Free Statement - District Court of Arizona - Arizona

Christopher R. Kaup, Esq. State Bar No. 014820 1 Andrew M. Ellis, Esq. 2 State Bar No. 018326
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Third Floor Camelback Esplanade II 2525 East Camelback Road PHOENIX, ARIZONA 85016B4237 TELEPHONE: (602) 255-6000 FACSIMILE: (602) 255-0103

Attorneys for Biltmore Associates, Trustee of the Visitalk.com Creditors' Trust Gary Birnbaum (#004386) Timothy Thomason (#009869) Scot Claus (#014999) MARISCAL, WEEKS, McINTYRE & FRIEDLANDER, P.A. 2901 N. Central Avenue Suite 200 Phoenix, Arizona 85012-2705 Attorneys for Defendant Snell & Wilmer, LLP

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA BILTMORE ASSOCIATES, as Trustee for the Visitalk Creditors' Trust, Case No. CV 02-2405 PHX HRH Plaintiff, vs. PETER THIMMESCH, et al., Defendants. Pursuant to the Amended Order for Final Pretrial Proceedings & Final Pretrial Conference dated July 18, 2007 (Docket 375) and the Second Amended Order for Pretrial Proceedings dated December 3, 2007, and Final Pretrial Conference dated November 13, 2007, JOINT STATEMENT OF ISSUES; JOINT STATEMENT OF UNDISPUTED FACTS; and LISTS OF WITNESSES

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the following is the Joint Statement of Issues; Joint Statement of Undisputed Facts and Lists of Witnesses to be considered at the Final Pretrial Conference set for February 8, 2008.
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COUNSEL FOR THE PARTIES.
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Plaintiff, Biltmore Associates, as Trustee for the Visitalk Creditors' Trust ("Plaintiff")

Christopher Reed Kaup Tiffany & Bosco PA Camelback Esplanade II 2525 E Camelback Rd 3rd Floor Phoenix, AZ 85016 602-255-6024 602-255-0103 (fax) [email protected] Gary L Birnbaum Scot L Claus Charles Steven Price Timothy J Thomason Mariscal Weeks McIntyre & Friedlander PA 2901 N Central Ave, Ste 200 Phoenix, AZ 85012-2705 602-285-5000 602-285-5100 (fax) Peter Thimmesch, Pro Se 11329 Stonehouse Pl Potomac Falls, VA 20165-5123 (202)210-7333

Defendant, Snell & Wilmer LLP a limited liability partnership ("S&W")

Defendant, Peter Thimmesch ("Thimmesch")

I. A.

JOINT STATEMENT OF THE ISSUES. PROFESSIONAL NEGLIGENCE CLAIM1. The elements of a claim for professional negligence are: 1. The existence of an attorney-client relationship imposing a duty on the attorney to exercise the degree of skill, care and knowledge commonly exercised by members of the profession; 2. A breach of that duty; 3. That such negligence was a proximate cause of damages; and

20 21 22 23 24 25 26 27 28 Snell & Wilmer joins in the following statement without prejudice to its preservation of all defenses. Plaintiff joins in the following statement without prejudice to its preservation of all claims.
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4. The nature and extent of such damages.
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Philips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300, 303 (App. 1986). Moreover, the burden of proof on each element of the professional negligence claim rests with Plaintiff. The following issues for resolution at trial are presented: 1. Did Snell & Wilmer fall below the applicable standard of care in connection with services relating to the Founders Warrants claimed to have been issued to Peter Thimmesch and Michael O'Donnell in September 1998 2. Did Snell & Wilmer fall below the applicable standard of care by assisting Visitalk in connection with the Updated Series C Confidential Information Statement and offering and the sale of privately placed securities between July 1999 and November 29, 2000? 3. Did Snell & Wilmer fall below the applicable standard of care in connection with the Cardwell Settlement 4. Did the Cardwell Settlement constitute or result in a usurpation of a corporate opportunity? 5. Did Snell & Wilmer fall below the applicable standard of care in connection with allegedly failing to obtain effective releases from investors and/or an effective rescission offering to investors; 6. Did Snell & Wilmer fall below the applicable standard of care in connection with the concurrent representation of Visitalk and the Thimmesches and the O'Donnells for their estate planning; 7. Did Snell & Wilmer fall below the applicable standard of care in connection with allegedly aiding and abetting Thimmesch and O'Donnell with breaching their fiduciary duties to Visitalk, including alleged actions relating to the Founders' Warrants;

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8. Can Plaintiff identify any damages sustained by Visitalk that were proximately
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caused by the conduct of Snell & Wilmer? If so, what is the nature and extent of such damages? B. AIDING AND ABETTING A BREACH OF FIDUCIARY DUTY. A claim of aiding and abetting tortious conduct requires proof of three elements: 1. 2. The primary tortfeasor must commit a tort that causes injury to plaintiff. The defendant must show that the primary tortfeasor's conduct constitutes a breach of duty; and 3. The defendant must substantially assist or encourage the primary tortfeasor in the achievement of the breach. Wells Fargo v. Arizona Laborers, 201 Ariz. 474, 38 P.3d, 12, 24 (2002). The burden of proof on each element of the aiding and abetting claim lies with Plaintiff. The following issues are presented: 1. Did Peter Thimmesch and Michael O'Donnell breach fiduciary duties to Visitalk? 2. 3. Did Snell & Wilmer substantially assist or encourage such a breach of duty? Did the breaches of fiduciary duty cause Visitalk damage?

4. What is the amount of the damage? All of the sub-issues described above with respect to the negligence claim also apply to this claim. C. NEGLIGENT MISREPRESENTATION. A claim of negligent misrepresentation requires proof of the following: To prove negligent misrepresentation, a party must establish that (1) the defendant, in the course of business, gave incorrect information for the guidance of others in their business transactions; (2) the defendant intended, or could reasonably foresee, that the others would rely on that information; (3) the defendant failed to exercise reasonable care in obtaining or

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communicating that information; (4) others relied on that incorrect information; (5) the others'
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reliance was justified; and (6) the others' reliance was a cause of their damages. Taeger v. Catholic Family and Community Services, 196 Ariz. 285, 294, 995 P.2d 721, 730 (Ariz.App. Div. 1,1999); See Standard Chartered, 190 Ariz. at 31, 945 P.2d at 342. The parties agree the following are issues are presented: 1. Did S&W make false and misleading representations and/or omissions or provide incorrect information to Visitalk? 2. Did S&W intend or could S&W have foreseen that Visitalk would rely upon that information?

