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. DEFENDANT ROSS' REPLY IN SUPPORT OF THEIR EMERGENCY MOTION TO COMPEL APPEARANCE OF PLAINTIFF TIMOTHY SHIMKO AND FRANK PISCITELLI AT DEPOSITIONS ON MARCH 19, 2008; ALTERNATIVE MOTION TO EXTEND DISCOVERY CUTOFF

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The Ross Defendants submit the following Reply and Alternative Motion for Extension of Discovery Cutoff Date with respect to their Emergency Motion to Compel Appearance of Plaintiff Timothy Shimko and Frank Piscitelli at Depositions on March 19, 2008. Deposition of Timothy Shimko As evidenced by the Declarations of Roger L. Cohen, Rima M. LaMont and Sharon Sprague filed herewith, the Ross Defendants, while not conceding that they may properly be required to conduct the deposition of Mr. Shimko by telephone from the Cayman Islands, have made diligent and time-consuming efforts to arrange for the taking of his deposition in accordance with his demand. Despite those efforts, the Ross Defendants have been unable either to secure the services of a court reporter on Grand Cayman Island
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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

or to arrange for a conference room for the deposition. Under these circumstances, the Ross Defendants believe that the Court could, and should, properly order that Mr. Shimko appear for deposition at his office in Cleveland, Ohio, in accordance with the Notice of Deposition properly issued on March 7, 2008. The foregoing notwithstanding, the Ross Defendants recognize that, as a practical matter, Mr. Shimko is physically present in the Cayman Islands and will not be returning to Ohio until after the expiration of the current discovery cutoff date of March 28, 2008. Accordingly, the Ross Defendants request that the Court either (1) Order Plaintiffs, at their expense, to hire a court reporter and make all other necessary arrangements, and cause Mr. Shimko to appear for deposition on Grand Cayman Island on one of the following dates: March 24, 2008; March 26, 2008 (until 3:30 p.m. EDT); March 27, 2008 (from 1:30 p.m. EDT), or (2) extend the discovery cutoff date for a period of 30 days to permit the deposition of Mr. Shimko to be conducted by telephone at his office in Ohio. Deposition of Frank Piscitelli As evidenced by Affidavit of Process server dated March 18, 2008, attached as Exhibit A to this Reply, the Ross Defendants have continued their ongoing efforts to effect service on Mr. Piscitelli through a private process server in Ohio. Those efforts have been unsuccessful as Mr. Piscitelli appear to be (successfully) avoiding service. Mr. Piscitelli is the former partner of Plaintiff Timothy Shimko and was a named Plaintiff in this lawsuit; he was represented in this case, moreover, by Plaintiff Timothy Shimko and his associate, David Welling, who is counsel for the remaining Plaintiffs and himself a material witness expected to testify at trial. Given the close and overlapping relationships among Mr. Piscitelli, the current Plaintiffs, and their counsel, it is reasonable and appropriate that Plaintiffs be required to produce Mr. Piscitelli for deposition, lest they be permitted to benefit from his unprofessional conduct in evading service by an officer of the Court. It is accordingly requested that the Court enter an Order to that effect.

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Alternatively, the Ross Defendants request that the discovery cutoff date be extended for 2
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JABURG & WILK, P.C. ATTORNEYS AT LAW 3200 NORTH CENTRAL AVENUE SUITE 2000 PHOENIX, ARIZONA 85012

such period as is necessary to enable them to effect service on Mr. Piscitelli and conduct his deposition. DATED this_18th_ day of March, 2008. JABURG & WILK, P.C.

/s/ Roger L. Cohen Roger L. Cohen Kathi Mann Sandweiss Attorneys for Defendants

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

CERTIFICATE OF SERVICE I hereby certify that on March 18, 2008, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing, and for transmittal of a Notice of Electronic filing to the following CM/ECF registrants: David A. Welling TIMOTHY SHIMKO & ASSOCIATES 2010 Huntington Building 925 Euclid Avenue Cleveland, Ohio 44115 Attorneys for Plaintiffs David and Rhona Goldfarb 11437 N. 53rd Place Scottsdale, Arizona 8525 Pro Per Defendants Goldfarb Richard J. McDaniel 11811 N. Tatum Blvd., Suite 1051 Phoenix, Arizona 85208 Attorney for Woodcock Defendants

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By: /s/ Rima M. LaMont Rima M. LaMont

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