Free Response - District Court of Arizona - Arizona

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Gary L. Birnbaum (#004386) [email protected] Timothy J. Thomason (#009869) [email protected] Scot L. Claus (#14999) [email protected] MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A. 2901 North Central Avenue, Suite 200 Phoenix, Arizona 85012-2705 Phone: (602) 285-5000 Fax: (602) 285-5100 Attorneys for Defendant Snell & Wilmer, LLP

8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 12 v. 13 PETER THIMMESCH, et al., 14 Defendants. 15 16 17 18 19 20 21 22 23 24 25 26
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BILTMORE ASSOCIATES, L.L.C., as Trustee of the Visitalk Creditors' Trust, Plaintiff,

No.: CIV 02-2405-PHX-HRH RESPONSE TO PLAINTIFF'S OBJECTIONS TO DEFENDANT'S EXHIBITS

INTRODUCTION According to this Court's Order, plaintiff was required to lodge objections to Snell & Wilmer's exhibits no later than January 2, 2008. Rather than comply with the Court's Order (or even request an extension), plaintiff filed its objections 19 days late. Not only were plaintiff's objections untimely, they are completely unfounded. This case is going to be tried to the Court. While Snell & Wilmer does not wish to presume to know the Court's intent, it would appear reasonable that the Court did not wish the parties to treat the exhibit objections lightly. Rather, it appeared that the Court wanted the parties to meaningfully evaluate the other party's listed exhibits, and only object to those exhibits that were genuinely objectionable.

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Snell & Wilmer certainly attempted to meaningfully evaluate plaintiff's exhibits. As part of its evaluation, Snell & Wilmer recognized that the Court, rather than a jury, was deciding the case. Snell was also mindful of the fact that the Court wished to reduce wasted time arguing the admission of each and every exhibit. Plaintiff, however, has taken a completely unsupportable "shotgun" approach to its objections. Of the 272 exhibits listed by defendant, plaintiff has objected to 159 of them. The lack of consideration given to its task by plaintiff is evidenced by the fact that 79 of the 159 exhibits objected to by plaintiff are exhibits listed by plaintiff as well. In other words, plaintiff objected to 79 of its own exhibits. It is not, however, just the quantity of plaintiff's objections that is out of hand; it is the quality of such objections as well. HEARSAY Plaintiff has lodged 152 "hearsay" objections. It would take dozens of pages to address each of the hearsay objections lodged by Plaintiff. As such, Snell & Wilmer will instead address plaintiff's "hearsay" objections by pointing to a few examples. First, of the 152 "hearsay" objections lodged by plaintiff, nearly 100 of those documents are documents created by Visitalk.1 For instance, plaintiff claims that Visitalk's own Bylaws, Board of Directors Minutes, Unanimous Consents, and Agreements are "hearsay." Such objection demonstrates either a complete misunderstanding of the Federal Rules of Evidence or blatant carelessness. By definition, a "party's own statement" that is "offered against" that party "is not hearsay." Rule 801(d), Fed.R.Evid. The corporate records of Visitalk were Visitalk's "own statement(s)," which are now being offered against that party2. Therefore, those statements are not hearsay and cannot be excluded on that ground. Moreover, many of these documents are

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Again, dozens of these documents were also listed as exhibits by plaintiff. Indeed, the seminal document that plaintiff bases all of its claims on--the "Unanimous Consent of the Board of Directors in Lieu of Special Meeting" regarding the issuance of the Founders Warrants--is objected to on the basis of "hearsay." Despite its objection, plaintiff listed this document as an exhibit in its exhibit list three separate times.
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not being used to prove the truth of what is being asserted therein. Rather, they are being used to simply show what Visitalk's own business records say. Therefore, again by definition, the subject documents are not hearsay. Plaintiff also claims that its Responses to Requests for Admission and Responses to Interrogatories are "hearsay." These admissions are not hearsay. Once again, they are nonhearsay admissions. The remainder of plaintiff's hearsay objections are similarly groundless. Therefore, this Court should either overrule those objections or order plaintiff to demonstrate the propriety of its hearsay objections. RELEVANCE Plaintiff has objected to 118 exhibits as not being relevant pursuant to Rule 402, Federal Rules of Evidence. Snell & Wilmer should not be required to spend dozens of hours addressing each and every groundless relevance objection. Snell & Wilmer will again