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3. Did Visitalk rely on that incorrect information? 4. Did S&W exercise reasonable care in obtaining or communicating that information? 5. Was the reliance of Visitalk justified and a cause of damage to Visitalk? 6. What is the amount of such damages, if any? D. PREFERENCE. 11 U.S.C. § 547(b)(4)(B) permits a bankruptcy trustee or a debtor-in-possession to avoid any pre-petition transfer by the debtor that occurs "between 90-days and 1-year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider." 11U.S.C. § 101 provides the statutory definition of an "insider" of a

corporation. § 101(31)(b) states: The term `insider' includes...if the debtor is a corporation ­ (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative of the general partner, director, officer or person in control of the debtor. 11 U.S.C. § 101(31)(b). The issue for resolution is whether or not Snell & Wilmer was an "insider." If not, then plaintiff is only entitled to recover preferential payments made within the 90-days before the filing of the petition.
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II PLAINTIFF'S SEPARATE STATEMENT OF ISSUES. A. PROFESSIONAL NEGLIGENCE CLAIM. In addition to the agreed upon issues set forth above, Plaintiff believes the Court will be required to resolve the following issues: 1. Did Snell & Wilmer fall below the applicable standard of care in connection

with allegedly aiding and abetting Thimmesch and O'Donnell with breaching their fiduciary

9 duties to Visitalk by artificially prolonging Visitalk's corporate life which deepened its 10 insolvency and not disclosing the true facts regarding the claimed issuance of the Founders 11 Warrants to Visitalk's Board of Directors? 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

B.

AIDING AND ABETTING A BREACH OF FIDUCIARY DUTY. Plaintiff believes this Court is required to consider the following controlling

decisional authority in ruling on its claim of aiding and abetting tortious conduct: "A showing of actual and complete knowledge of the tort is not uniformly necessary to hold a secondary tortfeasor liable under an aiding and abetting theory." 201 Ariz. at 488, 38 P.3d at 26 (citing FDIC v. First Interstate Bank of Des Moines, N.A., 885 F.2d 423 (8th Cir. 1989) [emphasis supplied]. " `The knowledge requirement' can be met, `even though the [defendant] may not have known of all the details of the primary fraud -- the misrepresentations, omissions, and other fraudulent practices.' " Id. (quoting Aetna Cas. and Sur. Co. v. Leahey Const. Co., Inc., 219 F.3d 519, 536 (6th Cir. 2000) (citing Woods v. Barnett Bank of Fort Lauderdale, 765 F.2d 1004, 1012 (11th Cir. 1985). "General awareness" of the fraudulent scheme can be established though circumstantial evidence. FDIC v. First Interstate Bank of Des Moines, N.A., 885 F.2d 423. C. NEGLIGENT MISREPRESENTATION. In addition to the agreed upon issues set forth above, Plaintiff believes the Court will be required to resolve the following issues:

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1.
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Did S&W make false and misleading representations and/or omissions or

provide incorrect information to the independent members of Visitalk's Board of Directors concerning material facts regarding the Founders Warrants in connection with the proposed solution to the problems regarding those warrants through the planned solicitation of releases from the Series A Shareholders?; 2. Did S&W intend or could S&W have foreseen that Mr. Kaplan and Mr. Hirschberg, as board members, would rely upon that information? 3. Did Mr. Kaplan and Mr. Hirschberg rely on that incorrect information? 4. Did S&W exercise reasonable care in obtaining or communicating that information? 5. Was the reliance of Mr. Kaplan and Mr. Hirschberg justified and a cause of damage to Visitalk? D. PREFERENCE. Plaintiff believes this Court is required to consider the following decisional authority in ruling on its claim of voidable preferences: There are two distinct types of insiders, those entities specifically mentioned in the statute, ... per se insiders, or those not listed in the statutory definition, but who have a "... sufficiently close relationship with the debtor that ... conduct is made subject to closer scrutiny than those dealing at arm's length with the debtor." ... [I]nsider status may be based on a professional or business relationship with the debtor, in addition to the Code's per se classifications, where such relationship compels the conclusion that the individual or entity has a relationship with the debtor, close enough to gain an advantage attributable simply to affinity rather than to the course of business dealings between the parties. In re Enterprise Acquisition Partners, Inc., 319 B.R. 626, 631 (9th BAP 2004). In addition, S&W must prove each of the elements of each of its defenses under 11 U.S.C. §547(c).
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III. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

SNELL & WILMER'S SEPARATE STATEMENT OF LEGAL ISSUES Defendant Snell & Wilmer LLP identifies the following legal issues that it believes

should be resolved at trial1. A. PROFESSIONAL NEGLIGENCE CLAIM. The elements of a claim for professional negligence are: 1. The existence of an attorney-client relationship imposing a duty on the attorney to exercise the degree of skill, care and knowledge commonly exercised by members of the profession; 2. A breach of that duty; 3. That such negligence was a proximate cause of damages; and 4. The nature and extent of such damages. Philips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300, 303 (App. 1986). Moreover, the burden of proof on each element of the professional negligence claim rests with Plaintiff. The following issues for resolution at trial are presented: 1. Did Snell & Wilmer fall below the applicable standard of care in connection with assisting Visitalk in obtaining waivers of potential claims from Series A shareholders for Visitalk's failure to disclose to such shareholders that the Board of Directors had authorized the issuance of Founders Warrants to Peter Thimmesch and Michael O'Donnell in September 1998? 2. Did Snell & Wilmer fall below the applicable standard of care by assisting Visitalk in the sale of privately placed securities between July 1999 and November 2000? 3. Did Snell & Wilmer fall below the applicable standard of care in connection with assisting Visitalk with the sale of 500,000 shares of stock from Mark Cardwell in

In addition to the following, Snell & Wilmer incorporates by reference any legal issues framed or implicated by its Witness Summaries and Deposition Designations.
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connection with the settlement of disputed claims by Cardwell against Visitalk
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(the "Cardwell Settlement")? 4. Did the Cardwell Settlement constitute a usurpation of a corporate opportunity, and if so, can Plaintiff identify and quantify that corporate opportunity? 5. Can Plaintiff identify any property or other assets of Visitalk that were proximately damaged as a result of Snell & Wilmer's conduct? 6. Can Plaintiff identify any damages sustained by Visitalk that were proximately caused by the conduct of Snell & Wilmer? 7. If so, what is the "nature and extent" of such damages? 8. Are alleged contingent "claims" of Visitalk preferred shareholders barred as a result of the Order Confirming the Second Joint Plan of Reorganization, or otherwise irrelevant? 9. Did any shareholders of Visitalk possess "claims" against Visitalk after December 13, 1999, or were such claims merely speculative? 10. If any shareholder possessed a claim, could any such claim constitute a "debt" of Visitalk; and if so, what is appropriate measure of such "debt?" 11. If any shareholder held a claim against Visitalk, was any such claim probable, expected and measurable? 12. Did Visitalk seek bankruptcy protection due to any conduct of Snell & Wilmer? 13. Why does the "business judgment rule" not preclude the liability of Snell & Wilmer for decisions made by Visitalk's Board of Directors and management? 14. Are Plaintiff's damages claims merely speculative? B. AIDING AND ABETTING A BREACH OF FIDUCIARY DUTY. A claim of aiding and abetting tortious conduct requires proof of three elements: 1. 2. The primary tortfeasor must commit a tort that causes injury to plaintiff. The defendant must show that the primary tortfeasor's conduct constitutes a breach of duty; and
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3.
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The defendant must substantially assist or encourage the primary tortfeasor in the achievement of the breach.

