Free Response in Opposition to Motion - District Court of Arizona - Arizona

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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 a partner with the firm of Snell & Wilmer L.L.P., and I represent the Plaintiff No. CV 04-0400 PHX PGR DECLARATION OF SID LEACH UNDER RULE 56(f) OF THE FEDERAL RULES OF CIVIL PROCEDURE

Hypercom Corporation in this action. 2. In opposition to Defendant Omron's motion for summary judgment, Hypercom

cannot present by affidavit all facts which may provide justification for Hypercom's opposition to Omron's motion for summary judgment. 3. In particular, although Hypercom has attempted to take the deposition of Herbert

V. Kerner, Hypercom has not yet been able to do so. Omron's motion for summary judgment asserts that "Verve did not keep Omron informed of, or coordinate the prosecution of, Verve's lawsuits." Statement of Facts in Support of Omron Corporation's Motion for Summary Judgment ¶ 46. Hypercom believes that discovery from Mr. Kerner is likely to provide evidence to controvert this assertion. 4. Omron's representative Mr. Nakano testified that Omron's business with Verve was

conducted through Mr. Kerner. Exhibit 23, Nakano depo., at 93-95. Omron could not

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produce a witness who could testify about the communications between Omron and Verve. Only Mr. Kerner can do that. 5. The evidence indicates that Mr. Kerner aided Verve in the ITC Action by sending

legal authorities to Raymond Galasso concerning the issue of Verve's standing to sue on Omron's patent. Exhibit 15. The documents indicate that Mr. Kerner then had lunch with Verve's counsel and discussed the ITC Action with them. Exhibit 14. Mr. Kerner followed up with efforts to aid Verve in the ITC Action by providing citations to legal authorities concerning the issue of Verve's standing to sue on Omron's patents. Exhibit 14. Hypercom believes that discovery from Mr. Kerner is likely to uncover evidence to controvert Omron's assertion that "Verve did not keep Omron informed of, or coordinate the prosecution of, Verve's lawsuits." Statement of Facts in Support of Omron Corporation's Motion for Summary Judgment ¶ 46. 6. If there are unwritten agreements or tacit understandings between Verve and

Omron, Mr. Kerner would be the person from whom to seek discovery of such information. It was Mr. Kerner who dealt directly with Verve. Exhibit 23, Nakano depo., at 93-95. 7. Although Hypercom sought the production of documents from Verve and served

Verve with requests for production of documents, Verve refused to produce any documents to Hypercom in this case. Hypercom will need to seek discovery from Verve, either as a third party in this case, or in Civil Action No. CV-05-0365-PHX-FJM. It is believed that discovery from Verve will show that Raymond Galasso fails to distinguish between his law practice at Simon, Galasso & Frantz, and Verve activities. It is believed that additional discovery from Verve will support Hypercom's position that Verve has been used as a façade by Mr. Galasso. 8. I declare under penalty of perjury that the foregoing is true and correct.

Executed on December 23, 2005. /s/____________________ Sid Leach
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CERTIFICATE OF SERVICE I hereby certify that on December 23, 2005, 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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