Free Motion in Limine - District Court of Delaware - Delaware

Case 1:04-cv-00360-JJF Document 254-2 Filed O9/20/2006 Page1 of 4
EXHIBIT 1

, . Case 1 :04-cv-00360-JJF Document 254-2 Filed O9/20/2006 Page 2 of 4
Noreika, Maryelien
Subject: FW: witness list
--——~ Original Message -————
From: Sharon Davis
Sent: Sunday, September O3, 20t}6 9:38 PM
To: J. Bennett Clark
Subject: witness list
September 3, 2006
J. Bennett Clark, Esq.
Senniger, Powers, Leavitt & Roedel
One Metropolitan Squarel 6ih FHM
St. Louis, MC} 63102
Re: Affinion Loyalty Group, inc. v. Maritz, Inc.
Q.nr_Ke.feren.c.e.;.,2§
Dear Ben;
Affinion has two issues with Marit2‘s Witness List that I hope we can resolve before the exchange of objections on Tuesday.
First, Maritz's list identities 26 witnesses, including 7 lawyers, that are to be cailed live at trial, if available. it is our understanding that
Judge Farnan expects that the witness lists in the Pretrial Order reflect a realistic view of which witnesses are likely to be called at trial. I note
that for several of these witnesses Maritz has also provided deposition designations, which certainty suggests that Maritz does not intend to cal.
those witnesses live. Please let me know immediately if it/iaritz will be revising its witness list before the pretrial conference to identify the
specific witnesses it actually intends to cail live at trial.
Seng, IN/Earitz's witness list includes several witnesses who were not identiiied as potential witnesses in Marit2's discovery disclosures and
were not deposed in this case. Please let me know immediately if Maritz will agree to remove such non-disclosed witnesses from its witness
list.
Very truly yours,
Sharon L. Davis
SLD:rnec
9/20/2006

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EXH1B1T 2

. . Case 1 :04-cv-00360-JJF Document 254-2 Filed O9/20/2006 Page 4 of 4
Noreika, Niaryellen
From: Sharon Davis [[email protected]}
Sent: Tuesday, September 05, 2006 11:57 AM
To: 2829-179
Cc: ll/laryellen Noreiira
Subject: FW:
—-—-— Original Message ~~~»~
From: J. Bennett Clark {mailto:BClari<@senniger.com]
Sent: Tuesday, September 05, 2006 11:52 AM
To: Sharon Davis
Cc: Patricia S. Rogowski
Subject:
Sharon,
In response to your September 3 e—mail on witnesses, we make the following observations,
First, as experienced trial counsel, you know that a defendant does not formulate, iet alone finalize, its witness list until during or
after the time plaintiff presents its case. The witnesses a defendant may call, and the documents it may use, are largely a functioi
of the points raised, witnesses aciduced, and exninits introduced in the plaintiffs case. Therefore, to the extent your e-rnail or, for
that matter, your draft pre~trial order envision a commitment in advance of trial as to the specific identity of witnesses Maritz will
use at triai, that is not a realistic expectation.
Second, the foregoing is exacerbated here, since Trilegiant and now Affinion have steadfastly done their best to conceal what
piaintiffs own proofs might be, including most recentty the decision not to prepare a meaningful statement of proofs paper. As a
separate matter, several motions are pending before the Court that wiii impact the trial presentation.
Third, in some instances witnesses are not subject to our control, and/or we may or may not be abie to secure their attendance at
trial. Hence the deposition designations.
Fourth, l believe the only witnesses on our list wno were not identified on our Rule 25(a)(1) disclosures or deposed by your side
are Steve Niaritz and Bob Evans. Plaintiff is and has been aware of their identity and involvement in events, as evidenced by
deposition testimony addeced and exhibits used, and simpiy chose not to depose them. Plaintiff also initially opposed a greater
number of allowable depositions in this case; nonetheless, we have to date let you exceed the allowabie number in the spirit of
cooperation, which has not been reciprocated. Plaintiff made its choices on depositions, and cannot now seriously contend that
persons it chose not to depose were not "identified."
tt you have any additionai basis for your demands, you are certainly weicome to snare them with us. in view of the foregoing,
however, we find your request to be without basis. BC
**Conndentiality Notice: This e-mail contains information intended only for the use of the individuai or entity named above. lf the reader of this e—maiI is not the
intended recipient or the employee or agent responsible for delivering it to the intended recipient, any dissemination, pubiication or copying of this e—rnaii is strictly
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