Free Motion for Leave to File - District Court of Arizona - Arizona

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Christopher R. Kaup State Bar No. 014820 Andrew M. Ellis State Bar No. 018326
Third Floor Camelback Esplanade II 2525 East Camelback Road PHOENIX, ARIZONA 85016B4237 TELEPHONE: (602) 255-6000 FACSIMILE: (602) 255-0103

Counsel for Plaintiff Biltmore Associates, Trustee of the Visitalk.com Creditors' Trust UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA BILTMORE ASSOCIATES, as Trustee for the Visitalk Creditors' Trust, Plaintiff, vs. PETER THIMMESCH, et al.,

Case No. CV 02-2405 PHX HRH MOTION TO ALLOW DEPOSITION DESIGNATION FOR RAYMOND F. GASTON (Assigned to the Honorable H. Russel Holland)

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Defendants.

Biltmore Associates ("Biltmore"), as the Trustee of the Visitalk Creditors Trust,
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hereby moves for an Order from the Court to allow Biltmore to designate portions of Raymond F. Gaston's deposition to be offered as evidence should Mr. Gaston not appear at trial as he has agreed in writing he will do. On July 18, 2007 the Court issued its Amended Order for Pretrial Proceedings & Final Pretrial Conference (Docket 375) and on November 30, 2007, the Court issued a Second Amended Order for Pretrial Proceedings and Final Pretrial Conference (Docket 413) (collectively the "Orders"). These Orders set forth deadlines to complete certain

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tasks prior to the trial set to begin on March 3, 2008. Specifically, the Orders state that "Witnesses whose depositions will be offered in lieu of live testimony shall be identified; and in lieu of a statement of testimony which counsel expects to elicit from such witnesses, the party shall specify the inclusive pages from the deposition which are proposed to be offered." Mr. Gaston has had been a resident of Arizona from early 1999 through the

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entirety of this litigation.

Biltmore had compelled Mr. Gaston's appearance at a

deposition in 2005 via subpoena. As a result, Counsel undersigned expected to be able to subpoena his testimony at the trial in this action and began preparing the testimony which Biltmore expected to elicit from Mr. Gaston. Last week, after failed attempts at service of the Trial Subpoena, Plaintiff was finally able to speak with Mr. Gaston. Mr. Gaston informed Biltmore's counsel that he had moved to Texas six weeks ago, but he was willing to appear at trial if he was

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reimbursed for all reasonable travel and lodging expenses during his testimony. Biltmore agreed to do so. Subsequently, Mr. Gaston arranged for a flight to Phoenix and intends to appear at trial on March 6th and/or 7th, 2008. Although arrangements have been made to accommodate Mr. Gaston and he has agreed to appear for trial, he will not be under a Trial Subpoena. Based on conversations and e-mails, Biltmore fully expects Mr. Gaston to appear at the trial. However, in the

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event Mr. Gaston does not appear by March 7th, 2008 for his testimony, it will be necessary for Plaintiff to designate portions of Mr. Gaston's deposition for use at trial.

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Biltmore certainly could not have anticipated that Mr. Gaston would relocate out of state several weeks ago. There will be no prejudice to Defendant Snell & Wilmer ("S&W") by allowing Plaintiff to designate portions of Mr. Gaston's previous testimony. Lawyers for S&W participated fully in every minute of Mr. Gaston's lengthy deposition. Counsel for Plaintiff will file and serve the Gaston designations no fewer than two days prior to the date on which the designations will be used at trial to permit them sufficient

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time to counterdesignate testimony. RESPECTFULLY SUBMITTED February 28, 2008. TIFFANY & BOSCO, P.A.

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By: ____C.K. 014820_________________ Christopher R. Kaup Andrew M. Ellis Third Floor Camelback Esplanade II 2525 East Camelback Road Phoenix, Arizona 85016-4237 Counsel for Biltmore Associates, Trustee of the Visitalk.com Creditors' Trust

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CERTIFICATE OF SERVICE I hereby certify that on February 28, 2008, I electronically transmitted this Motion with the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Timothy J. Thomason Scott Claus Mariscal, Weeks, McIntyre & Friedlander, P.A. 2901 N. Central Avenue, Suite 200 Phoenix, AZ 85012 Attorneys for Defendant Snell & Wilmer, LLP

s/ Lauri F. Andrisani

COPIES of the foregoing were mailed on February 28, 2008, via first class mail postage prepaid to: Honorable H. Russell Holland United States District Court 222 West 7th Avenue - No. 54 Anchorage, Alaska 99513 s/ Lauri F. Andrisani Peter Thimmesch 11337 Stonehouse Place Potomac Falls, VA 20165

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