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Case 1:O4—cv—O1551-JJF Document 361 Filed 10/O2/2007 Page 1 of 2
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WILMINGTON. DELAWARE 19899
October 2, 2007
VIA ELECTRONIC FILING AND HAND DELIVERY
The Honorable Joseph J. Faman, Jr.
United States District Court
844 N. King Street
Wilmington, DE 19801
Re: MBIA Ins. Corp. & Wells Fargo Bank NA. v. Royal Indemnity Co.,
C.A. No. 02-1294-JJF;
Charles A. Stanziale, Jr., Chapter 7 Trustee of Student Finance Corporation vs. Pepper
Hamilton LLP, et al., C.A. No. 04-1551-JJF
Dear Judge Faman:
We write in response to Wells Fargo’s reply brief in support of its motion, originally
brought by Pepper Hamilton, to compel the deposition of Royal’s accounting expert, John
Garvey. (D.I. 472.) Pepper’s motion, adopted wholesale by Wells Fargo, argued for Mr.
Garvey’s deposition—though Royal had withdrawn Mr. Garvey as a testifying expert and is not
calling him at trial. Royal responded to Wells F argo’s request with substantial case law
confirming the futility of Wells Fargo request for Mr. Garvey’s deposition. (D.I. 497.)
Wells Fargo has now changed course. In its reply, Wells Fargo implicitly acknowledges
that Mr. Garvey’s deposition is legally unavailable. Instead, it focuses on Mr. Garvey’s report,
claiming that the only reason for his deposition is to authenticate the report, which Wells Fargo
apparently then plans to use at trial in lieu of Mr. Garvey’s testimony. (D.I. 510.) Wells Fargo’s
argument rests wholly on the specious notion that Mr. Garvey’s report can be deemed an
adoptive admission of Royal. In so doing, Wells Fargo’s brief ignores controlling Third Circuit
authority plainly holding the opposite—that expert witness testimony is by definition not
considered an admission of a party:
Because an expert witness is charged with the duty of giving his or her
expert opinion regarding the matter before the court, we fail to
comprehend how an expert witness, who is not an agent of the party who
called him, can be authorized to make an admission for that party.

Case 1:O4—cv—O1551-JJF Document 361 Filed 10/O2/2007 Page 2 of 2
The Honorable Joseph J. Farnan, Jr.
October 2, 2007
Page 2
Kirk v. Raymark Inds., Inc., 61 F.3d 147, 164 (3d Cir. 1995) (emphasis in original); see also
Pfizer, Inc. v. Ranbcvqy Labs., Ltd., No. 03-209 JJF, 2005 VVL 2296613 at *2 (Sept. 20, 2005)
(holding Kirk applicable to exclude deposition testimony of designated expert witnesses). The
holding in Kirk, controlling here, should end the matter and Wells Fargo’s motion should be
denied.
Respectfully,
/s/ Tyfany Geyer Lydon
Tiffany Geyer Lydon
1s46ss.i
cc: Melanie Sharp, Esquire (by e-mail)
Andre G. Castaybert, Esquire (by e-mail)
Charlene Davis, Esquire (by e-mail)
Michael S. Waters, Esquire (by e-mail)
Karen Lee Turner, Esquire (by e-mail)
Neil G. Epstein, Esquire (by e-mail)