Wells Fargo v. Arizona Laborers, 201 Ariz. 474, 38 P.3d, 12, 24 (2002). The burden of proof on each element of the aiding and abetting claim lies with Plaintiff. The following issues are presented: 1. Did Peter Thimmesch and Michael O'Donnell breach fiduciary duties to Visitalk in connection with the resolution of the Founders Warrants problem? 2. 3. 4. 5. Did Snell & Wilmer substantially assist or encourage such a breach of duty? If so, did Snell & Wilmer proximately cause Visitalk damage? What are the amounts of the damages? Are any claimed damages merely speculative?

All of the sub-issues described above with respect to the negligence claim also apply to this claim. C. NEGLIGENT MISREPRESENTATION. In addition to the agreed upon issues set forth above, S&W believes the Court will be

required to resolve the following issues: 1. Whether the reliance of Visitalk proximately caused damage to Visitalk?

C.

PREFERENCE, 11 U.S.C. § 547(b)(4)(B) permits a bankruptcy trustee or a debtor-in-possession to

avoid any pre-petition transfer by the debtor that occurs "between 90-days and 1-year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider." 11U.S.C. § 101 provides the statutory definition of an "insider" of a

corporation. § 101(31)(b) states:

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The term `insider' includes...if the debtor is a corporation ­ (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative of the general partner, director, officer or person in control of the debtor. 11 U.S.C. § 101(31)(b). The following issues are presented for resolution on this claim: 1. 2. Was Snell & Wilmer was a statutory "insider?" If not, can Snell & Wilmer be characterized as an insider under any other appropriate legal test? 3. Did Snell & Wilmer control the business affairs of Visitalk and exert influence over the day to day decisions of Visitalk?

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4.

Did Snell & Wilmer receive payments from Visitalk during the year prior to filing in the ordinary course of business?

5.

Did Snell & Wilmer gain any advantage in its dealings with Visitalk as the result of "affinity" rather than as the result of an arms-length business relationship?

6.

Did Visitalk receive new or equivalent value for payments made during the year prior to filing, and if so, what is the amount of those payments?

7.

Did Visitalk receive new or equivalent value for payments made during the 90days prior to filing, and if so, what is the amount of those payments?

B.

UCATA The Uniform Contribution Among Tortfeasors Act ("UCATA"), A.R.S. § 12-2506,

provides that "[e]ach defendant is liable only for the amount of damages allocated to that
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defendant in direct proportion to that defendant's percentage of fault." UCATA applies in this case to all of plaintiff's claims sounding in tort. Id.

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If Visitalk is found to have sustained any compensable damages, then the Court must
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apportion fault among all parties and nonparties that caused or contributed to such damages, including: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. C. Visitalk.com, Inc. Bryan Cave Gibson, Dunn & Crutcher Lynn Stodghill The Falk Law Firm Dickstein Shapiro Stephen Best, P.C. Lyons & Lyons Ernst & Young, LLC Peter Thimmesch Cynthia Thimmesch Raymond Gaston Allan Kaplan Jeffrey Hirschberg Richard Rothwell Michael O'Donnell Marcia O'Donnell Robert Corry Michael Cooney Mark Cardwell Giles Sommerville MP3.com, Inc.

OTHER LEGAL ISSUES In addition to the foregoing, the following legal issues must be resolved at trial:

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· Are Plaintiff's claims precluded as the result of the ratification of actions by
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Visitalk through its Board of Directors? · Are Plaintiff's claims precluded under the doctrine of in pari delicto or the Wagoner Rule?

II.

JOINT STATEMENT OF UNCONTESTED FACTS. A. 1. 2. FACTS RELEVANT TO ALL CAUSES OF ACTION. Visitalk was incorporated in the State of Arizona on September 3, 1998. At the time Snell & Wilmer commenced its representation of Visitalk, Visitalk's

Board of Directors consisted of Peter Thimmesch, Michael O'Donnell, Mark Cardwell, Allen Kaplan and Jeffrey Hirschberg. 3. Vistalk filed a petition for relief under Chapter 11 of Title 11 on November 29,

2000. A trustee was not appointed in the Bankruptcy Case before the confirmation of Visitalk's Second Amended Chapter 11 Plan. 4. Biltmore Associates, LLC ("Biltmore") was appointed by the Bankruptcy Court

in the bankruptcy case of Visitalk.com, Inc. Bankruptcy Case No. 00-13035-PHX-RTB to serve as a Trustee for the Visitalk Creditors' Trust (the "Trust") created as part of Visitalk's confirmed Second Amended Chapter 11 Plan of Reorganization and then substituted as the Plaintiff in this action by Order of this Court dated January 31, 2005. Biltmore, as the

Trustee of the Trust was assigned all of the "Causes of Action," as that term is defined in the Second Amended Plan, owned by the Visitalk bankruptcy estate. 5. In November 2002, Visitalk initiated the present proceeding against Snell &

Wilmer, among others. 6. Visitalk's Second Amended Chapter 11 Plan states:

In his or her capacity as the representative of the estate, the creditor's Trustee will be the successor-in-interest to the Debtor with respect to the Causes of Action. The Creditor's Trustee will hold all right, title and interest in and to the Causes of Action on behalf of all beneficiaries of the Creditor's Trust and will pay from the Creditor's Trust all
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ordinary and necessary costs of protecting, preserving, investigating and pursuing the Causes of Action. 7. The Plan further defines the "Causes of Action" as meaning:

All claims and causes of action that are property of the estate or belong to the Debtor, including but not limited to . . . the pending district court litigation against former directors and officers, former counsel for Debtor (Snell & Wilmer), former accountants and the pending adversary proceedings in this case. 8. In November of 1998, Bryan Cave prepared a document titled "Action by

Unanimous Consent of the Board of Directors in Lieu of Special Meeting" which is dated "as of" September 12, 1998. 9. In September 1998, Visitalk raised money through the sale and issuance of

"Series A Preferred Stock" to individual investors (the "Series A Offering"). Visitalk sold Series B Preferred Stock to investors in October and November, 1998 (the "Series B Offering"). In March 1999, Visitalk disseminated a Confidential Information Statement in connection with the sale of Series C Preferred Stock. (the "Series C Offering"). 10. Defendant Snell & Wilmer, LLP ("S&W"), was retained to represent Visitalk

on July 1, 1999. 11. 1999. 12. Michael Donahey, acting on behalf of S&W, also prepared a document dated Michael Donahey, acting on behalf of S&W, prepared a document dated July 28,

July 15, 1999. 13. In connection with the Series A Offering, no disclosure was made by

Thimmesch, O'Donnell and Visitalk regarding the alleged existence of warrants to purchase Visitalk's common stock at an exercise price of $0.1375 per share (the "Founders' Warrants"). 14. S&W assisted with the preparation of Visitalk's Updated Series C Confidential

Information Statement. 15. Visitalk terminated Cardwell as an employee for cause and on May 10, 2000

executed a Settlement, Separation and Release Agreement (the "Cardwell Agreement").

