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

Case 1:05-cv-00956-CCM

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Filed 02/26/2007

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

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. 05-956T

No. 05-971T

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

PLAINTIFFS-COUNTERDEFENDANTS, DAVID S. LITMAN, MALIA A. LITMAN, ROBERT B. DIENER, AND MICHELLE S. DIENER'S MOTION FOR LEAVE TO FILE TRANSCRIPT OF DEPOSITION TESTIMONY OF MEL ROBINSON Plaintiffs-Counterdefendants, David S. Litman, Malia A. Litman, Robert B. Diener, and Michelle S. Diener file this Motion for Leave to File Transcript of Deposition Testimony of Mel Robinson (this "Motion") pursuant to ¶ 15(B) of Appendix A and Rule 32 of the Rules of the Court of Federal Claims. In support of this Motion, Plaintiffs state as follows:

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1.

Mel Robinson's deposition was taken in this case on July 19, 2006. Counsel for

the Litmans and Dieners, Hotels.com, and the United States were present at the deposition. 2. Mr. Robinson was the Chief Financial and Strategic Officer of Hotel Reservations

Network, Inc. starting in the spring of 2000. Mr. Robinson's testimony would be relevant to several issues in the case, including, without limitation, HRN's financial reporting/accounting treatment for the Restricted Shares, the Form 1120, United States Income Tax Return filed by Hotels.com for the years 2000, 2001, 2002, 2003 and 2004 , the valuation of the Restricted Shares obtained by HRN, the operations of HRN, the importance of David Litman, Bob Diener, and Andy Pells to HRN, the anticipated volatility of and risk associated with the HRN stock, discussions regarding the valuation and proper financial reporting/accounting and tax treatment of the Restricted Shares with HRN and USA Network Management, and in HRN's Audit Committee. 3. Mr. Robinson lives in the Dallas area and Plaintiffs intend to issue a trial

subpoena to Mr. Robinson. However, Mr. Robinson is not under the control of Plaintiffs. Accordingly, Plaintiffs file this Motion in the event they are unable to compel the attendance of Mr. Robinson at trial. 4. 5. Mr. Robinson would not be absent due to any fault of Plaintiffs. Mr. Robinson's testimony by deposition will not harm the interests of justice and

will serve judicial economy. 6. Plaintiffs intend to introduce the following portions of the transcript of the

deposition at trial if Mr. Robinson is not present to testify: (a) (b) (c) Page 6, Lines 1-8; Page 7, Line 21 through Page 19, Line 16; Page 25, Line 12 through Page 35, Line 6;

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(d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) (o) (p)

Page 35, Line 14 through Page 36, Line 10; Page 36, Line 12 through Page 37, Line 22; Page 39, Line 6 through Page 47, Line 20; Page 49, Lines 4-7; Page 49, Line 13 through Page 53, Line 24; Page 54, Lines 4-13; Page 55, Line 14 through Page 59, Line 8; Page 61, Line 20 through Page 68, Line 17; Page 71, Line 14 through Page 82, Line 23; Page 83, Line 1 through Page 92, Line 25; Page 93, Line 19 through Page 99, Line 13; Page 99, Line 20 through Page 101, Line 20; and Page 101, Line 24 through Page 103, Line 2.

Respectfully submitted, BAKER BOTTS L.L.P. Dated: February 26, 2007 By: s/ John W. Porter John W. Porter Attorney of Record 3000 One Shell Plaza 910 Louisiana Houston, Texas 77002 (713) 229-1597 (713) 229-1522 (FAX) Stephanie Loomis-Price (Of Counsel) J. Graham Kenney (Of Counsel) COUNSEL FOR PLAINTIFFSCOUNTERDEFENDANTS

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