Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:05-cv-00956-CCM

Document 70

Filed 04/02/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

) ) ) Plaintiffs-Counterdefendants ) ) vs. ) ) THE UNITED STATES, ) ) Defendant-Counterplaintiffs. ) __________________________________________ ROBERT B. DEINER and MICHELLE S. DEINER, ) ) ) Plaintiffs-Counterdefendants ) ) vs. ) ) THE UNITED STATES, ) ) Defendant-Counterplaintiff. ) __________________________________________ HOTELS.COM, INC. AND SUBSIDIARIES ) (f/k/a HOTEL RESERVATIONS NETWORK, ) INC. ) ) Plaintiff ) ) v. ) ) THE UNITED STATES, ) ) Defendant )

DAVID S. LITMAN and MALIA A. LITMAN,

No. 05-956 T

No. 05-971 T

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

THE UNITED STATES' MOTION FOR LEAVE TO FILE DEPOSITION TRANSCRIPTS

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Case 1:05-cv-00956-CCM

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The United States, pursuant to RCFC Appendix A, ¶ 15(b) and RCFC 32, moves for leave to file portions of certain deposition transcripts as substantive evidence in this case. All the depositions sought to be admitted were taken in this case. The witnesses the United States intends to present by deposition are as follows: James Horan: Mr. Horan resides in Florida, and formerly worked at KPMG. His relevant testimony, including testimony concerning the preparation of a draft Form 8594 for the TMF Trust and review of HRN's draft Form 8594 in 2001 can be adequately presented through his deposition transcript. All plaintiffs have also moved to introduce portions of his deposition. The United States seeks to introduce the following testimony (page:line): 4:1 - 6:18 18:22 - 28:23 31:2 - 44:19 54:7 - 55:25 Eric DeGraw: Mr. DeGraw resides in New York, and formerly worked at USA Networks, Inc. His relevant testimony, including testimony about HRN's tax returns and obtaining a valuation from Deloitte & Touche can be adequately presented through his deposition transcript. All plaintiffs have also moved to introduce portions of his deposition. The United States seeks to introduce the following testimony (page:line): 9:8 - 9:17 11:19 - 14:20 15:7 - 23:12 34:6 - 77:16 87:9 - 88:21 90:2 - 91:11 93:21 - 95:15 106:18 - 107:13 110:19 - 111:8 2

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Christine Zeikel: Ms. Zeikel lives in New York, and works at Deloitte & Touche. Her relevant testimony, including testimony regarding her valuation of the HRN restricted stock in 2001 can be adequately presented through her deposition. Although she was retained in 2001 to value the stock for purposes of reporting the stock on HRN's (Hotels.com's predecessor) tax return, she was not retained by Hotels.com, or any other party, to offer an expert opinion in this case. All plaintiffs have also moved to introduce portions of her deposition testimony. The United States seeks to introduce the following testimony (page:line): 7:1 - 21:6 29:15 - 32:21 56:17 - 59:18 59:19 - 61:25 Mel Robinson: Mr. Robinson lives in the Dallas area, and formerly worked at HRN and Hotels.com. Although Mr. Robinson lives within 100 miles of the place of trial, the United States is not yet certain that it will be able to secure his presence at trial. See, RCFC 32(a)(3). In the event that it cannot, the United States seeks to introduce his testimony concerning preparation of HRN's tax returns and valuation of the HRN stock through his deposition. The United States seeks to introduce the following testimony (page:line): 6:6 - 17:5 20:20 - 24:21 25:12 - 36:8 37:21 - 41:8 44:5 - 45:6 61:20 - 62:5 63:23 - 69:19 70:22 - 71:11 77:12 - 77:18 77:22 - 78:12 84:12 - 86:25 100:5 - 101:21 3

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The United States reserves the right to introduce any admissible deposition testimony designated by plaintiffs in their previously filed motions for leave to file deposition transcripts under RCFC 32 and Appendix A, ¶ 15(b).

Respectfully Submitted,

s/ Cory A. Johnson Cory A. Johnson Attorney of Record U.S. Department of Justice Tax Division Court of Federal Claims Section P.O. Box 26 Ben Franklin Station Washington D.C. 20044 202-307-3046 Eileen J. O'Connor Assistant Attorney General Steven I. Frahm Assistant Chief, Court of Federal Claims Section s/ Steven I. Frahm Of Counsel Attorney for The United States

Dated: April 2, 2007

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