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

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FENNEMORE CRAIG, P.C.
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David P. Irmscher (Indiana State Bar No. 15026-02) John K. Henning (Indiana State Bar No. 25203-49) Baker & Daniels LLP 111 East Wayne Street, Suite 800 Fort Wayne, IN 46802 Telephone: 260-424-8000 Facsimile: 260-460-1700 Ray Harris (Arizona State Bar No. 007408) Paul Moore (Arizona State Bar No. 019912) Fennemore Craig 3003 North Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Telephone: 602-916-5000 Facsimile: 602-916-5999 Attorneys for the defendant, Omron Corporation UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Hypercom Corporation, Plaintiff, vs. Omron Corporation, Defendant CAUSE NO. CV04-0400 PHX PGR REPLY OF OMRON CORPORATION IN SUPPORT OF MOTION TO STRIKE EVIDENCE OF COMPROMISE

The defendant, Omron Corporation ("Omron"), respectfully replies in support of its Motion To Strike Evidence Of Compromise ("Motion To Strike") as follows: To oppose Omron' Motion to Strike, Hypercom has filed what amounts to a 14s page "sur-response" in opposition to Omron' motion for summary judgment ­ a brief s replete with general argument and unsupported assertions. At the heart of this effort lie two inconsequential submissions: (1) the conclusory and self-serving testimony by Hypercom' general counsel, Douglas Reich, that Omron agents made unspecified s statements during a settlement conference from which he inferred "some control" over

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Verve, and some ability to "facilitate" a resolution of Verve' claims 1 ; and (2) an s unauthenticated "PowerPoint" presentation that purportedly alerted Omron that Verve' s infringement claims were invalid.2 Hypercom' arguments should not deflect attention from the genuine issues in this s case. For reasons set out in Omron' reply brief and objections, Reich' statements ­ even s s were they admissible ­ raise no issue for trial. Nor, despite its extensive discussion of the "PowerPoint," is there evidence that Omron even saw it. And tellingly, Hypercom has asked to use this "evidence" to impugn the credibility of an Omron witness based on testimony repeated by Hypercom' own Reich. (Hypercom, in other words, would offer s the "PowerPoint" to challenge the credibility of Omron' Nakano based on his testimony s t that Hypercom' presentation wasn' "detailed," though Reich testified they "didn' really s t go into that much detail about claims in the patents. . ."). See Defendant Omron' s Supplemental Statement Of Facts In Support Of Motion For Summary Judgment, filed on January 12, 2006, SOF ¶ 72 (emphasis added); see also Defendant Omron Corporation' s Reply In Support Of Motion For Summary Judgment, filed on January 12, 2006, at 8. Nor, even were the Court to reach this issue, has Hypercom offered any sufficient basis for resisting Omron' Motion To Strike. To the contrary, Hypercom should be s estopped from challenging Omron' Rule 408 privilege based on its representations to s Omron that: We hope that these discussions may lead to a global settlement of all Omron patents, including those now in the hands of
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FENNEMORE CRAIG, P.C.
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Conclusory, speculative testimony in affidavits and other documents is insufficient to raise genuine issues of material fact and defeat summary judgment. Thornhill Publishing Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979); Anheuser-Busch, Inc. v. Natural Beverage Distributors, 69 F.3d 337, 345 (9th Cir. 1995).
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Unauthenticated documents cannot be relied upon to defeat a motion for summary judgment. See Orr v. Bank of America, NT & SA, 285 F.3d 764, 773 (9th Cir. 2002); Cristobal v. Siegel, 26 F.3d 1488, 1494 (9th Cir. 1994); Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550-51 (9th Cir. 1989); Beyene v. Coleman Sec. Services, Inc., 854 F.2d 1179, 1182 (9th Cir. 1988); Canada v. Blain' Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. s 1987); Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976).

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FENNEMORE CRAIG, P.C.
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Verve. All discussions will be subject to a confidentiality agreement, and we will agree that these are settlement discussions subject to Rule 408 of the Federal Rules of Evidence. See Correspondence from Hypercom' counsel, dated September 8, 2004, attached as s Exhibit A to Motion To Strike (emphasis added). However defended, Hypercom' reliance on self-serving statements about what s happened during the course of a settlement meeting belies its representations to Omron and undermines the very purpose of Rule 408. See generally U.S. v. Contra Costa County Water Dist., 678 F.2d 90, 92 (9th Cir. 1982) (noting that Advisory Committee Notes to Rule 408 expressed, as the main reason for its exclusion of compromise evidence, the "promotion of the public policy favoring the compromise and settlement of disputes").3 For this reason alone, Omron' motion should be granted. s DATED this 9th day of February, 2006. FENNEMORE CRAIG, P.C. By:__s/Ray K. Harris_____________________ Ray Harris Paul Moore BAKER & DANIELS LLC David P. Irmscher John K. Henning Attorneys for Defendant Omron Corporation

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Wright and Miller explain: "Rule 408 expands the common law prohibition on the use of evidence of offers of compromise to encompass as well any statements or conduct made during compromise negotiations. This change was justified on the grounds that ` practical value of the common law rule has been greatly diminished by its the inapplicability to admissions of fact' a limitation that had ` inevitable effect' on ` , an freedom of communication with respect to compromise.'" 23 Fed. Prac. & Proc. Evid. § 5302, quoting Advisory Committee notes.

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FENNEMORE CRAIG, P.C.
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CERTIFICATE OF SERVICE I hereby certify that on February 9, 2006, I electronically transmitted the attached documents to the Clerk' Office using the CM/ECF System for filing and transmittal of a s Notice of Electronic Filing to the following CM/ECF registrants: Michael K. Kelly Sid Leach SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Phoenix, AZ 85004-2202 Peter Henry Schelstraete SCHELSTRAETE LAW OFFICE 1949 East Broadway Suite 107 Tempe, AZ 85282-0001 I hereby certify that on February 9, 2006, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System: Christopher S. Walton Gregory S. Donahue SIMON GALASSO & FRANTZ PLC 115 Wild Basin Road Suite 107 Austin, TX 78703

_s/Melody Tolliver_________________

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