Free Objections - District Court of Delaware - Delaware

Case 1:04-cv—00148-G|\/IS Document 81 Filed 08/26/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRTCT OP DELAWARE
In re: Chapter ll
INACOM CORP., et al., Bankruptcy Case No. 00-2426 (PJW)
Debtors. .
TNACOM CORP., on behalf of all affiliated Civil Action No. 04-CV—l48 (GMS)
debtors,
Plaintiff,
vs.
TECH DATA CORPORATION,
Defendant.
TECH DATA CORPORATION,
Thi·rd—Party Plaintiff,
vs.
HEWLETT—PACKARD COMPANY,
COMPAQ COMPUTER CORP., TTY
CORP., and CUSTOM EDGE, TNC.,
T.hird—Party Defendants.
HEWLETTJFACKARD COMPANY’S OPPOSITION TO
TECH DATA CORPORATION ’S MOTION IN LIMINE TO EXCLUDE
TESTIMONY OF CHRIS ANDERSON
Tech Data Corporation ("Tech Data") has moved this Court for an order in
limine to exclude testimony of Chris Anderson (““Mr. Anderson") because Tech Data
never deposed Mr. Anderson. In fact, Tech Data received notice over seven months ago
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Case 1 :04-cv—00148-GIVIS Document 81 Filed 08/26/2005 Page 2 of 4
that Mr. Anderson is a knowledgeable witness, but Tech Data failed to request his
deposition.
ARGUMENT
On October 4, 2004, the Court consolidated for the purposes of discovery
the preference actions brought by the estate of lnacom Corp. ("Inacom") against Tech
Data and Lexmark International, Inc. (“Lexmark”). Depositions of HP witnesses have
been conducted jointly hy Tech Data and Lexmark.
On January 24, 2005, HP served its Responses to Tech Data’s First Set of
Interrogatories in which HP identitied l\/ir. Anderson, then an HP employee, as follows:
INTERROGATORY NO. 2:
Identify each person that the Third Party Defendants niay call as a witness
at any trial or hearing in this Adversary Proceeding and, for each person
identified, state the specific issue on which that person may be expected to
testify.
RESPONSE TO INTERROGATORY NO. 2:
. . . HP states that it may call the foilowing individuals as witnesses:
Chris Anderson — former Director of Corporate Finance for
Compaq with knowledge of the asset purchase transaction and liabilities
assumed by Compaq pursuant thereto. Currently an HP employee, address
c/o FD&S.1
Mr. Anderson was further identified in at ieast two depositions as a
knowledgeable witness. On March 25, 2005, I ay Samuelson identified Mr. Anderson as
someone with knowledge of the asset purchase transaction and of the liabilities that
Compaq assumed. On March 30, 2005, Ben Wells also identified Mr. Anderson as
someone involved with the asset purchase transaction and who had knowledge of the
I Mr, Anderson was also identified in i—lP’s responses to Interrogatory Nos. 5 and 18 as having knowledge
of the asset purchase transaction.
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assumed liabilities. After Mr. Wells identified Mr. Anderson, HP’s counsel voluntarily
informed counsel for Tech Data and Lexmark that l\/Ir. Anderson was no longer an HP
employee and consequently no longer under i—IP’s control, but HP was trying to locate
him regarding the accounts payable that Compaq assumed.2
In total, Lexmark and Tech Data noticed the deposition of l5 current and
former HP employees as well as a person most knowledgeable pursuant to Fed. R. Civ.
Proc. 30(b)(6). Yet no formal or written request to depose Mr. Anderson was ever made,
and HP is unaware of any informal or verbal request. Furthermore, none of the
categories listed in Tech Data’s 30(b)(6) notice are areas in which Mr. Anderson is a
person most knowledgeable.
l\/lr. Anderson resigned from HP during the Spring of 2005 and is now
residing in Florida. He is therefore beyond the subpoena power of the Court. If HP is
able to contact Mr. Anderson, and if he agrees to testify at trial, HP respectfully requests
that the Court allow Mr. Anderson to testify provided that HP gives Tech Data the
opportunity to depose hirn prior to trial.
CONCLUSION
For the foregoing reasons, HP requests that the Court deny Tech Data’s
motion in limine to exclude testimony of Mr. Anderson.
2 At the deposition of Ben K. Wells on March 30, 2005, HP’s counsel stated as follows:
Ms. Dumas: . . . I might as well say for the record that, since we received the 30(b)(6) notice, HP
has ascertained that it currently believes that Mr. Chris Anderson, who the witness identified, is
the individual who was primarily involved in the accounts payable analysis by Compaq. The last
time I spoke to Mr. Anderson, which was a couple of months ago, he was an HP employee. I
recently learned, after we received this, that he’s no longer with Hewlett~·Packard. And thus far,
we’ve been unable to reach him. But that is who we are attempting to locate on that topic.
Mr.l·Iunt: Okay. Thankyou, Ms. Dumas.
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Case 1 :04-cv—00148-GIVIS Document 81 Filed 08/26/2005 Page 4 of 4
Dated: August , 2005
Wilmington, Delaware MORRIS, NICHOLS, ARSHT & TUNNELL
//,O/4 5 /e 04/ ,/ //44 L. ooo,
wmtam H. sae Bs) "`
Derek C. Abbott (Ne. 3376)
Daniel B. Butz (No. 4227)
1201 N. Market Street
Wilmington, DE 19899-1347
(302) 658-9200
- and —
FRIEDMAN DUMAS & SPRINGWATER LLP
Ellen A. Friedman
Cecily A. Dumas
Gail S. Greenwood
Brandon C. Cbaves
One Maritime Plaza, Suite 2475
San Francisco, CA 9411}
(415) 834-3800
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