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					   Christopher R. Kaup, Esq.
   State Bar No. 014820
 1
   Andrew M. Ellis, Esq.
 2 State Bar No. 018326

 3
     Third Floor Camelback Esplanade II
 4   2525 East Camelback Road
     PHOENIX, ARIZONA 85016B4237
     TELEPHONE: (602) 255-6000
 5   FACSIMILE: (602) 255-0103
     Attorneys for Biltmore Associates, Trustee
 6   of the Visitalk.com Creditors’ Trust
 7   Gary Birnbaum (#004386)
 8   Timothy Thomason (#009869)
     Scot Claus (#014999)
 9   MARISCAL, WEEKS, McINTYRE
     & FRIEDLANDER, P.A.
10   2901 N. Central Avenue
     Suite 200
11   Phoenix, Arizona 85012-2705
     Attorneys for Defendant Snell &
12   Wilmer, LLP
13

14                                        UNITED STATES DISTRICT COURT
15                                   DISTRICT OF ARIZONA
16
      BILTMORE ASSOCIATES, as Trustee for
      the Visitalk Creditors’ Trust,            Case No. CV 02-2405 PHX HRH
17
                                              Plaintiff,    JOINT STATEMENT OF ISSUES;
18                                                          JOINT STATEMENT OF
19                  vs.                                     UNDISPUTED FACTS; and
                                                            LISTS OF WITNESSES
20    PETER THIMMESCH, et al.,
21
                                              Defendants.
22

23            Pursuant to the Amended Order for Final Pretrial Proceedings & Final Pretrial
24   Conference dated July 18, 2007 (Docket 375) and the Second Amended Order for Pretrial
25
     Proceedings dated December 3, 2007, and Final Pretrial Conference dated November 13, 2007,
26
     the following is the Joint Statement of Issues; Joint Statement of Undisputed Facts and Lists of
27

28   Witnesses to be considered at the Final Pretrial Conference set for February 8, 2008.

     11400-001/354772
      Case 2:02-cv-02405-HRH                 Document 422   Filed 12/20/2007   Page 1 of 71
     COUNSEL FOR THE PARTIES.
 1
 2    Plaintiff, Biltmore Associates, as Trustee          Christopher Reed Kaup
      for the Visitalk Creditors' Trust                   Tiffany & Bosco PA
 3    (“Plaintiff”)                                       Camelback Esplanade II
                                                          2525 E Camelback Rd
 4
                                                          3rd Floor
 5                                                        Phoenix, AZ 85016
                                                          602-255-6024
 6                                                        602-255-0103 (fax)
 7                                                        crk@tblaw.com

 8    Defendant, Snell & Wilmer LLP                       Gary L Birnbaum
      a limited liability partnership (“S&W”)             Scot L Claus
 9
                                                          Charles Steven Price
10                                                        Timothy J Thomason
                                                          Mariscal Weeks McIntyre &
11                                                        Friedlander PA
12                                                        2901 N Central Ave, Ste 200
                                                          Phoenix, AZ 85012-2705
13                                                        602-285-5000
                                                          602-285-5100 (fax)
14

15    Defendant, Peter Thimmesch                          Peter Thimmesch, Pro Se
      (“Thimmesch”)                                       11329 Stonehouse Pl
16                                                        Potomac Falls, VA 20165-5123
17                                                        (202)210-7333

18   I.     JOINT STATEMENT OF THE ISSUES.

19
      A.      PROFESSIONAL NEGLIGENCE CLAIM1.
20
              The elements of a claim for professional negligence are:
21
              1.        The existence of an attorney-client relationship imposing a duty on the
22

23                      attorney to exercise the degree of skill, care and knowledge commonly

24                      exercised by members of the profession;

25            2. A breach of that duty;
26            3. That such negligence was a proximate cause of damages; and
27
              1
28            Snell & Wilmer joins in the following statement without prejudice to its preservation of all
     defenses. Plaintiff joins in the following statement without prejudice to its preservation of all
     claims.
     11400-002/354772
      Case 2:02-cv-02405-HRH            Document 422 2 Filed 12/20/2007          Page 2 of 71
              4. The nature and extent of such damages.
 1    Philips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300, 303 (App. 1986). Moreover, the
 2
      burden of proof on each element of the professional negligence claim rests with Plaintiff.
 3
              The following issues for resolution at trial are presented:
 4
              1. Did Snell & Wilmer fall below the applicable standard of care in connection with
 5
                   services relating to the Founders Warrants claimed to have been issued to Peter
 6
                   Thimmesch and Michael O’Donnell in September 1998
 7
              2. Did Snell & Wilmer fall below the applicable standard of care by assisting
 8
                   Visitalk in connection with the Updated Series C Confidential Information
 9
                   Statement and offering and the sale of privately placed securities between July
10

11                 1999 and November 29, 2000?

12            3. Did Snell & Wilmer fall below the applicable standard of care in connection with

13                 the Cardwell Settlement
14            4. Did the Cardwell Settlement constitute or result in a usurpation of a corporate
15                 opportunity?
16            5. Did Snell & Wilmer fall below the applicable standard of care in connection with
17
                   allegedly failing to obtain effective releases from investors and/or an effective
18
                   rescission offering to investors;
19
              6. Did Snell & Wilmer fall below the applicable standard of care in connection with
20
                   the concurrent representation of Visitalk and the Thimmesches and the
21
                   O’Donnells for their estate planning;
22
              7. Did Snell & Wilmer fall below the applicable standard of care in connection with
23

24                 allegedly aiding and abetting Thimmesch and O’Donnell with breaching their

25                 fiduciary duties to Visitalk, including alleged actions relating to the Founders’

26                 Warrants;
27

28

     11400-002/354772
      Case 2:02-cv-02405-HRH            Document 422 3 Filed 12/20/2007      Page 3 of 71
              8. Can Plaintiff identify any damages sustained by Visitalk that were proximately
 1                 caused by the conduct of Snell & Wilmer? If so, what is the nature and extent of
 2
                   such damages?
 3
      B.      AIDING AND ABETTING A BREACH OF FIDUCIARY DUTY.
 4
              A claim of aiding and abetting tortious conduct requires proof of three elements:
 5
              1.        The primary tortfeasor must commit a tort that causes injury to plaintiff.
 6
              2.        The defendant must show that the primary tortfeasor’s conduct constitutes a
 7
                        breach of duty; and
 8
              3.        The defendant must substantially assist or encourage the primary tortfeasor in
 9
                        the achievement of the breach.
10

11    Wells Fargo v. Arizona Laborers, 201 Ariz. 474, 38 P.3d, 12, 24 (2002). The burden of

12    proof on each element of the aiding and abetting claim lies with Plaintiff.

13            The following issues are presented:
14            1.        Did Peter Thimmesch and Michael O’Donnell breach fiduciary duties to
15                      Visitalk?
16            2.        Did Snell & Wilmer substantially assist or encourage such a breach of duty?
17
              3.        Did the breaches of fiduciary duty cause Visitalk damage?
18
              4. What is the amount of the damage?
19
              All of the sub-issues described above with respect to the negligence claim also apply
20
      to this claim.
21
              C. NEGLIGENT MISREPRESENTATION.
22
              A claim of negligent misrepresentation requires proof of the following:
23
              To prove negligent misrepresentation, a party must establish that (1) the defendant, in
24
     the course of business, gave incorrect information for the guidance of others in their business
25
     transactions; (2) the defendant intended, or could reasonably foresee, that the others would
26
     rely on that information; (3) the defendant failed to exercise reasonable care in obtaining or
27

28

     11400-002/354772
      Case 2:02-cv-02405-HRH             Document 422 4 Filed 12/20/2007         Page 4 of 71
     communicating that information; (4) others relied on that incorrect information; (5) the others’
 1   reliance was justified; and (6) the others' reliance was a cause of their damages.
 2            Taeger v. Catholic Family and Community Services, 196 Ariz. 285, 294, 995 P.2d
 3    721, 730 (Ariz.App. Div. 1,1999); See Standard Chartered, 190 Ariz. at 31, 945 P.2d at 342.
 4            The parties agree the following are issues are presented:
 5
              1. Did S&W make false and misleading representations and/or omissions or provide
 6
      incorrect information to Visitalk?
 7
              2. Did S&W intend or could S&W have foreseen that Visitalk would rely upon that
 8
      information?
 9
              3. Did Visitalk rely on that incorrect information?
10
              4. Did S&W exercise reasonable care in obtaining or communicating that
11

12    information?

13            5. Was the reliance of Visitalk justified and a cause of damage to Visitalk?

