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

Case 1:05-cv-00956-CCM

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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 JAMES HORAN 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 James Horan (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.

James Horan's deposition was taken in this case on July 24, 2006. Counsel for

the Litmans and Dieners, Hotels.com, and the United States were present at the deposition. 2. Mr. Horan was a partner at KPMG, LLP who advised the Litmans and Dieners

during the time period relevant to this case and his testimony is relevant to a number of issues in this case, including without limitation the advice he provided to the Litmans and Dieners regarding the preparation of the Form 1120, United States Income Tax Return filed by TMF Liquidating Trust for the year 2000, Form 1040, United States Income Tax Returns filed by the Litmans and Dieners for the year 2000 (collectively "the 2000 Form 1040's") and KPMG's appraisal group's determination of the reasonableness of the valuation of the Restricted Shares of Hotel Reservations Network stock issued to TMF Liquidating Trust used by the Litmans and Dieners on the 2000 Form 1040's as was communicated to the Litmans and the Dieners. 3. Mr. Horan lives in Florida, which is more than 100 miles from the place of trial in

this case, Dallas, Texas. Mr. Horan is now retired from KPMG, LLP and is not under the control of Plaintiffs. 4. 5. Mr. Horan would not be not absent due to any fault of Plaintiffs. Mr. Horan'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: (a) (b) (c) Page 4, Line 4 through Page 6, Line 18; Page 8, Lines 2-5; Page 14, Line 1 through Page 18, Line 1;

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(d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) (o) (p) (q) (r) (s) (t) (u) (v) (w)

Page 19, Line 8 through Page 21, Line 14; Page 22, Lines 4-22; Page 25, Line 5 through Page 26, Line 7; Page 27, Line 6 through Page 28, Line 23; Page 31, Line 14 through Page 32, Line 25; Page 42, Line 11 through Page 47, Line 1; Page 48, Line 6 through Page 50, Line 24; Page 51, Line 8 through Page 52, Line 4; Page 52, Line 16 through Page 54, Line 25; Page 56, Line 4 through Page 58, Line 17; Page 62, Lines 4-7; Page 63, Line 22 through Page 65, Line 22; Page 67, Line 15 through Page 70, Line 4; Page 74, Line 11 through Page 77, Line 4; Page 77, Lines 12 through Page 78, Line 8; Page 79, Line 12 through Page 80, Line 7; Page 80, Line 20 through Page 81, Line 2; Page 81, Line 9 through Page 90, Line 24; Page 94, Line 8 through Page 95, Line 9; and Page 96, Line 11 through Page 97, Line 9.

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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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