Free Notice of Filing Proposed Pretrial Order - District Court of Arizona - Arizona

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EXHIBIT 1 - LIST OF WITNESSES Witnesses Who Shall be Called at Trial 1. Leonard Campagna c/o Merrick B. Firestone Law Offices Ronan & Firestone, PLC 9300 E. Raintree Drive, Suite 120 Scottsdale, Arizona 85260 Telephone (480) 222-9100

Mr. Campagna is a fact witness who will be called by all parties.

The MTSI, Lexcel, and POST Parties will call Mr. Campagna to testify regarding 8 Nelcela's copying of the Lexcel software, including (a) the circumstances surrounding the creation of the so-called Nelcela software, and (b) the circumstances surrounding 9 Nelcela's possession of Lexcel source code. Mr. Campagna will also testify regarding Nelcela's destruction of evidence. 10 Nelcela will call Mr. Campagna to testify to the creation of the Nelcela software, 11 including the date(s) of creation, the time invested in the creation, and the copyrighting of the various softwares. Mr. Campagna will establish that Nelcela did not derive its code, 12 in whole or part, from Lexcel. 13 14 15 16 2. Robert C. DeCicco 3 Times Square 11th Floor New York, NY 10036 Telephone: (212) 247-1010

Mr. DeCicco is an expert witness who was retained by the Nelcela Parties to opine, among other things, on whether the Nelcela software was copied from the Lexcel 17 software. The MTSI, Lexcel, and POST Parties will call Mr. DeCicco to testify that the Nelcela software and Lexcel software contain common elements which first appeared in 18 the Lexcel software. 19 Nelcela disagrees that Robert DeCicco can be called at trial as it has been disclosed for months that Robert DeCicco left employment by P.G. Lewis & Associates 20 (which is now, "Protiviti" due to a merger/buyout of the P.G. Lewis firm). Nelcela intends to use expert Kevin Faulkner, an expert witness who has always been disclosed 21 and has been made available to be deposed, in place of Robert DeCicco. 22 23 24 25 26 3. Alec Dollarhide c/o Merrick B. Firestone Law Offices Ronan & Firestone, PLC 9300 E. Raintree Drive, Suite 120 Scottsdale, Arizona 85260 Telephone (480) 222-9100

Mr. Dollarhide is a fact witness who will be called by all parties.

The MTSI, Lexcel, and POST Parties will call Mr. Dollarhide to testify regarding 27 Nelcela's copying of the Lexcel software, including (a) the circumstances surrounding the creation of the so-called Nelcela software, (b) the circumstances surrounding the 28 creation of the Lexcel software including Lexcel's performance of the License/Use
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Agreement with CCS, Ltd. and Mr. Dollarhide's use of the Lexcel offices, and (c) the circumstances surrounding Nelcela's possession of Lexcel source code. Mr. Dollarhide will also testify regarding Nelcela's destruction of evidence. Nelcela will call Mr. Dollarhide to testify about his experience working alongside Lexcel and Carl Kubitz, the inoperable software/code that Lexcel attempted to write, the creation of Nelcela and the investment of time and energy in developing Nelcela's code. Mr. Dollarhide will testify that the Nelcela Merchant Suites is not derivative of or copied from any of Lexcel's software. 4. Kevin Faulkner 225 Route 22 East One Salem Square ­ Suite 201 West Whitehouse Station, NJ 08889 Telephone: (908) 823-0005

Mr. Faulkner was retained simultaneously with Mr. DeCicco and worked to prepare the expert report that has been provided. The Nelcela Parties will call Mr. Faulkner to testify that the Nelcela Merchant Suites software is not copied from, derivative, or otherwise owned by Lexcel. The Lexcel 1994/1995 floppy disks do not contain any software that could "process credit card transactions," and Nelcela's Merchant Suites Software was the first in time produced in this lawsuit. Mr. Faulkner will also opine that Post possesses and has continued to maintain portions of its current software that were created by Nelcela. The MTSI, Lexcel, and POST Parties object to any testimony by Mr. Faulkner, as stated in their motion in limine to exclude his testimony. 5. Jeffrey M. Pell 7979 E. Princess, #7 Scottsdale, Arizona 85255 Telephone: (602) 315-4379

Mr. Pell is expected to testify consistent with the expert report he prepared, consistent with his previous deposition testimony, and related to all of the topics more fully described in Exhibit C hereto, the Summary of Testimony by this expert witness. 6. Mary Gerdts c/o Richard A. Halloran Lewis and Roca LLP 40 North Central Avenue Phoenix, Arizona 85004-4429 Telephone (602) 262-5311

Nelcela intends to call Ms. Gerdts if the joint parties do not. Her testimony will establish that Post did not create its own software, Post did not change software when ordered by the State Court in the earlier proceedings in this action, and that she personally solicited Carl and Flora "Pete" Kubitz, Gene Clothier and Danielle Huffman into participation in this litigation. 2
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Ms. Gerdts is a fact witness who may be called by the MTSI, Lexcel, and POST Parties to testify regarding (a) communications with the Nelcela Parties, (b) communications with Carl and Flora Kubitz, (c) communications with MTSI Parties, and (d) the creation of the POST software. 7. Carl Kubitz c/o George Chen Bryan Cave LLP Two North Central Avenue, Suite 2200 Phoenix, AZ 85004-4406 Telephone: (602) 364-7367

Mr. Kubitz is both a fact and expert witness who will be called by the MTSI, Lexcel, and POST Parties to testify regarding the copying of the Lexcel software, including (a) the creation of the Lexcel software, (b) the performance of the License/Use Agreement with CCS, Ltd., (c) the services rendered by Alec Dollarhide while working at the Lexcel offices, (d) the proprietary nature of the elements of the Lexcel software copied by Nelcela, (e) Lexcel's registration and ownership of copyrights in the Lexcel software, (f) communications with Alec Dollarhide and Leonard Campagna, and (g) the other matters set forth in his declaration. Nelcela will call Mr. Kubitz if the joint parties determine not to call him.

8.

Flora Ruth Kubitz c/o George Chen Bryan Cave LLP Two North Central Avenue, Suite 2200 Phoenix, AZ 85004-4406 Telephone: (602) 364-7367

Nelcela intends to call Ms. Kubitz if the joint parties do not. Mrs. Kubitz will show that Lexcel did not have an operable credit card processing software in 1994/1995 and that the floppy disks Lexcel provided to dot contain a Merchant System. Mrs. Kubitz will also have to testify that her/Lexcel's involvement in this matter is at the behest of Mary Gerdts/Post and Post's counsel. Ms. Kubitz is a fact witness who may be called by the MTSI, Lexcel, and POST Parties to testify regarding (a) communications with the Nelcela Parties, (b) communications with the POST Parties, (c) communications with MTSI Parties, (d) the creation of the Lexcel software, and (e) the other matters set forth in her declaration.

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9.

Robert Zeidman 7599 Squirewood Way Cupertino, Ca 95014 Telephone (408) 255-9279

Mr. Zeidman is an expert witness who will be called by the MTSI, Lexcel, and POST Parties to testify regarding the matters set forth in Mr. Zeidman's expert report, addendum, and accompanying materials. The Nelcela parties may also call Mr. Zeidman as a trial witness should the joint parties decide not to call him. Nelcela may be able to introduce Mr. Zeidman's deposition testimony in lieu of live testimony, see, fn. 1, supra., and will endeavor to do that if it is possible. B. Witnesses Who May be Called at Trial1 10. Charles Anderson c/o Merrick B. Firestone Law Offices Ronan & Firestone, PLC 9300 E. Raintree Drive, Suite 120 Scottsdale, Arizona 85260 Telephone (480) 222-9100

Nelcela may call Mr. Anderson to establish that he entered into a written agreement with Alec Dollarhide in May 1995, giving Mr. Dollarhide express authority to own any software that Mr. Dollarhide developed, even if CCS employed him at the time of creation of such software. Mr. Anderson will testify that the Nelcela software was not derivative of the Lexcel software, and that the 1994/1995 Lexcel software was not a functioning, operable Merchant System. He will testify that Lexcel was sued because its software did not work. The MTSI, Lexcel, and POST Parties reserve the right to call Mr. Anderson as a fact witness to testify that he understood the agreement between Lexcel and CCS to vest all ownership of the Lexcel Software in Lexcel and that he could not have given Alec Dollarhide the right to own modifications to or derivations of the Lexcel software. 11. Gene Clothier c/o William McKinnon 800 East Ocean Boulevard, Unit 501 Long Beach, California 90802-5449

The Nelcela parties reserve the right to call Mr. Clothier and believe he may be called to testify about Alec Dollarhide's employment by CCS and MTSI and that MTSI expressly (repeatedly) denied using any software that was written by or derivative of work by Lexcel. Mr. Clothier will establish that only a Merchant System was in use at MTSI, not Authorization software.