14            6. What is the amount of such damages, if any?
15            D. PREFERENCE.
16            11 U.S.C. § 547(b)(4)(B) permits a bankruptcy trustee or a debtor-in-possession to
17    avoid any pre-petition transfer by the debtor that occurs “between 90-days and 1-year
18
      before the date of the filing of the petition, if such creditor at the time of such transfer was
19
      an insider.”      11U.S.C. § 101 provides the statutory definition of an “insider” of a
20
      corporation. § 101(31)(b) states:
21             The term ‘insider’ includes…if the debtor is a corporation – (i) director
22             of the debtor; (ii) officer of the debtor; (iii) person in control of the
               debtor; (iv) partnership in which the debtor is a general partner;
23             (v) general partner of the debtor; or (vi) relative of the general partner,
               director, officer or person in control of the debtor.
24

25    11 U.S.C. § 101(31)(b).
26    The issue for resolution is whether or not Snell & Wilmer was an “insider.” If not, then
27
      plaintiff is only entitled to recover preferential payments made within the 90-days before
28
      the filing of the petition.
     11400-002/354772
      Case 2:02-cv-02405-HRH          Document 422 5 Filed 12/20/2007         Page 5 of 71
 1
     II PLAINTIFF’S SEPARATE STATEMENT OF ISSUES.
 2
      A.      PROFESSIONAL NEGLIGENCE CLAIM.
 3

 4            In addition to the agreed upon issues set forth above, Plaintiff believes the Court will

 5   be required to resolve the following issues:
 6
               1.       Did Snell & Wilmer fall below the applicable standard of care in connection
 7

 8
     with allegedly aiding and abetting Thimmesch and O’Donnell with breaching their fiduciary

 9 duties to Visitalk by artificially prolonging Visitalk’s corporate life which deepened its

10 insolvency and not disclosing the true facts regarding the claimed issuance of the Founders

11 Warrants to Visitalk’s Board of Directors?

12

13    B.      AIDING AND ABETTING A BREACH OF FIDUCIARY DUTY.

14            Plaintiff believes this Court is required to consider the following controlling
15
      decisional authority in ruling on its claim of aiding and abetting tortious conduct:
16
              “A showing of actual and complete knowledge of the tort is not uniformly necessary
17            to hold a secondary tortfeasor liable under an aiding and abetting theory.” 201 Ariz.
18            at 488, 38 P.3d at 26 (citing FDIC v. First Interstate Bank of Des Moines, N.A., 885
              F.2d 423 (8th Cir. 1989) [emphasis supplied]. “ ‘The knowledge requirement’ can be
19            met, ‘even though the [defendant] may not have known of all the details of the
              primary fraud -- the misrepresentations, omissions, and other fraudulent practices.’ ”
20
              Id. (quoting Aetna Cas. and Sur. Co. v. Leahey Const. Co., Inc., 219 F.3d 519, 536
21            (6th Cir. 2000) (citing Woods v. Barnett Bank of Fort Lauderdale, 765 F.2d 1004,
              1012 (11th Cir. 1985). “General awareness” of the fraudulent scheme can be
22            established though circumstantial evidence. FDIC v. First Interstate Bank of Des
23            Moines, N.A., 885 F.2d 423.

24    C.      NEGLIGENT MISREPRESENTATION.
25            In addition to the agreed upon issues set forth above, Plaintiff believes the Court will
26
     be required to resolve the following issues:
27

28

     11400-002/354772
      Case 2:02-cv-02405-HRH            Document 422 6 Filed 12/20/2007       Page 6 of 71
              1.    Did S&W make false and misleading representations and/or omissions or
 1
      provide incorrect information to the independent members of Visitalk’s Board of Directors
 2
      concerning material facts regarding the Founders Warrants in connection with the proposed
 3

 4    solution to the problems regarding those warrants through the planned solicitation of

 5    releases from the Series A Shareholders?;
 6
              2. Did S&W intend or could S&W have foreseen that Mr. Kaplan and Mr.
 7

 8
      Hirschberg, as board members, would rely upon that information?

 9            3. Did Mr. Kaplan and Mr. Hirschberg rely on that incorrect information?

10            4. Did S&W exercise reasonable care in obtaining or communicating that

11    information?
            5. Was the reliance of Mr. Kaplan and Mr. Hirschberg justified and a cause of
12

13    damage to Visitalk?
14
      D.      PREFERENCE.
15
              Plaintiff believes this Court is required to consider the following decisional authority
16
      in ruling on its claim of voidable preferences:
17

18            There are two distinct types of insiders, those entities specifically mentioned in
              the statute, … per se insiders, or those not listed in the statutory definition, but
19
              who have a “... sufficiently close relationship with the debtor that ... conduct is
20            made subject to closer scrutiny than those dealing at arm’s length with the
              debtor.” … [I]nsider status may be based on a professional or business
21            relationship with the debtor, in addition to the Code’s per se classifications,
22            where such relationship compels the conclusion that the individual or entity has
              a relationship with the debtor, close enough to gain an advantage attributable
23            simply to affinity rather than to the course of business dealings between the
              parties.
24

25   In re Enterprise Acquisition Partners, Inc., 319 B.R. 626, 631 (9th BAP 2004).
26
              In addition, S&W must prove each of the elements of each of its defenses under 11
27

28    U.S.C. §547(c).

     11400-002/354772
      Case 2:02-cv-02405-HRH          Document 422 7 Filed 12/20/2007          Page 7 of 71
     III.     SNELL & WILMER’S SEPARATE STATEMENT OF LEGAL ISSUES
 1            Defendant Snell & Wilmer LLP identifies the following legal issues that it believes
 2
      should be resolved at trial1.
 3
      A.      PROFESSIONAL NEGLIGENCE CLAIM.
 4
              The elements of a claim for professional negligence are:
 5
              1.        The existence of an attorney-client relationship imposing a duty on the
 6
                        attorney to exercise the degree of skill, care and knowledge commonly
 7
                        exercised by members of the profession;
 8
              2. A breach of that duty;
 9
              3. That such negligence was a proximate cause of damages; and
10

11            4. The nature and extent of such damages.

12    Philips v. Clancy, 152 Ariz. 415, 418, 733 P.2d 300, 303 (App. 1986). Moreover, the

13    burden of proof on each element of the professional negligence claim rests with Plaintiff.
14            The following issues for resolution at trial are presented:
15            1. Did Snell & Wilmer fall below the applicable standard of care in connection with
16                 assisting Visitalk in obtaining waivers of potential claims from Series A
17
                   shareholders for Visitalk’s failure to disclose to such shareholders that the Board
18
                   of Directors had authorized the issuance of Founders Warrants to Peter
19
                   Thimmesch and Michael O’Donnell in September 1998?
20
              2. Did Snell & Wilmer fall below the applicable standard of care by assisting
21
                   Visitalk in the sale of privately placed securities between July 1999 and
22
                   November 2000?
23

24            3. Did Snell & Wilmer fall below the applicable standard of care in connection with

25                 assisting Visitalk with the sale of 500,000 shares of stock from Mark Cardwell in

26

27

28            1
              In addition to the following, Snell & Wilmer incorporates by reference any legal
     issues framed or implicated by its Witness Summaries and Deposition Designations.
     11400-002/354772
      Case 2:02-cv-02405-HRH            Document 422 8 Filed 12/20/2007       Page 8 of 71
                   connection with the settlement of disputed claims by Cardwell against Visitalk
 1                 (the “Cardwell Settlement”)?
 2
              4. Did the Cardwell Settlement constitute a usurpation of a corporate opportunity,
 3
                   and if so, can Plaintiff identify and quantify that corporate opportunity?
 4
              5. Can Plaintiff identify any property or other assets of Visitalk that were
 5
                   proximately damaged as a result of Snell & Wilmer’s conduct?
 6
              6. Can Plaintiff identify any damages sustained by Visitalk that were proximately
 7
                   caused by the conduct of Snell & Wilmer?
 8
              7. If so, what is the “nature and extent” of such damages?
 9
              8. Are alleged contingent “claims” of Visitalk preferred shareholders barred as a
10

11                 result of the Order Confirming the Second Joint Plan of Reorganization, or

12                 otherwise irrelevant?

13            9. Did any shareholders of Visitalk possess “claims” against Visitalk after December
14                 13, 1999, or were such claims merely speculative?
15            10. If any shareholder possessed a claim, could any such claim constitute a “debt” of
16                 Visitalk; and if so, what is appropriate measure of such “debt?”
17
              11. If any shareholder held a claim against Visitalk, was any such claim probable,
18
                   expected and measurable?
19
              12. Did Visitalk seek bankruptcy protection due to any conduct of Snell & Wilmer?
20
              13. Why does the “business judgment rule” not preclude the liability of Snell &
21
                   Wilmer for decisions made by Visitalk’s Board of Directors and management?
22
              14. Are Plaintiff’s damages claims merely speculative?
23

24    B.      AIDING AND ABETTING A BREACH OF FIDUCIARY DUTY.

25            A claim of aiding and abetting tortious conduct requires proof of three elements:

26            1.        The primary tortfeasor must commit a tort that causes injury to plaintiff.
27            2.        The defendant must show that the primary tortfeasor’s conduct constitutes a
28                      breach of duty; and

     11400-002/354772
      Case 2:02-cv-02405-HRH             Document 422 9 Filed 12/20/2007         Page 9 of 71
              3.        The defendant must substantially assist or encourage the primary tortfeasor in
 1                      the achievement of the breach.
 2
      Wells Fargo v. Arizona Laborers, 201 Ariz. 474, 38 P.3d, 12, 24 (2002). The burden of
 3
      proof on each element of the aiding and abetting claim lies with Plaintiff.
 4
              The following issues are presented:
 5
              1.        Did Peter Thimmesch and Michael O’Donnell breach fiduciary duties to
 6
                        Visitalk in connection with the resolution of the Founders Warrants problem?
 7
              2.        Did Snell & Wilmer substantially assist or encourage such a breach of duty?
 8
              3.        If so, did Snell & Wilmer proximately cause Visitalk damage?
 9
              4.        What are the amounts of the damages?
10

11            5.        Are any claimed damages merely speculative?