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16.
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Prior to joining Visitalk as its General In-house Counsel in 1999, Stephen Best

was an employed by the Falk law firm in Washington, D.C. 17. At the time Snell & Wilmer began representing Visitalk, Peter Thimmesch was

the Chief Executive Officer, Michael O'Donnell was the Chief Operating Officer, and Mark Cardwell was the Chief Technology Officer. 18. In connection with the negotiation of the Separation, Settlement, and Release

Agreement, Mark Cardwell was represented by Janet Lord of Fennemore Craig. 19. Visitalk's independent auditor during the period of time S&W represented the

company was the accounting firm of Ernst & Young. 20. Snell & Wilmer assisted with the preparation of a letter to Series C Preferred

Shareholders dated December 13, 1999. 21. Snell & Wilmer assisted with the preparation of a Confidential Information

Statement dated August 8, 2000. 22. The following individuals worked in various capacities for Visitalk.com: Ray

Gaston, Robert Corry, Debra Kuhns, Lance Booth, Giles Sommerville, Cynthia Thimmesch and Marcia O'Donnell. 23. Ray Gaston assisted in the preparation of the March 13, 1999 Confidential

Information Statement. 24. Ernst & Young prepared "Audited Financial Statements for Period Ended

January 2, 1999." 25. On July 21, 2000, the law firm of Dickstein Shapiro sent a letter to Stephen Best

regarding bankruptcy issues. 26. During its bankruptcy, Visitalk periodically filed "Business and Industry

Monthly Operating Reports." III. PLAINTIFF'S STATEMENT OF FACTS RELEVANT TO PREFERENCE CAUSE OF ACTION WHICH IT BELIEVES ARE NOT IN DISPUTE.

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1. During the one year period of time prior to the date on which Visitalk filed its
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bankruptcy petition, Visitalk transferred not less than $720,829.92 to S&W; 2. During the 90 days prior to the date on which Visitalk filed its bankruptcy petition,

Visitalk transferred not less than $54,801.55 to S&W; III. LIST OF WITNESSES. PLAINTIFF
Witness Vernon Schweigert Type Fact Testimony

Rick Rothwell

Mr. Schweigert will testify regarding his role and service as the Manager for Biltmore Associates, L.L.C., as the Trustee of the Visitalk Creditors' Trust, his investigation and conclusions as the Trustee regarding the business operations, expenditure of funds, assets, value of those assets, liabilities, claims, causes of action of Visitalk, documents and materials contained in the files of Visitalk as provided to Biltmore after confirmation of its Second Amended Chapter 11 Plan and Biltmore's appointment as the Trustee, the actions and omissions of Visitalk's officers and directors from September 3, 1998 through November 29, 2000, the actions and omissions of S&W from June 28, 1999 through November 29, 2000, the insolvency of Visitalk at different points in time and the damages suffered by Visitalk as a result of the actions and omissions of S&W. Mr. Schweigert will also testify regarding all other matters about which he gave testimony during his deposition in this case and which are contained in any declarations and affidavits signed by him and filed in this action. Mr. Rothwell will testify to his prior service as the former President of Plaintiff, his investments in Visitalk, the information provided and not provided to him as an investor by Visitalk relating to the company, its capital structure, its operations, technology, product and prospects, the Founders Warrants, securities law problems identified by S&W, the problems with the Founders Warrants and the claims against the company arising therefrom. Mr. Rothwell will also testify about his claims against Visitalk, the purported Release of claims and letter from Visitalk regarding that Release, his attendance at a shareholders' meeting in December of 1999, statements made during that meeting by Mr. Mallery, his reliance on the information he was provided at that meeting and by Visitalk on other occasions, and his discussions with officers of Visitalk regarding such matters, including conversations with Mr. Cardwell and Mr. O'Donnell in late 2000 or early 2001 and his investigation while he was Visitalk's President regarding prior management, legal problems, business operations, expenditure of
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 James Fallon

funds by the company, the prior legal representation by S&W and the legal claims of the Company. Mr. Rothwell will also testify regarding all other matters about which he gave testimony during his deposition in this case. In the event Mr. Rothwell is not available to testify at the trial in this case, Plaintiff designates the following portions of the transcripts of his deposition given in this case: Transcript of Richard John Rothwell, August 25, 2006. 8:13 ­ 11:16, 11:24 ­ 12:22, 13:11 ­ 16:21, 35:3 ­ 36:16; 43:24 ­ 46:3, 50:16 ­ 51:15, 53:25 ­ 56:1, 57:10 ­ 58:4, 58:24 ­ 65:3, 69:4 ­ 72:22, 73: 8 ­ 74:3, 87:21 ­ 89:4, 90:2 ­ 18, 91:7 ­ 97:10, 144:16 ­ 145:2. Transcript of Richard John Rothwell, August 31, 2006. 159:22 ­ 160:19, 180:18 ­ 185:11. Transcript of Richard John Rothwell, September 20, 2006. 240:8 ­ 243:22, 243:23 ­ 248:7, 249:3 ­ 250:14, 254:8 ­ 19, 259:6 ­ 260:9, 262:10 ­ 265:1, 266:21 ­ 270:23, 271:12 ­ 20, 276:14 ­ 280:3, 280:7 ­ 288:8, 295:24 ­ 297:5, 324:20 ­ 325:24; 357:12 ­ 20. Mr. Fallon is the former senior engineer for Visitalk and will testify regarding the problems with and limitations of Plaintiff's technology and products from November, 1999 through November 29, 2000, the cost of adding large numbers of additional users utilizing that technology, the fact that those products were not commercially viable during that period of time, his knowledge regarding the "Kick the Tires Report," and the lack of involvement and knowledge of Thimmesch and O'Donnell regarding the products and technology during that time period. Mr. Fallon will also testify regarding all other matters about which he gave testimony during his deposition in this case. Debra Kuhns was the vice president of marketing at Visitalk. She is expected to testify as to her knowledge of Visitalk's lack of a budget, and its inappropriate, excessive, unmanaged and poorly documented spending practices, including but not limited to the 90K per month for marketing and a "marketing burn rate." She is also expected to testify about Visitalk's treatment of creditors and management's warnings to keep Visitalk's insolvent financial information from creditors, including, Planet Media. She is expected to testify that Visitalk never had a commercially viable product, based on her experience and knowledge. Ms. Kuhns will also testify regarding all other matters about which she gave testimony during her deposition in this case. John Hoffman is expected to testify about the problems with Visitalk's products and technology, his background, education and experience regarding similar technology products, the work performed by him and his analysis relating to Visitalk's technology and product in 2000
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Debra 20 Kuhns
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Hoffman, John