highlight the absurdity and groundlessness of plaintiff's objections by focusing on two illustrative examples. Plaintiff objects to Exhibit 520, 521, and 522, claiming that those exhibits are "irrelevant." Exhibit 520 is attached hereto as Exhibit A. Exhibit 520 is a September 17, 1998 press release created by Visitalk, which states, among other things, "Visitalk.com announces today the addition of Mark Cardwell as the Chief Technology Officer and principal stockholder." (emphasis added). Exhibit 521 is attached hereto as Exhibit B. Exhibit 521 is a September 3, 1998 press release created by Visitalk, which states, among other things, "Peter Thimmesch and Michael O'Donnell announce the formation of visitalk.com," and goes on to identify Messers. Thimmesch and O'Donnell as the only existing officers of Visitalk. Finally, Exhibit 522 is attached hereto as Exhibit C. Exhibit 522 is an advertising Brochure created by Visitalk that lists the "visitalk.com milestones," and identifies "September 12, 1998" as the "First Board of Directors meeting (Peter Thimmesch and Michael O'Donnell.)"
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According to Rule 401 of the Federal Rules of Evidence, "relevant" evidence is that evidence which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Here, the date of Mark Cardwell's addition to Visitalk as a director and shareholder is certainly "of consequence" to the matter. Indeed, it is one of the critical issues in the case. Moreover, whether a meeting actually occurred on September 12, 1998 between the only then-existing members of the Board of Directors (Thimmesch and O'Donnell) is similarly "of consequence." Indeed, plaintiff denies that such a meeting occurred. Plaintiff cannot legitimately assert that documents created by Visitalk, which establish that: Mr. Cardwell was neither a director nor shareholder of Visitalk until September 17, 1998, that a Board Meeting between Messers. Thimmesch and O'Donnell took place on September 12, 1998, and that Messers. Thimmesch and O'Donnell were the only founders of the company are not "relevant" exhibits. Indeed, plaintiff appears to believe that everything that is contrary to its theory of the case is irrelevant! The remainder of plaintiff's relevance objections are similarly groundless and should be overruled by the Court. In the alternative, the Court should order plaintiff to demonstrate the propriety of its relevance objections. AUTHENTICATION Plaintiff lodges over 100 objections based on Rule 901 of the Federal Rules of Evidence. Dozens of these exhibits were listed by plaintiff in its exhibit list! Moreover, many of these exhibits were the subject of hours of deposition testimony. According to Rule 901(b)(a), the testimony of "a witness with knowledge" supplies all necessary authentication of the subject document. Just by way of example, plaintiff objects to Exhibit 502, claiming that it has not been "authenticated." Exhibit 502 is a Series A Stock Offering Information Sheet prepared by Peter Thimmesch on September 13, 1998. Mr. Thimmesch not only testified that he had "personal
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knowledge" of Exhibit 502, he testified that he typed it on his computer, and was thus intimately familiar with its contents. Therefore, pursuant to Rule 901(b)(1), plaintiff has no legitimate objection on that ground. The remainder of plaintiff's Rule 901 objections are similarly untenable. Therefore, the Court should overrule these objections, or order plaintiff to demonstrate the propriety of its objections. FAILURE TO DISCLOSE Plaintiff also objects to Exhibits 525, 539, 630, 652, and 653 on the grounds that Snell & Wilmer allegedly "failed to disclose" such exhibits. These objections imply a lack of professionalism on the part of Snell & Wilmer's counsel. In point of fact, however, plaintiff is categorically wrong about each document. Exhibits 525, 539, and 653 were documents produced by plaintiff! They contain "VT" bates numbers and were part of plaintiff's disclosure. For plaintiff to accuse Snell & Wilmer of not disclosing these documents is as insulting as it is groundless. Similarly, Exhibit 630 was a document that plaintiff introduced as an Exhibit during Mr. Rothwell's deposition: MR. KAUP: Make that Exhibit 3, please. Q. (BY MR. KAUP) Mr. Rothwell, could you please look at the document captioned Series F preferred stock purchase agreement, which is dated June 20, 2000. At the bottom right-hand corner it has the letters and numerals VT004385. (Rothwell Depo. at 28:5-28:17, Exh. "D".). Indeed, in its Exhibit List, Snell & Wilmer even referred to Exhibit 630, parenthetically, as "Rothwell No. 3". For plaintiff to claim that Snell & Wilmer failed to disclose this document is patently disingenuous. Finally, plaintiff claims that Snell & Wilmer failed to disclose Exhibit 652, which constitute hand-written notes. Exhibit 652 is a "bate-stamped" document numbered

SWDS0394-395. This two page document contains the "SWDS" bate stamp because plaintiff re-labeled documents that were part of Snell & Wilmer's Disclosure Statement with the bate-

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stamp prefix "SWDS." In short, Exhibit 652 was both disclosed to, and bate stamped by, plaintiff years ago. For plaintiff to claim otherwise is patently groundless. CONCLUSION Rather than comply with the Court's Pretrial Orders and meaningfully consider and lodge tenable objections to Snell & Wilmer's exhibits, plaintiff has done precisely that which the Court's Pretrial Orders sought to avoid: it has wasted time and resources by lodging completely insupportable objections. Plaintiff's approach was so misguided and inappropriate that nearly 50 % of its objections are lodged against its own exhibits. The Court should not reward plaintiff's tactics. Rather, the Court should either overrule all of plaintiff's objections or order plaintiff to demonstrate the propriety of each objection. DATED this 5th day of February, 2008. MARISCAL, WEEKS, MCINTYRE & FRIEDLANDER, P.A. By: s/ Timothy J. Thomason Gary L. Birnbaum Scot L. Claus Timothy J. Thomason 2901 North Central Avenue Suite 200 Phoenix, Arizona 85012-2705 Attorneys for Defendant Snell & Wilmer, LLP

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CERTIFICATE OF SERVICE Biltmore Associates v. Peter Thimmesch, et al. (Case No. CV 02-2405-PHX-HRH) I hereby certify that on February 5, 2008, a copy of the foregoing will be sent via FedEx Judge H. Russel Holland UNITED STATES DISTRICT COURT 222 West 7th Avenue No. 54 Anchorage, AK 99513 907-677-6251 I hereby certify that on February 5, 2008, I electronically transmitted the attached document(s) to 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: I hereby certify that on February 5, 2008, I caused the attached document to be served by first class mail on the following, who are not registered participants of the CM/ECF System: Peter Thimmesch 11329 Stonehouse Place Potomac Falls, Virginia 20165-5123 Defendant Pro Se

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