12            All of the sub-issues described above with respect to the negligence claim also apply

13    to this claim.
14    C.      NEGLIGENT MISREPRESENTATION.
15            In addition to the agreed upon issues set forth above, S&W believes the Court will be

16   required to resolve the following issues:
17
              1. Whether the reliance of Visitalk proximately caused damage to Visitalk?
18

19

20    C.      PREFERENCE,

21            11 U.S.C. § 547(b)(4)(B) permits a bankruptcy trustee or a debtor-in-possession to

22    avoid any pre-petition transfer by the debtor that occurs “between 90-days and 1-year
23    before the date of the filing of the petition, if such creditor at the time of such transfer was
24    an insider.”        11U.S.C. § 101 provides the statutory definition of an “insider” of a
25    corporation. § 101(31)(b) states:
26

27

28

     11400-002/354772
     Case 2:02-cv-02405-HRH             Document 422 10 Filed 12/20/2007      Page 10 of 71
                   The term ‘insider’ includes…if the debtor is a corporation – (i) director
                   of the debtor; (ii) officer of the debtor; (iii) person in control of the
 1
                   debtor; (iv) partnership in which the debtor is a general partner;
 2                 (v) general partner of the debtor; or (vi) relative of the general partner,
                   director, officer or person in control of the debtor.
 3

 4    11 U.S.C. § 101(31)(b).
 5            The following issues are presented for resolution on this claim:
 6            1.        Was Snell & Wilmer was a statutory “insider?”
 7
              2.        If not, can Snell & Wilmer be characterized as an insider under any other
 8
                        appropriate legal test?
 9
              3.        Did Snell & Wilmer control the business affairs of Visitalk and exert influence
10
                        over the day to day decisions of Visitalk?
11
              4.        Did Snell & Wilmer receive payments from Visitalk during the year prior to
12
                        filing in the ordinary course of business?
13

14            5.        Did Snell & Wilmer gain any advantage in its dealings with Visitalk as the

15                      result of “affinity” rather than as the result of an arms-length business

16                      relationship?
17            6.        Did Visitalk receive new or equivalent value for payments made during the
18                      year prior to filing, and if so, what is the amount of those payments?
19            7.        Did Visitalk receive new or equivalent value for payments made during the 90-
20
                        days prior to filing, and if so, what is the amount of those payments?
21
      B.      UCATA
22
              The Uniform Contribution Among Tortfeasors Act (“UCATA”), A.R.S. § 12-2506,
23
      provides that “[e]ach defendant is liable only for the amount of damages allocated to that
24
      defendant in direct proportion to that defendant's percentage of fault.” UCATA applies in
25
      this case to all of plaintiff’s claims sounding in tort. Id.
26

27

28

     11400-002/354772
     Case 2:02-cv-02405-HRH              Document 422 11 Filed 12/20/2007        Page 11 of 71
              If Visitalk is found to have sustained any compensable damages, then the Court must
 1    apportion fault among all parties and nonparties that caused or contributed to such damages,
 2
      including:
 3
              1.        Visitalk.com, Inc.
 4
              2.        Bryan Cave
 5
              3.        Gibson, Dunn & Crutcher
 6
              4.        Lynn Stodghill
 7
              5.        The Falk Law Firm
 8
              6.        Dickstein Shapiro
 9
              7.        Stephen Best, P.C.
10

11            8.        Lyons & Lyons

12            9.        Ernst & Young, LLC

13            10.       Peter Thimmesch
14            11.       Cynthia Thimmesch
15            12.       Raymond Gaston
16            13.       Allan Kaplan
17
              14.       Jeffrey Hirschberg
18
              15.       Richard Rothwell
19
              16.       Michael O’Donnell
20
              17.       Marcia O’Donnell
21
              18.       Robert Corry
22
              19.       Michael Cooney
23

24            20.       Mark Cardwell

25            21.       Giles Sommerville

26            22.       MP3.com, Inc.
27    C.      OTHER LEGAL ISSUES
28             In addition to the foregoing, the following legal issues must be resolved at trial:

     11400-002/354772
     Case 2:02-cv-02405-HRH              Document 422 12 Filed 12/20/2007      Page 12 of 71
                • Are Plaintiff’s claims precluded as the result of the ratification of actions by
 1              Visitalk through its Board of Directors?
 2
                • Are Plaintiff’s claims precluded under the doctrine of in pari delicto or the
 3
                Wagoner Rule?
 4

 5   II.     JOINT STATEMENT OF UNCONTESTED FACTS.
 6
           A.      FACTS RELEVANT TO ALL CAUSES OF ACTION.
 7

 8         1.           Visitalk was incorporated in the State of Arizona on September 3, 1998.

 9         2.           At the time Snell & Wilmer commenced its representation of Visitalk, Visitalk’s

10    Board of Directors consisted of Peter Thimmesch, Michael O'Donnell, Mark Cardwell, Allen

11    Kaplan and Jeffrey Hirschberg.

12         3.           Vistalk filed a petition for relief under Chapter 11 of Title 11 on November 29,

13    2000. A trustee was not appointed in the Bankruptcy Case before the confirmation of

14    Visitalk’s Second Amended Chapter 11 Plan.

15         4.           Biltmore Associates, LLC (“Biltmore”) was appointed by the Bankruptcy Court

16    in the bankruptcy case of Visitalk.com, Inc. Bankruptcy Case No. 00-13035-PHX-RTB to

17    serve as a Trustee for the Visitalk Creditors’ Trust (the “Trust”) created as part of Visitalk’s

18    confirmed Second Amended Chapter 11 Plan of Reorganization and then substituted as the

19    Plaintiff in this action by Order of this Court dated January 31, 2005.          Biltmore, as the

20    Trustee of the Trust was assigned all of the “Causes of Action,” as that term is defined in the

21    Second Amended Plan, owned by the Visitalk bankruptcy estate.

22         5.           In November 2002, Visitalk initiated the present proceeding against Snell &

23    Wilmer, among others.

24
           6.           Visitalk’s Second Amended Chapter 11 Plan states:
25

26                In his or her capacity as the representative of the estate, the creditor’s Trustee will
           be the successor-in-interest to the Debtor with respect to the Causes of Action. The
27         Creditor’s Trustee will hold all right, title and interest in and to the Causes of Action on
           behalf of all beneficiaries of the Creditor’s Trust and will pay from the Creditor’s Trust all
28

     11400-002/354772
     Case 2:02-cv-02405-HRH             Document 422 13 Filed 12/20/2007      Page 13 of 71
         ordinary and necessary costs of protecting, preserving, investigating and pursuing the
         Causes of Action.
 1
          7.            The Plan further defines the “Causes of Action” as meaning:
 2

 3              All claims and causes of action that are property of the estate or belong to the
         Debtor, including but not limited to . . . the pending district court litigation against former
 4       directors and officers, former counsel for Debtor (Snell & Wilmer), former accountants
 5       and the pending adversary proceedings in this case.
          8.            In November of 1998, Bryan Cave prepared a document titled “Action by
 6
      Unanimous Consent of the Board of Directors in Lieu of Special Meeting” which is dated “as
 7
      of” September 12, 1998.
 8
          9.            In September 1998, Visitalk raised money through the sale and issuance of
 9
      “Series A Preferred Stock” to individual investors (the “Series A Offering”). Visitalk sold
10
      Series B Preferred Stock to investors in October and November, 1998 (the “Series B
11
      Offering”). In March 1999, Visitalk disseminated a Confidential Information Statement in
12
      connection with the sale of Series C Preferred Stock. (the “Series C Offering”).
13
          10.           Defendant Snell & Wilmer, LLP (“S&W”), was retained to represent Visitalk
14
      on July 1, 1999.
15
          11.           Michael Donahey, acting on behalf of S&W, prepared a document dated July 28,
16
      1999.
17
          12.           Michael Donahey, acting on behalf of S&W, also prepared a document dated
18
      July 15, 1999.
19
          13.           In connection with the Series A Offering, no disclosure was made by
20
      Thimmesch, O’Donnell and Visitalk regarding the alleged existence of warrants to purchase
21
      Visitalk’s common stock at an exercise price of $0.1375 per share (the “Founders’
22
      Warrants”).
23
          14.           S&W assisted with the preparation of Visitalk’s Updated Series C Confidential
24
      Information Statement.
25
          15.           Visitalk terminated Cardwell as an employee for cause and on May 10, 2000
26
      executed a Settlement, Separation and Release Agreement (the “Cardwell Agreement”).
27

28

     11400-002/354772
     Case 2:02-cv-02405-HRH             Document 422 14 Filed 12/20/2007      Page 14 of 71
            16.         Prior to joining Visitalk as its General In-house Counsel in 1999, Stephen Best
 1    was an employed by the Falk law firm in Washington, D.C.
 2
            17.         At the time Snell & Wilmer began representing Visitalk, Peter Thimmesch was
 3
      the Chief Executive Officer, Michael O’Donnell was the Chief Operating Officer, and Mark
 4
      Cardwell was the Chief Technology Officer.
 5
            18.         In connection with the negotiation of the Separation, Settlement, and Release
 6
      Agreement, Mark Cardwell was represented by Janet Lord of Fennemore Craig.
 7
            19.         Visitalk’s independent auditor during the period of time S&W represented the
 8
      company was the accounting firm of Ernst & Young.
 9
            20.         Snell & Wilmer assisted with the preparation of a letter to Series C Preferred
10

11    Shareholders dated December 13, 1999.

12          21.         Snell & Wilmer assisted with the preparation of a Confidential Information

13    Statement dated August 8, 2000.
14          22.         The following individuals worked in various capacities for Visitalk.com: Ray
15    Gaston, Robert Corry, Debra Kuhns, Lance Booth, Giles Sommerville, Cynthia Thimmesch
16    and Marcia O’Donnell.
17
            23.         Ray Gaston assisted in the preparation of the March 13, 1999 Confidential
18
      Information Statement.
19
            24.         Ernst & Young prepared “Audited Financial Statements for Period Ended
20
      January 2, 1999.”
21
            25.         On July 21, 2000, the law firm of Dickstein Shapiro sent a letter to Stephen Best
22
      regarding bankruptcy issues.
23

24          26.         During its bankruptcy, Visitalk periodically filed “Business and Industry

