Free Motion in Limine - District Court of Arizona - Arizona

EXHIBIT B

Case 2:04-cv-00400-PGR

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Hypercom Corporation, Plaintiff,
-vsVerve L.L.C., and Omron Corporation,

) }
} } } ) ) Cause No. CV04--0400 PHX PGR

Defendants.

) )

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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MR. LEACH:

Sure.

MR. HENNING:

And that's why we are here

today, and to the extent that he does not recall, I will do my job to follow up on it and see if there is someone else who can testify. THE WITNESS: Well, the lawsuits that were

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filed against Hypercom in other locations although they were in other locations would affect us here in Arizona. Once we knew that Omron had some control over Verve, it was clear to us that they were coming after our organization and doing it in a variety of inconvenient locations for us. They sued us in Michigan. They sued

us in Texas. They brought the ITC action against us in Washington, D.C. Then they went and filed on the same

patent in California. So they hit essentially the four boundaries of the United States, and we are located in Arizona.

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BY MR. HENNING: Do you have any indication

that Omron was involved in making the decision as to where those lawsuits were going to be filed? A. As I stated before, I have no personal

knowledge of discussions that might have been held between Omron and Verve or their respective counsel. However, we do understand that Omron had the ability to veto any actions that were brought by Verve. L, Case 2:04-cv-00400-PGR Document 171-3 Filed 04/13/2007 Page 3 of 7

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Q.

And that's based on the meeting that you had

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with Mr. Kerner and Mr. Nakano?

A.

It's based upon that as well as information s

that's reasonably available to Hypercom in this proceeding.
Q. A. Okay. What information is that?

A variety of things that we have acknowledged

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that we have acquired in the process of the litigation, and again, some of it I am not -- I don't have direct knowledge of because of the confidentiality order or protective order in the ITC proceeding. Q. Okay. The information that was acquired in

the process of litigation are you referring to the process of the Arizona action? A. Probably the ITC matter was where most of the

discovery occurred. Q. Okay. Are you asserting then a

confidentiality over any of the evidence or facts that would have led Hypercom to believe that Omron had some role in deciding where to file these particular lawsuits? A. Q. or a no. A. Yes. I'm sorry. Uh-huh. That's one of the other rules. We need a yes

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Q. A. Q.

That's perfectly fine. Thanks for reminding me. I don't remind you to be rude. MR. LEACH: Also just to clarify, we are not

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sitting here saying that we are not going to give you information because it's confidential. What we are

doing is acknowledging the fact that because of the way a
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the protective order is structured in the ITC, we can't even educate him on some of that information because it was designated as confidential by Verve under that protective order. And we're prohibited by that

protective order from telling Doug Reich or anybody at Hypercom confidential business information. So that's what our problem is. It's not that we are sitting here saying that he knows something, but because it's confidential, he is not going to tell it to you. He would love to tell you if he could, but we just

couldn't -- we were constrained in our ability to educate a 30(b)(6) witness because of the constraints placed on that which is why an interrogatory answer would be -- would facilitate this kind of discovery better. MR. HENNING: to the witness then.
Q. BY MR. HENNING: I am not asking you to adopt

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Okay.

Let me ask the question

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your attorney's statements, but do you agree with what he said?
A. Yes.

Q.

I mean, some of the information you can't

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share with me because of the protection, the confidentiality agreement in the ITC proceeding? A. Yes. MR. LEACH: him. Q. BY MR. HENNING: Okay. But this is probably Because we couldn't share it with

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something then that we need to discuss off the record. I don't think there is any need to have this on the record.
MR. LEACH: Yeah, but we are not saying that

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we wouldn't give you discovery here if he knew it, but we can't even tell it to him. So he can't testify about
it.

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MR. HENNING: MR. LEACH:

Okay. But we would be willing to work

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with you to facilitate discovery of that kind of information, but I think it probably has to come from interrogatory answers or something that the lawyers can participate in getting to you. MR. HENNING: So you are the only person

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then, I can ask this, and I am not asking you

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specifically as to what facts because you are asserting that there is a confidentiality agreement in place that precludes you from discussing that with your client, with Hypercom, but there are facts in evidence that would support this, the alleged conspiracy and the claims against Omron that are only -- that we can only get from the ITC proceeding? MR. LEACH: I don't know that I would say

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that, but I don't think he is ever going to be able to say that's all the evidence that Hypercom has. MR. HENNING: MR. LEACH: Okay. Then anything --

And this isn't my deposition, but

again, I am just trying to point out to you the difficulty in the way you are going about this discovery that there is one constraint when you try to say hey, Mr. Reich, are you telling me everything that Hypercom knows. He is really not going to be in a position to do

that to the extent that anything was designated as confidential business information by Verve in the ITC.
MR. HENNING: Okay. Well, if I can have an

agreement with Mr. Reich then that if there is other facts in evidence that might support this and you are just not aware of it, then you can tell me that in response to one of my questions. What I do want to know is throughout the deposition -- is that a cough or a

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