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

EXHIBIT "1"
Case 2:02-cv-02405-HRH Document 393-2 Filed 08/06/2007 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
BILTMORE ASSOCIATES, as )
Trustee for the Visitalk )
Creditors' Trust, )
}
Plaintiff, }
)
vs. } No. CIV 02 2405 PHX HRH
}
PETER THIMMESCH, et al., }
)
Defendants. )

Phoenix, Arizona
March 8, 2007
9:04 a.m.
DEPOSITION OF BOYD S. LEMON
VOLUME I, PAGES 1-215
REPORTED BY: BOWLER REPORTING SERVICE
AMY K. BOWLER, RPR Court Reporters
CCR #50322 3101 North Central Avenue
Certified LiveNote Reporter Suite 820
PREPARED FOR: Phoenix, Arizona 85012
DISTRICT COURT (602) 631-9500
(Original) (602) 631-9777 FAX
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1 there?
2 MR. KAUP: Objection; form.
3 THE WITNESS: Yes, there is. I -- I did
4 not incorporate the material I received from Mr. Schaffer
5 into my report.
6 Q. BY M . CLAUS: So are you testifying, sir,
7 that you did not take into account when drafting your
8 final report the information and materials you received
9 from Mr. Schaffer?
10 A. I'm not sure what you mean by "take into
ll aocount." I had reached my conclusions. I communicated
l2 with Mr. Schaffer in order to determine whether an expert
13 who was current on securities law would agree with my
14 conclusions-
15 My conclusions were based upon review of
16 the memoranda that the defendants —· that Snell & Wilmer
17 wrote and produced in this case. All I was using
18 Mr. Schaffer for was to confirm that those memoranda were
19 correct and that my understanding of the securities laws,
20 relevant securities laws were correct, and also to confirm
21 citations from someone who was an expert and current on
22 securities laws.
23 Q. As a matter of fact, you knew you needed to
24 speak with a securities attorney in order to confirm your
25 opinions on securities law and get citations to include in
BOWLER REPORTING SERVICE
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115
1 the report, correct?
2 A. I wouldn‘t have done it unless I thought it
3 was necessary.
4 Q. As a matter of fact, because you were so
5 concerned about whether you could get the information you
6 needed from Mr. Schaffer, you asked »- you entreated
7 Mr- Kaup to get from us an extension on your report,
8 correct?
9 MR. KAUP: Objection; form.
10 THE WITNESS: That -~ that was one of the
11 reasons why I asked Mr. Kaup if we could get an extension.
12 Q. BY MR. CLAUS: And as a matcer of fact,
13 didn't you state in an e-mail dated November 28 to Chris
14 Kaup, “Chris, I have the feeling from talking to Fred
15 Schaffer that he is going to be hard pressed to be of much
16 help by Thursday. He didn‘t say. Just a feeling. It
17 sure would be helpful if we could get another week to get
18 this report in. Any chances of that?"?
19 You wrote that to Mr. Kaup, correct?
2D A. Yes.
21 Q. Because you wanted to incorporate the
22 information you received from Mr. Schaffer into your final
23 report, correct?
24 MR. KAUP: Objection; form.
25 THE WITNESS: That's incorrect.
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