25    Monthly Operating Reports.”

26
     III.     PLAINTIFF’S STATEMENT OF FACTS RELEVANT TO PREFERENCE
27            CAUSE OF ACTION WHICH IT BELIEVES ARE NOT IN DISPUTE.
28

     11400-002/354772
     Case 2:02-cv-02405-HRH             Document 422 15 Filed 12/20/2007       Page 15 of 71
              1. During the one year period of time prior to the date on which Visitalk filed its
 1
     bankruptcy petition, Visitalk transferred not less than $720,829.92 to S&W;
 2
              2.    During the 90 days prior to the date on which Visitalk filed its bankruptcy petition,
 3

 4   Visitalk transferred not less than $54,801.55 to S&W;

 5   III.          LIST OF WITNESSES.
 6
              PLAINTIFF
 7   Witness            Type    Testimony
 8                      Fact
     Vernon                     Mr. Schweigert will testify regarding his role and service as the
 9   Schweigert                 Manager for Biltmore Associates, L.L.C., as the Trustee of the
10                              Visitalk Creditors’ Trust, his investigation and conclusions as the
                                Trustee regarding the business operations, expenditure of funds,
11
                                assets, value of those assets, liabilities, claims, causes of action of
12                              Visitalk, documents and materials contained in the files of Visitalk as
                                provided to Biltmore after confirmation of its Second Amended
13                              Chapter 11 Plan and Biltmore’s appointment as the Trustee, the
14                              actions and omissions of Visitalk’s officers and directors from
                                September 3, 1998 through November 29, 2000, the actions and
15                              omissions of S&W from June 28, 1999 through November 29, 2000,
                                the insolvency of Visitalk at different points in time and the damages
16
                                suffered by Visitalk as a result of the actions and omissions of S&W.
17                              Mr. Schweigert will also testify regarding all other matters about
                                which he gave testimony during his deposition in this case and which
18                              are contained in any declarations and affidavits signed by him and
19                              filed in this action.
     Rick                       Mr. Rothwell will testify to his prior service as the former President of
20   Rothwell                   Plaintiff, his investments in Visitalk, the information provided and not
                                provided to him as an investor by Visitalk relating to the company, its
21                              capital structure, its operations, technology, product and prospects, the
22                              Founders Warrants, securities law problems identified by S&W, the
                                problems with the Founders Warrants and the claims against the
23                              company arising therefrom. Mr. Rothwell will also testify about his
24
                                claims against Visitalk, the purported Release of claims and letter
                                from Visitalk regarding that Release, his attendance at a shareholders’
25                              meeting in December of 1999, statements made during that meeting by
                                Mr. Mallery, his reliance on the information he was provided at that
26                              meeting and by Visitalk on other occasions, and his discussions with
27                              officers of Visitalk regarding such matters, including conversations
                                with Mr. Cardwell and Mr. O’Donnell in late 2000 or early 2001 and
28                              his investigation while he was Visitalk’s President regarding prior
                                management, legal problems, business operations, expenditure of
     11400-002/354772
     Case 2:02-cv-02405-HRH            Document 422 16 Filed 12/20/2007        Page 16 of 71
                        funds by the company, the prior legal representation by S&W and the
                        legal claims of the Company. Mr. Rothwell will also testify regarding
 1
                        all other matters about which he gave testimony during his deposition
 2                      in this case.
 3
                        In the event Mr. Rothwell is not available to testify at the trial in this
 4                      case, Plaintiff designates the following portions of the transcripts of
                        his deposition given in this case:
 5
                        Transcript of Richard John Rothwell, August 25, 2006.
 6
                        8:13 – 11:16, 11:24 – 12:22, 13:11 – 16:21, 35:3 – 36:16; 43:24 –
 7                      46:3, 50:16 – 51:15, 53:25 – 56:1, 57:10 – 58:4, 58:24 – 65:3, 69:4 –
                        72:22, 73: 8 – 74:3, 87:21 – 89:4, 90:2 – 18, 91:7 – 97:10, 144:16 –
 8                      145:2.
 9                      Transcript of Richard John Rothwell, August 31, 2006.
                        159:22 – 160:19, 180:18 – 185:11.
10                      Transcript of Richard John Rothwell, September 20, 2006.
                        240:8 – 243:22, 243:23 – 248:7, 249:3 – 250:14, 254:8 – 19, 259:6 –
11
                        260:9, 262:10 – 265:1, 266:21 – 270:23, 271:12 – 20, 276:14 – 280:3,
12                      280:7 – 288:8, 295:24 – 297:5, 324:20 – 325:24; 357:12 – 20.
                        Mr. Fallon is the former senior engineer for Visitalk and will testify
13   James Fallon       regarding the problems with and limitations of Plaintiff’s technology
14                      and products from November, 1999 through November 29, 2000, the
                        cost of adding large numbers of additional users utilizing that
15                      technology, the fact that those products were not commercially viable
                        during that period of time, his knowledge regarding the “Kick the
16
                        Tires Report,” and the lack of involvement and knowledge of
17                      Thimmesch and O’Donnell regarding the products and technology
                        during that time period. Mr. Fallon will also testify regarding all other
18                      matters about which he gave testimony during his deposition in this
19
                        case.
   Debra                Debra Kuhns was the vice president of marketing
20 Kuhns                at Visitalk. She is expected to testify as to her knowledge of Visitalk’s
                        lack of a budget, and its inappropriate, excessive, unmanaged and
21                      poorly documented spending practices, including but not limited to the
22                      90K per month for marketing and a “marketing burn rate.” She is also
                        expected to testify about Visitalk’s treatment of creditors and
23                      management’s warnings to keep Visitalk’s insolvent financial
                        information from creditors, including, Planet Media. She is expected
24
                        to testify that Visitalk never had a commercially viable product, based
25                      on her experience and knowledge. Ms. Kuhns will also testify
                        regarding all other matters about which she gave testimony during her
26                      deposition in this case.
27   Hoffman,           John Hoffman is expected to testify about the problems with Visitalk’s
     John               products and technology, his background, education and experience
28                      regarding similar technology products, the work performed by him
                        and his analysis relating to Visitalk’s technology and product in 2000
     11400-002/354772
     Case 2:02-cv-02405-HRH   Document 422 17 Filed 12/20/2007         Page 17 of 71
                        and his preparation of the “Kick the Tires” Report in October and
                        November of 2000.
 1   Robert Corry       Transcript of Deposition of Robert J. Corry, May 1, 2006.
 2                      7:17 – 10:17, 13:17 – 16:20, 21:5 – 34:14, 36:3 – 37:4, 39: 5 – 40: 4,
                        40:5 – 42:1, 43:18 – 46:6, 54:14 – 58:3, 61:5 – 62:2, 62:7 – 64:1,
 3
                        65:11 – 68:9, 68:20 – 74:2, 74:16 – 77:5, 78:25 – 85:21, 92:1 – 93:16,
 4                      96:11 – 97:20, 99:16 – 100:3, 102:20 – 106:22, 109:13 – 25, 110:14 –
                        113:19, 117:21 – 119:10, 119:13 – 121:11, 124:13 – 125:16, 125:17 –
 5                      126:24, 128:23 – 129:9, 132:24 – 133:24.
     Ray Gaston         Ray Gaston is expected to testify regarding his knowledge about Visitalk’s
 6                      financial condition, on-going losses, lack of revenue, insolvency, and lack of
 7                      a commercially viable product, the claims held by investors, a proposed
                        rescission offering, his work on the Series C Offering, the Updated Series C
 8                      Offering, subsequent securities offerings, his work and communications
                        with lawyers at S&W regarding those offerings, and the financial
 9                      information provided to lawyers at S&W by Visitalk. Mr. Gaston also is
                        expected to testify about the close relationship between Mr. Mallery and Mr.
10                      Thimmesch, the business advice given by Mr. Mallery to Mr. Thimmesch,
11                      the breaches of fiduciary duty by Messrs. Thimmesch, O’Donnell, Mallery
                        and Donahey, the fact that Visitalk would not have been able to continue in
12                      business if S&W did not continue providing legal services regarding
                        securities offerings and other securities law matters, the amounts owed to
13                      S&W by Visitalk at different times, and the demands and pressure for