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The Nelcela parties intend to designate portions of depositions for many of the witnesses in the "May be called" category and will attempt to limit calling any of these potential witnesses is possible. However, Nelcela expressly reserves its right(s) to call any of these witnesses should live testimony be necessary, even if Nelcela has previously designated deposition portions. 4 1800127.2
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The MTSI, Lexcel, and POST Parties reserve the right to call Mr. Clothier as a fact witness to testify regarding (a) the acquisition of CCS, (b) the employment of Alec Dollarhide by CCS and MTSI, and (c) the MTSI source code. 12. Ray K. Harris Fennemore Craig PC 3003 N. Central Avenue Phoenix, Arizona 85012 Telephone (602) 916-5414

Mr. Harris is a fact witness who may be called by the MTSI, Lexcel, and POST Parties to testify regarding (a) communications with the Nelcela Parties, and (b) the copyright applications prepared and submitted for the Nelcela Parties. Nelcela reserves the right to call this witness. 13. Robert Lerche c/o William McKinnon 800 East Ocean Boulevard, Unit 501 Long Beach, California 90802-5449

Mr. Lerche is an expert witness who may be called by the MTSI, Lexcel, and POST Parties to testify regarding the matters set forth in Mr. Lerche's expert report and accompanying materials. Nelcela does not presently intend to call Mr. Lerche but reserves its right to do so. 14. Ramana Malladi c/o Richard A. Halloran Lewis and Roca LLP 40 North Central Avenue Phoenix, Arizona 85004-4429 Telephone (602) 262-5311

Mr. Malladi is a fact witness who may be called by the MTSI, Lexcel, and POST Parties to testify regarding (a) communications with the Nelcela Parties, and (b) the creation of the POST software. Nelcela does not presently intend to call Mr. Malladi but reserves its right to do so. 15. Douglas McKinney c/o Richard A. Halloran Lewis and Roca LLP 40 North Central Avenue Phoenix, Arizona 85004-4429 Telephone (602) 262-5311

Mr. McKinney is a fact witness who may be called by the MTSI, Lexcel, and POST Parties to testify regarding (a) communications with the Nelcela Parties, (b) communications with Carl and Flora Kubitz, (c) communications with MTSI Parties, and (d) Alec Dollarhide's use of and access to the Lexcel offices, and (e) the creation of the Lexcel software. Nelcela does not intend to call Mr. McKinney but reserves its right to do so. 5 1800127.2
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16.

David B. Posner, Ph.D. c/o George Chen Bryan Cave LLP Two North Central Avenue, Suite 2200 Phoenix, AZ 85004-4406 Telephone: (602) 364-7367

Dr. Posner is an expert witness who may be called by the MTSI, Lexcel, and POST Parties to testify regarding the matters set forth in Dr. Posner's expert report and accompanying materials. The Nelcela parties may also call Dr. Posner should the joint parties decide not to call him. 17. William J. Flynn c/o Richard A. Halloran Lewis and Roca LLP 40 North Central Avenue Phoenix, Arizona 85004-4429 Telephone (602) 262-5311

The MTSI, Lexcel, and POST Parties may call Mr. Flynn as an expert witness to testify to his opinion that Exhibit 5, the alleged copy of an April 1995 agreement between Alec Dollarhide and Charles Anderson, has been altered from the original document. 18. Anton Litchfield c/o Richard A. Halloran Lewis and Roca LLP 40 North Central Avenue Phoenix, Arizona 85004-4429 Telephone (602) 262-5311

The MTSI, Lexcel, and POST Parties may call Mr. Litchfield as an expert witness to testify to his opinion regarding the information contained on the computer hard drives destroyed by Mr. Dollarhide after the commencement of litigation. C. Witnesses Who Are Unlikely to be Called at Trial 19. Anthony Dollarhide c/o Merrick B. Firestone Law Offices Ronan & Firestone, PLC 9300 E. Raintree Drive, Suite 120 Scottsdale, Arizona 85260 Telephone (480) 222-9100

The MTSI, Lexcel, and POST Parties reserve the right to call Mr. Dollarhide as a fact witness to testify regarding (a) the creation of the so-called Nelcela software, and (b) the copying of the Lexcel and MTSI software. 20. Jac Dollarhide c/o Merrick B. Firestone Law Offices Ronan & Firestone, PLC 6
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9300 E. Raintree Drive, Suite 120 Scottsdale, Arizona 85260 Telephone (480) 222-9100 The MTSI, Lexcel, and POST Parties reserve the right to call Mr. Dollarhide as a fact witness to testify regarding (a) the creation of the so-called Nelcela software, and (b) the copying of the Lexcel and MTSI software. 21. Todd Hegstrom POST Integrations 3131 East Camelback Road Suite 320 Phoenix, Arizona 85016 Telephone (800) 921-9444

The MTSI, Lexcel, and POST Parties reserve the right to call Mr. Hegstrom as a fact witness to testify regarding the POST software. 22. Danielle Huffman c/o William McKinnon 800 East Ocean Boulevard, Unit 501 Long Beach, California 90802-5449

The MTSI, Lexcel, and POST Parties reserve the right to call Ms. Huffman as a fact witness to testify regarding (a) the acquisition of CCS, (b) the employment of Alec Dollarhide by CCS and MTSI, and (c) the MTSI source code. 23. Steven Pile c/o Merrick B. Firestone Law Offices Ronan & Firestone, PLC 9300 E. Raintree Drive, Suite 120 Scottsdale, Arizona 85260 Telephone (480) 222-9100

The MTSI, Lexcel, and POST Parties reserve the right to call Mr. Pile as a fact witness to testify regarding (a) the creation of the so-called Nelcela software, and (b) the copying of the Lexcel and MTSI software. 24. Charles Anderson c/o Merrick B. Firestone Law Offices Ronan & Firestone, PLC 9300 E. Raintree Drive, Suite 120 Scottsdale, Arizona 85260 Telephone (480) 222-9100

The MTSI, Lexcel, and POST Parties reserve the right to call Mr. Anderson as a fact witness to testify that he understood the agreement between Lexcel and CCS to vest all ownership of the Lexcel Software in Lexcel and that he could not have given Alec Dollarhide the right to own modifications to or derivations of the Lexcel software.

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25.

Rose Ana Iniguez POST Integrations 3131 East Camelback Road Suite 320 Phoenix, Arizona 85016 Telephone (800) 921-9444

Nelcela reserves the right to call Ms. Iniquez as a fact witness to testify regarding the POST software and/or her deposition previously given in this case.

