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

Case 1 :04-cv—00583-GIVIS Document 100 Filed 09/02/2005 Page 1 of 3 n
IN THE UNITED STATES DISTRICT COURT 1-
FOR THE DISTRICT OF DELAWARE
In re INACOM CORP., et al., Bankruptcy Case No. 00-2426 (PJW) ‘
INACOM CORP., on behalf of all affiliated Civil Action No. 04-583 (GMS)
Debtors, [Bk Adv. Case No. 02-3500 (PN/j]
Plaintiff;
v.
LEXMARK INTERNATIONAL, INC., [Related to Docket Nos. 78 and 92]
Defendant.
AND RELATED THIRD PARTY
ACTION.
PLAINTIFF’S REPLY RE ITS MOTION IN LIMINE TO EXCLUDE WITNESS NOT
PREVIOUSLY DISCLOSED OR IDENTIFIED IN DISCOVERY RESPONSES Z
Defendant concedes that the 4 witnesses that are the subject of this Motion,
including two as expert witnesses, 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
subsequent disclosures, any responses to discovery propounded by Plaintiff that specifically
requested identification of all persons with lcnowledge 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 carmot be called to testify. Fed. R. Civ. P. 37(c)(1). 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 "ordina1y 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
4 previously undisclosed witnesses should be excluded. _
The true pertinent facts are as follows:
1. Of the 4 previously undisclosed witnesses, none were identified by A
Defendant in its initial disclosures, any subsequent disclosures, any responses to discovery
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 I
present expert witness reports under Federal Rules of Civil Procedure 26(a) for the 2 previously A
undisclosed "expert" witnesses. A
2. All of the 4 witnesses were disclosed in the matter of Inacom Corp. v. Dell
Computer Corporation, Civil Action no. 04-582 (GMS), 2 as percipient witnesses and 2 as l
expert witnesses. (
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.
5. Depositions of witnesses common among this action, the Dell action, and
the matters of Inacom Corp. v. Ingram Entertainment, Inc., Civil Action no. 04-593 (GMS) and ii
Inacom Corp. v. Tech Data Corporation, Civil Action no. 04-148 (GMS), primarily relating to n
the insolvency issue and Compaq transaction, have been informally coordinated for the
convenience of the parties and the witnesses. Depositions of witnesses NOT common to all of
these actions, including the 4 witnesses that are the subject of this Motion, have NOT been
coordinated, but conducted solely among counsel to the particular action, on issues solely related i
to the particular action. Thus, Plaintiff has NOT deposed any ofthe 4 witnesses for any purpose
1 Defendant’s pending motion to consolidate this action with other pending preference actions is likely
intended, at least in part, to remedy the failure to disclose witnesses by Defendant and others.
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Case 1 :04-cv—00583-GIVIS Document 100 Filed 09/02/2005 Page 3 of 3 0
other than the particular action in which they were identiiied, and all of the witnesses were
deposed by different Plaintiff' s counsel.
Plaintiff will clearly suffer prejudice if the 4 previously undisclosed witnesses are ·
permittedto 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 and/or qualification grounds, or otherwise prepare its case for
trial. n
Despite Defendant’s clear obligation under Federal Rules of Civil Procedure 26
and 33 to disclose and identify all potential and expert witnesses in this action, Defendant’s
witness list for the trial of this action includes 4 previously undisclosed witnesses. Permitting p
these witnesses to testify would be unfairly prejudicial to Plaintiff] and thus, they should be I
excluded pursuant to Federal Rules of Evidence 403 and Federal Rules of Civil Procedure
37(c)(l).
Dated: September &, 2005 PACHULSKI, STANG, ZIEHL, YOUNG, JONES
& P.C. 1
I Laura Davis Jones (Bar No. 2436) ji
Sandra G. McLamb (Bar No. 4283)
919 North Market Street, 16th Floor F
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., llth Floor ¥
Los Angeles, California 90067-4100
Telephone: (310) 277-6910 1
Facsimile: (310) 201-0760
Counsel for the Plaintiffs/Debtors in
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