                        payment of those bills by Messrs. Donahey and Mallery. He will also
14                      testify about the documents he prepared and received, his observations
15                      regarding the actions and inactions of Peter Thimmesch and Michael
                        O’Donnell in their capacities as officers of Visitalk, and the similarities of
16                      Mr. Thimmesch to a con man. Mr. Gaston will also testify regarding all
                        other matters about which he gave testimony during his deposition in
17
                        this case.
18   Alan Kaplan        Alan Kaplan, an investor in and a former director of Visitalk, is
                        expected to testify regarding his investments in Visitalk, the
19                      information provided and not provided to him as an investor by
20                      Visitalk relating to the company, its capital structure, its operations,
                        technology, product and prospects, the Founders Warrants, securities
21                      law problems identified by S&W, the problems with the Founders
                        Warrants and the claims against the company arising therefrom. Mr.
22                      Kaplan also is expected to testify about claims held by investors
23                      against Visitalk, the purported Release of claims and letter from
                        Visitalk regarding that Release, his attendance at directors’ and
24                      shareholders’ meetings, information provided and not provided to him,
25
                        as a director and a shareholder, by S&W regarding such matters, his
                        belief that S&W failed to adequately represent Visitalk with respect to
26                      such matters, and his reliance on the information he was provided by
                        S&W. . Mr. Kaplan will also testify regarding all other matters about
27                      which she gave testimony during her deposition in this case.
     Steve              Transcript of Deposition of Steve DelBianco, August 23, 2006
28   DelBianco          6:3 – 9:11, 13:13 – 25, 14:1 – 8, 16:11 – 17:5, 17:13 – 18:2, 20:6 –
     11400-002/354772
     Case 2:02-cv-02405-HRH   Document 422 18 Filed 12/20/2007            Page 18 of 71
                        22:7, 23:15 – 25:6, 29:21 – 30:14, 34:12 – 35:15, 36:10 – 21, 37:2 –
                        18, 43:19 – 44:4, 44:10 – 18, 45:18 – 46:17, 46:18 – 48:1, 51:5 –
 1
                        52:10, 64:25 – 65:9,
 2   George York        Mr. York will testify regarding his investments in Visitalk, the
                        information he was provided and not provided relating to Visitalk, its
 3
                        capital structure, its operations, technology, product and prospects, the
 4                      Founders Warrants, securities law problems identified by S&W, the
                        problems with the Founders Warrants and the claims against the
 5                      company arising therefrom. Mr. York is also expected to testify
                        regarding his claims against Visitalk, the purported Release of claims
 6
                        and letter from Visitalk regarding that Release, his attendance at and
 7                      events which occurred during a meeting of Visitalk shareholders in
                        December, 1999, his reliance on the information he was provided at
 8                      that meeting and by Visitalk on other occasions, and his discussions
 9                      with officers of Visitalk regarding such matters.
                        Mr. Kettle will testify regarding his investments in Visitalk, the
10   Kettle,            information he was provided and not provided relating to Visitalk, its
     George             capital structure, its operations, technology, product and prospects, the
11
                        Founders Warrants, securities law problems identified by S&W, the
12                      problems with the Founders Warrants and the claims against the
                        company arising therefrom. Mr. York is also expected to testify
13                      regarding his claims against Visitalk, and his reliance on the
14                      information he was provided by Visitalk and his discussions with
                        officers of Visitalk regarding such matters.
15   Truesdell,         Mr. Truesdell is expected to testify to his prior service as the former
     Cameron            Chairman of the Board of Plaintiff, his investments in Visitalk, the
16
                        information provided and not provided to him as an investor by
17                      Visitalk relating to the company, its capital structure, its operations,
                        technology, product and prospects, the Founders Warrants, securities
18                      law problems identified by S&W, the problems with the Founders
19
                        Warrants and the claims against the company arising therefrom. Mr.
                        Truesdell is also expected testify about his claims against Visitalk, his
20                      reliance on the information he was provided by Visitalk, and his
                        discussions with officers of Visitalk regarding such matters. Mr.
21                      Truesdell is further expected to testify regarding his knowledge gained
22                      while he was Visitalk’s Chairman regarding prior management, legal
                        problems, business operations, expenditure of funds by the company,
23                      the prior legal representation by S&W and the legal claims of the
                        Company.
24   Joe                Joseph Richardson is expected to testify regarding the legal services
     Richardson         rendered by him and other employees of Bryan Cave to Visitalk, its
25
                        original capital structure, the documents prepared by him and other
26                      employees of Bryan Cave, and the information provided to him and
27                      other communications with Peter and Cindy Thimmesch, Mike and
                        Marcia O’Donnell, Mark Cardwell and other officers of Visitalk. Mr.
28                      Richardson is also expected to testify regarding his knowledge of the
                        “Founders Warrants” claimed to have been issued to Peter Thimmesch
     11400-002/354772
     Case 2:02-cv-02405-HRH   Document 422 19 Filed 12/20/2007        Page 19 of 71
                        and Michael O’Donnell, his knowledge regarding Visitalk’s officers,
                        its security offerings, and the true facts regarding the lack of proper
 1
                        authorization and issuance of the Founder’s Warrants. Mr. Richardson
 2                      also is expected to testify that no lawyers or employees from S&W
                        ever contacted or spoke with him regarding the documents prepared
 3
                        by him, his knowledge regarding those documents or the Founders
 4                      Warrants. Mr. Richardson will also testify regarding all other matters
                        about which she gave testimony during her deposition in this case.
 5   Chad Freed         Chad Freed is a former associate at Bryan Cave and is expected to
                        testify regarding the legal services rendered by him to Visitalk, its
 6
                        original capital structure, the documents prepared by him and other
 7                      employees of Bryan Cave, and the information provided to him and
                        other communications with Peter and Cindy Thimmesch, Mike and
 8                      Marcia O’Donnell, Mark Cardwell and other officers of Visitalk. Mr.
 9                      Freed is also expected to testify regarding his knowledge of the
                        “Founders Warrants” claimed to have been issued to Peter Thimmesch
10                      and Michael O’Donnell, his knowledge regarding Visitalk’s officers,
                        its security offerings, and the true facts regarding the lack of proper
11
                        authorization and issuance of the Founder’s Warrants. Mr. Freed also
12                      is expected to testify that no lawyers or employees from S&W ever
                        contacted or spoke with him regarding the documents prepared by
13                      him, his knowledge regarding those documents or the Founders
14                      Warrants.
     Susan              Susan Malone was a corporate paralegal at Bryan Cave at the time of
15   Malone             the deposition. She is expected to testify as to her knowledge of the
                        preparation of the corporate documents for Visitalk and the invoices of
16
                        Bryan Cave relevant to same. Ms. Malone will also testify regarding
17                      all other matters about which she gave testimony during her deposition
                        in this case.
18   Peter              Videotaped Deposition of Peter Thimmesch, December 7, 2005
     Thimmesch
19
                        1st CD-ROM
20                      9:7 – 12…….....9:22:23 – 9:22:37 am; 3:44 – 3:57 min.
                        66:25 – 67:15...10:39:49 – 10:41:57 am; 1:21:10 - 1:23:19 min.
21                      68:7 – 70:20…10:42:53 – 10:46:07 am; 1:24:13 – 1:27:28 min.
22                      70:23 – 71:2…10:46:18 – 10:46:49 am; 1:27:39 – 1:28:10 min.
                        72:21 – 73:18..10:49:00 – 10:50:06 am; 1:30:29 – 1:31:27 min.
23                      76:22 – 77:13..10:53:51 – 10:54:51 am; 1:35:12 – 1:36:11 min.
24
                        3rd CD-ROM
25                      185:4 – 23………2:26:57 – 2:27:49 pm; 45:25 – 47:16 min.
                        188:8 – 18………2:31:19 – 2:31:57 pm; 50:47 – 51:18 min.
26                      206:2 – 207:17….2:59:16 – 3:02:17 pm; 1:18:42 – 1:21:45 min.
27                      209:13 – 19……...3:04:21 – 3:04:52 pm; 1:23:49 – 1:24:20 min.