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EXHIBIT 2 SUMMARY OF THE QUALIFICATIONS AND TESTIMONY OF THE MTSI, LEXCEL, AND POST PARTIES' EXPERT WITNESSES A. Robert Lerche 1. Summary of Background

Mr. Lerche is the President of MSB Associates, a consulting company founded in 1992, based in San Mateo, California, specializing in networking, client/server systems, database systems, software development, project management, system design and computer system security. Mr. Lerche has over 30 years of experience in software development, including management of software development projects, design and implementation of complex systems, and debugging of both hardware and software in a wide variety of environments, ranging from embedded microprocessor systems to mainframes. Mr. Lerche has been responsible for all aspects of the development process, from design through implementation and test to release and customer support. Mr. Lerche has extensive experience in database systems and client/server applications. For Apple Computer in 1994, he re-implemented a custom application for tracking developer technical support requests, using an Oracle back end and Brio clients. In 1998, he led an MSB Associates team in developing a prototype system supporting private capital investment by qualified investors for OffRoad Capital, Inc., providing users a world-wide web interface (via Stronghold, a commercial version of the Apache web server), with a database back end (initially PostgreSQL, later replaced with Oracle). Mr. Lerche is familiar with a wide range of programming languages including C, Pascal, Basic, Perl, PL/I, Snobol, and the assembly languages of a large number of processors including Intel x86, Motorola 68000, MIPS R3000, IBM System/370, Motorola PowerPC, and Zilog Z-80. Mr. Lerche has been directly involved in the customization of existing software applications as well as the complete development of custom systems.

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2.

Summary of Testimony

Mr. Lerche will testify that the so-called Nelcela software was derived from the MTSI software. There is substantial similarity between the source code produced by MTSI and that produced by Nelcela. They share many elements in common, indicating copying. And, comments in a Nelcela source file indicate that some code in that file was derived from MTSI code. B. David B. Posner, Ph.D. 1. Summary of Background

Dr. Posner is the co-founder and Chief Scientist at Encirq Inc., a software company founded in 1997 and based in Burlingame, California, which develops and markets a database management system and related development tools and components to the embedded systems market. Encirq's customers include Delphi Electronics, Toyota, Kyocera, Fujitsu, and other major manufacturers. Prior to founding Encirq, Dr. Posner was a Principle Member of Technical Staff at Oracle Inc. for a total of five years. For approximately three of those years Dr. Posner was a lead developer in the programming languages development group designing and implementing components of Oracle's stored procedure programming language, PL/SQL. For the other two years he was lead database developer for Oracle's Internet Commerce Server, a complete system for creating, deploying, and managing web based retail stores. Between 1982 and 1992 Dr. Posner was lead developer and manager at companies specializing in the development and marketing of programming language development tools and compilers. Dr. Posner received a Ph.D. in mathematics with a specialty in computation theory and logic, in 1977 from the University of California at Berkeley. Following that he was a Dickson Instructor of Mathematics at the University of Chicago and an Associate Professor of computer science and mathematics at San Jose State University. Dr. Posner is an expert in virtually all topics related to computer programming, programming languages, and database systems.

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2.

Summary of Testimony

The Lexcel software and Nelcela software systems share significant amounts of source code. This sharing is not simply at the program structure level but extends to the exact naming, formatting and commenting of the source, and includes common tables and table elements. It is inconceivable that this degree of sharing could have been the result of random chance. Thus some form of copying occurred. Either Lexcel directly or indirectly copied from Nelcela, or Nelcela directly or indirectly copied from Lexcel, or both Nelcela and Lexcel copied from some third party. The evidence is overwhelming that of the two alternatives, Nelcela copying from Lexcel was the case. The Lexcel and MTSI software also contain significant amounts of shared source code including common tables and table elements. C. Robert Zeidman 1. Summary of Background

Mr. Zeidman is an engineer and the founder and president of Zeidman Consulting, which provides engineering consulting and hardware and software design to high-tech companies. Mr. Zeidman holds a Master's degree from Stanford University in Electrical Engineering, and two Bachelor's degrees from Cornell University, one in Electrical Engineering and one in Physics. Mr. Zeidman has been a computer software and hardware designer since 1983. From that time until the present he has designed and developed a variety of computer hardware and software. The software products include Internet-based training courses and web-based course administration software, an operating system synthesis tool, a source code comparison tool, a network emulation software bridge,and a remote backup system whereby user data is automatically transmitted and stored at a remote location. Mr. Zeidman is the developer of the Universal Design Methodology, a process for efficiently developing reliable systems, about which he has written extensively. He has also developed a product named CodeMatchTM that compares multiple files containing computer program source code in order to assist experts in pinpointing computer source
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code of one program that is similar or "correlated" to computer source code of another program. CodeMatch analyzes each source code file using specific algorithms and finds similarities that might otherwise be difficult to detect by manual comparison. Mr. Zeidman's publications pertaining to software plagiarism include "Detecting Source-Code Plagiarism," Dr. Dobb's Journal, July 2004 and "Detecting Source Code Plagiarism with CodeMatch," Expert Witness Forum, January 26, 2004. 2. Summary of Testimony

Based on the extensive analysis performed by comparing Nelcela source code files to the MTSI source code files, it is Mr. Zeidman's conclusion that the Nelcela files were plagiarized from the MTSI files. A comparison of the Lexcel and Nelcela software shows that there are an extensive number of identical identifiers in the Nelcela and Lexcel source code files, and that significant portions of code are completely identical or nearly identical. Based on the extensive analysis performed by comparing Nelcela source code files to the Lexcel source code files, it is Mr. Zeidman's conclusion that the source code from one program was plagiarized from the source code of the other program. If it is shown that the Lexcel software came first in time, then it is Mr. Zeidman's conclusion that the Nelcela software was derived from the Lexcel software. Based on the extensive analysis performed by comparing the POST source code to the source code files that Nelcela submitted to the U.S. Copyright Office, it is Mr. Zeidman's conclusion that they are completely different code. D. William J. Flynn 1. Summary of Background

Mr. Flynn is the president and CEO of Affiliated Forensic Laboratory, Inc., a company that he founded in 1983 to provide the legal and business communities with professional questioned document services. For ten years prior to founding AFL, Mr. Flynn had a private civil practice in forensic document examination in Phoenix, Arizona. Mr. Flynn was also the Questioned Document Supervisor for the Arizona Department of
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Public Safety from January 1973 through June 1991, and was a Questioned Document Examiner for the Philadelphia Police Department Crime Laboratory from February 1965 through December 1972. He has attended many training programs on questioned document examination, including trainings at the FBI Academy in Quantico, Virginia and from the United States Secret Service. 2. Summary of Testimony

Mr. Flynn will testify to his opinion, based on an examination of the document identified as Exhibit 5 in this litigation, that the second paragraph of the alleged agreement was added by a second pass through the printer at some time after the initial text had been printed. E. Anton Litchfield 1. Summary of Background

Mr. Litchfield is the Principal of the Forensics E-Discovery Group with NTI Breakwater, a company that specializes in computer forensic consulting services, including the preservation, identification, extraction, and documentation of computer evidence. Mr. Litchfield has been an employee of NTI Breakwater and its corporate predecessor, New Technologies, Inc., since October 2000. Prior to his employment with New Technologies, Inc., Mr. Litchfield was a police officer in Ontario, Canada. In 1996 he began his professional work in computer/electronic investigations when he was assigned as a Detective Constable to the Ontario Provincal Police's Child Pornography Unit. His duties with that unit included directing computer forensic investigations. Mr. Litchfield has received formal training in computer forensics from the Royal Canadian Mounted Police, the Ontario Provincial Police, New Technologies Inc., Guidance Software, and Paraben Software. Mr. Litchfield has taught computer forensics classes attended by US federal law enforcement officers, state and local law enforcement officers, members of the military, foreign government officials, and corporate computer security professionals.

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2.

Summary of Testimony

Based on his experience in recovering data from computer hard drives, Mr. Litchfield will testify about the information that would have been available in discovery if the Nelcela Parties had not destroyed the hard drives of the computers on which the Nelcela Software was written and stored, as well as the firewall used to control access to the Nelcela computers. Specifically, Mr. Litchfield will testify that, if given the opportunity to examine those computer hard drives, the POST Parties could have identified the original "base" version of the Nelcela Software, identified all alterations to and subsequent versions of that code, and accessed internal communications between Nelcela employees. And, Mr. Litchfield will testify that Nelcela's destruction of the firewall prevented the POST Parties from examining the firewall's configuration and user access, which could have shown that the POST Parties did not access any source code via a VPN.

