Free Response to Motion - District Court of Delaware - Delaware

Case 1 :04-cv—00593-GIVIS Document 64 Filed 08/29/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re )
)
INACOM CORP. et al, )
Debtors. g
)
)
INACOM CORP., on behalf of all affiliated Debtors, ) CM; Action N0 Q4-593 (GMS)
Plaintiffs, 3
V. )
)
INGRAM ENTERTAINMENT INC., as successor )
in interest to NASHVILLE COMPUTER g
LIQUIDATORS, LQP., )
Defendant. )
3
DEFENDANIPS RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION IN LIMINE
NO. 2 TO EXCLUBE WITNESSES NOT PREVIOUSLY DISCLOSED OR IDENTIFIED
Defendant Ingram Entertainment Inc. (“lngran1") respectfully submits this
Response in opposition to plaintiff Inaco1n’s Motion in Limine No. 2 (the "l\/lotion") to exclude
the testimony of witnesses whose identities were allegedly not previously disclosed or identified
by Ingram.
I. INTRODUCTION
By its Motion, Plaintiff seeks to exclude the testimony at trial of 5 witnesses
whose identities Plaintiff asserts it was unaware of until ajier Ingram included them on its
witness lists in the Proposed Pretrial Order. Plaintiff s claim is specious.
The witnesses that Plaintiff seeks to exclude are the employees and/or experts
previously disclosed by the defendants in two other preference actions - Dell, Inc. and Lexmark
International »~ with whom all discovery proceedings in this case have been coordinated, and
with whom Ingram has tiled a Motion to have this trial consolidated. (DI. 22) Plaintiff was
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Case 1:04-cv—00593-G|\/IS Document 64 Filed 08/29/2005 Page 2 of 4
aware of the identity of these witnesses months, yfnot years, before the close of discovery, and
Plaintiff deposed each or them. Plaintiff will therefore not be prejudiced in the slightest if these
witnesses are permitted to testify. Accordingly, the Motion should be denied.
II. STATEMENT OF FACTS
lngrarn’s lists of potential fact and expert witnesses in the parties’ Joint Proposed
Pretrial Order includes 5 witnesses whose identities Plaintiff wrongly contends it was unaware.
The witnesses include:
• Michael Keller and Major Horton. Messrs. Keller and Horton are
employees of Dell, Inc. who possess knowledge ofthe course of business dealings between
lnacom and its vendors which is relevant to each defendants’ affirmative defense pursuant to ll
U.S.C. § 547(c)(2).
• Steve Thomas. Mr. Thomas is an expert witness disclosed by Dell, inc.
during the parties’ discovery. His testimony, like that of Messrs. Keller and Horton, will concern
the terms of the ordinary course of business dealings between Inaeom and its vendors. The
relevance of his testimony is therefore not limited to Dell, but rather relates to the aftlrrnative
defense pursuant to ll U.S.C. § 5¢l7(c)(2) raised by Ingram and Lexmark as well. _
• John Lallocca. Mr. LaRocca possesses percipient knowledge of lnaconi’s
history of "held" checks from his prior employment with HP. He is also qualified to offer expert I
testimony about lnaeom’s ordinary course of dealings with its vendors and standard terms of
credit in the Defendants industries. Again, his percipient and expert testimony will have direct
relevance to the affirmative defense under ll U.S.C. § 547(c)(2) raised by Ingram, Dell and
Lexmark.
• Kevin Sarkesian. Mr. Sarkesian is a current employee (and former Credit
Manager) of defendant Lexmark. Like Mr. l;aRocca, Mr. Sarkesian will provide relevant
testimony concerning lnacom’s ordinary course of dealing with its vendors and standard terms of
credit in the Defendants’ industries.
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Contrary to its assertion in the Motion, Plaintiff was well aware of the identity of
these witnesses long before Ingram included them on its witness lists in the Pretrial Order. The ‘
Defendants (including lngram, Dell and Lexmark), with Plaintiff’ s full cooperation and
agreement, began coordinating discovery efforts in August 2004 -~ months before the first
deposition was taken in any ofthe Defendants cases.
The identities of each ofthe witnesses were disclosed to Inacom during these
coordinated discovery proceedings. indeed, copies of Dell’s and Lexmark’s discovery responses
, in which they disclosed the identities of these percipient and expert witnesses were served on
lnacom and Ingram, as well as the other defendants participating in the coordinated efforts. See,
ag., Dell’s Notice of Service of Supplemental Responses to Plaintiff s First Set of l
lnterrogatories (May 4, 2005) (identifying Messrs. Keller, Horton, Thomas and Lallocca)
(attached as Ex. ‘“A" to Hersey Decl.). Plainiff deposed each of these witnesses, and even served
copies of the deposition notices on Ingram. See, eng., Notice of Deposition of Expert Kevin
Sarkisian (July l9, 2005) (Ex. "B" to Hersey Decl.).
HI. ARGUMENT
Plaintiff has not demonstrated that it will suffer any prejudice if these previously
identified and deposed witnesses are permitted to testify, particularly if the trials are
consolidated. Each of the witnesses possess relevant and probative information concerning the
"ordinary course of business" defense common to Ingram, Dell and Lexmark. Fairness and the
interests of reaching consistent results in each ofthe similar cases weigh in favor of permitting
the witnesses to testify — especially because lnacom has already deposed them and is ftilly
capable of preparing its case for trial}
g ln contrast, lnacom’s witness list included at least one person, Mr. Neil Gilmour, who
was not previously identified in lnaeom’s initial disclosures or discovery responses in either this
action or the preference actions against the other defendants. Unlike the witnesses listed on
lngrancfs witness lists, there has been no opportunity to depose Mr. Gilmour. Accordingly, his
testimony should be excluded from trial. See Fed. R. Civ. P. 37(c)(l).
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IV. CONCLUSION
For the foregoing reasons, Plaintiff s Motion in Limine to exclude the testimony
of the witnesses that [nacorn has deposed and which Ingram included on its witness lists inthe
parties’ Joint Proposed Pretrial Order should be denied.
DATED: August 29, 2005 e =» ` \
M ` -4 ‘··i A gtree · M
By: e ____
Thomas G. . eauley (ID 3411)
ZUCKERMA .. _s__ EDER LL
919 Market Street, l r ° tt
PO. Box 1028
Wilmington, Delaware 19899-1028
Tel.: (302) 427-0400
Fax: (302) 41»27—8242
—and—
Jonathan P. Hersey (CA Bar No. 189240)
Scott 13. Lieberman (CA Bar No. 20876·¢1)
SHEPPARD, MjUL`L,}§N, R]QCI~ITER &
HAMPTON LLP
650 Town Center Drive, 4m Floor
Costa Mesa, CA 92626
Telephone: (714) 513-5100
Facsimile: (714) 513-5130
Attorneys for Defendant _
INGRAM ENTERTAINMENT
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