28                      Videotaped Deposition of Peter Thimmesch, April 18, 2006
                        1st Video Cassette
     11400-002/354772
     Case 2:02-cv-02405-HRH   Document 422 20 Filed 12/20/2007       Page 20 of 71
                        342:5 – 8….10:27:58 – 10:28:13 am; 31:52 – 32:07 min.
     Cynthia            Cynthia Thimmesch is expected to testify regarding her positions at
 1   Thimmesch          and duties while employed by Visitalk. Ms. Thimmesch, formerly
 2                      married to Mr. Thimmesch, is further expected to testify to her roles in
                        the managed payment of the bills, human resource issues and her
 3
                        responsibility to work on the Visitalk SEC shareholder compliance
 4                      and regulation issues with attorneys. She is expected to testify as to
                        her knowledge of Visitalk’s internal procedures, management of SEC
 5                      compliance and regulatory issues, the Founder’s Warrants, the
                        proposed resolutions to same, the work done by S&W relating to
 6
                        same, the company’s original corporate documentation, including
 7                      minutes and unanimous consents of the board of directors prepared in
                        late October and November, 1998, by Bryan Cave. In addition, Ms.
 8                      Thimmesch is expected to testify as to the trusts set up by Mr. Weiss,
 9                      regarding the estate plans and taxes, for her and her former husband
                        Mr. Thimmesch, the bills received from S&W, the Arthur Andersen
10                      invoice, the letters distributed to the investors, and Visitalk’s updated
                        confidentiality statement. She may testify as to the character of Mr.
11
                        Thimmesch. Ms. Thimmesch will also testify regarding all other
12                      matters about which she gave testimony during her deposition in this
                        case.
13   Michael            Mr. O’Donnell is expected to testify regarding his work as a former
     O’Donnell          officer and director of Visitalk and his knowledge of the “Founders
14
                        Warrants” claimed to have been issued to Peter Thimmesch and
15                      himself, the claims against the Visitalk held by certain investors,
                        issues relating to other securities law matters, the failure to obtain
16
                        effective releases from investors, a planned rescission offering, the
17                      Updated Series C Confidential Information Statement and offering,
                        Visitalk’s various other securities offerings, the concurrent
18                      representation of Visitalk and the Thimmesches and the O’Donnells
19
                        for their estate planning, a settlement transaction with Mark Cardwell
                        through which the opportunity to sell Visitalk stock was transferred to
20                      Mr. Cardwell, his breaches of fiduciary duties owed to Visitalk, its
                        shareholders and its creditors, the actions by S&W which aided and
21                      abetted himself and Thimmesch with breaching their fiduciary duties
22                      to Visitalk, his actions and the actions by S&W which helped to
                        artificially prolong Visitalk’s corporate life and deepened its
23                      insolvency and S&W’s failure to disclose the true facts regarding the
                        claimed issuance of the Founders Warrants to Visitalk’s Board of
24
                        Directors. Mr. O’Donnell also is expected to testify regarding his
25                      knowledge about Visitalk’s officers, its financial condition, its assets,
                        its liabilities, its lack of revenue, and its lack of a commercially viable
26                      product. Mr. O’Donnell is further expected to testify regarding the
27                      true facts regarding the lack of proper authorization and issuance of
                        the Founder’s Warrants, the true chronology regarding the Founders
28                      Warrants, the problems with the Founders Warrants, the claims against
                        the company arising therefrom, the issues connected with and S&W’s
     11400-002/354772
     Case 2:02-cv-02405-HRH   Document 422 21 Filed 12/20/2007          Page 21 of 71
                        proposed resolutions relating to the corporate records and securities
                        offerings of Visitalk. He also is expected to testify to how he and and
 1
                        Thimmesches became clients of S&W without Visitalk waiving the
 2                      conflict of interest with Visitalk. Mr. O’Donnell also is expected to
                        testify regarding his knowledge regarding allegedly inaccurate
 3
                        corporate records of Visitalk and the services rendered by S&W
 4                      regarding such matters. Mr. O’Donnell is further expected to testify to
                        his knowledge regarding the financial difficulties of Visitalk, the
 5                      dispute and settlement with Mr. Cardwell and the transfer to Mr.
                        Cardwell of the corporate opportunity to sell Visitalk stock. Mr.
 6
                        O’Donnell also will testify regarding his knowledge and
 7                      understanding regarding S&W’s conclusions and statements regarding
                        the matters set forth above, the services rendered by S&W relating to
 8                      same, the information or lack thereof provided to the Visitalk Board of
 9                      Directors by S&W regarding such matters, and his communications
                        with Visitalk’s officers, attorneys and board of directors. He will
10                      testify to his knowledge that Visitalk’s ability to continue to operate
                        was dependent upon S&W continuing to render securities law services
11
                        to the company.       Mr. O’Donnell is also expected to testify to his
12                      attendance at meetings of Visitalk’s directors and shareholders in
                        1998, 1999 and 2000. Mr. O’Donnell will also testify regarding all
13                      other matters about which he gave testimony during his deposition in
14                      this case.
     Marcia             Marcia O’Donnell regarding her positions at and duties while
15   O’Donnell          employed by Visitalk, including the build out and purchase of
                        furniture for Visitalk’s new office building in late 1999 and early
16
                        2000. She is expected to testify as to her knowledge of Visitalk’s lack
17                      of financial controls, lack of a formal approval process for expenses,
                        discovery of Visitalk’s financial difficulties, and information about the
18                      Founder’s Warrants, the proposed resolutions to same, and the work
19
                        done by S&W relating to same. Ms. O’Donnell will also testify
                        regarding all other matters about which she gave testimony during her
20                      deposition in this case
     Mark               Mr. Cardwell is expected to testify regarding his work as a former
21   Cardwell           officer and director of Visitalk and his knowledge of the “Founders
22                      Warrants” claimed to have been issued to Peter Thimmesch and Mike
                        O’Donnell, the claims against the Visitalk held by certain investors,
23                      issues relating to other securities law matters, the failure to obtain
                        effective releases from investors, a planned rescission offering, the
24
                        Updated Series C Confidential Information Statement and offering,
25                      Visitalk’s various other securities offerings, a settlement transaction
                        between Visitalk and Mr. Cardwell through which the opportunity to
26                      sell Visitalk stock was transferred to Mr. Cardwell, the breaches of
27                      fiduciary duties by Mr. Thimmesch and Mr. O’Donnell, its
                        shareholders and its creditors, the actions by S&W which aided and
28                      abetted O’Donnell and Thimmesch with breaching their fiduciary
                        duties to Visitalk, the actions by O’Donnell and Thimmesch and the
     11400-002/354772
     Case 2:02-cv-02405-HRH   Document 422 22 Filed 12/20/2007        Page 22 of 71
                        actions by S&W which helped to artificially prolong Visitalk’s
                        corporate life and deepened its insolvency and S&W’s failure to
 1
                        disclose the true facts regarding the claimed issuance of the Founders
 2                      Warrants to Visitalk’s Board of Directors. Mr. Cardwell also is
                        expected to testify regarding his knowledge about Visitalk’s officers,
 3
                        its financial condition, its assets, its liabilities, its lack of revenue, and
 4                      its lack of a commercially viable product. Mr. Cardwell is further
                        expected to testify regarding the true facts regarding the lack of proper
 5                      authorization and issuance of the Founder’s Warrants, the true
                        chronology regarding the Founders Warrants, the problems with the
 6
                        Founders Warrants, the claims against the company arising therefrom,
 7                      the issues connected with and S&W’s proposed resolutions relating to
                        the corporate records and securities offerings of Visitalk. Mr.
 8                      Cardwell is further expected to testify to his knowledge regarding the
 9                      financial difficulties of Visitalk. Mr. Cardwell also will testify
                        regarding his knowledge and understanding regarding S&W’s
10                      conclusions and statements regarding the matters set forth above, the
                        services rendered by S&W relating to same, the information or lack
11
                        thereof provided to the Visitalk Board of Directors by S&W regarding
12                      such matters, and his communications with Visitalk’s officers,
                        attorneys and board of directors. Mr. Cardwell is also expected to
13                      testify to his attendance at meetings of Visitalk’s directors and
14                      shareholders in 1998 and 1999. Mr. Cardwell will also testify
                        regarding all other matters about which he gave testimony during his
15                      deposition in this case.
     Steve Best         Videotaped Deposition of Steven Andrew Best, January 21, 2005.
16
                        10:10 – 11:21, 15:6 – 18:2, 21:11 – 23:20, 25:2 – 9, 28:3 – 15, 31:3 –
17                      16, 33:3 – 35:5, 77:5 – 19, 80:18 – 83:7, 83:22 – 85:1, 87:15 – 89:7,
                        93.17 – 94:1, 108:11 – 109:7, 112:9 – 113:3, 116:22 – 117:4, 117:7 –
18                      118:21, 118:25 – 119:11, 122:25 – 124:13, 126:4 – 13, 127:13 –
19
                        129:1, 129:17 – 130:19, 132:7 – 133:2, 138:9 – 141:1, 141:19 – 25,
                        142:14 – 145:22, 146:13 – 25, 148:8 – 150:4, 154:12 – 18, 157:21 –
20                      159:2, 160:18 – 161:7,
                        161:18 – 163:24, 165:25 – 166:18, 168:1 – 169:15, 170:8 – 171:13,
21                      179:16 – 180:19….TBD*
22
                        Videotaped Deposition of Stephen Best, September 9, 2005.
23                      14:1 – 15**
                        15:15 – 17:4v
24
                        17:5 – 18:6**
25                      20:1 – 21:21 … 9:23:49 to 9:27:15 am (13:46 – 17:20 min.)
                        27:19 – 28:13…9:36:38 to 9:37:36 am (26:46 – 27:44 min.)
26                      30:10 – 31:20**
27                      32;19 – 34:13**
                        37:1 – 38:22**
28                      41:10 – 42:18**
                        45:1 – 6**
     11400-002/354772
     Case 2:02-cv-02405-HRH   Document 422 23 Filed 12/20/2007            Page 23 of 71
                        57:10 – 59:5**
                        59:6 – 22…10:33:48 to 10:35:03 am (1:16:04 – 1:17:19 min.)
 1
                        59:11 – 60:4**
 2                      67:16 – 68:1**
                        69:13 – 70:3...10:51:05 to 10:51:46 am (1:33:30 – 1:34:01 min
 3
                        72:12 – 21**
 4                      75:11 – 76:16**
                        77:13 – 19**
 5                      90:21 – 91:18**
                        92:18 – 95:13**
 6
                        95:14 – 98:22**
 7                      99:19 – 100:15**
                        113:2 – 114:21**
 8                      118-18 – 120:19**
 9                      122:3 – 123:21**
                        125:12 – 128:15**
10                      129:17 – 130:11**
                        133:18 – 135:15**
11
                        137:19 – 141:6**
12                      144:14 – 145:11**