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EXHIBIT 3 SUMMARY OF THE QUALIFICATIONS AND TESTIMONY OF THE NELCELA PARTIES' EXPERT WITNESSES A. Kevin Faulkner 1. Summary of Background

Mr. Faulkner was a Forensic Examiner for P.G. Lewis & Associates ("PGLA")

6 from December 2003 until its acquisition by Protiviti in 2006. Since the PGLA/Proiviti 7 merger/acquisition, Mr. Faulkner has acted as a Senior Consultant in the data forensics 8 group. He has been involved in a number of complex, high-profile cases, including the 9 Enron/Merrill Lynch trial in Houston, Texas in 2004. Mr. Faulkner has participated in 10 over 100 data forensic investigations, which include the U.S. Marshal-escorted raids to 11 serve court orders and to seize evidence, the U.S. v. Roger Duronio trial in federal court 12 in New Jersey, and evidence collection and analysis for a large telecommunications 13 company involving the theft of over $20 Million in pre-paid calling cards. 14 Mr. Faulkner is experienced in forensic preservation of data from a variety of personal computers (PCs), laptops, servers, SANs, removable

15 hardware, including:

16 media, and hand-held devices. He has conducted examinations of numerous and varied 17 types of electronic media, including locating, recovering, extracting, and 18 electronic data utilizing forensic protocols. analyzing

Mr. Faulkner is familiar with forensic

19 acquisition and analysis in several operating systems including: Sun Solaris, RedHat 20 Linux, Fedora Core Linux, Windows 2003 Server, Windows 2000 Server, Windows XP 21 Home/Professional, Windows 2000 Professional, Windows NT Server, Windows ME/98, 22 IBM AIX, and Novell Netware. Mr. Faulkner has extensive working knowledge of the 23 Perl scripting language. 24 Prior to joining PGLA, Mr. Faulkner implemented some of the most advanced

25 security and network monitoring projects at enterprise-class clients and served as a
2 26 Network Services Engineer for MC Corporation. He has more than 8 years' experience

27 in the Computer Forensics, Computer Security and IT industries. 28
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2.

Summary of Testimony

Mr. Faulkner has examined the several sets of software provided in this matter, including both the 1994/1995 Lexcel floppy disks and the 2001 Lexcel CDs. Based on his experience in data and forensic examination and his familiarity with this matter, he will testify that the 1994/1995 Lexcel floppy disks do not contain an operable system for the "processing of credit card transactions." Mr. Faulkner will establish that Nelcela's software, which was copyrighted in 1998, was the first software produced here that was either intended for or could process credit card transactions for merchants. Mr. Faulkner will opine that the Nelcela Merchant System is not derivative of or copied from the Lexcel floppy disks, and the 2001 Lexcel CDs do not come "first in time." Mr. Faulkner will also testify that the similarities in any code as between Lexcel and Nelcela exist only in naming conventions, "tables," or regulations/guidelines that are provided by the credit card industry. The Lexcel and Nelcela software do not "match" in their functionality. Mr. Faulkner will establish that Post has portions of Nelcela software in its current software, and that Post's code continued to contain elements created by Nelcela even after it allegedly "cut over" to a new system after having been ordered by the State Court in the initial proceedings of this matter. Mr. Faulkner will establish that the 1994/1995 Lexcel floppy disks examined in this case have not been altered, deleted, or otherwise manipulated. Lastly, Mr. Faulkner will provide testimony that Post's programmer(s) could not likely have written an entirely new software for processing credit card transactions in the limited time frame (10 weeks, and only after hours) as they have alleged they did.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Jeffrey ("Jeff") M. Pell 1. Summary of Background

Jeff Pell has been employed in the Information Services industry for more than 30 years in positions across a wide variety of companies, industries, and information technology environments. His experience has included application programming, systems analysis, system programming, design, engineering and leadership responsibilities across almost every major hardware, software and operating platform that has been widely deployed in the domestic US Information Services market. Mr. Pell has managed the development and maintenance of card processing systems for an independent processor (TeleCredit), and his employment by two of the largest card processing companies in the world ­ VISA and American Express ­ allows him to bring a unique "industry perspective" to these proceedings. Mr. Pell has exposure to and knowledge of VISATM regulations and specifications for computer software used in processing credit card transactions by merchants, specifically the type at issue in this litigation. Mr. Pell has a Bachelor of Science (B.S.) degree in Computer Science from the Rose-Hulman Institute of Technology, a college currently ranked as the number 1 undergraduate engineering school in the country. 2. Summary of Testimony

Based on his unique industry-based experience and his analysis of the software(s) provided in this case, Mr. Pell will testify that the Nelcela Merchant System is not derivative of Lexcel's code. The 1994/1995 Lexcel floppy disks do not contain an operable system to process credit card transactions for merchants. He will establish that it is highly unlikely Post could have written new software to process credit card transactions in the ten (10) week period of time it claims to have developed new software. Mr. Pell will also offer testimony that many of the "similarities" notes by the other experts in this case exist in mandated regulations of the credit card industry ­ not copying in functionality of software. Mr. Pell will also opine that expert Zeidman's "CodeMatch"
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program is not a commonly-used tool or generally accepted within the relevant computer software community. Mr. Pell will establish that the original 1994/1995 Lexcel floppy disks examined in this case have not been altered, deleted, or otherwise manipulated.

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EXHIBIT 4 TRIAL EXHIBITS USED AS DEPOSITION EXHIBITS Exh. No. 1 2 Description License/Use Agreement between Lexcel, Inc. & Credit Card Services, Ltd. dated 6/30/94 Complaint by Credit Card Services, Ltd. against Lexcel, Inc., filed in District Court, Clark County, Nevada, Case No. A347322, Dept XIII Docket G, filed 6/19/95 Settlement Agreement between Lexcel, Inc. & Credit Card Services, Ltd. effective and Dismissal of Complaint in Case No. A347322, Dept XIII, Docket G, District Court, Clark County, Nevada, effective 7/1/95 Employment Resource Book Acknowledgement signed by Alec Dollarhide on 2/13/95 "System Ownership and License" between Alec Dollarhide & Credit Card Services, Ltd. dated 4/28/95 and US Travel Itinerary/Invoice dated 4/27/95 Credit Card Services, Ltd. Financial Statements for 1995 dated 12/31/95, Bates numbered 0628-0638 Security Agreement between Credit Card Services, Inc. and Credit Card Services, Ltd. dated 7/30/96, Bates numbered 0721-0729 Letter from Kenneth Woloson to Charles Anderson dated 7/24/96 and Written Acknowledged Consent to create Credit Card Services, Inc. dated 7/25/96, Bates numbered 0716-0717 Fax from Gene Clothier to Charles Anderson with revised letters to partners, dated 7/24/96, Bates numbered 0718-0720 Memorandum from Charles Anderson to All Employees re: New Start, dated 10/9/96 Agreement between Credit Card Services, Ltd. and Draft Capture Processor, Inc. (DCP) attaching financial information re Credit Card Services dated 10/9/96 Relevance; Hearsay Relevance Foundation; Rule 1003; Relevance Relevance; Foundation Rule 1003 Relevance; Foundation Relevance; Foundation Relevance; Foundation Relevance; Foundation Relevance; Foundation Joint Parties' Objections Nelcela Parties' Objections

