IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re: Chapter ll
INACOM CORP., et al., Bankruptcy Case No. 00~2426 (PJW)
Debtors.
INACOM CORP., on behalf of all affiliated CivilActior1 No. O4—CV—583 (GMS)
debtors,
Plaintift]
vs.
LEXMARK INTERNATIONAL, INC.,
Defendant and Third—Party
Plaintiff`,
vs.
COMPAQ COMPUTER CORP., ITY
CORP., and CUSTOM EDGE, INC.,
Third·Party Defendants.
HEWLETT—PACKARD COMPANY’S OPPOSITION TO
LEXMARK INTERNATIONAL, INC.’S MOTION IN LIMINE TO EXCLUDE
TESTIMONY OF CHRIS ANDERSON
Lexmark International, Inc. ("Lexmark") has moved this Court for an
order in limine to exclude testimony of Chris Anderson ("l\/Ir. Anderson") because
Lexmark never deposed Mr. Anderson. In fact, Lexmark received notice over seven
months ago that Mr. Anderson is a knowledgeable witness, but Lexmark failed to request
his deposition.
teezeesospoc V 1} I
Case 1:04-cv—00583-Gl\/IS Document 88 Filed 08/26/2005 Page 2 of 4
ARGUMENT
On October 4, 2004, the Court consolidated for the purposes of discovery
the preference actions brought by the estate of Inacorn Corp. ("Inacoin") against Lexmark
and Tech Data Corporation ("Tech Data"). Depositions of HP witnesses have been
conducted jointly by Tech Data and Lexmark.
On Januaiy 24, 2005, HP served its Responses to Tech Data’s First Set of
Interrogatories in which HP identified Mr. Anderson, then an HP employee, as follows:
HQTERROGATORY NO. 2:
Identify each person that the Third Party Defendants may cail as a witness
at any trial or hearing in this Adversary Proceeding and, for each person
identified, state the specific issue on which that person may be expected to
testify.
RESPONSE TO INTERROGATORY NO. 2:
. . . HP states that it may call the following individuals as witnesses:
l Chris Anderson ~— former Director of Corporate Finance for
Compaq with knowiedge of the asset purchase transaction and liabilities
assumed by Compaq pursuant thereto. Currently an HP employee, address
C/O rnasf
Mr. Anderson was further identiiied in at least two depositions as a
knowledgeable witness. On March 25, 2005, Jay Samuelson identified Mr. Anderson as
someone with knowledge of the asset purchase transaction and of` the liabilities that
Compaq assumed. On March 30, 2005, Ben Wells also identified Mr. Anderson as
someone involved with the asset purchase transaction and who had knowledge of the
assumed liabilities. After Mr. Wells identified Mr. Anderson, i~IP’s counsel voluntarily
informed counsel for Lexmark and Tech Data that Mr. Anderson was no longer an HP
I Mr. Anderson was aiso identified in HP’s responses to Interrogatory Nos. 5 and 18 as having knowledge
of the asset purchase transaction.
ioozorisoanoc V 1; 2
Case 1:04-cv—00583-G|\/IS Document 88 Filed 08/26/2005 Page 3 of 4
employee and consequently no longer under HP’s control, but HP was trying to locate
him regarding the accounts payable that Compaq assumed.2 HP subsequently served its
Supplemental Disclosures on Lexmark pursuant to Rule 26(e) on June l0, 2005, in which
HP identified Mr. Anderson as a knowledgeable witness.
In total, Lexmark and Tech Data noticed the deposition of l5 current and
former HP employees as well as a person most knowledgeable pursuant to Fed. R. Civ.
Proc. 30(b)(6). Yet no formal or written request to depose Mr. Anderson was ever made,
and HP is unaware of any informal or verbal request. Furthermore, none of the
categories listed in Tech Data’s 30(b)(6) notice are areas in which Mr. Anderson is a
person most knowledgeable.
Mr. Anderson resigned from HP during the Spring of 2005 and is now
residing in Florida. He is therefore beyond the subpoena power ofthe Court. lf HP is
able to contact Mr. Anderson, and if he agrees to testify at trial, HP respectfully requests
that the Court allow Mr. Anderson to testify provided that HP gives Lexmark the
opportunity to depose him prior to trial.
CONCLUSION
For the foregoing reasons, HP requests that the Court deny Lexinark’s
motion in limine to exclude testimony oi"` Mr. Anderson.
2 At the deposition of Ben K. Wells on March 30, 2005, HP’s counsel stated as follows:
Ms. Dumas: . . . I might as well say for the record that, since we received the 30(b}(6) notice, HP
has ascertained that it currently believes that Mr. Chris Anderson, who the witness identified, is
the individual who was primarily involved in the accounts payable analysis by Compaq. The last
time I spoke to Mr. Anderson, which was a couple of months ago, he was an HP employee. I
recently learned, after we received this, that he’s no longer with Hewlett—l’acl
Mr. Hunt: Okay. Thank you, Ms. Dumas.
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Case 1:04-cv—00583-G|\/IS Document 88 Filed 08/26/2005 Page 4 of 4
Dated; August QL, 2005
Wilmington, Delaware MORRIS, NICHOLS, ARSHT & TUNNELL
. Sii ;Ii ,, £ , ,
Willie . u e ` , Ir .'' l o. 463)
Derek C. Abbott (No. 3376)
Daniel B. Butz (No. 4227)
1201 N. Market Street
Wilmington, DE 19899-1347
(302) 6589200
— and —
FRIEIJMAN DUMAS & SPREWGWATER LLP
Ellen A. Friedman
Cecily A. Dumas
Gail S. Greenwood
Brandon C. Cliaves
One Maritime Plaza, Suite 2475
San Francisco, CA 9411i
(415) 8348800
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