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

Case 1:05-cv-00956-CCM

Document 51

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.

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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 ERIC DEGRAW 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 Eric DeGraw (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.

Eric DeGraw's deposition was taken in this case on June 13, 2006. Counsel for

the Litmans and Dieners, Hotels.com, and the United States were present at the deposition. 2. Mr. DeGraw is an employee of Hotels.com's former parent company who was

responsible for overseeing tax reporting issues at Hotel Reservations Network during the time period relevant to this case. Mr. DeGraw's testimony is relevant to several issues in this case, including, without limitation, the Form 1120 filed by Hotels.com for the years 2000 - 2003 and the valuation of the Restricted Shares used by Hotels.com on those returns, the preparation of amended Form 1120 for HRN for year 2000 using the Deloitte & Touché valuation discount analysis applied to the $16 per share HRN IPO price, representations he made on behalf of HRN to the Internal Revenue Service during the IRS's audit that the Restricted Shares should be valued based upon the Deloitte & Touché appraisal. 3. Mr. DeGraw lives in the New York City area, which is more than 100 miles from

the place of trial in this case. Mr. DeGraw is not under the control of Plaintiffs. Mr. DeGraw is an officer of Hotels.com's former parent company. 4. 5. Mr. DeGraw would not be absent due to any fault of Plaintiffs. Mr. DeGraw'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) (d) (e) Page 9, Lines 1-20; Page 10, Lines 13-21; Page 11, Line 19 through Page 14, Line 20; Page 15, Line 7 through Page 41, Line 5; Page 42, Line 2 through Page 58, Line 11;

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(f) (g) (h) (i) (j)

Page 58, Line 19 through Page 81, Line 7; Page 83, Line 13 through Page 91, Line 11; Page 92, Line 11 through Page 96, Line 18; Page 97, Line 3 through Page 101, Line 3; and Page 104, Line 2 through Page 116, Line 9.

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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