Free Motion for Miscellaneous Relief - District Court of Federal Claims - federal

Case 1:05-cv-00956-CCM

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Filed 04/21/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

DAVID S. LITMAN and MALIA A. LITMAN, Plaintiffs-Counterdefendants, v. THE UNITED STATES, Defendant-Counterplaintiff ____________________________________ ROBERT B. DIENER and MICHELLE S. DIENER, Plaintiffs-Counterdefendants, v. THE UNITED STATES, Defendant-Counterplaintiff ____________________________________ HOTELS.COM, INC. and Subsidiaries (f/k/a HOTEL RESERVATIONS NETWORK, INC.) Plaintiffs, v. THE UNITED STATES, Defendant ____________________________________

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No. 05-956T

No. 05-971T

No. 06-285T (Judge Christine O.C. Miller)

PLAINTIFFS HOTELS.COM AND SUBSIDIARIES MOTION FOR LEAVE TO LIST JOHN R. BOZALIS, JR. AS A WITNESS SO THAT HOTELS.COM MAY ISSUE TO HIM A TRIAL SUBPOENA OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE DEPOSITION TESTIMONY OF MR. BOZALIS Plaintiffs Hotels.com and Subsidiaries ("Hotels.com") respectfully move under RCFC Appendix A, ¶ 13(b), to list John R. Bozalis, Jr. as a witness so that Hotels.com may issue a trial subpoena issued to him. In the alternative, Hotels.com moves pursuant to RCFC 32(a) and

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Appendix A ¶ 15(b)1 for leave to file portions of Mr. Bozalis's deposition transcript as substantive evidence for use at trial in the event that the Court denies Hotels.com's Motion to list Mr. Bozalis as a witness and Mr. Bozalis does not testify at trial. Hotels.com seeks leave to file designations of Mr. Bozalis' deposition testimony, and will do so within 24 hours of receipt of the transcript of his deposition if Hotels.com's alternative motion is granted. According to the court reporter, she will provide to the parties his deposition transcript on Tuesday, April 24, 2007. Counsel for Plaintiffs-Counterdefendants David S. and Malia A. Litman and Robert B. and Michelle S. Diener ("Litmans and Dieners") and counsel for the United States have stated that they do not object to Hotels.com being permitted to add Mr. Bozalis to Hotels.com's witness list.2 ARGUMENT By order dated April 4, 2007, this Court granted Hotels.com's Motion for Leave to Subpoena Documents and Deposition Testimony of John R. Bozalis, Jr., permitting Hotels.com to depose Mr. Bozalis, a previously unidentified potential witness, prior to his giving testimony for the Litmans and Dieners. Hotels.com deposed Mr. Bozalis on April 20, 2007 in Dallas, Texas. Counsel for Hotels.com, Litmans and Dieners, and the United States were present at the deposition. Paragraph 15(b) provides: "Any party intending to present substantive evidence by way of deposition testimony, other than as provided by the Federal Rules of Evidence 801(d), shall serve and file a separate motion for leave to file the transcript of this testimony. The motion shall show cause why the deposition testimony should be admitted and identify specifically the portions of the transcript the party intends to use a trial. See RCFC 32(a)(2) & (3). If the motion is granted, only those portions of the transcript may be filed."
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Counsel for Litmans and Dieners stated that he does object to designation of trial testimony because Mr. Bozalis is within the subpoena range of the Court. Counsel for the United States has stated that he also objects to the designation of trial testimony. As discussed herein, Hotels.com seeks leave to designate deposition testimony to be used as substantive evidence at trial only in the event the Court were to deny its motion to list Mr. Bozalis as a witness and he did not testify at trial. 2

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Mr. Bozalis is a former employee of Donaldson, Lufkin, and Jenrette ("DLJ"). While at DLJ, Mr. Bozalis was involved in the original acquisition of TMF and HRN Marketing and in the underwriting of HRN, Inc.'s 2000 initial public offering ("IPO"). Mr. Bozalis' testimony will be relevant with respect to several issues in the case, including, inter alia, the 2000 IPO and the Asset Purchase Agreement and related amendments, including, but not limited to negotiations, earn out payments, and stock issuance. At this time, it is not certain that Litmans and Dieners will call Mr. Bozalis to testify at trial. Although he is listed as a witness by them, the Litmans and Dieners could decide, even at the last minute not to call Mr. Bozalis. Hotels.com therefore files this motion for leave to list Mr. Bozalis as its trial witness so that Hotels.com may issue to him a trial subpoena to compel his appearance. As explained in Hotels.com's Motion for Leave to Depose Mr. Bozalis, Mr. Bozalis was a newly identified witness by Litmans and Dieners. Had he been identified earlier, Hotels.com would have deposed Mr. Bozalis during the period set by the Court for discovery (which ended on July 31, 2006) and Hotels.com would have listed Mr. Bozalis on its witness list. Because he was not listed on Hotels.com's witness list through no fault of Hotels.com, Hotels.com is currently unable to compel Mr. Bozalis' attendance at trial. Accordingly, Hotels.com requests that the Court permit Hotels.com to add Mr. Bozalis to its witness list so that Hotels.com may issue to him a trial subpoena. Mr. Bozalis lives in the Dallas area and has said that he is available to testify at trial on May 1, 2007. It would be in the interest of justice to allow Hotels.com to add Mr. Bozalis to its witness list.

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In the alternative, Hotels.com moves for leave to designate certain portions of Mr. Bozalis's deposition testimony to be used as substantive evidence in the event that Litmans and Dieners do not call Mr. Bozalis as a witness at trial and the Court does not grant Hotels.com's motion to list Mr. Bozalis as its trial witness. The court reporter at Mr. Bozalis's deposition indicated that a transcript of his deposition would be available by Tuesday, April 24, 2007. If the Court were to grant Hotels.com's alternative motion, Hotels.com would file deposition designations within 24 hours of receipt of the transcript. For the reasons discussed above, if the Court were to deny Hotels.com's motion to now list Mr. Bozalis as a witness, it would be in the interest of justice to permit Hotels.com to designate portions of Mr. Bozalis's deposition testimony to be used as substantive evidence at trial because Mr. Bozalis's appearance at trial would not be under the control of Hotels.com. CONCLUSION For the foregoing reasons, Hotels.com respectfully moves the Court for leave to list Mr. Bozalis as a witness so that Hotels.com may issue to him a trial subpoena. In the alternative, Hotels.com respectfully moves the Court for leave to file designated portions of John R. Bozalis, Jr.'s deposition transcript as substantive evidence to be used at trial in the event that Mr. Bozalis does not testify at trial.

Respectfully submitted, April 21, 2007 s/ Kim Marie K Boylan Latham & Watkins, LLP 555 11th Street, NW Washington, DC 20004 (202) 637-2235 Attorney of Record for Plaintiffs Hotels.com and Subsidiaries 4

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Kari M. Larson Latham & Watkins, LLP 555 11th Street, NW Washington, DC 20004 Of Counsel

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