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Robert Corry

and his preparation of the "Kick the Tires" Report in October and November of 2000. Transcript of Deposition of Robert J. Corry, May 1, 2006. 7:17 ­ 10:17, 13:17 ­ 16:20, 21:5 ­ 34:14, 36:3 ­ 37:4, 39: 5 ­ 40: 4, 40:5 ­ 42:1, 43:18 ­ 46:6, 54:14 ­ 58:3, 61:5 ­ 62:2, 62:7 ­ 64:1, 65:11 ­ 68:9, 68:20 ­ 74:2, 74:16 ­ 77:5, 78:25 ­ 85:21, 92:1 ­ 93:16, 96:11 ­ 97:20, 99:16 ­ 100:3, 102:20 ­ 106:22, 109:13 ­ 25, 110:14 ­ 113:19, 117:21 ­ 119:10, 119:13 ­ 121:11, 124:13 ­ 125:16, 125:17 ­ 126:24, 128:23 ­ 129:9, 132:24 ­ 133:24.
Ray Gaston is expected to testify regarding his knowledge about Visitalk's financial condition, on-going losses, lack of revenue, insolvency, and lack of a commercially viable product, the claims held by investors, a proposed rescission offering, his work on the Series C Offering, the Updated Series C Offering, subsequent securities offerings, his work and communications with lawyers at S&W regarding those offerings, and the financial information provided to lawyers at S&W by Visitalk. Mr. Gaston also is expected to testify about the close relationship between Mr. Mallery and Mr. Thimmesch, the business advice given by Mr. Mallery to Mr. Thimmesch, the breaches of fiduciary duty by Messrs. Thimmesch, O'Donnell, Mallery and Donahey, the fact that Visitalk would not have been able to continue in business if S&W did not continue providing legal services regarding securities offerings and other securities law matters, the amounts owed to S&W by Visitalk at different times, and the demands and pressure for payment of those bills by Messrs. Donahey and Mallery. He will also testify about the documents he prepared and received, his observations regarding the actions and inactions of Peter Thimmesch and Michael O'Donnell in their capacities as officers of Visitalk, and the similarities of Mr. Thimmesch to a con man. Mr. Gaston will also testify regarding all

Ray Gaston

Alan Kaplan

Steve DelBianco
11400-002/354772

other matters about which he gave testimony during his deposition in this case. Alan Kaplan, an investor in and a former director of Visitalk, is expected to testify regarding his investments in Visitalk, the information provided and not provided to him as an investor by Visitalk relating to the company, its capital structure, its operations, technology, product and prospects, the Founders Warrants, securities law problems identified by S&W, the problems with the Founders Warrants and the claims against the company arising therefrom. Mr. Kaplan also is expected to testify about claims held by investors against Visitalk, the purported Release of claims and letter from Visitalk regarding that Release, his attendance at directors' and shareholders' meetings, information provided and not provided to him, as a director and a shareholder, by S&W regarding such matters, his belief that S&W failed to adequately represent Visitalk with respect to such matters, and his reliance on the information he was provided by S&W. . Mr. Kaplan will also testify regarding all other matters about which she gave testimony during her deposition in this case. Transcript of Deposition of Steve DelBianco, August 23, 2006 6:3 ­ 9:11, 13:13 ­ 25, 14:1 ­ 8, 16:11 ­ 17:5, 17:13 ­ 18:2, 20:6 ­
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George York

Kettle, George

Truesdell, Cameron

Joe Richardson

22:7, 23:15 ­ 25:6, 29:21 ­ 30:14, 34:12 ­ 35:15, 36:10 ­ 21, 37:2 ­ 18, 43:19 ­ 44:4, 44:10 ­ 18, 45:18 ­ 46:17, 46:18 ­ 48:1, 51:5 ­ 52:10, 64:25 ­ 65:9, Mr. York will testify regarding his investments in Visitalk, the information he was provided and not provided relating to Visitalk, its capital structure, its operations, technology, product and prospects, the Founders Warrants, securities law problems identified by S&W, the problems with the Founders Warrants and the claims against the company arising therefrom. Mr. York is also expected to testify regarding his claims against Visitalk, the purported Release of claims and letter from Visitalk regarding that Release, his attendance at and events which occurred during a meeting of Visitalk shareholders in December, 1999, his reliance on the information he was provided at that meeting and by Visitalk on other occasions, and his discussions with officers of Visitalk regarding such matters. Mr. Kettle will testify regarding his investments in Visitalk, the information he was provided and not provided relating to Visitalk, its capital structure, its operations, technology, product and prospects, the Founders Warrants, securities law problems identified by S&W, the problems with the Founders Warrants and the claims against the company arising therefrom. Mr. York is also expected to testify regarding his claims against Visitalk, and his reliance on the information he was provided by Visitalk and his discussions with officers of Visitalk regarding such matters. Mr. Truesdell is expected to testify to his prior service as the former Chairman of the Board of Plaintiff, his investments in Visitalk, the information provided and not provided to him as an investor by Visitalk relating to the company, its capital structure, its operations, technology, product and prospects, the Founders Warrants, securities law problems identified by S&W, the problems with the Founders Warrants and the claims against the company arising therefrom. Mr. Truesdell is also expected testify about his claims against Visitalk, his reliance on the information he was provided by Visitalk, and his discussions with officers of Visitalk regarding such matters. Mr. Truesdell is further expected to testify regarding his knowledge gained while he was Visitalk's Chairman regarding prior management, legal problems, business operations, expenditure of funds by the company, the prior legal representation by S&W and the legal claims of the Company. Joseph Richardson is expected to testify regarding the legal services rendered by him and other employees of Bryan Cave to Visitalk, its original capital structure, the documents prepared by him and other employees of Bryan Cave, and the information provided to him and other communications with Peter and Cindy Thimmesch, Mike and Marcia O'Donnell, Mark Cardwell and other officers of Visitalk. Mr. Richardson is also expected to testify regarding his knowledge of the "Founders Warrants" claimed to have been issued to Peter Thimmesch
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Chad Freed

Susan Malone

Peter Thimmesch

and Michael O'Donnell, his knowledge regarding Visitalk's officers, its security offerings, and the true facts regarding the lack of proper authorization and issuance of the Founder's Warrants. Mr. Richardson also is expected to testify that no lawyers or employees from S&W ever contacted or spoke with him regarding the documents prepared by him, his knowledge regarding those documents or the Founders Warrants. Mr. Richardson will also testify regarding all other matters about which she gave testimony during her deposition in this case. Chad Freed is a former associate at Bryan Cave and is expected to testify regarding the legal services rendered by him to Visitalk, its original capital structure, the documents prepared by him and other employees of Bryan Cave, and the information provided to him and other communications with Peter and Cindy Thimmesch, Mike and Marcia O'Donnell, Mark Cardwell and other officers of Visitalk. Mr. Freed is also expected to testify regarding his knowledge of the "Founders Warrants" claimed to have been issued to Peter Thimmesch and Michael O'Donnell, his knowledge regarding Visitalk's officers, its security offerings, and the true facts regarding the lack of proper authorization and issuance of the Founder's Warrants. Mr. Freed also is expected to testify that no lawyers or employees from S&W ever contacted or spoke with him regarding the documents prepared by him, his knowledge regarding those documents or the Founders Warrants. Susan Malone was a corporate paralegal at Bryan Cave at the time of the deposition. She is expected to testify as to her knowledge of the preparation of the corporate documents for Visitalk and the invoices of Bryan Cave relevant to same. Ms. Malone will also testify regarding all other matters about which she gave testimony during her deposition in this case. Videotaped Deposition of Peter Thimmesch, December 7, 2005 1st CD-ROM 9:7 ­ 12...........9:22:23 ­ 9:22:37 am; 3:44 ­ 3:57 min. 66:25 ­ 67:15...10:39:49 ­ 10:41:57 am; 1:21:10 - 1:23:19 min. 68:7 ­ 70:20...10:42:53 ­ 10:46:07 am; 1:24:13 ­ 1:27:28 min. 70:23 ­ 71:2...10:46:18 ­ 10:46:49 am; 1:27:39 ­ 1:28:10 min. 72:21 ­ 73:18..10:49:00 ­ 10:50:06 am; 1:30:29 ­ 1:31:27 min. 76:22 ­ 77:13..10:53:51 ­ 10:54:51 am; 1:35:12 ­ 1:36:11 min. 3rd CD-ROM 185:4 ­ 23.........2:26:57 ­ 2:27:49 pm; 45:25 ­ 47:16 min. 188:8 ­ 18.........2:31:19 ­ 2:31:57 pm; 50:47 ­ 51:18 min. 206:2 ­ 207:17....2:59:16 ­ 3:02:17 pm; 1:18:42 ­ 1:21:45 min. 209:13 ­ 19.........3:04:21 ­ 3:04:52 pm; 1:23:49 ­ 1:24:20 min. Videotaped Deposition of Peter Thimmesch, April 18, 2006 1st Video Cassette

