Free Motion to Strike - District Court of Arizona - Arizona

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David P. Irmscher (Indiana State Bar No. 15026-02) John K. Henning (Indiana State Bar No. 25203-49) Baker & Daniels LLP 111 East Wayne Street, Suite 800 Fort Wayne, IN 46802 Telephone: 260-424-8000 Facsimile: 260-460-1700 Ray Harris (Arizona State Bar No. 007408) Paul Moore (Arizona State Bar No. 019912) Fennemore Craig 3003 North Central Avenue, Suite 2600 Phoenix, AZ 85012-2913 Telephone: 602-916-5000 Facsimile: 602-916-5999 Attorneys for the defendant, Omron Corporation UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Hypercom Corporation, CAUSE NO. CV04-0400 PHX PGR DEFENDANT OMRON CORPORATION' MOTION TO S STRIKE EVIDENCE OF COMPROMISE

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Plaintiff,
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vs.
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Omron Corporation,
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Defendant
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FENNEMORE CRAIG, P.C.
P HOENIX

The defendant, Omron Corporation ("Omron"), respectfully moves this Court to strike Exhibits 18 and 30 and portions of Exhibits 23 and 24 to Hypercom Corporation' s Opposition To Omron' Motion For Summary Judgment ("Hypercom' Response"), s s including references thereto in Hypercom' Response, as inadmissible evidence of s compromise under Rule 408 of the Federal Rules of Evidence. In support of its motion ("Motion To Strike"), Omron states as follows: 1. On September 16, 2004, at the request of counsel for the plaintiff,

Hypercom, Inc. ("Hypercom"), representatives of Omron met with representatives of Hypercom in Phoenix, Arizona. 2. The purpose of this meeting was to discuss potential settlement terms

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between the parties. 3. Prior to this settlement meeting, the parties agreed in writing that all

communications between them would be subject to Federal Rule of Evidence 408. 4. Rule 408 expressly provides:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. Fed. R. Evid. 408 (emphasis added). 5. Exhibits 18 and 30 and portions of Exhibits 23 and 24 attached to

Hypercom' Response, as well as corresponding references in Hypercom' Response, s s contain representations about conduct and statements made in compromise negotiations between Hypercom and Omron. See Summary of deposition testimony to be stricken, attached as Exhibit A to this Motion To Strike. 6. Exhibit 18 to Hypercom' Statement Of Facts In Opposition To Omron' s s

Motion For Summary Judgment ("Hypercom' Statement Of Facts) is a presentation s which Hypercom purports to have prepared for and given during the September 16, 2004, meeting. Hypercom/Omron Meeting Phoenix, AZ September 16, 2004, attached as

Exhibit B to the Judge' copy of Motion To Strike. s 7. Exhibit 30 to Hypercom' Statement Of Facts is a declaration of Douglas J. s

Reich, in-house counsel for Hypercom, which purports to disclose evidence of conduct and statements made during the September 16, 2004, meeting. See Declaration of

Douglas J. Reich, attached as Exhibit C to the Judge' copy of Motion To Strike. s 8. Exhibit 23 to Hypercom' Statement Of Facts is the entire deposition s

transcript of Tetsuyuki Nakano, Omron' designated corporate representative. Portions of s Exhibit 23 (pages 155:22 to 156:14, and 159:18-22), contain deposition testimony of Mr.
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Nakano regarding evidence of conduct and statements made during the September 16, 2004 meeting. See Deposition of Tetsuyuki Nakano, attached as Exhibit D to the Judge' s copy of Motion To Strike; see also Exhibit A to Motion To Strike. 9. Exhibit 24 to the Response is the entire deposition transcript of Mr. Reich, Portions of Exhibit 24 (pages 22:13-19; 24:17-25;

Hypercom' in-house counsel. s

25:18-24; 32-35; 36:22-25; 37:5-25; 38-42; 43:1-3, 43:16-25; 44-48; and 49:1-13), contain deposition testimony of Mr. Reich purportedly regarding evidence of conduct and statements made during the September 16, 2004, meeting. See Deposition of Douglas Reich, attached as Exhibit E to the Judge' copy of Motion To Strike; see also Exhibit A s to Motion To Strike. 10. The Advisory Committee Notes to Rule 408 express two grounds for its

exclusion of compromise evidence: "(1) The evidence is irrelevant, since the offer may be motivated by a desire for peace rather than from any concession of weakness of position. . . (2) A more consistently impressive ground is promotion of the public policy favoring the compromise and settlement of disputes." See also U.S. v. Contra Costa County Water Dist., 678 F.2d 90, 92 (9th Cir. 1982) (reciting above principles to hold evidence of settlement negotiations inadmissible). 11. Thus, courts have consistently refused to admit evidence of settlement

efforts or statements made during those efforts in opposition to motions for summary judgment. See e.g., Civic Center Drive Apartments Ltd. P' ship v. Southwestern Bell Video Serv., 295 F. Supp. 2d 1091, 1099 n.3 (N.D. Cal. 2003) (holding that evidence referring to parties' settlement efforts is inadmissible in opposition to motion for summary judgment); Liesener v. Weslo, Inc., 775 F. Supp. 857, 859-60 (D. Md. 1991) (holding affidavit containing statements made in settlement discussions inadmissible and incompetent under Rule 408 to oppose motion for summary judgment). 12. The evidence identified above is inadmissible under Rule 408, and

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incompetent to raise a genuine issue for trial. Id. WHEREFORE, Omron respectfully requests that this Court strike Exhibits 18 and 30, and the portions of Exhibits 23 and 24 indicated in Exhibit A to this Motion To Strike, to Hypercom' Response and all references thereto in Hypercom' Response. s s Respectfully submitted on January 12, 2006. FENNEMORE CRAIG, P.C.

By: s/Ray K. Harris Ray Harris Paul Moore BAKER & DANIELS LLC David P. Irmscher John K. Henning Attorneys for Defendant Omron Corporation

CERTIFICATE OF SERVICE I hereby certify that on January 12, 2006, I electronically transmitted the attached documents to the Clerk' Office using the CM/ECF System for filing and transmittal f a s Notice of Electronic Filing to the following CM/ECF registrants: Michael K. Kelly Sid Leach SNELL & WILMER L.L.P. One Arizona Center 400 East Van Buren Phoenix, AZ 85004-2202 Peter Henry Schelstraete SCHELSTRAETE LAW OFFICE 1949 East Broadway Suite 107
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Tempe, AZ 85282-0001

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I hereby certify that on January 12, 2006, I served the attached document by mail on the following, who are not registered participants of the CM/ECF System: Christopher S. Walton Gregory S. Donahue SIMON GALASSO & FRANTZ PLC 115 Wild Basin Road Suite 107 Austin, TX 78703

_s/Melody Tolliver_________________

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