Free Response to Motion - District Court of Federal Claims - federal

Case 1:05-cv-00956-CCM

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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' RESPONSE TO THE LITMANS' AND DIENERS' MOTION FOR LEAVE TO FILE PORTIONS OF THE DEPOSITION TRANSCRIPT OF JAMES HORAN
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The United States responds to the motion of plaintiffs David and Malia Litman and Robert and Michelle Diener for leave to file portions of the deposition of James Horan, as follows. I. OBJECTIONS TO TESTIMONY SOUGHT TO BE INTRODUCED

The United States objects to the portions of the deposition of Mr. Horan sought to be introduced by the Litmans and Dieners listed below. Testimony (page: line) 14:22 - 18:1 51:8 - 51:21 Objection Hearsay, lack of foundation, impermissible opinion Lack of foundation, speculation, impermissible opinion 81:9 - 83:20 Hearsay, lack of foundation, impermissible opinion

Any testimony by Mr. Horan that he conveyed to the Dieners or Litmans, or anyone else, certain out-of-court statements or conclusions of other KPMG employees concerning their thoughts about the BVS (Mitchell) valuation is hearsay if offered for the truth of those statements. See Federal Rule of Evidence 802. Such testimony cannot be admitted to show that KPMG actually approved of the valuation or that the valuation was reasonable. Additionally, Mr. Horan is not a valuation expert and cannot opine on the value issue. See FRE 702. One of the additional designations below is offered to show the unreliability of this testimony, in addition to its inadmissibility. II. ADDITIONAL DESIGNATIONS OF TESTIMONY BY THE UNITED STATES

Pursuant to RCFC 32(a)(4), the United States designates the following testimony from

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Mr. Horan's deposition as additional testimony that, for reasons of fairness and completeness, must be admitted along with testimony offered by the Litmans and Dieners. Plaintiff's Offered Testimony 19:8 - 21:14 42:11 - 47:1 81:9 - 90:24 Additional Designation 21:15 - 21:18 47:2 - 48:5 91:3 - 94:7

If the testimony offered by plaintiff is admitted, the United States asks that the Court also consider, and admit, the additional designations.

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 3

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