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

EXHIBIT 3

Case 2:04-cv-00400-PGR

Document 208-4

Filed 04/30/2007

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HYPERCOM v. VERVE

Condensed Transcript

DOUGLAS J. REICH3/23/2005

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1 UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF ARIZONA 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Hypercom Corporation, ) ) Plaintiff, ) ) -vs) ) Verve L.L.C., and ) Omron Corporation, ) ) Defendants. ) ________________________________)

Cause No. CV04-0400 PHX PGR

VIDEOTAPE DEPOSITION OF DOUGLAS J. REICH, HYPERCOM CORPORATION Phoenix, Arizona March 23, 2005 9:12 A.M.

REPORTED BY: SHARRON L. MCPARTLIN AZ CCR #50496 CA CSR #8740
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Case 2:04-cv-00400-PGR

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HYPERCOM v. VERVE

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DOUGLAS J. REICH3/23/2005

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1 2 3 4 5 6 7 8 9 10 11 12 No. 1 Description Examination: BY MR. HENNING

I N D E X

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E X H I B I T S Page 138

Copy of Verve Point-Of-Sale Portfolio Assessment and Market Analysis

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HYPERCOM v. VERVE

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DOUGLAS J. REICH3/23/2005

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * * * THE VIDEOTAPE DEPOSITION OF DOUGLAS J. REICH, taken at 9:12 a.m. on March 23, 2005, at the law offices of Fennemore Craig, P.C., 3003 North Central Avenue, Suite 2600, Phoenix, Arizona, before SHARRON L. MCPARTLIN, a Certified Court Reporter #50496 in and for the State of Arizona, pursuant to the Federal Rules of Civil Procedure. The plaintiff was represented by its attorneys, Snell & Wilmer, L.L.P., by Sid Leach, Esq. The defendant, OMRON CORPORATION, was represented by its attorneys, Baker & Daniels, by John K. Henning, Esq. Also present was Mr. Bill Marinakis, certified legal video specialist.

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HYPERCOM v. VERVE

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DOUGLAS J. REICH3/23/2005

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Q.

Okay.

And to clarify again, you understand

that in responding to the questions during the 30(b)(6) deposition today, you are responding on behalf of Hypercom, and your answers are actually the answers of Hypercom Corporation? A. Q. Yes. Okay. MR. LEACH: Let me say something about the As I discussed with

nature of the topics at this point.

you a little bit before we started, a lot of the topics appear to be more in the nature of contentions because a lot of the information you want to know here is facts really as to the activities of your client that we believe give rise to some of the allegations and so forth in the complaint, and it's probably more appropriate to do this by virtue of interrogatory. So this only comes up as to the completeness of his responses. We have done our best to educate him

and get him prepared to give you whatever information the company has available, but I think it's appropriate at this point to say something about the completeness of the response so we can probably give you more complete responses if you had gone about this by interrogatory. MR. HENNING: Okay. Well, I will go ahead

and ask him the questions that I have today for the

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DOUGLAS J. REICH3/23/2005

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between Omron and Verve with regard to the patents that were being alleged that Hypercom had infringed, and it appeared that there was a relationship between Omron and Verve involving making claims against Hypercom based on those patents. And we understand that the patents were

initially issued in Japan to Omron Corporation or to the parties that assign the patents to Omron Corporation. They subsequently were brought to the United States by Omron. Q. Okay. Did Hypercom perform any investigation

to follow up on this assignment agreement before it filed the amended complaint? A. I don't recall. I do know that we had a

conversation with the representatives of Omron including their counsel, and they had indicated that they had the ability to terminate the legal proceedings that Verve had brought against Hypercom, and we then started to learn more of the nature of the relationship between Omron and Verve. MR. LEACH: Also there is something I should

probably point out at this point that's really relevant to the nature of what you are asking him. In the

International Trade Commission, a lot of information was produced and was designated as confidential business information by Verve, and under the terms of the

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DOUGLAS J. REICH3/23/2005

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protective order in that case, we were not allowed to disclose it to Mr. Reich or anyone at Hypercom. just the way they do their protective orders. To the extent that you are trying to seek information upon which some of the pleadings were based, unfortunately there is no way that he can answer that because at the time, he would not have been given access to it although his counsel would have known about it. Q. BY MR. HENNING: Okay. Based on what That's

Mr. Leach is saying then, at some point, you did learn of some information that led you to believe that there was an agreement between Omron and Verve such that Omron should be added as a defendant to the amended complaint; correct? A. Q. Yes. Okay. You had mentioned something about a Is that -- I don't know if

conversation with Hypercom.

I am referring to this appropriately, but was that the settlement conference between Hypercom and attorneys for Verve I guess sometime last summer of 2004? A. Q. I am not aware of such a meeting. You mentioned that you had had conversations

with Hypercom in which they led you to believe they had the ability to terminate the lawsuits against Hypercom. When did that conversation take place?

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DOUGLAS J. REICH3/23/2005

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STATE OF ARIZONA

) )

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COUNTY OF MARICOPA

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BE IT KNOWN that the foregoing deposition was taken before me, SHARRON L. MCPARTLIN, a Certified Court Reporter in and for the State of Arizona; that the witness before testifying was duly sworn by me to testify to the whole truth; that the witness will read and sign the deposition; that pursuant to request, notification was provided that the deposition is available for review and signature; that the questions propounded to the witness and the answers of the witness thereto were taken down by me in shorthand and thereafter reduced to print by computer-aided transcription under my direction; that the foregoing 177 pages are a true and correct transcript of all proceedings had upon the taking of said deposition, all done to the best of my skill and ability. I FURTHER CERTIFY that I am in no way related to any of the parties hereto, nor am I in any way interested in the outcome hereof. DATED at Phoenix, Arizona, this 1st day of April, 2005. _______________________________ SHARRON L. MCPARTLIN

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AZ CCR #50496

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