Free Reply to Response to Motion - District Court of Delaware - Delaware

Case 1 :04-cv-00148-GIVIS Document 93 Filed 09/06/2005 Page 1 of 2 -
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re INACOM CORP., etal., Bankruptcy Case No. 00-2426 (PJW)
INACOM CORP., on behalf of all affiliated Civil Action No. O4-148 (GMS)
Debtors, [Bk Adv. Case No. 02-3496 (P.IW)]
Plaintiff,
v.
[Related to Docket Nos. 71 and 85]
TECH DATA CORPORATION,
Defendant. .
AND RELATED THIRD PARTY `
ACTION.
PLAINTIFF’S REPLY RE ITS MOTION IN LIMINE TO EXCLUDE E
CUMULATIVE EXPERT TESTIMONY RE INSOLVENCY
First, Plaintiff does not concede that any of the testimony to be offered by E
Defenda.nt’s insolvency experts is materially relevant or persuasive. Moreover, Plaintiff does not
concede that these experts have the requisite relevant experience to bring any weight to their
opinions. Plaintiff does not, however, intend to challenge their qualifications, but to challenge
the relevance and weight of their testimony. [
Second, Defendant has conceded that its secondary expert, Mr. Whalen of Duff & I
Phelps, will NOT provide any opinions that are additional or different from its primary expert, n
Mr. Fensterstock of Sasco Hill Advisors, and thus, that it proposes to present two witnesses to
testify to the May 2, 2005 Sasco HillfDuff & Phelps report and the opinions therein. _
According to Defendant’s Opposition (Docket No. 85), its purpose for calling
Mr. Whalen is to provide detail regarding certain of the methodologies that are already explained H
at length in the May 2, 2005 Report. Yet, any work performed by Mr. Whalen and his
subordinates for the May 2 Report was done under the direction and supervision of L
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Case 1 :04-cv-00148-GIVIS Document 93 Filed 09/06/2005 Page 2 of 2 T
Mr. Fensterstock, who was employed by Duff & Phelps during most of the time period during n
which the work was performed, and who testified at length deposition regarding the
methodologies. Any testimony by Mr. Whalen would clearly be cumulative. Moreover, Plaintiff t
does not intend to contest the detail to which Mr. Whalen is proposed to testify, only the material
relevance of the methodology and opi11ions to be offered by Mr. Fensterstock. Defendant should
not be pemiitted to call Mr. Whalen until and unless a challenge is made at trial to the detail to
which Mr. Whalen is proposed to testify.
Under Federal Rules of Evidence 403 andthe Court’s form of Pretrial Order, at n
footnote 5 thereof, Defendant should be limited to the presentation of a single witness with _
respect to its insolvency expert reports. The exclusion of the cumulative expert testimony
relating to the issue of Plaintiffs insolvency will not cause any prejudice to Defendant ‘
whatsoever, and will greatly serve judicial economy and the interests of the parties and the
Court.
Dated: September LL, 2005 PACHULSKI, STANG, ZIEHL, YOUNG, JONES
& WEINTRAUB P.C. .
q c · ~ • p
Laura Davis Jones ar No. 2436 A
` Sandra G. McLamb (Bar No. 4283)
919 North Market Street, 16th Floor _
P.O. Box 8705
Wilmington, Delaware 19899-8705 (Courier 19801) ‘
Telephone: (302) 652-4100
Facsimile: (302) 652-4400 I
Andrew W. Caine (CA Bar No. 110345)
Jeffrey P. Nolan (CA Bar No. 158923) if
10100 Santa Monica Blvd., 1 lth Floor A
Los Angeles, Califomia 90067-4100
Telephone: (310) 277-6910
Facsimile: (310) 201-0760 1
Counsel for the PlaintiffsfDebtors
4ms.ooaxoocs_r>a;n1nzaz.1 2

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Case 1:04-cv-00148-GMS

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