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Cynthia Thimmesch

Michael O'Donnell

342:5 ­ 8....10:27:58 ­ 10:28:13 am; 31:52 ­ 32:07 min. Cynthia Thimmesch is expected to testify regarding her positions at and duties while employed by Visitalk. Ms. Thimmesch, formerly married to Mr. Thimmesch, is further expected to testify to her roles in the managed payment of the bills, human resource issues and her responsibility to work on the Visitalk SEC shareholder compliance and regulation issues with attorneys. She is expected to testify as to her knowledge of Visitalk's internal procedures, management of SEC compliance and regulatory issues, the Founder's Warrants, the proposed resolutions to same, the work done by S&W relating to same, the company's original corporate documentation, including minutes and unanimous consents of the board of directors prepared in late October and November, 1998, by Bryan Cave. In addition, Ms. Thimmesch is expected to testify as to the trusts set up by Mr. Weiss, regarding the estate plans and taxes, for her and her former husband Mr. Thimmesch, the bills received from S&W, the Arthur Andersen invoice, the letters distributed to the investors, and Visitalk's updated confidentiality statement. She may testify as to the character of Mr. Thimmesch. Ms. Thimmesch will also testify regarding all other matters about which she gave testimony during her deposition in this case. Mr. O'Donnell is expected to testify regarding his work as a former officer and director of Visitalk and his knowledge of the "Founders Warrants" claimed to have been issued to Peter Thimmesch and himself, the claims against the Visitalk held by certain investors, issues relating to other securities law matters, the failure to obtain effective releases from investors, a planned rescission offering, the Updated Series C Confidential Information Statement and offering, Visitalk's various other securities offerings, the concurrent representation of Visitalk and the Thimmesches and the O'Donnells for their estate planning, a settlement transaction with Mark Cardwell through which the opportunity to sell Visitalk stock was transferred to Mr. Cardwell, his breaches of fiduciary duties owed to Visitalk, its shareholders and its creditors, the actions by S&W which aided and abetted himself and Thimmesch with breaching their fiduciary duties to Visitalk, his actions and the actions by S&W which helped to artificially prolong Visitalk's corporate life and deepened its insolvency and S&W's failure to disclose the true facts regarding the claimed issuance of the Founders Warrants to Visitalk's Board of Directors. Mr. O'Donnell also is expected to testify regarding his knowledge about Visitalk's officers, its financial condition, its assets, its liabilities, its lack of revenue, and its lack of a commercially viable product. Mr. O'Donnell is further expected to testify regarding the true facts regarding the lack of proper authorization and issuance of the Founder's Warrants, the true chronology regarding the Founders Warrants, the problems with the Founders Warrants, the claims against the company arising therefrom, the issues connected with and S&W's
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11400-002/354772

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Marcia O'Donnell

Mark Cardwell

proposed resolutions relating to the corporate records and securities offerings of Visitalk. He also is expected to testify to how he and and Thimmesches became clients of S&W without Visitalk waiving the conflict of interest with Visitalk. Mr. O'Donnell also is expected to testify regarding his knowledge regarding allegedly inaccurate corporate records of Visitalk and the services rendered by S&W regarding such matters. Mr. O'Donnell is further expected to testify to his knowledge regarding the financial difficulties of Visitalk, the dispute and settlement with Mr. Cardwell and the transfer to Mr. Cardwell of the corporate opportunity to sell Visitalk stock. Mr. O'Donnell also will testify regarding his knowledge and understanding regarding S&W's conclusions and statements regarding the matters set forth above, the services rendered by S&W relating to same, the information or lack thereof provided to the Visitalk Board of Directors by S&W regarding such matters, and his communications with Visitalk's officers, attorneys and board of directors. He will testify to his knowledge that Visitalk's ability to continue to operate was dependent upon S&W continuing to render securities law services to the company. Mr. O'Donnell is also expected to testify to his attendance at meetings of Visitalk's directors and shareholders in 1998, 1999 and 2000. Mr. O'Donnell will also testify regarding all other matters about which he gave testimony during his deposition in this case. Marcia O'Donnell regarding her positions at and duties while employed by Visitalk, including the build out and purchase of furniture for Visitalk's new office building in late 1999 and early 2000. She is expected to testify as to her knowledge of Visitalk's lack of financial controls, lack of a formal approval process for expenses, discovery of Visitalk's financial difficulties, and information about the Founder's Warrants, the proposed resolutions to same, and the work done by S&W relating to same. Ms. O'Donnell will also testify regarding all other matters about which she gave testimony during her deposition in this case Mr. Cardwell is expected to testify regarding his work as a former officer and director of Visitalk and his knowledge of the "Founders Warrants" claimed to have been issued to Peter Thimmesch and Mike O'Donnell, the claims against the Visitalk held by certain investors, issues relating to other securities law matters, the failure to obtain effective releases from investors, a planned rescission offering, the Updated Series C Confidential Information Statement and offering, Visitalk's various other securities offerings, a settlement transaction between Visitalk and Mr. Cardwell through which the opportunity to sell Visitalk stock was transferred to Mr. Cardwell, the breaches of fiduciary duties by Mr. Thimmesch and Mr. O'Donnell, its shareholders and its creditors, the actions by S&W which aided and abetted O'Donnell and Thimmesch with breaching their fiduciary duties to Visitalk, the actions by O'Donnell and Thimmesch and the
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Steve Best