3

4 5

6

7 8

9 10 11

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Description Fax from Gene Clothier, MTSI, to Richard McGranahan of DCP to confirm agreement dated 11/15/96 Letter from Charles Anderson to Gene Clothier re agreement between Credit Card Services, Ltd. and Anderson's Advisors, Inc. dated 12/16/96, Bates numbered 1225 and 1227 Letter from Charles Anderson to Gene Clothier re resignation from Credit Card Services, Ltd. dated 10/31/96, Bates numbered 0917 Memorandum from Charles Anderson to All Employees re his resignation from Credit Card Services, Ltd. dated 11/8/96, Bates numbered 0918 Software License Agreement between Prime Data Services, Inc. & Nelcela, Inc. dated 1/9/98 Software License Agreement between Prime Data Services, Inc. & Nelcela, Inc. dated 7/15/98 Declaration of Carl Kubitz dated 11/12/02 Handwritten diagrams re Credit Card Services system faxed from Charles Anderson to Carl Kubitz dated 2/9/95, Bates numbered 1512-1517 Credit Card Services, Ltd., business plan, Bates numbered 1505-1511 Credit Card Services Employment Resource Book dated 6/1/94, Bates numbered 1470-1495 Memorandum and drawings re Credit Card Services system, Bates numbered 0585-0594 Memorandum from Jeff Anthony to John Gustafson, Chuck Holmes and Tony Holzapfel re meeting with Anderson re Credit Card Services dated 2/21/96, Bates numbered 0641-0643 Letters from Charles Anderson to investors re negotiations with First Express Financial Group dated 3/28/96, Bates numbered 0650 and 0715 Fax from Charles Anderson to Gene Clothier re update on Credit Card Services dated 7/1/96, Bates numbered 0651-0654

Joint Parties' Objections Relevance; Hearsay Relevance

Nelcela Parties' Objections Relevance; Foundation

14 15

16 17 18 19 20 21 22 23

Hearsay

Relevance; Hearsay; Foundation Relevance

Relevance; Foundation Relevance Relevance; Foundation Relevance

24 25

Relevance

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Description Schedule 2.1(h) listing Material Contracts of Credit Card Services, Bates numbered 0584 Fax from Joel Linderoth, First Express Financial Group, to Mac Worboys, American Telecom, listing Credit Card Services' contracts dated 3/28/96, Bates numbered 1519-1521 Bancard Association, Inc. Board Resolution authorizing contract with Credit Card Services, Ltd. dated 7/28/94, Bates numbered 1251 Letter from Charles Anderson to Gene Clothier asking for financial information re Credit Card Services, Ltd. dated 4/29/97, Bates numbered 0764 UCC-1 from Credit Card Services, Ltd. to Credit Card Services, Inc. dated 7/30/96, Bates numbered 0730 To Do List showing work remaining faxed by Len Campagna on 11/4/96, Bates numbered 1224 Charles Anderson's notes of discussion with Lexcel, Inc., dated 5/12/94, Bates numbered MTSD00550-MTSD00552 Memorandum from Kenneth Woloson to All Parties with unsigned deal documents dated 9/11/96 Unsigned Certificate of Limited Partnership for Credit Card Services, Ltd., Bates numbered 0617-0618 (and MTSD01908-MTSD01909) Agreement between Credit Card Services, Ltd. and Bancard Association, Inc. dated 7/28/94, Bates numbered 0604-0615 (and MTSD01895MTSD01906) Fax from Lexcel, Inc. with notes from Charles Anderson re status of Lexcel, Inc. work dated 4/10/95, Bates numbered MTSD00532MTSD00533 Minutes of Meeting of Advisory Board dated 4/24/95, Bates numbered 0621-0622 (and MTSD01912-MTSD01913) Sworn Affidavit of Charles Anderson dated 2/10/03, Bates numbered NEL 01704-NEL 01717

Joint Parties' Objections

Nelcela Parties' Objections Relevance; Foundation Rule 1003 Relevance; Foundation Relevance; Foundation

28 29

Relevance

Relevance; Foundation Relevance; Foundation Relevance; Foundation Relevance; Foundation Rule 1003 Foundation Rule 1003 Relevance; Foundation Rule 1003 Relevance; Foundation Rule 1003 Relevance; Foundation Rule 1003

30 31 32 33 34 35

36

37 38

Hearsay

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Exh. No. 39 40 41

Description Subpoena to Charles Anderson dated 3/31/05 Credit Card Services, Ltd. News and Updates dated 2/6/96, Bates numbered MTS000362 Letter from Charles Anderson to Michael Stanford, First State Bank, re need for capital dated 3/18/96, Bates numbered 0646-0647 (and MTSD01937-MTSD01938) Letter from Charles Anderson to Katrina Clark, Dain Bosworth, seeking consent to transfer assets from Credit Card Services, Ltd. to Credit Card Services, Inc. dated 7/12/96, Bates numbered 0655 (and MTSD01946) Letter from Charles Anderson to Katrina Clark, Dain Bosworth, discussing efforts to keep Credit Card Services operational dated 7/15/96, Bates numbered 0660-0661 (and MTSD01951-MTSD01952) Letter from Charles Anderson to Claire Haycock enclosing final documents for completion of transactions relating to change in ownership dated 10/7/96, Bates numbered 0744 (and MTSD02034) Letter from Gene Clothier to Charles Anderson announcing move to CA and transfer of Anderson's ownership of Credit Card Services, Ltd. to Clothier dated 5/7/97, Bates numbered 1087 (and MTSD02377) Organization Chart of Credit Card Services dated 1/1/95, Bates numbered 0620 (and MTSD01911) Memorandum from Charles Anderson to Gene Clothier re unreconciled difference in BCA account dated 8/20/96, Bates numbered 0740 (and MTSD02030) Pinnacle Peak Processing business plan Memorandum from Len Campagna to Charles Anderson re follow-up on meeting between Anderson, Campagna, and Dollarhide dated 7/23/99, Bates numbered NEL 01454­NEL 01456 Letter from Charles Anderson to Len Campagna and Alex Dollarhide stating that Anderson was leaving Prime Data dated 12/14/00, Bates numbered NEL 01445­NEL 01451

Joint Parties' Objections Relevance

Nelcela Parties' Objections

Relevance; Foundation Rule 1003 Relevance; Foundation Rule 1003 Relevance; Foundation Rule 1003 Relevance; Foundation Rule 1003 Relevance; Foundation Rule 1003 Relevance; Foundation Rule 1003

42

43

44

45

46 47

Relevance; Foundation Rule 1003 Relevance

48 49

50

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Description Second Amended Notice of Deposition of Mary Gerdts dated 4/14/05 Second Amended Notice of Rule 30(b)(6) Deposition of POST Integrations, Inc. dated 4/14/05, and Subpoena Mutual Confidentiality Agreement between POST & Nelcela, faxed from Len Campagna to Mary Gerdts, dated 5/26/99, Bates numbered NEL 00176 (followed by un-numbered pages) Two page "Who We Are" promotional sheet describing Nelcela Fax from Len Campagna to Mary Gerdts setting out pricing scenarios dated 6/9/99 Emails between Mary Gerdts and Alec Dollarhide dated from 4/19/00 to 4/20/00, Bates numbered NEL 00350 Email string between Mary Gerdts, Len Campagna and Alec Dollarhide re PC Product dated 5/7/00, Bates numbered NEL 00344-NEL 00345 Email string between Len Campagna and Mary Gerdts re PC Product dated from 5/7/00 to 5/8/00, Bates numbered NEL 00340 Email string between Len Campagna and Mary Gerdts re PC Product dated from 5/7/00 to 5/8/00, Bates numbered NEL 00341 Fax from Len Campagna to Mary Gerdts setting out 3 pricing options for PC Product dated 5/10/00, Bates numbered NEL 00333­NEL 00335 Emails between Len Campagna and Mary Gerdts re timetable for PC Product dated 5/15/00, Bates numbered NEL 00331 Emails between Mary Gerdts, Alec Dollarhide and Len Campagna re PC Product dated 6/7/00, Bates numbered NEL 00330 Letter dated 6/15/00 from Mary Dees to Len Campagna stating POST wants to push forward on scenario 2 from 6/9/99 proposal, Bates numbered NEL 00324­NEL 00328 Email from Mary Gerdts to Alec Dollarhide and Len Campagna re response to GAP analysis dated 7/30/00, Bates numbered NEL 00312

