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

Case 1 :04-cv—OO593-GIVIS Document 73 Filed O9/O2/2005 Page 1 of 3 n
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE I
In re INACOM CORP., et al., Bankruptcy Case No. 00-2426 (PWV)
INACOM CORP., on behalf of all affiliated Civil Action No. 04-593 (GMS) I
Debtors, [Bk Adv. Case No. 02-3960 (P.IW)]
Plaintiff,
v.
INGRAM ENTERTAINMENT, INC., as [Related to Docket Nos. 57 and 64]
successor in interest to NASHVILLE
COMPUTER LIQUlDATORS,, __
Defendant.
PLAINTIFF’S REPLY RE ITS MOTION IN LIMINE TO EXCLUDE WITNESS NOT g
PREVIOUSLY DISCLOSED OR IDENTIFIED IN DISCOVERY RESPONSES ’
Defendant concedes that the 5 witnesses that are the subject of this Motion,
including an expert witness, all of whom were identified by Defendant for the first time in the
parties’ Pretrial Order, were NOT identified by Defendant in its initial disclosures, any L
subsequent disclosures, any responses to discovery propounded by Plaintiff that specifically ’
n requested identification of all persons with knowledge with respect to the issues in this action, or
any expert witness disclosures. Federal Rule of Civil Procedure 37(c)(l) is clear: witnesses not I
properly disclosed cannot be called to testify. Fed. R. Civ. P. 37(c)(1).
Defendant misrepresents the facts in a baseless attempt to avoid this undeniable
result. Defendant has not cited a single authority for the proposition that a percipient or expert
witness disclosed in another action may be called without notice or disclosure. In sum,
Defendant simply failed to adequately prepare its "ordinary course of business" defense under
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Section 547(c)(2), and is scrambling to find witnesses in an attempt to salvage its defense} The
5 previously undisclosed witnesses should be excluded. .
The true pertinent facts are as follows: _
1. Of the 5 previously undisclosed witnesses, none were identified by
Defendant in its initial disclosures, any subsequent disclosures, any responses to discovery I
propounded by Plaintiff that specifically requested identification of all persons with knowledge
with respect to the issues in this action, or any expert witness disclosures. Defendant did not
present an expert witness report under Federal Rules of Civil Procedure 26(a) for the previously
undisclosed "expert" witness.
2. Of the 5 witnesses, 2 were disclosed as percipient witnesses and 2 as p
expert witnesses in the matter of Inacorn Corp. v. Dell Computer Corporation, Civil Action no.
04-582 (GMS), and 1 was disclosed as a percipient and expert witness in the matter of Inacom _-
Corp. v. LexrnarkInternationaL Inc., Civil Action no. O4-483 (GMS).
3. Plaintiffs counsel in this action is not serving as Plaintiff s counsel in the
Dell action. (
. 4. This action has not been consolidated with any other pending action. Q
5. Depositions of witnesses common among this action and Dell, Lexmark
and the matter of Inacom Corp. v. Tech Data Corporation, Civil Action no. 04-148 (GMS), an
primarily relating to the insolvency issue and Compaq transaction, have been informally
coordinated for the convenience ofthe parties and the witnesses. Depositions of witnesses NOT V
common to all of these actions, including the 5 witnesses that are the subject of this Motion,
have NOT been coordinated, but conducted solely among cotmsel to the particular action, on
issues solely related to the particular action. Thus, Plaintiff has NOT deposed any of the 5
1 Defendant’s pending motion to consolidate this action with other pending preference actions is likely 1
intended, at least in part, to remedy the failure to disclose witnesses by Defendant and others.
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Case 1 :04-cv—OO593-GIVIS Document 73 Filed O9/O2/2005 Page 3 of 3 I
witnesses for any ptupose other than the particular action in which they were identined, and the
4 witnesses identified in the Dell action were deposed by different counsel.
Plaintiff will clearly suffer prejudice if the 5 previously undisclosed witnesses are
pemiitted to testify. Plaintiff did not have an opportunity to depose these witnesses regarding
any testimony relevant to this action, investigate the facts to which they may testify, prepare
motions in limine on relevance andfor qualification grounds, or otherwise prepare its case for
trial.
Despite Defendant’s clear obligation under Federal Rules of Civil Procedure 26 ·
and 33 to disclose and identify all potential a.11d expert witnesses in this action, Defendant’s
witness list for the trial of this action includes 5 previously undisclosed witnesses, Permitting
these witnesses to testify would be unfairly prejudicial to Plaintiff} and thus, they should be
excluded pursuant to Federal Rules of Evidence 403 and Federal Rules of Civil Procedure g
37(c)(1). .
_ Dated: September QJ 2005 PACHULSKI, STANG, ZIEHL, YOUNG, JONES
& WEINTRAUB P.C.
Laura Davis Jones (Bar No. 243 6)
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)
Jefhey P. Nolan (CA Bar No. 158923)
10100 Santa Monica Blvd., 1 lth Floor
Los Angeles, California 90067-4100 f
Telephone: (310) 277-6910
F acsimile: (310) 201-0760
Counsel for the Plaintiffs/Debtors .
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