actions by S&W which helped to artificially prolong Visitalk's corporate life and deepened its insolvency and S&W's failure to disclose the true facts regarding the claimed issuance of the Founders Warrants to Visitalk's Board of Directors. Mr. Cardwell also is expected to testify regarding his knowledge about Visitalk's officers, its financial condition, its assets, its liabilities, its lack of revenue, and its lack of a commercially viable product. Mr. Cardwell is further expected to testify regarding the true facts regarding the lack of proper authorization and issuance of the Founder's Warrants, the true chronology regarding the Founders Warrants, the problems with the Founders Warrants, the claims against the company arising therefrom, the issues connected with and S&W's proposed resolutions relating to the corporate records and securities offerings of Visitalk. Mr. Cardwell is further expected to testify to his knowledge regarding the financial difficulties of Visitalk. Mr. Cardwell also will testify regarding his knowledge and understanding regarding S&W's conclusions and statements regarding the matters set forth above, the services rendered by S&W relating to same, the information or lack thereof provided to the Visitalk Board of Directors by S&W regarding such matters, and his communications with Visitalk's officers, attorneys and board of directors. Mr. Cardwell is also expected to testify to his attendance at meetings of Visitalk's directors and shareholders in 1998 and 1999. Mr. Cardwell will also testify regarding all other matters about which he gave testimony during his deposition in this case. Videotaped Deposition of Steven Andrew Best, January 21, 2005. 10:10 ­ 11:21, 15:6 ­ 18:2, 21:11 ­ 23:20, 25:2 ­ 9, 28:3 ­ 15, 31:3 ­ 16, 33:3 ­ 35:5, 77:5 ­ 19, 80:18 ­ 83:7, 83:22 ­ 85:1, 87:15 ­ 89:7, 93.17 ­ 94:1, 108:11 ­ 109:7, 112:9 ­ 113:3, 116:22 ­ 117:4, 117:7 ­ 118:21, 118:25 ­ 119:11, 122:25 ­ 124:13, 126:4 ­ 13, 127:13 ­ 129:1, 129:17 ­ 130:19, 132:7 ­ 133:2, 138:9 ­ 141:1, 141:19 ­ 25, 142:14 ­ 145:22, 146:13 ­ 25, 148:8 ­ 150:4, 154:12 ­ 18, 157:21 ­ 159:2, 160:18 ­ 161:7, 161:18 ­ 163:24, 165:25 ­ 166:18, 168:1 ­ 169:15, 170:8 ­ 171:13, 179:16 ­ 180:19....TBD* Videotaped Deposition of Stephen Best, September 9, 2005. 14:1 ­ 15** 15:15 ­ 17:4v 17:5 ­ 18:6** 20:1 ­ 21:21 ... 9:23:49 to 9:27:15 am (13:46 ­ 17:20 min.) 27:19 ­ 28:13...9:36:38 to 9:37:36 am (26:46 ­ 27:44 min.) 30:10 ­ 31:20** 32;19 ­ 34:13** 37:1 ­ 38:22** 41:10 ­ 42:18** 45:1 ­ 6**

Case 2:02-cv-02405-HRH

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gerry Mayo
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57:10 ­ 59:5** 59:6 ­ 22...10:33:48 to 10:35:03 am (1:16:04 ­ 1:17:19 min.) 59:11 ­ 60:4** 67:16 ­ 68:1** 69:13 ­ 70:3...10:51:05 to 10:51:46 am (1:33:30 ­ 1:34:01 min 72:12 ­ 21** 75:11 ­ 76:16** 77:13 ­ 19** 90:21 ­ 91:18** 92:18 ­ 95:13** 95:14 ­ 98:22** 99:19 ­ 100:15** 113:2 ­ 114:21** 118-18 ­ 120:19** 122:3 ­ 123:21** 125:12 ­ 128:15** 129:17 ­ 130:11** 133:18 ­ 135:15** 137:19 ­ 141:6** 144:14 ­ 145:11** **The video tape designations that match the transcript designations will be provided. Mark Love is expected to testify regarding the services he rendered to Visitalk to locate investors willing to purchase Visitalk's stock, including persons willing to purchase stock as part of the Cardwell settlement transaction, the investors he referred to Visitalk who actually purchased Visitalk stock, including persons who actually bought stock as part of the Cardwell settlement transaction, the lack of information provided to those investors regarding the Founders Warrants, the other securities problems, Visitalk' financial condition, and the company's lack of a commercially viable product, and the money paid to him for those services. Mr. Love is also expected to testify about his knowledge regarding the involvement of S&W, Mr. Thimmesch and Mr. O'Donnell regarding such matters. Ms. O'Donnell is expected to testify regarding her position and duties as an employee at Visitalk, including her work supervising build out of and purchase of furniture for Visitalk's new office building in late 1999 and early 2000. She also is expected to testify as to her knowledge of Visitalk's lack of financial controls, lack of a formal approval process for expenses, discovery of Visitalk's financial difficulties, information about the founder's warrants and the original "founding" members. Ms. O'Donnell will also testify regarding all other matters about which she gave testimony during her deposition in this case. Mr. Mayo is expected to testify to his prior service as the former President and CEO and sole Board Member of Plaintiff, his
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Mark Love

Manda Turley

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11400-002/354772

Jeffrey Hirschberg
Richard Mallery

investments in Visitalk, the information provided and not provided to him as an investor by Visitalk relating to the company, its capital structure, its operations, technology, product and prospects, the Founders Warrants, securities law problems identified by S&W, the problems with the Founders Warrants and the claims against the company arising therefrom. Mr. Mayo is also expected testify about his claims against Visitalk, his reliance on the information he was provided by Visitalk, and his discussions with officers of Visitalk. Mr. Mayo also is expected to testify as to his knowledge regarding Visitalk's confirmed Second Amended Chapter 11 Plan of Reorganization, the claims of Visitalk's investors, and the legal problems, business operations, expenditure of funds by the company, the prior legal representation by S&W and the assets and liabilities of the Company prior to the filing of its bankruptcy petition. Transcript of Deposition of Jeffrey Hirschberg, September 8, 2005. 11:17 ­ 14:13, 16:9 ­ 19:14, 20:5 ­ 24:12, 38:22 ­ 39:7, 41:22 ­ 42 ­ 6, 47:5 ­ 48:18, 52:3 ­ 17. Richard Mallery is expected to testify as to his knowledge (or lack thereof) of Visitalk's officers, due diligence, security offerings, the true facts regarding the lack of proper authorization and issuance of the Founder's Warrants, the issues connected with and S&W's proposed resolutions relating to the corporate records and securities offerings of Visitalk. He will testify to how the O'Donnells and Thimmesches became clients of S&W without Visitalk waiving the conflict of interest with Visitalk. He will testify to his knowledge regarding allegedly inaccurate corporate records of Visitalk and the services rendered by S&W regarding such matters. Mr. Mallery is also expected to testify to his knowledge (or lack thereof) regarding the legal issues connected with the Series A stock, financial difficulties of Visitalk and all the issues surrounding the Series A, B, and C offerings. Mr. Mallery will also testify as to the S&W invoices to Visitalk and his billing entries on those invoices. He will testify as to his understanding of the dispute and settlement with Mr. Cardwell. Mr. Mallery also will testify regarding S&W's conclusions and statements regarding the claims held by investors, the Founders' Warrants, the true chronology regarding the Founders Warrants, the problems with the Founders Warrants and the claims against the company arising therefrom, the securities law problems the basis for same, the services rendered by S&W relating to same, the information or lack thereof provided to the Visitalk Board of Directors by S&W regarding such matters, the lack of conflict waiver by Visitalk for S&W's individual representation of the O'Donnells and Thimmeschs, and his communications with Visitalk's officers, attorneys and board of directors. He will testify to his knowledge (or lack thereof) of Visitalk's negative net worth, negative tangible book value, liability to certain holders of rescission stock, and providing business strategy and tactics for solving issues relating to Visitalk. Mr. Mallery is also
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Michael Donahey

