had there been any representation or side deal (which is vehemently denied), this would have been raised by Defendants while they were Hollingsworth or Minnick . As an ancillary argument the NMT Defendants somehow blame Tesla's counsel for not advising them of their rights to obtain counsel. This civil action Miranda warning the NMT Defendants seek to impose on Tesla's counsel is not supported by any legal precedent in NMT before the Court either by Messrs.

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MIL 2. Moreover, this Court asked Messrs. Hollingsworth and Minnick why they did not retain counsel at the Hearing. Neither of them responded and the matter was dropped and not further pursued. ( February 3, 2006 conference transcript, p 3, Exhibit "A"). If the Court has any lingering concerns about this matter Mr. Sullivan is willing to submit to this Court for a in-camera testimony regarding his interaction with the NMT Defendants before the Stipulated Restraining Order was signed by them. ARGUMENT During discovery a party is required to disclose the names of witnesses that may be called to testify at trial. See. Fed.R.Civ. P. 26. Failure to do so will preclude the party's use of those witnesses, unless such failure is harmless. See Fed.R.Civ.P. 37(c)(1). Muldrow v. Brooks, 2002 U.S. App. LEXIS 885 (3d. Cir. 2002). In Crowley v. Chait, 2004 U.S. Dist. LEXIS 27235 (D. N.J.), the court denied Defendant's Motion in Limine to preclude Plaintiff's rebuttal witnesses from testifying because Plaintiff had not listed such witnesses until filing its Final Pretrial Order. Id. The Court found that allowing undisclosed rebuttal witnesses to testify did not pose a substantial risk of unfair prejudice, confusion of the jury, or waste of time. Id. Plaintiff fully intends to cross examine the NMT Defendants who have testified that Mr. Sullivan somehow coerced them into signing the Temporary Restraining Order entered in this case. Plaintiff also plans to rely on the transcript of the February 3, 2006 Transcript of the Initial Teleconference before Judge Sleet, where both NMT Defendants participated and had ample opportunity to state their alleged understanding of the purported agreement they had with Mr. Sullivan, (Exhibit "A"). They made no such statements. Further, Mr. Sullivan, in writing, reiterated to Defendant Hollingsworth that he "did not say or promise that anyone will no longer be pursued in this case", and that the NMT Defendants were "subject to the Temporary
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Restraining Order." See February 17, 2006 E-Mail from Brian A. Sullivan to Defendant Lyndol Hollingsworth, attached hereto as Exhibit "B". Further, if the NMT Defendants felt they were misled by Mr. Sullivan, why didn't they immediately move to vacate the Stipulated Temporary Restraining Order once they retained counsel? While Plaintiff has not previously designated Mr. Sullivan as a possible rebuttal witnesses to address the NMT Defendant's unsubstantiated and ludicrous allegations of "abuse of process", it should not be precluded from reserving its right to do so or from adding Mr. Sullivan as a possible rebuttal witness. Any testimony by Mr. Sullivan would be limited in scope and go solely to the allegations made by the NMT Defendants with regard to his discussions with them (which discussions were primarily initiated by Messrs. Hollingsworth and Minnick) prior to entering into the Stipulated Temporary Restraining Order. Therefore, allowing Mr. Sullivan to testify will not result in harm or "unfair prejudice" to the NMT Defendants, nor will it cause "confusion to the jury" or a "waste" of this Court's time. While Mr. Sullivan would prefer not to testify in this matter, he should not be barred from doing so if necessary. The NMT Defendants also argue that allowing Mr. Sullivan to act as a rebuttal witness violates his ethical duties under Delaware Rules of Professional Conduct 3.7. This argument is also unsound. Rule 3.7(b) clearly states that "a lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 or Rule 1.9." The main concern behind Rule 3.7(a) is that a lawyer who attempts to double as a witness will perhaps interject unsworn testimony into his crossexamination or summation, end up arguing his own credibility to the jury, or be tempted to distort the truth for the benefit of his client." Cardoni v. Power International, et al., Del.Super., C.A.No. 88C-MY-141, at 2 Bifferato, J. (March 27, 1990).
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Here, Mr. Sullivan will not be the lead counsel trying this case. Mr. Sullivan, therefore, would not be risking the "interjecting" of "unsworn testimony into a cross examination" or "arguing his own credibility to the jury." As such, he is permitted to testify under Rule 3.7(b). Further, and as stated above, any testimony by Mr. Sullivan would only be called for if absolutely necessary, and extremely limited in its scope. CONCLUSION WHEREFORE, Tesla Industries prays that Defendants' Motion in Limine be denied in its entirety. Dated: April 19, 2007 Respectfully submitted,

/s/ Brian A. Sullivan Brian A. Sullivan (DE No. 2098) Robert D. Wilcox (DE No. 4321) Amy D. Brown (DE No. 4077) WERB & SULLIVAN 300 Delaware Avenue, 13th Floor P. O. Box 25046 Wilmington, DE 19899 Telephone: (302) 652-1100 Facsimile: (302) 652-1111 and

Paul E. Crawford (I.D. # 493) CONNOLLY BOVE LODGE & HUTZ LLP 1107 N. Orange Street P.O. Box 2207 Wilmington, DE 19899-2207 302.658.9141 [email protected]

Attorneys for Tesla Industries, Inc.
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CERTIFICATE OF SERVICE

I hereby certify that on April 19, 2006, I caused a copy of the foregoing document to be served upon the persons listed below in the manner indicated:

VIA E-MAIL & FIRST CLASS MAIL John A. Adams, Esq. Susanin Widman & Brennan, P.C. 455 S. Gulph Road, Suite 240 King of Prussia, PA 19406 Louis S. Mastriani, Esq. Rodney R. Sweetland, III, Esq. David F. Nickel, Esq. Adduci,Mastriani & Schaumberg, LLP 1200 Seventeenth Street, N.W. Fifth Floor Washington, DC 20036-3006

VIA HAND DELIVERY John D. Demmy, Esq. Stevens & Lee, P.C. 1105 North Market Street, 7th Floor Wilmington, DE 19801 Steven J. Balick, Esq. John G. Day, Esq. Lauren E. Maguire, Esq. Ashby & Geddes 500 Delaware Avenue, 8th Floor Wilmington, DE 19801

/s/ Brian A. Sullivan Brian A. Sullivan (#2098)