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

Case 1 :04-cv-OO593—Gl\/IS Document 76 Filed O9/06/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re INACOM CORP., etal., Bankruptcy Case No. 00-2426 (PJW)
INACOM CORP., on behalf of all affiliated Civil Action No. 04-593 GMS
Debtors, Adversary Case No. 02-3960 (PJW)
Plaintiff, [Related to Docket Nos. 59 and 62]
v.
DEFENDANT INGRAM ENTERTAINMENT
INC., as successor in interest to NASHVILLE
COMPUTER LIQUIDATORS, L.P.,
Defendant.
PLAINTIFF'S REPLY RE ITS MOTION IN LIMINE TO EXCLUDE THE TESTIMONY
OF PERSONS OTHER THAN THE PERSON DESIGNATED MOST
KNOWLEDGEABLE AT TIME OF TRIAL
1 Plaintiffs Motion seeks to exclude from trial witnesses from Defendant Ingram
Entertainment, Inc. ("Ingram") who were (i) involved in the operations of its subsidiary
Nashville Computer Liquidators ("NCL") in 1999 and 2000, but (ii) not produced for deposition
in response to a Rule 30(b)(6) notice. The request is reasonable and grounded in equity since
only Mr. Gadsey was produced on behalf of both NCL and Ingram}
Defendant's Opposition simply side steps the issue by claiming that the Motion seeks to
exclude witnesses "no longer employed by lngram." The salient point is that Defendant should I
not be able to call any current or former employees of Ingram or NCL who set credit and
payment terms, and oversaw accounts receivable decisions. Since Mr. Gadsey has no such
pertinent knowledge, and did not investigate any such information prior to appearing for the
I The 30(b)(6) notice was served on Defendant Ingram Entertainment, as successor in interest to NCL.
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Rule 30(b)(6) deposition, he should not now be permitted to speculate as to the decisions or
knowledge of others based on his review of corporate documents.
Categories 6, 7, 8 and 10 of the Rule 30(b)(6) Notice sought the Person Most
Knowledgeable at the Corporate Defendant Ingram on accounts receivable, collections, attempts
to collect from Inacom and the standard credit tenns issued during 1998-2000. See, Exhibit A
hereto. Mr Gadsey testified that management at Ingram, and the President of NCL, set and
changed the credit tenns with Inacom. See, Gadsey Depo., p. 54, ln. 24 — p.55, ln. 9; p. 80, lns.
5-17; p. 117, lns. 16-19, Exhibit B hereto. It would be entirely improper to permit Defendant to
present testimony from any other current or former employee with knowledge on those topics
beyond the minimal testimony provided by Mr. Gadsey.
Rule 30(b)(6) imposes a duty upon the named business entity to select and prepare the
deponent to adequately testify not only on matters known by the deponent, but also as to subjects
that the entity should reasonably know. Hooker v. Norfolk Southern Railway Co., 204 F.R.D.
124, 126 (S.D. Ind. 2001). "Any other interpretation of the rule would allow the responding
corporation to ‘sand bag’ the deposition process by conducting a half-hearted inquiry before the
deposition but a thorough and vigorous one before the trial". United States v. Taylor, 166 F.R.D.
356, 362 (M.D.N.C. 1996). See, Kanaji v. Philadehyhia Child Guidance Center of Childrenls
Hospital, 2001 WL 708898, at * 2 (E.D. Pa. 2001) (defendant may not rely on a technical
distinction between parent corporation or successor-in-interest when interests are aligned to
thwart the purpose of Rule 30(b)(6)).
Defendant must be held to its prior decision to offer only Mr. Gadsey in response to the
Rule 30(b)(6) Notice, and its failure to prepare him to testify regarding matters of which he has
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no personal knowledge, but which may be found within Defendant's corporate records. Mr.
Gadsey should not be permitted to introduce evidence at trial beyond his prior testimony. Kanji,
2001 WL 708898, at * 2 (corporation obligated to prepare a witness with pertinent information
reasonably available to it.).
Plaintiff respectfully requests an Order that (1) excludes testimony of any witness
from Defendant other than Mr. Gadsey on the topics of the 30(b)(6) notice, and (2) excludes
testimony or documentary evidence from Mr. Gadsey beyond that provided at his deposition.
Dated: September L, 2005 PACHULSKI, STANG, ZIEHL, YOUNG, JONES
& WEINTRAUB P.C. 2 3
Laura Davis Jones (Bar No. 2436)
Sandra G. McLamb (Bar No. 4283)
919 North Market Street, 16th Floor
P.O. Box 8705
Wilmington, Delaware 19899-8705 (Courier 19801)
Telephone: (302) 652-4100
Facsimile: (302) 652-4400
Andrew W. Caine (CA Bar No. 110345)
Jeffrey P. Nolan (CA Bar No. 158923)
10100 Santa Monica Blvd., 1 lth Floor
Los Angeles, California 90067-4100
Telephone: (310) 277-6910
Facsimile: (310) 201 -0760
Counsel for the Plaintiffs/Debtors
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