Joint Parties' Objections Relevance Relevance Relevance

Nelcela Parties' Objections Relevance Relevance

54 55 56 57 58 59 60 61 62 63

Relevance Relevance Relevance Relevance Relevance Relevance Relevance Relevance Relevance

64

Relevance

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Exh. No. 65 66 67 68 69 70 71 72 73 74 75 76 77 78

Description Description of Nelcela system & how it meets POST's needs dated 4/29/00, Bates numbered NEL 00346­NEL 00349 GAP Analysis listing system gaps identified during 8/9/00 meeting dated 8/18/00, Bates numbered NEL 00038­NEL 00043 POST Integrations Electronic Back Office Requirements dated 7/31/00, Bates numbered NEL 00313­NEL 00323 Fax from Mary Gerdts to Len Campagna attaching letter agreement dated 8/2/00, Bates numbered NEL 00173­NEL 00175 Fax from Len Campagna to Mary Gerdts responding to August 2 letter agreement dated 8/3/00, Bates numbered NEL 00036­NEL 00037 Emails between Mary Gerdts and Len Campagna dated 8/15/00 re meeting tape transcriptions, Bates numbered NEL 00309 Email string between Mary Gerdts and Len Campagna from 8/15/00 to 8/16/00 re meeting tape transcriptions, Bates numbered NEL 00310 Email from Len Campagna to Mary Gerdts re Gap Analysis, Bates numbered NEL 00306 Fax dated 8/18/00 from Len Campagna to Mary Gerdts re Gap Analysis, Bates numbered NEL 00307­NEL 00308 Fax dated 8/31/00 from Len Campagna to Mary Gerdts stating that Credit Card Services is licensing the software, Bates numbered NEL 00303 Fax dated 9/7/00 from Len Campagna to Mary Gerdts re GAP Analysis, Bates numbered NEL 00034-NEL 00035 Emails between Mary Gerdts, Len Campagna and Alec Dollarhide re GAP Analysis dated from 9/7/00 to 9/8/00, Bates numbered NEL 00302 Emails between Mary Gerdts, Len Campagna and Alec Dollarhide re GAP Analysis dated from 9/7/00 to 9/8/00, Bates numbered NEL 00301 Emails between Mary Gerdts and Len Campagna re programmer lined up by POST dated from 9/8/00 to 9/10/00, Bates numbered NEL 00300

Joint Parties' Objections Relevance Relevance Relevance Relevance Relevance Relevance Relevance Relevance Relevance Relevance Relevance Relevance Relevance Relevance

Nelcela Parties' Objections

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Exh. No. 79

Description Check from POST (Ebocom, Inc.) to Nelcela dated 9/20/00 in the amount of $200,000.00 for "Downpayment on Project", Bates numbered NEL 00033 Fax from Len Campagna to Mary Gerdts re "Principal Points for Contract" dated 9/21/00, Bates numbered NEL 00031-NEL 00032 Emails between Len Campagna and Mary Gerdts setting out discussion re "derivative work" dated 10/19/00, Bates numbered NEL 000396 Emails between Mary Gerdts and Len Campagna re: contract dated from 12/4/00 to 12/5/00, Bates numbered NEL 00389 Software License Agreement between MasTri Holdings, Inc. and MTSI dated 2/27/01, Bates numbered PO002978-PO002984 Fax from Danielle Dugan, MTSI, to Mary Gerdts attaching documents re Credit Card Services ownership of the software dated 3/16/01, Bates numbered PO003100-PO003110 Printout of files on MTSI disk Checks from MasTri Holdings, Inc. to Gene Clothier and MTSI dated 3/7/01 and 2/5/02 in the amount of $25,000.00 each for payment on 2/27/01 Software License Agreement, Bates numbered PIMG 00003PIMG 00004 Invoices from E-Funds dated from 8/31/01 to 1/28/02, Bates numbered PO004054-PO004070 Invoices from E-Funds dated from 2/26/01 to 7/31/01, Bates numbered PO004034-PO004053 Complaint in U.S. District Court Case No. CIV-02-1954-PHX-MS filed 10/3/02 Minute Order in Maricopa County Superior Court Case No. CV2001009026 granting Nelcela's Motion for Summary Judgment dated 4/11/05 Credit Card Services, Ltd. Profit and Loss statements dated 7/2/98, Bates numbered 1048-1081

Joint Parties' Objections Relevance

Nelcela Parties' Objections

80 81 82 83 84

Relevance Relevance Relevance

85 86

Relevance; Foundation Rule 1003

87 88 89 90 91

Relevance

Relevance

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Exh. No. 92

Description Record of Corporate Action, Board of Directors' Meeting Resolution and Software Conveyance Agreement dated 6/1/99 and 6/14/99, Bates numbered PO000041-PO000043 MTSI's Supplemental Response to Request for Production of Documents dated 4/25/05 MTSI corporate documents dated 5/11/97, 1/13/99, 6/1/99 and 1/17/00, Bates numbered MTSI P2 1812-MTSI P2 1815 Alec Dollarhide Employment Agreement with Credit Card Services, Inc. dated 11/15/96, Bates numbered NEL 00222 Fax from Len Campagna to Gene Clothier and Danielle Dugan re: Arizona Rental Space, dated 6/29/99, Bates numbered 0788-0789 (and MTSD02078-MTSD02079) Fax from Alec Dollarhide to Gene Clothier discussing Dollarhide's resignation from Credit Card Services, Inc. dated 9/26/99, Bates numbered MTS00128-MTS00134 (and MTSD03729-MTSD03735) Fax from Len Campagna and signed by Alec Dollarhide to Gene Clothier dated 10/4/99 re Nelcela Proposal, Bates numbered MTS00114MTS00121 (and MTSD03715-MTSD03722) Fax from Alec Dollarhide to Gene Clothier and Danielle Dugan dated 11/22/99, Bates numbered MTS00068-MTS00070 (and MTSD03669MTSD03671) Letter from Gene Clothier to Nelcela offering to transfer ownership in Credit Card Services, Ltd., Inc. to Nelcela dated 11/21/00, Bates numbered 1047 (and MTSD02337) Agreement by Nelcela to purchase Credit Card Services, Inc. stock from Gene Clothier for $240,000.00 dated 11/21/00, Bates numbered 1046 (and MTSD02336) Memorandum from Gene Clothier to Alec Dollarhide re Nelcela Proposal dated 9/30/99, Bates numbered MTS00122-MTS00124 (MTSD03723MTSD03725)

Joint Parties' Objections

Nelcela Parties' Objections Relevance; Foundation Rule 1003 Relevance Relevance; Foundation Rule 1003 Relevance

93 94 95 96

Relevance

Relevance

97

98

99

100

Relevance

101

102

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Exh. No. 103

Description Agreement of Purchase and Sale of Stock between Credit Card Services, Inc., Gene Clothier and Electronic Payment Exchange, Inc. dated 3/29/01, Bates numbered 0919-0939 Agreement to Sell Partnership Agreement between Electronic Payment Exchange, Inc. and Gene Clothier dated 3/29/01, Bates numbered 09070915 (and MTSD02197-MTSD02205) Leonard Campagna resume, Bates numbered NEL 00130-NEL 00132 Articles of Incorporation of Nelcela, Inc. dated 7/30/97, Bates numbered NEL 01464-NEL 01465 Nelcela Board Consent re Nelcela, Inc. organization dated 7/30/97, Bates numbered NEL 01467-NEL 01469 Alec Dollarhide Employment Agreement with Nelcela dated 7/30/97, Bates numbered NEL 00224 Declaration of Flora "Pete" Kubitz dated 11/13/02 Applicant's Certification and Agreement re work for Credit Card Services signed by Alec Dollarhide on 2/13/95 and Acknowledgement of Receipt and Understanding of Employment Handbook signed by Alec Dollarhide on 1/15/97, Bates numbered MTSI P2 00196-MTSI P2 00197 Memorandum from Dyanna Novak to Gene Clothier re visit to Nelcela dated 11/19/99, Bates numbered MTSI P2 00600-MTSI P2 00602 Email from Len Campagna to Alec Dollarhide re pricing for work for POST, Bates numbered NEL 00329 Affidavit of Todd Hegstrom dated 6/8/01 POST's Initial Rule 26.1 Disclosure Statement Re: CV2001-009026 in Maricopa County Superior Court, dated 4/23/02 Email from Mary Gerdts to David Kirgan re Nelcela GAP Analysis dated 8/17/00, Bates numbered PO001369 Email string between Mary Gerdts and David Kirgan re Nelcela GAP Analysis dated 8/17/00, Bates numbered PO001370

