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

Case 1:05-cv-00956-CCM

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Filed 07/31/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

DAVID S. and MALIA A. LITMAN, Plaintiffs, No. 05-956T v. THE UNITED STATES OF AMERICA, Defendant.

ROBERT B. and MICHELLE S. DIENER, Plaintiffs, No. 05-971T v. THE UNITED STATES OF AMERICA, Defendant.

HOTELS.COM, INC. and Subsidiaries (f/k/a HOTEL RESERVATIONS NETWORK, INC.) Plaintiffs, v. THE UNITED STATES OF AMERICA, Defendant. No. 06-285T Judge Christine O. C. Miller

HOTELS.COM'S MOTION TO COMPEL TMF LIQUIDATING TRUST'S RESPONSE TO SUBPOENA REQUEST NO. 11 Pursuant to RCFCs 26 and 45, plaintiffs Hotels.com, Inc. and Subsidiaries ("Hotels.com"), respectfully move this Court to compel TMF Liquidating Trust to respond to the subpoena served on it on May 24, 2006.

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As good cause therefore, Hotels.com states a follows: 1. In request No. 11, Hotels.com sought the following:1 All brokerage, investment, bank and other statements of any kind reflecting assets held directly or indirectly by TMF Liquidating Trust for the period 1999 through 2004. 2. TMF Liquidating Trust, through its counsel John Porter, also counsel to the Litmans and Dieners in this action, objected as follows:2 TMF objects to this Request as overbroad, immaterial, irrelevant, not reasonably calculated to result in the discovery of admissible evidence, and unduly burdensome. 3. On July 28, 2006 the undersigned counsel asked Mr. Porter if his position on the production of the documents sought from the TMF Liquidating Trust had changed. He informed the undersigned counsel that it had not. 4. The documents requested are reasonably anticipated to lead to discoverable evidence regarding the date the shares were actually received by the TMF Liquidating Trust. The governing agreement in this case is the Amended and Restated Asset Purchase Agreement by and among HRN, Inc., USA Networks, Inc., TMF, Inc., HRN Marketing Corp., Robert Diener and David Litman as of February 2, 2000. Pursuant to section 7.15.1 of that agreement, 5.1 million of the shares at issue in this case were to be issued "simultaneously with the initial closing of the 2000 IPO." The 2000 IPO closed on March 1, 2000. The remaining shares at issue in this case were to be issued "immediately prior to the IPO," pursuant to section 7.11.3 of the agreement. The shares offered in the IPO commenced trading at 11 am on the NASDAQ on February 25, 2000. Plaintiffs Litman and Diener have valued the shares at issue as

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Subpoena to TMF Liquidating Trust, attached as Exhibit A. Counsel for the Trust agreed to waive service and instead accepted service via e-mail. TMF Liquidating Trust's Responses and Objections to Hotels.com's Subpoena attached as Exhibit B. 2

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of February 24, 2000. The documents requested are reasonably anticipated to lead to discoverable evidence regarding the date the shares were actually received by the TMF Liquidating Trust. 5. Diversified portfolios impact the significance of stock restrictions applicable to stock within that portfolio. Diversification of investments can act as a hedge with respect to the stock at issue in this case. The issue of hedging and various valuation methods used by the experts in this case has arisen in depositions. Thus, the assets held by the TMF Liquidating Trust, other than the stock at issue in this case, are relevant. Request number 11, reproduced above, is reasonably calculated to lead to this evidence. 6. The request to which TMF objects is plainly designed to lead to the discovery of the above-described relevant information. Accordingly, this motion should be granted, and TMF Liquidating Trust ordered to produce for inspection and copying, "All brokerage, investment, bank and other statements of any kind reflecting assets held directly or indirectly by TMF Liquidating Trust for the period 1999 through 2004." Dated: July 31, 2006

By s/ Kim Marie K. Boylan KIM MARIE K. BOYLAN Attorney of Record Latham & Watkins LLP 555 Eleventh Street, N.W., Suite 1000 Washington, D.C. 20004-1304 (202) 637-2235 (202) 637-2201 [email protected]

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Of Counsel: KARI M. LARSON Latham & Watkins LLP 555 Eleventh Street, N.W., Suite 1000 Washington, D.C. 20004-1304 (202) 637-1018 (202) 637-2201 [email protected]

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CERTIFICATE OF SERVICE On July 31, 2006, I served a true and correct copy of HOTELS.COM'S MOTION TO COMPEL TMF LIQUIDATING TRUST'S RESPONSE TO SUBPOENA REQUEST NO. 11 by e-mail on the following: John William Porter Baker & Botts One Shell Plaza 910 Louisiana Houston, TX 77002-4995 [email protected] (Counsel for TMF Liquidating Trust and plaintiffs Litmans and Dieners) Cory Arthur Johnson U.S. Department of Justice--Tax Division 555 4th Street, N.W., Room 8122 Washington, D.C. 20001 [email protected] Executed on July 31, 2006, at Washington, D.C.

s/ Kari M. Larson Kari M. Larson

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