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. 1: MOTION TO EXCLUDE THE TESTIMONY OF KEVIN FAULKNER (Assigned to The Honorable Mary M. Murguia)

The Lexcel, MTSI and POST Parties move pursuant to Rules 26(a)(2)(B) and 37(c)(1) for an order precluding the Nelcela Parties from offering the testimony of Kevin Faulkner on all subjects, particularly regarding the expert opinions disclosed in the report he co-authored with Robert DeCicco. The Nelcela Parties offered a different expert witness for deposition, and refused to allow the deposition of Mr. Faulkner. Accordingly, Mr. Faulkner should not be allowed to testify at trial.

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MEMORANDUM OF POINTS AND AUTHORITIES Unhappy with the deposition testimony of their designated expert witness, Robert DeCicco, Nelcela seeks to offer at trial the testimony of a different witness, Kevin Faulkner. But, Mr. DeCicco still works as an expert witness ­ he is employed by FTI Consulting, a nationwide consulting firm with offices in Phoenix. (Biography of Mr. DeCicco from FTI Consulting Website, attached as Exhibit 1.) And Nelcela has failed to make Mr. Faulkner available for a deposition despite repeated efforts by the Joint Parties to depose him. Given Nelcela's designation of Mr. DeCicco to testify as its software expert during the deposition, Mr. DeCicco's continued availability as a witness, and Nelcela's failure to allow a deposition of Mr. Faulkner, Mr. Faulkner should not be allowed to testify at trial. I. THE FACTS In June 2005, the Nelcela Parties notified the other parties of Nelcela's intent to use Paul Lewis of the firm P.G. Lewis & Associates LLC as an independent expert to analyze the computer software at issue in this case. Accordingly, in September 2005, the POST Parties sought to depose either Mr. Lewis or whoever "will be the testifying expert witness for P.G. Lewis & Associates, LLC." (Sept. 21, 2005 letter from R. Halloran, attached as Exhibit 2.) A few days later, Nelcela disclosed Paul Lewis as their expert witness and an expert report co-authored by two P.G. Lewis employees, Kevin Faulkner and Robert DeCicco. (Sept. 26, 2005 E-mail from V. Manolio, attached as Exhibit 3.) In response to Nelcela's disclosures, we again sought to depose whoever was going to be Nelcela's actual testifying expert witness. Nelcela chose to offer only Robert DeCicco for a deposition. At the deposition, we began by making sure that only Mr. DeCicco, and not Mr. Faulkner, was going to be called to testify as an expert witness at trial. (Deposition of Robert DeCicco, attached as Exhibit 4, at p.7 ln.22 ­ p.12 ln.23.) In response, Nelcela's counsel stated unequivocally that Mr. DeCicco would be the sole witness and that Mr. Faulkner would not be called to testify at trial. That exchange concluded as follows:
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MR. HALLORAN: So let me ask you, Merrick, is Mr. DeCicco the witness who's going to be testifying or -- or is Mr. Faulkner also going to be offered? MR. FIRESTONE: He's going to testify to the report that has been produced in this case. MR. HALLORAN: Okay. Because you had told me yesterday that they were both going to be here. MR. FIRESTONE: They both are present in the state, correct. MR. HALLORAN: But Mr. DeCicco is going to be the sole witness? MR. FIRESTONE: Correct. (Exhibit 4 at p.12 lns.12-23 (emphasis added)). Accordingly, the Joint Parties proceeded to depose Mr. DeCicco. On October 14, 2005, discovery closed without Mr. Faulkner having been made available for a deposition. On May 1, 2006, after summary judgment motions had been filed, and the testimony of Mr. DeCicco relied upon substantially by the Joint Parties, Nelcela gave notice of their intent to drop Mr. DeCicco and instead use Mr. Faulkner as their expert witness at trial. (May 1, 2006 E-mail from V. Manolio, attached as Exhibit 5.) The POST Parties immediately objected to this change because we were never given the opportunity to depose Mr. Faulkner. (May 2, 2006 E-mail from R. Halloran, attached as Exhibit 6.) In response, Nelcela offered to permit the deposition of Mr. Faulkner, but only "after summary judgment on Phase I is determined." (May 4, 2006 E-mail from V. Manolio, attached as Exhibit 7.) Following resolution of the parties' summary judgment motions, the Joint Parties again requested to depose Mr. Faulkner. (Nov. 28, 2006 letter from K. Demarchi, attached as Exhibit 8.) After a repeated exchange of correspondence in which we agreed to allow a supplemental deposition of our expert Robert Zeidman in exchange for the deposition of Mr. Faulkner regarding his supplemental report, Nelcela asked for a stipulation seeking an order from this Court allowing the depositions of Mr. Faulkner and Mr. Zeidman. We drafted the requested stipulation, but it was then curtly rejected by Nelcela. (Dec. 13, 2006 E-mail from V. Manolio, attached as Exhibit 9.)
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To this day, Mr. Faulkner has never been made available by Nelcela for a deposition. II. THE LAW The Nelcela Parties' effort to switch their experts at the last minute, coupled with their unreasonable failure to agree to a supplemental deposition of Mr. Faulkner, renders Mr. Faulkner's testimony entirely inadmissible. Nelcela designated Robert DeCicco as their software expert and allowed the deposition of only Mr. DeCicco. But Nelcela did not like what Mr. DeCicco had to say at his deposition. Among other things, Mr. DeCicco testified that he does not doubt that Nelcela copied Lexcel's software: Q. And Dr. Posner's conclusion was that Nelcela copied the Lexcel files, right? A. I believe that was his conclusion, yes. Q. And you don't have any reason to doubt that conclusion, do you, sir? MR. FIRESTONE: Object to form. THE WITNESS: I don't particularly have a reason to doubt it. (Deposition of Robert DeCicco, attached as Exhibit 4, at p. 139 ln.22 - p. 140 ln.4.) It was only when the Joint Parties brought this testimony to the Court's attention in their summary judgment motions that Nelcela sought to dump Mr. DeCicco as their expert, and switch instead to Mr. Faulkner. Discovery however, had long been closed, and the Nelcela Parties have never allowed the deposition of Mr. Faulkner. Accordingly, Mr. Faulkner cannot testify at trial. Rule 26 expressly provides that parties are entitled to "depose any person who has been identified as an expert whose opinions may be presented at trial." FED.R.CIV.P. 26(b)(4)(A). In accordance with Rule 26, Nelcela has allowed the deposition of Mr. DeCicco but not Mr. Faulkner. Consequently, Rule 26 allows only Mr. DeCicco to testify at trial. See Small v. General Motors Corp., No. 05-131-P-H, 2006 WL 3332989, at *3-5 (D. Me, Nov. 15, 2006) (striking expert witness "on the basis of the plaintiff's failure to produce him for deposition prior to expiration of the parties' discovery deadline"); Gainor v. Douglas County, Georgia, 59 F. Supp. 2d 1259, 1297 (N.D. Ga.
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1998) (excluding expert testimony because plaintiff failed to make expert available for deposition within the discovery period). Accordingly, the Court should enter an order in limine precluding Kevin Faulkner from testifying as an expert witness at trial. 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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Case 2:02-cv-01954-MHM

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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