Joint Parties' Objections Relevance

Nelcela Parties' Objections

104

Relevance

105 106 107 108 109 110

111 112 113 114 115 116

Relevance Hearsay Relevance Relevance Relevance Hearsay; Relevance

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Exh. No. 117 118 119

Description GAP Analysis faxed by Nelcela dated 8/18/00, Bates numbered NEL 00038-NEL 00043 Email from David Kirgan to Alec Dollarhide re GAP Analysis dated 8/18/00, Bates numbered PO001371 Email string between Alec Dollarhide, Anthony Dollarhide and Mary Gerdts re Software Development requirements from 9/21/00 to 9/22/00, Bates numbered PO001405-PO001406 Email from Anthony Dollarhide to Alec Dollarhide re whiteboard from meeting with POST dated 9/27/00, Bates numbered NEL 00707 Fax dated 10/2/00 from Len Campagna to Mary Gerdts with invoice for period ended 9/30/00, Bates numbered PO003915-PO00391 and PO003923 Fax dated 1/10/01 from Len Campagna to Mary Gerdts with invoice for period ended 12/31/00, Bates numbered NEL 03621-NEL 03634 Email from Anthony Dollarhide to Ramana Malladi re security levels for users dated 12/18/00, Bates numbered PO001691 Nelcela, Incorporated Software Development Time Summary, Bates numbered NEL 01750-NEL 01754 and NEL 01760-NEL 01805 Sheet showing 2 boolean operators Sheet re 2 boolean operations Nelcela table definitions for analysis interchange POST-export-dw-items-to-analysis Letter from Veronica Manolio to Lyndon Steimel, Robert McKirgan and Kimberly Demarchi re Witnesses and Depositions dated 3/16/05 Nelcela 's Second Supplemental Disclosure Statement dated 5/21/02 in Maricopa County Superior Court

Joint Parties' Objections Relevance Relevance Relevance

Nelcela Parties' Objections

120 121

Relevance Relevance

122 123 124 125 126 127 128 129 130

Relevance Relevance

Relevance

Relevance; Foundation Relevance; Foundation

Relevance Relevance

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Exh. No. 131

Description Application for Copyright Registration for Nelcela Terminal Driver signed by Sandra Etherton of Fennemore Craig as Authorized Agent of Nelcela dated 5/4/98, Bates numbered FCPC 00238-FCPC 00239 US Copyright Office Blank Form TX with Instructions dated 7/00/03 Application for Copyright Registration for Nelcela Merchant System dated 4/29/99, Bates numbered FCPC 00231-FCPC 00232 Arizona Corporation Commission transmittal for fax filing from Fennemore Craig re Nelcela Inc. Articles of Incorporation with copy of Articles of Incorporation and Cert. of Disclosure attached, dated 7/31/97, Bates numbered FCPC 00119-FCPC 00125 IRS Form SS-4 Application for Employer Identification Number for Nelcela Inc. dated 7/30/97, Bates numbered FCPC 00130 Alec Dollarhide resume, Bates numbered FCPC 00216-FCPC 00217 Leonard Campagna resume, Bates numbered FCPC 00218-FCPC 00219 Terminal Driver Business Plan , Bates numbered FCPC 00220-FCPC 00225 Application for copyright registration for Nelcela Credit Card System dated 4/29/99, Bates numbered FCPC 00227-FCPC 00228 Application for copyright registration for Nelcela Authorization System dated 4/29/99, Bates numbered FCPC 00229-FCPC 00230 Application for copyright registration of Nelcela PC Profit System dated 2/14/00, Bates numbered FCPC 00248-FCPC 00249 Copyright Assignment of software entitled "Nelcela Terminal Driver Software" ­ assignor Alec Dollarhide; assignee Nelcela Inc. dated 5/1/98, Bates numbered FCPC 00879 Nelcela Merchant System Summary, Bates numbered FCPC 00682FCPC 00683 Nelcela Credit Card System Summary, Bates numbered FCPC 00684

Joint Parties' Objections

Nelcela Parties' Objections

132 133 134

135 136 137 138 139 140 141 142

Relevance Relevance Relevance

143 144

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Exh. No. 145 146 147 148

Description Memorandum from Alec Dollarhide to Mary Gerdts re Chargeback Representment Processing dated 2/20/01, Bates numbered FCPC 00093 Minutes of meeting of Board of Directors of Nelcela Inc. re Perpetual License to EPX dated 11/19/01, Bates numbered FCPC 00171 Nelcela Inc. Employment Agreement with Alec Dollarhide (with fax transmittal info. on top) dated 7/30/97, Bates numbered FCPC 00880 Letter from Ray Harris of Fennemore Craig to Merrick Firestone re draft complaint alleging infringement of copyrighted Nelcela software dated 7/18/01, Bates numbered FCPC 00095 Letter from Veronica Manolio to Ray Harris re Ebocom v. Nelcela and Mr. Harris as potential witness dated 7/12/02, Bates numbered FCPC 00008 Letter from Ray Harris of Fennemore Craig to Veronica Manolio re Nelcela and lawsuit by Ebocom dated 9/24/02, Bates numbered FCPC 00002 Copies of file folder labels from Fennemore Craig: 1) EBOCOM v. Nelcela, 2) Documents ­ Campagna (USCO, Inc), and 3) Campagna Copyright Registration , Bates numbered FCPC 00001, FCPC 00200 and FCPC 00226 3/28/01 Letter from Lori Martin of Fennemore Craig to Len Campagna re Copyright for Nelcela AS400 Conversion System enclosing the certificate of registration of Nelcela's claim to the copyright dated 7/27/00, Bates numbered FCPC 00233-FCPC 00235 Unsigned response to Office Action (dated 4/3/00) from Stacie Smith of Fennemore Craig to Melvin Axilbund of the U.S. Patent and Trademark Office re PC Profit ­ Applicant: Nelcela Inc. dated 9/00/00, Bates numbered FCPC 00298-FCPC 00299 Articles of Incorporation of Nelcela, Inc. and consent to be Statutory Agent (J. Barry Shelley of FC Service Corporation) dated 7/31/97, Bates numbered FCPC 00126-FCPC 00128 Security Procedures, System Security Process, Password Changes dated 10/21/99, Bates numbered MTSD00754-MTSD00756

