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

Case 1 :04-cv-00148-GIVIS Document 92 Filed O9/O2/2005 Page 1 of 3 I
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re INACOM CORP., et al., Bankruptcy Case N0. 00-2426 (PJW)
INACOM CORP., on behalf of all affiliated Civil Action No. 04-148 (GMS) i
Debtors, _ [Bk Adv. Case N0. 02-3496 (P.IW)]
Plaintiff
v.
[Related to Docket Nos. 73 and 86]
TECH DATA CORPORATION,
Defendant. It
AND RELATED THIRD PARTY ,
ACTION.
PLAINTIFF’S REPLY RE ITS MOTION IN LIMINE TO EXCLUDE VVITNESS NOT
PREVIOUSLY DISCLOSED OR IDENTIFIED IN DISCOVERY RESPONSES
Defendant concedes that the 5 witnesses that are the subject of this Motion, all of
whom were identified by Defendant for the first time in the parties’ Pretrial Order, were NOT
identified by Defendant in its initial disclosures, any subsequent disclosures, any responses to
discovery propotmded by Plaintiff that specifically requested identification of all persons with
knowledge with respect to the issues in this action, or any expert witness disclosures. Federal
Rule of Civil Procedure 37(c)(l) is clear: witnesses not properly disclosed cannot be called to I
testify. Fed. R. Civ. P. 37(c)(l). l I
Defendant misrepresents the facts in a baseless attempt to avoid this tmdeniable
result. Defendant has not cited a single authority for the proposition that a percipient or expert _
witness disclosed in another action may be called without notice or disclosure. In sum,
Defendant simply failed to adequately prepare its case, and is scrambling to find witnesses in an ;
attempt to salvage its defense} The 5 previously undisclosed witnesses should be excluded.
' Defendant’s pending motion to consolidate this action with other pending preference actions is likely I
intended, at least in part, to remedy the failure to disclose witnesses by Defendant and others.
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Case 1 :04-cv—OO148-GIVIS Document 92 Filed O9/O2/2005 Page 2 of 3
The true pertinent facts are as follows:
1. Of the 5 previously undisclosed witnesses, none were identified by
Defendant in its initial disclosures, any subsequent disclosures, any responses to discovery
propounded by Plaintiff that specifically requested identification of all persons with knowledge
with respect to the issues in this action, or any expert witness disclosures.
2. Of the 5 witnesses, 2 were disclosed as percipient witnesses and l as an
expert witness in the matter of Inacom Corp. v. Dell Computer Corporation, Civil Action no. 04-
582 (GMS), 1 was disclosed as a percipient and expert witness in the matter of Inacom Corp. v.
Lexmark International, Inc., Civil Action no. 04-483 (GMS), and l was disclosed as a percipient I
and expert witness in the matter of Inacom Corp. v. Ingram Enterairnnent, Inc., Civil Action no. q-
04-583 (GMS). n
3. Plaintiffs counsel in this action is not serving as Plaintiffs counsel in the
Dell action.
4. This action has not been consolidated with any other pending action.
5. Depositions of witnesses common among this action and the Dell,
Lexmark and Ingram actions, primarily relating to the insolvency issue and Compaq transaction, A-
have been informally coordinated for the convenience of the parties and the witnesses. {
Depositions of witnesses NOT common to all of these actions, including the 5 witnesses that
are the subject of this Motion, have NOT been coordinated, but conducted solely among
counsel to the particular action, on issues solely related to the particular action. Thus, Plaintiff
has NOT deposed any of the 5 witnesses for any purpose other than the particular action in
which they were identified, and the 3 witnesses identified in the Dell action were deposed by
different counsel. 2
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Case 1 :04-cv-00148-GIVIS Document 92 Filed O9/O2/2005 Page 3 of 3 `
Plaintiff will clearly suffer prejudice if the 5 previously undisclosed witnesses are
permitted to testify. Plaintiff did not have an opporttmity to depose these witnesses regarding F
any testimony relevant to this action, investigate the facts to which they may testify, prepare
motions in limine on relevance and/or qualification grounds, or otherwise prepare its case for
trial. _ 1
Despite Defendant’s clear obligation under Federal Rules of Civil Procedure 26
and 33 to disclose and identify all potential and expert witnesses in this action, Defendant’s .
witness list for the trial of this action includes 5 previously undisclosed witnesses. Permitting
these witnesses to testify would be unfairly prejudicial to Plaintiff, and thus, they should be
excluded pursuant to Federal Rules of Evidence 403 and Federal Rules of Civil Procedure
37(<>)(1)- A
Dated: September£ 2005 _ PACHULSKI, STAN G, ZIEHL, YOUNG, JONES
& WEINTRAUB P.C.
Lia Davis Jones (Bar No. 2436)
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 1 :
Andrew W. Caine (CA Bar No. 110345)
Jefhey P. Nolan (CA Bar No. 158923)
10100 Santa Monica Blvd., 11th Floor
Los Angeles, California 90067-4100
Telephone: (310) 277-6910 32
Facsimile: (310) 201-0760
Counsel for the Plaintiffs/Debtors _
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