Free Motion in Limine - 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. George C. Chen (019704) [email protected] Bryan Cave LLP Two North Central Avenue, Suite 2200 Phoenix, AZ 85004-4406 Tel: (602) 364-7367 Fax: (602) 364-7070 Attorneys for Lexcel, Inc. and Lexcel Solutions, Inc.

William McKinnon [email protected] 800 East Ocean Boulevard, Unit 501 Long Beach, California 90802-5449 Nicholas J. DiCarlo (016457) [email protected] DiCarlo Caserta & Phelps PLLC 6750 East Camelback Road, Suite 100-A Scottsdale, Arizona 85251 Attorneys for Plaintiff MTSI and Third Party Defendant Gene Clothier

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 LEXCEL, MTSI AND POST PARTIES' MOTION IN LIMINE NO. 3: MOTION TO EXCLUDE UNDISCLOSED EXPERT TESTIMONY FROM NELCELA'S EXPERT WITNESSES RE ALLEGED COPYING BY LEXCEL, INTEGRITY OF DISKETTES, AND CODEMATCH TOOL (Assigned to The Honorable Mary M. Murguia)

The Lexcel, MTSI and POST Parties move pursuant to Rules 37(c)(1) and 26(a)(2)(B) for an order precluding the Nelcela Parties from offering expert testimony on the following three topics: (1) that the Lexcel Parties copied any portion of the Nelcela Software, (2) that the 1994/1995 Lexcel floppy disks have not been altered, deleted, or otherwise manipulated, and (3) that the CodeMatch tool used by Robert Zeidman is not a commonly used tool or generally accepted within the relevant computer software community.
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Rule 26(a)(2)(B) required the Nelcela Parties' expert witnesses to prepare written reports containing "a complete statement of all opinions to be expressed and the basis and reasons therefor." FED.R.CIV.P. 26(a)(2)(B). And, Rule 37(c)(1) limits the Nelcela Parties from offering at trial any expert opinions not previously disclosed. FED.R.CIV.P. 37(c)(1); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001). Nelcela's experts did not identify in their reports a single word of the Nelcela Software that was supposedly copied by Lexcel. Likewise, neither of Nelcela's experts testified during their depositions that Lexcel copied any part of the Nelcela Software. To the contrary, Nelcela's expert Jeffrey Pell testified that he found no evidence that the Lexcel software came from any source other than Lexcel. (Deposition of J. Pell, Exhibit 1, at p. 175 ln.18 ­ p. 176 ln.5.) Likewise, none of Nelcela's experts identified in their reports or at their depositions that they had formed any opinion regarding whether the 1994/1995 Lexcel floppy disks that they examined had been altered, deleted, or manipulated, nor have they disclosed "the basis and reasons" for such an opinion, as required by Rule 26(a)(2)(B). And, Nelcela's experts also did not opine on the comparison tool (called "CodeMatch") used by Robert Zeidman in his deposition or testify to any opinions about its acceptance in the computer software community. Indeed, when asked whether he had any opinions regarding Mr. Zeidman's report, Mr. Pell ­ the expert Nelcela has now stated will opine on CodeMatch ­ stated that he did not have any opinions about Mr. Zeidman's report or analysis at that time. (Deposition of J. Pell, Exhibit 1, at p. 89 lns. 320.) Despite the fact that no such opinions on these issues were disclosed by Nelcela, they have now included these issues in their summary of their expected expert testimony (see Exhibit 3 to the Joint Proposed Pretrial Order). Because the opinions were not timely disclosed, Rules 26(a)(2)(B) and 37(c)(1) prohibit Nelcela's experts from testifying at trial to any of the following opinions: (1) that Lexcel copied any part of the
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Nelcela Software, (2) that the 1994/1995 Lexcel floppy disks were not altered, deleted, or manipulated, and (3) that the Code Match software used by POST's expert, Robert Zeidman, is not a commonly-used tool or generally accepted within the relevant computer software community. RESPECTFULLY SUBMITTED January 19, 2007. BRYAN CAVE LLP By s/ George C. Chen George C. Chen Attorneys for Lexcel, Inc. and Lexcel Solutions, Inc. DICARLO CASERTA & PHELPS PLLC Nicholas J. DiCarlo and LAW OFFICES OF WILLIAM McKINNON By s/ William McKinnon William McKinnon Attorneys for Merchant Transaction Systems, Inc., Gene Clothier, and Tone Clothier 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

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CERTIFICATE OF SERVICE I hereby certify that on January 19, 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] RONAN & FIRESTONE, PLC 9300 East Raintree Drive, Suite 120 Scottsdale, Arizona 85260 Attorneys for Defendants Nelcela Incorporated, Alec Dollarhide, and Len Campagna

s/ Debi Garrett

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