13                      **The video tape designations that match the transcript designations
14                      will be provided.
     Mark Love          Mark Love is expected to testify regarding the services he rendered to
15                      Visitalk to locate investors willing to purchase Visitalk’s stock,
                        including persons willing to purchase stock as part of the Cardwell
16
                        settlement transaction, the investors he referred to Visitalk who
17                      actually purchased Visitalk stock, including persons who actually
                        bought stock as part of the Cardwell settlement transaction, the lack of
18                      information provided to those investors regarding the Founders
19
                        Warrants, the other securities problems, Visitalk’ financial condition,
                        and the company’s lack of a commercially viable product, and the
20                      money paid to him for those services. Mr. Love is also expected to
                        testify about his knowledge regarding the involvement of S&W, Mr.
21                      Thimmesch and Mr. O’Donnell regarding such matters.
22   Manda              Ms. O’Donnell is expected to testify regarding her position and duties
     Turley             as an employee at Visitalk, including her work supervising build out
23                      of and purchase of furniture for Visitalk’s new office building in late
                        1999 and early 2000. She also is expected to testify as to her
24
                        knowledge of Visitalk’s lack of financial controls, lack of a formal
25                      approval process for expenses, discovery of Visitalk’s financial
                        difficulties, information about the founder’s warrants and the original
26                      “founding” members. Ms. O’Donnell will also testify regarding all
27                      other matters about which she gave testimony during her deposition in
                        this case.
28   Gerry Mayo         Mr. Mayo is expected to testify to his prior service as the former
                        President and CEO and sole Board Member of Plaintiff, his
     11400-002/354772
     Case 2:02-cv-02405-HRH   Document 422 24 Filed 12/20/2007        Page 24 of 71
                        investments in Visitalk, the information provided and not provided to
                        him as an investor by Visitalk relating to the company, its capital
 1
                        structure, its operations, technology, product and prospects, the
 2                      Founders Warrants, securities law problems identified by S&W, the
                        problems with the Founders Warrants and the claims against the
 3
                        company arising therefrom. Mr. Mayo is also expected testify about
 4                      his claims against Visitalk, his reliance on the information he was
                        provided by Visitalk, and his discussions with officers of Visitalk.
 5                      Mr. Mayo also is expected to testify as to his knowledge regarding
                        Visitalk’s confirmed Second Amended Chapter 11 Plan of
 6
                        Reorganization, the claims of Visitalk’s investors, and the legal
 7                      problems, business operations, expenditure of funds by the company,
                        the prior legal representation by S&W and the assets and liabilities of
 8                      the Company prior to the filing of its bankruptcy petition.
 9   Jeffrey            Transcript of Deposition of Jeffrey Hirschberg, September 8, 2005.
     Hirschberg         11:17 – 14:13, 16:9 – 19:14, 20:5 – 24:12, 38:22 – 39:7, 41:22 – 42 –
10                      6, 47:5 – 48:18, 52:3 – 17.
     Richard            Richard Mallery is expected to testify as to his knowledge (or lack
11   Mallery            thereof) of Visitalk’s officers, due diligence, security offerings, the
12                      true facts regarding the lack of proper authorization and issuance of
                        the Founder’s Warrants, the issues connected with and S&W’s
13                      proposed resolutions relating to the corporate records and securities
14                      offerings of Visitalk. He will testify to how the O’Donnells and
                        Thimmesches became clients of S&W without Visitalk waiving the
15                      conflict of interest with Visitalk. He will testify to his knowledge
                        regarding allegedly inaccurate corporate records of Visitalk and the
16
                        services rendered by S&W regarding such matters. Mr. Mallery is
17                      also expected to testify to his knowledge (or lack thereof) regarding
                        the legal issues connected with the Series A stock, financial
18                      difficulties of Visitalk and all the issues surrounding the Series A, B,
19
                        and C offerings. Mr. Mallery will also testify as to the S&W invoices
                        to Visitalk and his billing entries on those invoices. He will testify as
20                      to his understanding of the dispute and settlement with Mr. Cardwell.
                        Mr. Mallery also will testify regarding S&W’s conclusions and
21                      statements regarding the claims held by investors, the Founders’
22                      Warrants, the true chronology regarding the Founders Warrants, the
                        problems with the Founders Warrants and the claims against the
23                      company arising therefrom, the securities law problems the basis for
                        same, the services rendered by S&W relating to same, the information
24
                        or lack thereof provided to the Visitalk Board of Directors by S&W
25                      regarding such matters, the lack of conflict waiver by Visitalk for
                        S&W’s individual representation of the O’Donnells and Thimmeschs,
26                      and his communications with Visitalk’s officers, attorneys and board
27                      of directors. He will testify to his knowledge (or lack thereof) of
                        Visitalk’s negative net worth, negative tangible book value, liability
28                      to certain holders of rescission stock, and providing business strategy
                        and tactics for solving issues relating to Visitalk. Mr. Mallery is also
     11400-002/354772
     Case 2:02-cv-02405-HRH   Document 422 25 Filed 12/20/2007        Page 25 of 71
                        expected to testify to his attendance at meetings of Visitalk’s directors
                        and his attendance and statements made by him at a meeting of
 1
                        Visitalk’s shareholders in December, 1999, and the payments made by
 2                      Visitalk to S&W. Mr. Mallery will also testify regarding all other
                        matters about which he gave testimony during his deposition in this
 3
                        case.
     Michael            Mr. Donahey is expected to testify regarding his work as a lawyer on,
 4   Donahey            documents he prepared and his knowledge of the “Founders Warrants”
 5                      claimed to have been issued to Peter Thimmesch and Michael
                        O’Donnell, the claims against the Visitalk held by certain investors,
 6
                        issues relating to other securities law matters, the failure to obtain
 7                      effective releases from investors, the Updated Series C Confidential
                        Information Statement and offering, other securities offerings, the
 8                      concurrent representation of Visitalk and the Thimmesches and the
 9                      O’Donnells for their estate planning, a settlement transaction with
                        Mark Cardwell through which the opportunity to sell Visitalk stock
10                      was transferred to Mr. Cardwell, the actions by S&W which aided and
                        abetted Thimmesch and O’Donnell with breaching their fiduciary
11
                        duties to Visitalk, the actions by S&W which helped to artificially
12                      prolong Visitalk’s corporate life and deepened its insolvency and
                        S&W’s failure to disclose the true facts regarding the claimed issuance
13                      of the Founders Warrants to Visitalk’s Board of Directors. Mr.
14                      Donahey also is expected to testify regarding his knowledge about
                        Visitalk’s officers, its security offerings, the true facts regarding the
15                      lack of proper authorization and issuance of the Founder’s Warrants,
                        the issues connected with and S&W’s proposed resolutions relating to
16
                        the corporate records and securities offerings of Visitalk. He will
17                      testify to how the O’Donnells and Thimmesches became clients of
                        S&W without Visitalk waiving the conflict of interest with Visitalk.
18                      Mr. Donahey also is expected to testify regarding his knowledge
19
                        regarding allegedly inaccurate corporate records of Visitalk and the
                        services rendered by S&W regarding such matters. Mr. Donahey is
20                      further expected to testify to his knowledge regarding the legal issues
                        connected with the Series A stock, financial difficulties of Visitalk and
21                      all the issues surrounding the Series A, B, and C offerings. Mr.
22                      Donahey will also testify as to the S&W invoices to Visitalk and his
                        billing entries on those invoices. He is also expected to testify as to his
23                      understanding of the dispute and settlement with Mr. Cardwell. Mr.
                        Donahey also will testify regarding S&W’s conclusions and
24
                        statements regarding the claims held by investors, the Founders’
25                      Warrants, the true chronology regarding the Founders Warrants, the
                        problems with the Founders Warrants and the claims against the
26                      company arising therefrom, the securities law problems, the basis for
27                      same, the services rendered by S&W relating to same, the information
                        or lack thereof provided to the Visitalk Board of Directors by S&W
28                      regarding such matters, and his communications with Visitalk’s
                        officers, attorneys and board of directors. He will testify to his
     11400-002/354772
     Case 2:02-cv-02405-HRH   Document 422 26 Filed 12/20/2007          Page 26 of 71
                        knowledge of Visitalk’s financial condition and Visitalk’s ability to
                        continue to operate was dependent upon S&W continuing to render
 1
                        securities law services to the company.           Mr. Donahey is also
 2                      expected to testify to his attendance at meetings of Visitalk’s directors
                        and a meeting of Visitalk’s shareholders in December, 1999, and the
 3
                        payments made by Visitalk to S&W. Mr. Donahey will also testify
 4                      regarding all other matters about which he gave testimony during his
                        deposition in this case.
 5   Charles            Charles Pulaski is expected to testify as to his knowledge of the
     Pulaski            Founders’ Warrants claimed to have been issued to Thimmesch and
 6
                        O’Donnell, the services rendered by him, his review of documents and
 7                      his analysis and preparation of documents regarding the Founders’
                        Warrants, the lack of evidentiary support for same, the tax
 8                      consequences to the company and to the interested parties, including
 9                      the Series A shareholders, the O’Donnells and the Thimmesches, of
                        same and his alternative recommendations relating to same. He will
10                      testify to his surprise how the basic factual foundation of his whole
                        analysis had changed and from whom he received all his supposedly
11
                        factual information. Mr. Pulaski also will testify about the sources for
12                      the information supporting his analysis. He will testify about the
                        memoranda he prepared in connection with his services to Visitalk and
13                      S&W’s failure to disclose the true facts regarding the claimed issuance
14                      of the Founders Warrants and related matters to Visitalk’s Board of
                        Directors. Mr. Pulaski will also testify regarding all other matters
15                      about which he gave testimony during his deposition in this case.
     David Weiss        David Weiss is an attorney at S&W who will testify that he works
16
                        primarily as an estate planning attorney with some employee
17                      compensation, corporate tax and merger and acquisitions practice.
                        Mr. Weiss will further testify that he provided legal services to Mr.
18                      and Mrs. O’Donnell and Mr. and Mrs. Thimmesch individually but
19
                        did not represent or provide legal services to Visitalk. He also is
                        expected to testify as to his discussions of the representation of the
20                      Thimmesches and the O’Donnells with Mr. Mallery and Mr.
                        Raciborski prior to engagement of either the O’Donnells or the
21                      Thimmesches. During his deposition, Mr. Weiss, on advice of his
22                      attorney, refused to answer any questions regarding the discussion he
                        had with the former Mrs. Thimmesch, even though Mrs. Thimmesch
23                      waived the attorney-client privilege. Plaintiff’s counsel may request
                        the Court to rule on this objection if it is raised again at trial. Mr.
24
                        Weiss also will testify regarding his discussions with Mr. Best and Mr.
25                      Richardson as well as his knowledge about the Founder’s Warrants.
                        He will further testify regarding how the S&W invoices were paid and
26                      how information from the individuals was shared with Arthur
27                      Andersen, the tax accountants and consultants assisting him with
                        providing these estate planning services. He will testify as to his
28                      conversations about a possible Visitalk conflict as it relates to Mr.
                        Kaplan. Mr. Weiss also will testify as to his time entries in the S&W
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     Case 2:02-cv-02405-HRH   Document 422 27 Filed 12/20/2007        Page 27 of 71
                        invoices. Mr. Weiss will also testify regarding all other matters about
                        which he gave testimony during his deposition in this case.
 1
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     Robert                       Mr. Hayward will testify regarding documents he prepared relating to
     Hayward                      as a lawyer at S&W regarding all other matters about which he gave
 1
                                  testimony during his deposition in this case.
 2   Giles                        Giles Somerville is expected to testify as to his knowledge of
     Somerville                   Visitalk’s business mode, and financial and operational history the
 3
                                  MP3.com transaction, revenue strategies, marketing strategies, and
 4                                customer base,. He is expected to testify regarding the Founders’
                                  Warrants, the true chronology regarding the alleged authorization and
 5                                issuance of the Founders Warrants, the legal representation,
                                  communications and documents by S&W, Visitalk’s officers, board
 6
                                  members, investors and key employees, the Series A, B and C,
 7                                offerings, Mr. Cardwell’s termination from Visitalk, Visitalk’s other
                                  securities offerings and capital raising activities. Mr. Somerville will
 8                                also testify regarding all other matters about which he gave testimony
 9                                during his deposition in this case.
   Michael                        Mr. Williams will testify regarding the Second Amended Chapter 11
10 Williams                       Plan filed by Visitalk and confirmed by the Bankruptcy Court and the
                                  authentication of certain documents and agreements between Visitalk
11
                                  Capital Corporation and certain Visitalk creditors and investors copies
12                                of which were provided to S&W by letter and an enclosed CD on
                                  June 22, 2007
13
                        Experts
14   Renee                        Renee Jenkins is one of Plaintiff’s Experts. She is expected to testify
     Jenkins                      on the subject matter, conclusions and the factual support for these
15
                                  conclusions as stated in the original report, rebuttal report and any
16                                other supplemental report. Ms. Jenkins will also testify regarding all
                                  other matters about which she gave testimony during her deposition in
17
                                  this case. Her curriculum vitae and summary of qualifications are
18                                attached hereto as Exhibit E.
     Boyd                         Boyd Lemon is one of Plaintiff’s Experts. He is expected to testify on
19   Lemon                        the subject matter, conclusions and the factual support for these
20
                                  conclusions as stated in the original report, rebuttal report and any
                                  other supplemental report. Mr. Lemon will also testify regarding all
21                                other matters about which he gave testimony during his deposition in
                                  this case. His curriculum vitae and summary of qualifications are
22                                attached hereto as Exhibit F.
23   Steven                       Steven Scherf is one of Plaintiff’s Experts. He is expected to testify
     Scherf                       on the subject matter, conclusions and the factual support for these
24                                conclusions as stated in the original report, rebuttal report and any
                                  other supplemental report. Mr. Scherf will also testify regarding all
25
                                  other matters about which he gave testimony during his deposition in
26                                this case. His curriculum vitae and summary of qualifications are
                                  attached hereto as Exhibit G.
27