Joint Parties' Objections

Nelcela Parties' Objections

Relevance; Foundation Rule 1003

Relevance

149

Relevance

150

Relevance

151

Relevance

152

Relevance

153

Relevance

154

155

Relevance

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Exh. No. 156 157

Description MTSI Assessment Document dated 11/8/99, Bates numbered MTSD00804-MTSD00847 Eric Sticht, Interim Technology ­ consultant's status report for MTSI, 11/1/99 ­ 11/5/99 dated 11/5/99, Bates numbered MTSD00759MTSD00760 Eric Sticht, Interim Technology ­ consultant's status report for MTSI, 11/29/99 ­ 12/3/99, dated 12/6/99, Bates numbered MTSI P2 00094 Eric Sticht, Phoenix Trip Summary dated 1/10/00, Bates numbered MTSD00773-MTSD00785 Eric Sticht, Interim Technology ­ consultant's status report for MTSI, 1/17/00 ­ 1/21/00 dated 1/21/00, Bates numbered MTSD00752 Declaration of Brian Doane for Maricopa County Superior Court Notice of Videotaped Deposition of Raymond Moyer dated 5/12/05 and Subpoena Atlanta Business Chronicle article "Intercept to Buy Electronic Payment Exchange" dated 5/22/02 Atlanta Business Chronicle article "InterCept Subsidiary Changes Name" dated 1/2/03 Complaint ­ InterCept, Inc., InterCept Payment Solutions, Inc. f/k/a Electronic Payment Exchange, Inc., John M. Perry and Timothy Barnett v. Alec Dollarhide, Len Campagna, and Nelcela, Inc. (1:03-CV-2505 USDC Northern District of Georgia) dated 8/21/03 Letter from Timothy Ronan to Timothy Barnett re: draft agreement to clarify relationship of Nelcela and its proprietary software with InterCept Payment Solutions dated 3/26/03, Bates numbered FNIS 0001-FNIS 00011 (and depo Exhibit 103) Checks to Nelcela from Ebocom dated 9/25/00-12/21/00, Bates numbered PO-CCS000089, NEL 00047, NEL 00054, NEL 00061, NEL 00069, NEL 00078, NEL 00087

Joint Parties' Objections Relevance Relevance

Nelcela Parties' Objections

158 159 160 161 162 163 164 165

Relevance Relevance Relevance Hearsay; Relevance Relevance Relevance Relevance Relevance Relevance; Hearsay Relevance Relevance Relevance Relevance

166

Relevance

Relevance

167

Relevance

Foundation Rule 1003

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Exh. No. 168

Description Memorandum from Len Campagna to Mary Gerdts with Invoice for Professional Services ­ Period Ended 10/15/00 dated 10/18/00, Bates numbered NEL 00055-NEL 00059 Memorandum from Len Campagna to Mary Gerdts with Invoice for Professional Services ­ Period Ended 10/31/00 dated 11/6/00, Bates numbered NEL 00062-NEL 00067 Handwritten network diagram drawn by Richard Halloran Nelcela Source Code.zip dated 8/15/05 (printed) NOTE_MODULE.PBL ­ path information dated 8/15/05 (printed) SQL access transaction log dated 6/8/01 SQL Table Definition and code dated 6/8/01 Alec Dollarhide Employee Hours Worked for Credit Card Services, Underpayment Calculation , 1996-`999, Bates numbered NEL 06066NEL 06076 Letter from Alec Dollarhide to Danielle Dugan giving MTSI authorization to use his Terminal Driver Software & sending draft agreement dated 4/20/98, Bates numbered CCS000128-CCS000133 Alec Dollarhide "New Processing Proposal," MTSI Meeting Document dated 3/31/99, Bates numbered CCS000170-CCS000172 Proposal Amplification Memorandum, to Gene Clothier and Danielle Dugan from Alec Dollarhide dated 4/18/99, Bates numbered CCS000173-CCS000176 Letter from Alec Dollarhide to Gene Clothier dated 9/10/99, Bates numbered CCS000208-CCS000213 Interoffice Memorandum from Gene Clothier to Alec Dollarhide, re Nelcela Proposal Cost Comparison dated 9/25/99, Bates numbered MTS00136-MTS00137 (and MTSD03737-MTSD03738) The Cost of Dollarhide for the First Eight Months of 1999, Bates numbered MTSI P2 00230

Joint Parties' Objections Relevance

Nelcela Parties' Objections

169

Relevance

170 171 172 173 174 175

Relevance; Foundation Foundation Foundation

176

177 178

Relevance Relevance

179 180

181

Case 2:02-cv-01954-MHM

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Exh. No. 182

Description Acknowledgement of Receipt and Understanding of Employee Handbook signed by Alec Dollarhide dated 11/15/97, Bates numbered MTSI P2 00197 Fax from Ann Tillery to Mike Smiley re direct deposit information for Alec Dollarhide dated 6/10/99, Bates numbered MTSI P2 00001 and MTSI P2 00003 Fax from Lexcel, Inc. to Charles Anderson re database layout dated 4/10/95, Bates numbered MTSI P2 00249-MTSI P2 00277 Letter from Charles Anderson to Alec Dollarhide and Applicant's Certification & Agreement signed by Alec Dollarhide on 2/13/95, Bates numbered MTSI P2 00525 and MTSI P2 00196 Mobile Radio Point of Sale Software fax to Danielle Dugan from Len Campagna dated 6/14/98, Bates numbered MTSI P2 00543-MTSI P2 00544 Letter from Gene Clothier to Len Campagna and Alec Dollarhide and List of MTSI Equipment, Bates numbered 0895-0896 Memorandum re "Alec Outline" dated 11/3/99, Bates numbered MTSI P2 00662-MTSI P2 00663 Weekly status report with Problem Determination Report dated 1/21/00, Bates numbered MTSI P2 00028-MTSI P2 00029 MTSI Expert Report, Exhibit G dated 7/22/05 MTSI Expert Report, Exhibit F dated 7/22/05 Lexcel, Inc.'s Confidentiality Agreement with Alec Dollarhide dated 11/3/94 Settlement Agreement between Lexcel, Inc. and Credit Card Services, Ltd. dated 7/1/95 Letter dated 5/12/99, from Danielle Dugan to Donald Lenkszus at Bryan Cave re settlement agreement dated 7/1/95

Joint Parties' Objections

Nelcela Parties' Objections

183

184 185

Relevance; Hearsay; Foundation Rule 1003 Foundation Foundation

186

Relevance

187 188 189 190 191 192 193 194

Relevance Relevance Relevance Hearsay; Foundation Hearsay; Foundation

Relevance

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Exh. No. 194 M 195 196 197 198

Description Page 47 of POST Disclosure Statement naming Ramana Malladi as a witness dated 4/23/02, Bates numbered PO00311-PO00312 and NEL 03674-NEL 03675 Nelcela invoice to Ebocom for Services Rendered 2/16/01-2/28/01, dated 3/16/01 E-mail from Steve Pile to Ramana Malladi re Maintenance Release III dated 1/23/01, Bates numbered PO002554 E-mail from Steve Pile to Mary Gerdts re Outgoing Reports dated 1/5/01, Bates numbered NEL 00977-NEL 00979 E-mail string between Steve Pile, Mary Gerdts & Ramana Malladi re Requested Statements from 1/19/01 to 1/22/01, Bates numbered PO002460-PO002461 POST2 Project Timeline spreadsheet dated 10/23/00, Bates numbered PO001493-PO001495 October billing summary for Steve Pile, Bates numbered PO003903 November billing summary for Steve Pile, Bates numbered PO003848 EXHIBIT WITHDRAWN Confidential Exhibit ­ Exhibit A, Agreement re Confidential Information signed by Steve Pile dated 9/8/05 Confidential Exhibit ­ Source Code Confidential Exhibit ­ Source Code Confidential Exhibit ­ Source Code Confidential Exhibit ­ Source Code Confidential Exhibit ­ Source Code Confidential Exhibit ­ Source Code Confidential Exhibit ­ Source Code

Joint Parties' Objections Relevance

Nelcela Parties' Objections

Relevance Relevance Relevance Relevance

199 200 201 202 203 204 205 206 207 208 209 210

Relevance Relevance Relevance

Relevance

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Exh. No. 211 212

Description Confidential Exhibit ­ Source Code Confidential Exhibit ­ Source Code

Joint Parties' Objections

Nelcela Parties' Objections

213249 were not assig ned 250 Letter from Shirley VanNote, Driver and Nix, to William McKinnon dated 5/9/05 251 252 253 254 255 256 257 258 259 260 261 262 Letter from Monica Brooks, Driver and Nix, to Merrick Firestone dated 7/25/05 First Amended Complaint in U.S. District Court, Case No CIV02-1954PHX-MHM dated 5/12/05 MTSI Balance Sheet as of 12/31/04 dated 9/24/05 MTSI Balanc