Free Reply - District Court of Arizona - Arizona

1 LAW OFFICES
RONAN & FIRESTONE, PLC
2 9300 E. RAINTREE DRIVE. SUITE 120 I
SCOTTSDALE, ARIZONA 55260 V
3 (480) 222-9100
Merrick B. Firestone, SB #0l2l38 A
4 Veronica L. Manolio, SB #020230 .
Attorneysfor the Nelcela Defendants ;
L
6 UNITED STATES DISTRICT COURT I
7 IN AND FOR THE DISTRICT OF ARIZONA
S Merchant Transaction Systems, Inc., No. ()2—CV—l954 - PHX-MHM
9 Plaintiff,
10 vs. e NELCELA, INC., LEN CAMPAGNA AND (
p ALEC DOLLARHIDE’S
H Nelcela, Inc., an Arizona corporation; REPLY STATEMENTS OF FACT
Len Campagna, an Arizona resident; IN SUPPORT OF THEIR MOTIONS FOR 3
12 Alec Dollarhide, an Arizona resident; PARTIAL SUMMARY JUDGMENT .
Ebocom, Inc., a Delaware Corporation;
13 POST Integrations, Inc., an Illinois Corp., (The Honrable Mary H. Murgia) E
1 4 Defendants. I
15 And Related Counterclaims, Cross-Claims
and Third-Party Claims.
l 6 Y
17 Pursuant to Rule 56.1 ofthe Local Rules of Civil Procedure for District Court of Arizona, Q
18 Nelcela, Inc., Len Campagna and Alec Dollarhide (collectively "Nelcela") hereby submit these
19 reply statements of fact in support of their consolidated reply on regarding partial summary
20 judgment on ownership.
21 1. Mr. Zeidman (Post’s expert) completely changed his written expert report and A
22 contradicted both his original written report and his sworn deposition testimony, and he did this
23 after discovery was closed and after the time for correcting his deposition had come and gone. .
24 See, Mr. Zeidman’s "addendum" supplied by Post as sealed Exhibit 16 to its original SOP
25 (Docket #334); see also, Mr. Zeidman’s original report on tile with this Court as Exhibit 56 to
26 Nelcela’s SOE; see also, Mr. Zeidman’s deposition correction sheet attached here as Exhibit A. .
Case 2:O2—cv—O1954-IVIHIVI Document 362 Filed O4/24/2006 Page 1 of 4

1 2. Although the joint parties now claim that Mr. Zeidman submitted an, "Addendum”
2 to his report and they accuse Nelcela of, “fail[ing] to mention" this Addendum, undersigned 1
3 counsel never received that report or the new findings. Nelcela has no record thatthis alleged §
4 "addendum" was ever received. i
5 See, Affidavit of Veronica L. Manolio attached here as Exhibit B and incorporated by this
6 reference. Neither Ms. Manolio nor Mr. Firestone ever received the alleged "addendum" that Post
7 claims it sent as an after-the-fact re-analysis. Id.
8 1
9 3. Alec Dollarhide testified that Post had access to both the "production segment" of
10 Ne1cela’s code and the "development segment" of Ne1ce1a’s code through a VPN connection. He
1 1 also verified that Post had access to Nelcela’s development segment (including source code) and
12 that Post was allowed to access sources of information on Nelcela’s system. Mr. Dollarhide
13 confirmed that Post copied Nelcela’s Powerbuilder source code through the VPN line.
14 See, Deposition of Alec Dollarhide, Vol. 1 at pp. 109-110 attached here in relevant part as (
15 Exhibit C and incorporated here by this reference. 2
16 Y
17 4. Post’s own employee, Rose Ana lniguez, verified that when Post allegedly "cut i
18 over” to its new system back in June of 2001, there were no changes in functionality from what
19 had been provided by Nelcela. RSOF 4.
20 See, Deposition transcript of Rose Ana hiiguez taken in the related state action at p. 101,
21 I; ll. 1-20 (The Ebocom/Post system maintained the same functionality as the Nelcela system had.),
22 { p. 102, 11. 1-4 (The only differences noted were in the format.) attached here in relevant part as
23 Exhibit D and incorporated by this reference.
24
25
26
Case 2:O2—cv—O1954-IVIHIVI Document 362 Filed O4/24/2006 Page 2 of 4

1 5. When the Honorable Edward Burke asked Ms. Gerdts (under oath during the first
2 Temporary Restraining Order ("TRO") hearing) what the nature of her contract was with Nelcela,
3 she admitted that no such contract existed.
4 See, hearing transcript dated May 29, 2001 at pp. 43, ll. 3-15; p. 44, ll. 11-21 attached here
5 , in relevant part as Exhibit E and incorporated by this reference.
6 8
7 RESPECTFULLY SUBMITTED this 24*h day of April, 2006. r
8 A I . I
RON & FIRESTO PLO/’ , g
9 Y W i ? W . . V
10 . Q . Q ~
11 Merrick B. rresto v e 5
Veronica L. Mano io r
12 9300 E. Raintree Drive, Suite 120
Scottsdale, Arizona 85260 ,
13 Attorneys for the Nelcela Defendants
14 4
15 ORIGINAL filed electronically with the Clerk’s Office 8
and COPIES electronically transmitted to the following y
16 CM/ECP registrants this same date to: T
17 Nicholas J. DiCarlo .
ndicarlo(a>thedcpfinn.com
18 Local Counsel for Merchant Transaction Systems
19 William McKimion
mail a>williamnickirmon.com
20 Attorneyfor Merchant Transaction Systems
21 Peter D. Baird A
baird a lrlaw.com A
22 Robert H. McKirgan 2
rm ir n a3lrlaw.com
23) Richard A. Halloran _ 1
Rhalloran@,lflaw.com 1 Q
24 Kimberly Demarchi i
K.(lC]'l1€·1ITCl1.1.(CI).l.fl§W',QOITI _ §
25 i Attorneysfor POST and Ebocom
26 i
T
Case 2:02-cv-01954-IVIHIVI Document 362 Filed O4/24/2006 Page 3 of 4

l Nicholas J. Wallwork
nwallw0rk@£ste]gt0e.cc1m i
2 Fredric D. Bellamy j
fbellamy’(cDstept0e.c01n
3 Bridget S. Bade
bbadegc0;ste_1;t0e.c0m {
4 Attorneysfor Lexcel, Inc.
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