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.

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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 CHRISTINE ZEIKEL 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 Christine Zeikel (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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Case 1:05-cv-00956-CCM

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1.

Christine Zeikel's deposition was taken in this case on July 26, 2006. Counsel for

the Litmans and Dieners, Hotels.com, and the United States were present at the deposition. 2. Ms. Zeikel is an appraiser at Deloitte & Touché hired by Hotels.com (and its

former parent company, USA Networks) to appraise the Restricted Shares of Hotel Reservations Network stock issued to TMF Liquidating Trust. Ms. Zeikel's testimony would be relevant to several issues in the case, including, without limitation, her opinion regarding the proper valuation methods to determine the lack of marketability discounts that should be applied to the Restricted Shares, the lack of marketability discount to be applied when valuing the Restricted Shares which was used by Hotels.com to report the value of the Restricted Shares, the fair market value of the Restricted Shares and the facts and circumstances surrounding the preparation of her valuation report regarding same for Hotels.com, her determination that the lack of marketability for the Restricted Shares should be as follows: 40% - 4 year restricted; 35% - 3 year restricted; 30% - 2 year restricted; 25% - 1 year restricted. 3. Ms. Zeikel lives in the New York City area, which more than 100 miles from the

place of trial in this case, Dallas, Texas. Ms. Zeikel, an employee of Deloitte & Touché hired by Hotels.com (and its former parent, USA Networks), is not under the control of Plaintiffs. 4. 5. Ms. Zeikel would not be absent due to any fault of Plaintiffs. Ms. Zeikel'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 6, Lines 1-11; Page 6, Line 19 through Page 50, Line 25; Page 56, Line 3 through Page 57, Line 20;

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(d) (e)

Page 60, Line 23 through Page 63, Line 9; and Page 70, Line 11 through Page 80, Line 13.

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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