Free Motion in Limine - District Court of Arizona - Arizona

Merchant Transacticn Systems, Inc.
vs. i
Nelcela, Inc., et al. €
And related Cross and T hircl-Party Claims
N0. CIV- 02-1 95 4-PHX-MHM
Nelcela, Inc., Len Campagna and Alec Dollarhide’s
Motion in Limine No. 1 to Exclude any Testimony by Robert I
Zeidman or Results of the "Code Match" Program
EXHIBIT II
(Letter dated November 29, 2006)
Case 2:O2—cv—O1954-I\/IHI\/I Document 422-9 Filed O1/19/2007 Page 1 of 3

Hunan
6
9300 East R¤i¤¤€€ DPM Attorneys and goinnselurs
Suite 120
Scottsdale, AZ 85260 Veronica L. Manolio 2
480 222-9100 • Fax 480 222-9106 vmanoli0@ronan-tirestonecom Q
www. ronan-firestonecom
November 29, 2006 r
Kimberly Demarchi Sent Via Facsimile (602) 734-3 773
Lewis & Roca, LLP and Electronic Mail Only .
40 North Central Avenue
Phoenix, AZ 85004-4429
Re: M T SI v. Nelcela and related Counterclaims, Cross-Claims and Th ird-party claims,
CIV 02-1954 PHX MHM
Dear Kim:
I received your letter dated November 28, 2006 regarding expert testimony at trial.
First of all, you are correct that Nelcela will not call Mr. DeCicco to testify at trial in this
matter. As we informed all parties and counsel late last year, Mr. DeCicco is no longer employed .
by P.G. Lewis & Associates (which is now actually Protiviti, after the companies’ merger last year). j
Mr. DeCicco is believed to be working for a competitor of Protiviti and cannot be used on this case.
When we candidly disclosed Mr. DeCicco’s departure, we also agreed that Mr. Faulkner i
could be deposed as he will be acting as the expert in Mr. DeCicco’s stead. We have no problem
allowing Post (or one counsel for the Joint Parties) to depose Mr. Faulkner. Our disagreement lies
in your position that you want to depose Mr. Faulkner but will still, "challenge the admissibility” of Q
his testimony. We have no interest in wasting any party’s time, money or energy for this deposition
if Post is going to later challenge the use of Mr. Faulkner and/or his deposition testimony at trial. i
We suggest getting this issue resolved by the Court before setting the deposition.
We have a similar need to re-depo se Post’s expert, Robert Zeidman, on the limited issues of: J
1) His Addenda/Amended Expert Report; 2) His recent “Redline Comparison" report; and 3) Any r
and all documents, preparation, and/or analysis regarding anything done after his first deposition.
Rather than wasting the Court’ s time, my suggestion is that we agree to the specific e
parameters of Post deposing Mr. Faulkner — including the anticipated time limitati0n(s) and that one J
person will depose him for the Joint Parties collectively, and we agree to the scope of continued P
deposition of Mr. Zeidman. We can then jointly submit a Stipulation to the Court and ask approval J
to conduct this discovery even though Judge Murguia already clearly ruled that discovery is closed. .
We are not about to disobey the C0urt’ s present order(s) and believe we need approval/authority to p
Case 2:02-cv-01954-IVIHIVI Document 422-9 Filed O1/19/2007 Page 2 of 3

Ms. Kimberly Demarchi
November 29, 2006 §
Page 2
agree to any further depositions. We also believe it is in every party’s best interest to address the
items of disagreement before setting the depositions.
I look forward to hearing back from you and will be happy to work with you to resolve these i
issues and get depositions underway.
ct‘t
Veronica L. Manolio Q
cc: All Counsel (via e-mail only)
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