Free Reply in Support of Motion - District Court of Arizona - Arizona

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

Roger L. Cohen, #004409 Kathi Mann Sandweiss, #011078 JABURG & WILK, P.C. 3200 North Central Avenue, Suite 2000 Phoenix, Arizona 85012 (602) 248-1000 Attorneys for Defendants Ross

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA SHIMKO & PISCITELLI, et al., Case No: CIV-04-78-PHX-FJM Plaintiffs, v. DAVID GOLDFARB; RICHARD ROSS, et al. Defendants. DECLARATION OF ROGER L. COHEN

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9203-2/RLC/RLC/644438_v1

I declare as follows: 1. I am a member of the law firm of Jaburg & Wilk, P.C., and one of the

attorneys for Defendants Richard and Marcia Ross in the above referenced matter. All matters stated herein are known by me to be true. 2. On March 18, 2008, I spoke by telephone with David Welling,

counsel for Plaintiffs. 3. During the conversation, I advised Mr. Welling that, while my clients

did not agree to bear the expense of a deposition in the Cayman Islands, they were willing to conduct the deposition of Mr. Shimko on Grand Cayman Island and to advance the costs of the deposition, subject to further proceedings as to which party should ultimately bear the expense.

Case 2:04-cv-00078-FJM

Document 186-3

Filed 03/18/2008

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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

4.

I further informed Mr. Welling that, despite diligent efforts, my legal

assistant and law clerk had been unable to locate and hire a court reporter to attend the deposition of Mr. Shimko on Grand Cayman Island on March 19, 2008. 5. Mr. Welling in response indicated that he would render assistance in

setting up the deposition. Specifically, as evidenced by my contemporaneous notes of the conversation, he stated: "I will do what I would have done" to arrange a deposition on Grand Cayman Island. 6. I confirmed the substance of my conversation with Mr. Welling by e-

mail sent at 2:15 p.m., March 18, 2008, a copy of which is attached as Exhibit 1 to this Declaration. 7. Approximately 10 minutes later, I received an e-mail from Mr.

Welling, a copy of which is attached as Exhibit 2 to this Declaration, in which he denied having agreed to make arrangements for the deposition of his client and denied any obligation to do so. 8. Despite diligent efforts, my firm has been unable to make

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arrangements to conduct the deposition of Mr. Shimko, in accordance with his request, on Grand Cayman Island. I certify under penalty of perjury that the foregoing is true and correct. DATED this 18th day of March, 2008.

/s/ Roger L. Cohen Roger L. Cohen

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9203-2/RLC/RLC/644438_v1

Case 2:04-cv-00078-FJM

Document 186-3

Filed 03/18/2008

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