expected to testify to his attendance at meetings of Visitalk's directors and his attendance and statements made by him at a meeting of Visitalk's shareholders in December, 1999, and the payments made by Visitalk to S&W. Mr. Mallery will also testify regarding all other matters about which he gave testimony during his deposition in this case. Mr. Donahey is expected to testify regarding his work as a lawyer on, documents he prepared and his knowledge of the "Founders Warrants" claimed to have been issued to Peter Thimmesch and Michael O'Donnell, the claims against the Visitalk held by certain investors, issues relating to other securities law matters, the failure to obtain effective releases from investors, the Updated Series C Confidential Information Statement and offering, other securities offerings, the concurrent representation of Visitalk and the Thimmesches and the O'Donnells for their estate planning, a settlement transaction with Mark Cardwell through which the opportunity to sell Visitalk stock was transferred to Mr. Cardwell, the actions by S&W which aided and abetted Thimmesch and O'Donnell with breaching their fiduciary duties to Visitalk, the actions by S&W which helped to artificially prolong Visitalk's corporate life and deepened its insolvency and S&W's failure to disclose the true facts regarding the claimed issuance of the Founders Warrants to Visitalk's Board of Directors. Mr. Donahey also is expected to testify regarding his knowledge about Visitalk's officers, its security offerings, the true facts regarding the lack of proper authorization and issuance of the Founder's Warrants, the issues connected with and S&W's proposed resolutions relating to the corporate records and securities offerings of Visitalk. He will testify to how the O'Donnells and Thimmesches became clients of S&W without Visitalk waiving the conflict of interest with Visitalk. Mr. Donahey also is expected to testify regarding his knowledge regarding allegedly inaccurate corporate records of Visitalk and the services rendered by S&W regarding such matters. Mr. Donahey is further expected to testify to his knowledge regarding the legal issues connected with the Series A stock, financial difficulties of Visitalk and all the issues surrounding the Series A, B, and C offerings. Mr. Donahey will also testify as to the S&W invoices to Visitalk and his billing entries on those invoices. He is also expected to testify as to his understanding of the dispute and settlement with Mr. Cardwell. Mr. Donahey also will testify regarding S&W's conclusions and statements regarding the claims held by investors, the Founders' Warrants, the true chronology regarding the Founders Warrants, the problems with the Founders Warrants and the claims against the company arising therefrom, the securities law problems, the basis for same, the services rendered by S&W relating to same, the information or lack thereof provided to the Visitalk Board of Directors by S&W regarding such matters, and his communications with Visitalk's officers, attorneys and board of directors. He will testify to his
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11400-002/354772

Charles Pulaski

knowledge of Visitalk's financial condition and Visitalk's ability to continue to operate was dependent upon S&W continuing to render securities law services to the company. Mr. Donahey is also expected to testify to his attendance at meetings of Visitalk's directors and a meeting of Visitalk's shareholders in December, 1999, and the payments made by Visitalk to S&W. Mr. Donahey will also testify regarding all other matters about which he gave testimony during his deposition in this case. Charles Pulaski is expected to testify as to his knowledge of the Founders' Warrants claimed to have been issued to Thimmesch and O'Donnell, the services rendered by him, his review of documents and his analysis and preparation of documents regarding the Founders' Warrants, the lack of evidentiary support for same, the tax consequences to the company and to the interested parties, including the Series A shareholders, the O'Donnells and the Thimmesches, of same and his alternative recommendations relating to same. He will testify to his surprise how the basic factual foundation of his whole analysis had changed and from whom he received all his supposedly factual information. Mr. Pulaski also will testify about the sources for the information supporting his analysis. He will testify about the memoranda he prepared in connection with his services to Visitalk and S&W's failure to disclose the true facts regarding the claimed issuance of the Founders Warrants and related matters to Visitalk's Board of Directors. Mr. Pulaski will also testify regarding all other matters about which he gave testimony during his deposition in this case. David Weiss is an attorney at S&W who will testify that he works primarily as an estate planning attorney with some employee compensation, corporate tax and merger and acquisitions practice. Mr. Weiss will further testify that he provided legal services to Mr. and Mrs. O'Donnell and Mr. and Mrs. Thimmesch individually but did not represent or provide legal services to Visitalk. He also is expected to testify as to his discussions of the representation of the Thimmesches and the O'Donnells with Mr. Mallery and Mr. Raciborski prior to engagement of either the O'Donnells or the Thimmesches. During his deposition, Mr. Weiss, on advice of his attorney, refused to answer any questions regarding the discussion he had with the former Mrs. Thimmesch, even though Mrs. Thimmesch waived the attorney-client privilege. Plaintiff's counsel may request the Court to rule on this objection if it is raised again at trial. Mr. Weiss also will testify regarding his discussions with Mr. Best and Mr. Richardson as well as his knowledge about the Founder's Warrants. He will further testify regarding how the S&W invoices were paid and how information from the individuals was shared with Arthur Andersen, the tax accountants and consultants assisting him with providing these estate planning services. He will testify as to his conversations about a possible Visitalk conflict as it relates to Mr. Kaplan. Mr. Weiss also will testify as to his time entries in the S&W
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invoices. Mr. Weiss will also testify regarding all other matters about which he gave testimony during his deposition in this case.

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Robert Hayward
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Giles Somerville

Michael 10 Williams
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9

Mr. Hayward will testify regarding documents he prepared relating to as a lawyer at S&W regarding all other matters about which he gave testimony during his deposition in this case. Giles Somerville is expected to testify as to his knowledge of Visitalk's business mode, and financial and operational history the MP3.com transaction, revenue strategies, marketing strategies, and customer base,. He is expected to testify regarding the Founders' Warrants, the true chronology regarding the alleged authorization and issuance of the Founders Warrants, the legal representation, communications and documents by S&W, Visitalk's officers, board members, investors and key employees, the Series A, B and C, offerings, Mr. Cardwell's termination from Visitalk, Visitalk's other securities offerings and capital raising activities. Mr. Somerville will also testify regarding all other matters about which he gave testimony during his deposition in this case. Mr. Williams will testify regarding the Second Amended Chapter 11 Plan filed by Visitalk and confirmed by the Bankruptcy Court and the authentication of certain documents and agreements between Visitalk Capital Corporation and certain Visitalk creditors and investors copies of which were provided to S&W by letter and an enclosed CD on June 22, 2007
Experts

Renee Jenkins

Boyd Lemon

Steven Scherf

Renee Jenkins is one of Plaintiff's Experts. She is expected to testify on the subject matter, conclusions and the factual support for these conclusions as stated in the original report, rebuttal report and any other supplemental report. Ms. Jenkins will also testify regarding all other matters about which she gave testimony during her deposition in this case. Her curriculum vitae and summary of qualifications are attached hereto as Exhibit E. Boyd Lemon is one of Plaintiff's Experts. He is expected to testify on the subject matter, conclusions and the factual support for these conclusions as stated in the original report, rebuttal report and any other supplemental report. Mr. Lemon will also testif