Free Stipulation - District Court of Arizona - Arizona

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Christopher R. Kaup State Bar No. 014820 Jeffrey A. Sandell State Bar No. 020658
third floor camelback esplanade II 2525 east camelback road PHOENIX, ARIZONA 85016-4237 TELEPHONE: (602) 255-6024 FACSIMILE: (602) 255-0103

Special Counsel for Visitalk.com and Counsel for Biltmore Associates, Trustee of the Visitalk Creditors' Trust UNITED STATES DISTRICT COURT

9 DISTRICT OF ARIZONA 10 11 12 13 14 15 16 17 18 19 20 21 22 following reasons: 23 1. 24 recently a large volume of e-mail recovered from a computer hard drive by a computer forensics 25 26 and data recovery company in the late summer of 2005. Counsel for Plaintiff and Counsel for Snell & Wilmer have been reviewing Plaintiff Biltmore Associates, at the Trustee for the Visitalk Creditors' Trust, and Defendant Snell & Wilmer stipulate and jointly move to extend the discovery cut-off date until July 31, 2006, and other pretrial deadlines in this case by an equivalent period of 130 days for the v. PETER THIMMESCH and CYNTHIA THIMMESCH, husband and wife; MICHAEL O'DONNELL and MARSHA O'DONNELL, husband and wife; et al., Defendants. BILTMORE ASSOCIATES, as Trustee for the Visitalk Creditors' Trust, Plaintiff, Case No. 02-2405-PHX-HRH STIPULATED MOTION TO EXTEND DISCOVERY DEADLINES (Assigned to the Honorable H. Russel Holland)

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2.

Pursuant to the authority granted by the Court's Order, the Plaintiff filed its

Second Amended Complaint on November 30, 2005 and Defendant Snell & Wilmer timely filed an Answer to the Second Amended Complaint on December 12, 2005. The parties have

continued with discovery on the matters pled in the Second Amended Complaint and the denials of Snell & Wilmer contained in its Answer thereto. 3. The documents that have thus far been exchanged in this case, including

electronic material, are extremely voluminous, and therefore the parties reasonably believe that more extensive discovery will be necessary than what was projected during the earlier stages of

9 this matter. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 5. 24 parties and nonparty witnesses have been taken. Interrogatories and other written discovery have 25 26 been propounded and responded to by Plaintiff and Snell & Wilmer. Voluminous documents The moving parties have diligently pursued discovery. Many depositions of 4. Numerous depositions of critical witnesses have been taken by the parties thus

far. Several other depositions have been noticed and set by Plaintiff and Snell & Wilmer. However, it is now apparent, that all necessary depositions can not be completed prior to the discovery cut off date of March 20, 2006, due to scheduling conflicts. For example, the

deposition of Defendant Peter Thimmesch, also a critical witness, was commenced but could not be completed during the time allotted. The parties agreed to complete Mr. Thimmesch's

deposition on March 7, 2006, in Washington, D.C., as he is a resident of Virginia. However, several days prior to his continued deposition, Mr. Thimmesch informed counsel for Snell & Wilmer and counsel for Plaintiff that he was still in Mongolia on business and, as a result, could not attend his deposition on March 7. Despite diligent efforts, the parties have not yet been able to obtain a new date on which Mr. Thimmesch will be available for his deposition and counsel for the parties is able to travel to Washington, D.C.

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have been exchanged. In addition to the deposition of Mr. Thimmesch, several other depositions of important witnesses need to be conducted. The parties also have not been able to schedule the deposition of another nonparty witness, a Chicago area resident, until June, 2006. The moving parties reasonably believe that additional time is necessary to complete discovery, and are not seeking an extension for the purpose of a delay. Indeed, the moving parties do not believe an extension of the discovery time will unnecessarily protract this litigation or prejudice any party. 6. Plaintiff has also been diligently negotiating with a number of defendants to

consensually resolve claims and narrow the issues to be tried. A number of stipulations resulting 9 in stipulated judgments against several parties have been submitted to and entered by the Court. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 /// 24 /// 25 26 /// Also, a settlement between Plaintiff and MP3.com, Inc. was recently reached and all appropriate documents relating to that agreement were recently filed with and entered by the Court. Plaintiff also expects to submit another stipulation with another party in the near future. These

settlements have reduced significantly the large number of complex issues to be litigated and eventually tried in this case. 7. Counsel for Plaintiff and counsel for Snell & Wilmer have personally consulted

regarding the proposed extension, and have reached an agreement regarding the extension after such personal consultation. For all foregoing reasons, the moving parties jointly and respectfully request that the Court enter its Order extending the discovery cut-off date until July 31, 2006, and other pretrial deadlines in this case by an equivalent and other pretrial deadlines for a period of 130 days. ///

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RESPECTFULLY SUBMITTED this 10th day of March, 2006.

TIFFANY & BOSCO, P.A. /s/ C.R.K. #014820 By: ____________________________________ Christopher R. Kaup, Esq. Jeffrey A. Sandell, Esq. Third Floor Camelback Esplanade II 2525 East Camelback Road Phoenix, Arizona 85016-4237 Special Counsel for Visitalk.com and Counsel for Biltmore Associates, Trustee of the Visitalk Creditors' Trust

MARISCAL, WEEKS, McINTYRE & FREIDLANDER, P.A. /s/ Timothy Thomason By: ____________________________________ Timothy Thomason Charles S. Price Mariscal, Weeks, Mcintyre & Friedlander, P.A. 2901 N. Central Avenue, Suite 200 Phoenix, AZ 85012 Attorneys for Defendant Snell & Wilmer, LLP

ORIGINAL of this pleading electronically filed with the Court on this 10th of March, 2006.

and copies electronically mailed this 10th day of March, 2006, to: Douglas F. Behm Brian N. Spector Jennings, Strouss & Salmon 201 E. Washington, 11th Floor Phoenix, AZ 85004 Attorneys for Defendant MP3.com, Inc.

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Gary L. Birnbaum Timothy J. Thomason Mariscal, Weeks, McIntyre & Friedlander, P.A. 2901 N. Central Avenue, Suite 200 Phoenix, AZ 85012 Attorneys for Defendant Snell & Wilmer, LLP Joseph E Mais Perkins Coie Brown Bain P.A. PO Box 400 Phoenix, AZ 85001-0400 Attorneys for Defendant Michael and Marcia O'Donnell

and copies mailed via U.S. First Class Mail this 10th day of March, 2006, to: Peter Thimmesch 11337 Stonehouse Place Potomac Falls, VA 20165-5123 Pro Per Vern Schweigert Biltmore Associates 1121 E. Missouri Avenue #100 Phoenix, AZ 85014 Creditors' Trustee Dean M. Dinner, Esq. JENNINGS, HAUG & CUNNINGHAM, LLP 2800 North Central Avenue, Suite 1800 Phoenix, Arizona 85004-1049

/s/ Stephanie A. Martinez __________________________________

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