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

EXHIBIT A

Case 2:04-cv-00400-PGR

Document 98-2

Filed 01/23/2006

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Sid Leach (#019519) Andrew F. Halaby (#017251) Monica A. Limón-Wynn (#019174) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Telephone: (602) 382-6372 Attorneys for Plaintiff Hypercom Corporation [email protected] [email protected] [email protected] IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Hypercom Corporation, Plaintiff, vs. Verve, L.L.C., and Omron Corporation, Defendants. Sid Leach declares as follows: 1. I am an attorney with the firm of Snell & Wilmer, L.L.P., One Arizona No. CV 04-0400 PHX PGR DECLARATION OF SID LEACH

Center, 400 East Van Buren, Phoenix, Arizona 85004-2202. I am counsel to Plaintiff Hypercom Corporation ("Hypercom"). I make the following statements based on my own personal knowledge, unless expressly stated otherwise. 2. On or about January 4, 2006, I received a telephone call from Omron's

attorneys Herbert Kerner and David Irmscher concerning an allegation by Omron that Hypercom violated the protective order entered in the proceedings before the International Trade Commission by filing documents with this Court that had been designated as confidential business information in the ITC proceeding. Exhibit 1 is a copy of an initial email message I sent responding to the telephone call from Omron's attorneys. After receiving an email message identifying Hypercom exhibits 60, 65, 67 and 70 filed in opposition to Omron's motion for summary judgment, I responding with the email message of Exhibit 2 identifying the orders of this Court unsealing the documents that
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were filed as exhibits 60, 65, 67 and 70. 3. Prior to filing any documents with this Court, I requested permission from

Verve to do so in a letter dated December 17, 2004, a copy of which is marked and filed contemporaneously herewith as Exhibit 3. In my letter of Exhibit 3, I requested "Verve's consent to file in federal court under seal certain documents designated as containing confidential business information and produced by Verve in the ITC proceeding." 4. Exhibit 4 is a true and correct copy of a letter that I received from Verve,

dated March 2, 2005. In this letter, Verve gave Hypercom consent to use the confidential business information produced in the ITC proceeding subject to the condition that "if any documents containing confidential business information are filed with the Court, Verve further requires that these documents be filed under seal." Thus, Hypercom filed

documents under seal with this Court that had been produced by Verve in the ITC proceeding designated as containing confidential business information. 5. After Hypercom filed such documents under seal, this Court, in this civil

action and in civil action No. CV-05-0365-PHX-FJM in which Verve is a party, entered orders unsealing certain documents. As set forth in my January 4, 2006, email to Omron's attorney, the exhibits filed in support of Hypercom's opposition to Omron's motion for summary judgment which had previously been designated as containing confidential business information in the ITC proceeding, had been unsealed by this Court's August 18, 2005 order in this civil action (Doc. #64), or by the October 19, 2005 order entered in civil action No. CV-05-0365-PHX-FJM (Doc. #158). 6. On or about January 6, 2006, I received a call from the investigative staff at

the International Trade Commission. I was informed that the ITC had received repeated calls from Omron's attorney Herbert Kerner accusing me of violating the ITC protective order by filing documents with this Court, even though I had responded fully to the phone call that I received from Mr. Kerner and Mr. Irmscher. 7. On or about January 9, 2006, I responded to the calls I had received from

the ITC investigative staff by writing the letter of Exhibit 5. I enclosed copies of the
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Case 2:04-cv-00400-PGR

Document 98-2

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Case 2:04-cv-00400-PGR

CERTIFICATE OF SERVICE I hereby certify that on January 23, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: David P. Irmscher John K. Henning, IV BAKER & DANIELS 300 N. Meridian Street, Suite 2700 Indianapolis, IN 46204 Phone: 317-237-1317 Fax: 317-237-1000 [email protected] [email protected] Paul Moore Ray K. Harris FENNEMORE CRAIG, P.C. 3003 N. Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Phone: 602-916-5414 Fax: 602-916-5614 [email protected] [email protected] Attorneys for Defendant Omron Corporation s/ Sid Leach

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