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i Case 1:04-cv-00148-Gl\/IS Document 65-6 Filed 08/15/2005 Paget of4
UNITED STATES DISTRICT COURT »
~ THE DISTRICT OF DELAWARE A
In re: Chapter ll
A INACOM CORP., et al., Bankmptcy Case N0. 00-2426 (PJW)
Debtors. _ l
INACOM CORP., on behalf of all affiliated Adv. Pro. N0. 02-03496 (PJW)
debtors, `
p I Civil Action No. 1:04-CV-00l48 (GMS) p
Plaintiff, ·
vs.
TECH DATA CORPORATION,
Defendant and I
Third~Party Plaintiff,
vs. I l
HEWLETT PACKARD CORP.,
COMPAQ COMPUTER CORP., ITY
CORP., and CUSTOM EDGE, INC.,
Third-Party Defendants.
· TECH DATA CORPORATION ’S MOTION IN LIMINE
TO EXCLUDE TESTIMONY OF CHRIS ANDERSON
_ Defendant and Third—Party Plaintiff, TECH DATA CORPORATION ("Tech
n Data") moves this Court for an order in limine excluding testimony of Chris Anderson _
‘ ("Anderson") regarding the factual circumstances pursuant to which Third-Party
Defendant, Hewlett-Packard Company ("HP"), successor in interest to Compaq
Computer Corp. ("Compaq"), guaranteed obligations of Inacom Corporation (“‘Inacom or
I Debtor") to Tech Data. ‘ I
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1. On January 24, 2005, HP served its responses to Tech Data’s First Set of
lnterrogatories (“Interrogatories") whereby HP identified that they would be calling as a
witness at trial or hearing in this adversary proceeding, Chris Anderson, former Director
of Corporate Finance for Compaq.
2. At or about the time that Tech Data produced Mike Zava as a witness, and
in the presence of counsel for Defendant/Third-Party Plaintiff, Lexmark International,
Inc. ("Lemark"), HP was to have produced Chris Anderson for deposition by Tech Data.
That deposition never took place.
3. During the deposition of Jay Samuelson ("Samuelson") in Omaha,
Nebraska on March 25, 2005, Chris Anderson was again mentioned, this time by the
deponent, as follows: _ _ A
Examination by Mr. Halliday
Q: To whom at Compaq?
A: . .Chris Anderson"
Q: Is he at Hewlett-Packard?
A: No, he’s no longer with them.
Q: What position did he have at that time? _
A: As far as I know, he was just - - he was a finance manager. I don’t know
what his title was.
Q: And what information, specifically, did you transmit to him?
A: It would have been listing of specific liabilities and assets that were part of
the negotiations that were underway for the asset purchase agreement.
Samuelson Depo. Tr., 34:2—l7
4. Following Samuelson’s testimony, Tech Data and Lexmark again
requested that counsel for HP produce Chris Anderson for deposition by Tech Data.
HP’s counsel advised that, if it was possible to arrange for Mr. Anderson to be
voluntarily produced, it wouid be arranged. I
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i Case 1:04-cv-00148-Gl\/IS Document 65-6 Filed 08/15/2005 Page 3 of 4
I 5. In light of Samuelson’s testimony that Chris Anderson was "...no longer
with them," coupled with the fact that HP did not notify counsel of Chris Anderson’s
availability for deposition, Tech Data relied in good faith upon HP’s counsel to produce
Chris Anderson and took no further action.
5. Since HP agreed to produce Chris Anderson for deposition but failed to
L do so, allowing HP to now produce Chris Anderson as a witness at trial would place Tech
y Data in an unreasonable position of having no knowledge of Chris Anderson’s purported
testimony due to Tech Data’s inability to depose him. It strains the conscience to
understand why Mr. Anderson could not voluntarily be produced before, but is now
willing to appear some several states away from the Miami home identified by HP in its
‘ I witness list. _
I 6. Chris Anderson should not be permitted to testify in light of HP’s failure
to produce him for deposition. HP should not be afforded the ability to present Chris
T Anderson as a fact witness.
CONCLUSION
Pursuant to Rule 37 of the Federal Rules of Civil Procedure, together with the
foregoing reasons, Tech Data Corporation respectfully requests that the Court grant an in _
limine Order prccluding Hewlett—Packard Company from presenting testimony from `
Chris Anderson. I L
L CERTIFICATION OF COUNSEL
Pursuant to Rule 7.1.1 of the Local Rules of Civil Practice and Procedure of the
l United States District Court for the District of Delaware, the undersigned hereby certifies
that counsel for Tech Data Corporation has made a reasonable effort to reach agreement
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Case 1:04-cv-00148-Gl\/IS Document 65-6 Filed 08/15/2005 Page 4 of 4
with counsel for Hewlett—Packard Company on the matters set forth in this Motion, and
have been unable to reach such agreement.
Dated: August 15, 2005
HERLIHY, HARKER & KAVANAUGH
A /s/ James F. Harker
James F. Harker (Bar No. 255)
Local Counsel for Defendant
1300 North Market Street, Suite 400
Wilmington, Delaware 19899
Telephone: (302) 654-3111 .
—and- .
ADORNO & YOSS, LLP
Charles M. Tatelbaum
(Admitted Pro Hac Vice)
Stephen C. Hunt
A _ _ (Admitted Pro Hac Vice) (
350 E. Las Olas Boulevard, Suite 1700
Fort Lauderdale, FL 33301
Telephone: (954) 763-1200
Facsimile: (954) 766-7800
Attorneys for Third-Party Plaintyf
. Tech Data Corporation
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