Free Reply to Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-00593-GMS

Document 77

Filed 09/06/2005

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Case 1:04-cv-00593-GMS

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Case 1:04-cv-00593-GMS

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Case 1:04-cv-00593-GMS

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Case 1:04-cv-00593-GMS

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I. INTRODUCTION On August 15, 2005 Defendants Dell Computer Corp. ("Dell"), Lexmark International, Inc. ("Lexmark") and Ingram Entertainment Inc. ("Ingram") (collectively "Defendants"), pursuant to Rule 702 of the Federal Rules of Evidence ("Fed. R. Evid."), filed their joint motion for the Court to exclude the expert testimony and report of Stuart A. Gollin ("Gollin"). On August 29, 2005 InaCom Corp. and counsel for Executive Sounding Board Associates, Inc. (collectively "InaCom") filed its response ("InaCom Response") in opposition to the Motion. This is the Defendants' joint reply. II. ARGUMENT Defendants' motion to exclude the expert testimony and report of Stuart A. Gollin pursuant Fed. R. Evid. 702 is proper and should be granted. As demonstrated by his deposition testimony, Gollin's credentials do not qualify him as an ordinary course expert. Moreover, the integrity of Mr. Gollin's report is highly questionable and unreliable given his admitted reliance on incomplete payment histories obtained from Dun and Bradstreet ("D & B"). InaCom's Response confuses the issues at hand by reciting the standard contained in 11 U.S.C. § 547(c)(2)(C) and speculating that Lexmark and Ingram's ordinary course witnesses will be unable to make the necessary showing.1 InaCom's conjectures as to Mr. Sarkisian's and Mr. Gadsey's expected testimony are irrelevant as the Defendants' joint motion is concerned solely with InaCom's ability to demonstrate Gollin's fitness to testify as an expert and the credibility of his report.

Additionally, InaCom's response incorrectly states that the length of its business relationship with Lexmark prior to the preference period was only seven months. Mr. Sarkisian will testify at trial that Lexmark sold product to InaCom for approximately eight years prior to its filing for protection under Chapter 11on June 16, 2000.

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SL1 569928v1/004907.00003

Case 1:04-cv-00593-GMS

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Case 1:04-cv-00593-GMS

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Case 1:04-cv-00593-GMS

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