Free Response to Motion - District Court of Arizona - Arizona

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Peter D. Baird (001978) [email protected] Robert H. McKirgan (011636) [email protected] Richard A. Halloran (013858) [email protected] Kimberly A. Demarchi (020428) [email protected] Lewis and Roca LLP 40 North Central Avenue Phoenix, Arizona 85004-4429 Facsimile (602) 734-3746 Telephone (602) 262-5311 Attorneys for POST Integrations, Inc., et al.

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Merchant Transaction Systems, Inc., Plaintiff, vs. Nelcela, Inc., et al., Defendants. And Related Counterclaims, Cross-Claims, and Third-Party Claims. ) ) ) ) ) ) ) ) ) ) ) ) No. CIV 02-1954-PHX-MHM THE POST PARTIES' RESPONSE TO THE NELCELA PARTIES' "SUPPLEMENT TO ITS MOTION IN LIMINE NO. 1"

(Assigned to The Honorable Mary M. Murguia)

The POST Parties respond separately to Nelcela's "Supplement to Its Motion in Limine No. 1" because Nelcela's Supplement is not germane to the motion in limine, but rather is a belated attempt to allege a discovery dispute. What is worse is that Nelcela's allegation that we "withheld" information from them is just not true. Nelcela complains about "pure text files" contained on a CD we delivered to them on January 26, 2007. As a courtesy, we delivered that CD to Nelcela's counsel because Nelcela alleged in their Motion in Limine No. 1 that they did not have those files. Thereafter, we doubled checked our prior disclosures, and confirmed that the files on that CD were previously produced to Nelcela on September 30, 2005 along with the rest of the information requested by Nelcela from POST's expert witness, Robert Zeidman. (See Ex. 1).1
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We notified Nelcela's counsel on January 29, 2007 that the files were previously produced to them, and asked them to withdraw their Supplement.
Case 2:02-cv-01954-MHM Document 439 Filed 02/02/2007 Page 1 of 3

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In short, the premise of Nelcela's Supplement is unfounded. They have had the files they complain of for more than a year. RESPECTFULLY SUBMITTED February 2, 2007. LEWIS AND ROCA LLP By s/ Richard A. Halloran Peter D. Baird Robert H. McKirgan Richard A. Halloran Kimberly A. Demarchi Attorneys for POST Integrations, Inc., Ebocom, Inc., Mary L. Gerdts, and Douglas McKinney

Case 2:02-cv-01954-MHM

Document 439

Filed 02/02/2007

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Case 2:02-cv-01954-MHM

CERTIFICATE OF SERVICE I hereby certify that on February 2, 2007, I electronically transmitted the attached document 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: Merrick B. Firestone [email protected] Veronica L. Manolio [email protected] Attorneys for Defendants Nelcela Incorporated, Alec Dollarhide, and Len Campagna George C. Chen [email protected] Attorneys for Lexcel, Inc. and Lexcel Solutions, Inc. William McKinnon [email protected] Nicholas J. DiCarlo [email protected] Attorneys for Plaintiff MTSI and Third Party Defendant Gene Clothier

s/ Diana Clauser

Document 439

Filed 02/02/2007

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