28

     11400-002/354772
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 1
 2            DEFENDANT SNELL & WILMER
 3            1. Mike Donahey.
 4                      •   Mr. Donahey is a partner at Snell & Wilmer.
 5
                        •   Mr. Donahey was the primary attorney at Snell & Wilmer who worked on
 6
     the Visitalk securities matters on a day to day basis.
 7
                        •   Mr. Donahey will testify about the initiation of the attorney-client
 8
     relationship with Visitalk in the summer of 1999.
 9
                        •   Mr. Donahey will testify regarding his impressions of Vistalk as a going
10
     concern, as well as numerous documents provided to Snell & Wilmer regarding the viability
11

12   of Visitalk’s technology and prospects for success, including documents prepared by Goldman

13   Sachs, Wit Soundview, Ernst & Young, Michael D’Addio, as well as articles in the Wall

14   Street Journal, and other financial publications.
15                      •   Prior to retaining Snell & Wilmer, Visitalk’s securities counsel was the
16   firm of Bryan Cave.
17                      •   Mr. Donahey will testify about his investigation into Visitalk’s securities
18
     and the myriad “problems” with Visitalk’s securities that were identified by Snell & Wilmer,
19
     including potential issues with the Founder’s Warrants.
20
                        •   Mr. Donahey will further testify that his main point of contact at Visitalk
21
     was Visitalk’s In-House General Counsel, Steve Best.
22
                        •   Snell & Wilmer provided Visitalk and its principals with a letter about the
23
     Founder’s Warrants dated July 28, 1999.
24

25                      •   Snell & Wilmer attempted to determine what actually happened with the

26   Founder’s Warrants.

27

28

     11400-002/354772
     Case 2:02-cv-02405-HRH          Document 422 30 Filed 12/20/2007        Page 30 of 71
                        •   Mr. Donahey will testify about the chronology of events that was relayed
 1   to him by Peter Thimmesch, Mark Cardwell, and Michael O’Donnell, as well as confirmation
 2
     of those events contained in several pre-existing documents.
 3
                        •   Mr. Thimmesch and Mr. O’Donnell advised Snell & Wilmer that they
 4
     authorized the Founder’s Warrants on September 12, 1998 and that Mr. Cardwell was not a
 5
     shareholder at that time.
 6
                        •   Mark Cardwell agreed that he was not a shareholder or director on
 7
     September 12, 1998.
 8
                        •   Mr. Donahey will discuss the “solution” to the Founder’s Warrants
 9
     problem that was adopted by the Board of Directors of Visitalk.
10

11                      •   Visitalk’s Board of Directors decided to secure releases of all Series A

12   Shareholders of claims they may have relating to the Founder’s Warrants. If those releases

13   could not be obtained, then Peter Thimmesch and Mark O’Donnell were going to forfeit their
14   Founder’s Warrants.
15                      •   The Action by Unanimous Consent dated September 12, 1998 supported
16   the sequence of events that Mr. Thimmesch and Mr. O’Donnell had discussed.
17
                        •   All Series A Shareholders released any claim they may have had arising
18
     out of the Founder’s Warrants.
19
                        •   Series B and Series C Visitalk Shareholders were informed of the
20
     Founder’s Warrants when they bought their stock.
21
                        •   No shareholder ever asserted a claim against Visitalk about the Founder’s
22
     Warrants.
23

24                      •   Mr. Donahey will further testify as to the limited role that Snell &

25   Wilmer played in connection with the drafting of the Settlement Agreement of claims that

26   Mark Cardwell had threatened against Visitalk.
27                      •   Snell & Wilmer did not negotiate the “deal” with Mr. Cardwell.
28

     11400-002/354772
     Case 2:02-cv-02405-HRH          Document 422 31 Filed 12/20/2007      Page 31 of 71
                        •   Visitalk felt that the settlement with Mr. Cardwell was in the best interest
 1   of the company. Visitalk and Snell & Wilmer did not believe the settlement was in any way a
 2
     usurpation of a corporate opportunity.
 3
                        •   Mr. Donahey will testify that, at all times, he and the other attorneys at
 4
     Snell & Wilmer were operating in the best interest of Visitalk. He will further testify that he
 5
     complied, at all relevant times, with the requisite standard of care.
 6
              2. Steven Best.
 7
                        •   Mr. Best was Visitalk’s In-House General Counsel.
 8
                        •   Mr. Best will testify about Visitalk’s securities offerings.
 9
                        •   Mr. Best will testify that Visitalk was a viable company, with a promising
10

11   product. Visitalk was not a Ponzi scheme.

12                      •   Mr. Best will testify that Visitalk failed because of market conditions.

13                      •   Mr. Best started with Visitalk in the summer of 1999.
14                      •   Mr. Best will testify that he and other members of Visitalk’s management
15   were unhappy with the representation that was provided to Visitalk by the law firm of Bryan
16   Cave.
17
                        •   Mr. Best will testify that he made the decision to retain Snell & Wilmer
18
     to represent the interests of Visitalk in connection with its securities related matters.
19
                        •   Mr. Best retained Snell & Wilmer based solely on the qualifications of
20
     the firm and its lawyers.
21
                        •   Mr. Best will testify that, at all relevant times, Snell & Wilmer acted in
22
     the best interests of Visitalk.
23

24                      •   According to Mr. Best, Snell & Wilmer not only complied with the

25   requisite standard of care, but provided Visitalk superior legal services.            Mr. Best was

26   extremely pleased with the performance of Snell & Wilmer under less than ideal
27   circumstances.
28

     11400-002/354772
     Case 2:02-cv-02405-HRH            Document 422 32 Filed 12/20/2007        Page 32 of 71
                        •   Mr. Best will explain how Snell & Wilmer revealed to him several legal
 1   problems with Visitalk’s securities, including the problems with the Founder’s Warrants.
 2
     These problems were the result of poor legal services provided by Bryan Cave. One of the
 3
     problems with the Founder’s Warrants was that they were not disclosed to Series A
 4
     Shareholders when they bought their stock.
 5
                        •   Mr. Best will testify that Snell & Wilmer worked extremely hard in trying
 6
     to develop solutions to these securities issues.
 7
                        •   Mr. Best will testify about the “solution” to the Founder’s Warrants
 8
     problem that was ultimately adopted by the Board of Directors of Visitalk.
 9
                        •   Visitalk’s Board of Directors decided that an attempt would be made to
10

11   secure releases of all claims by all Series A Shareholders. If that failed, then Mr. Thimmesch

12   and Mr. O’Donnell would “give up” their Founder’s Warrants.

13                      •   Mr. Best believed that the “solution” was in the best interest of the
14   company.
15                      •   Mr. Best will explain Snell & Wilmer’s limited role in that solution and
16   that Visitalk’s Board of Directors conferred with other counsel about the “solution” to the
17
     Founder’s Warrants.
18
                        •   Mr. Best will also discuss the settlement that was reached between
19
     Visitalk and Mark Cardwell.
20
                        •   Mr. Best will explain that the terms of the Cardwell settlement were
21
     negotiated between himself, on behalf of Visitalk, and counsel for Mr. Cardwell. Mr. Best
22
     will also testify regarding Steve Stodghill’s role in the negotiation of the Cardwell Settlement.
23

24   Mr. Best will testify that the terms of the Cardwell settlement were in the best interest of

25   Visitalk and did not constitute a “usurpation” of a corporate opportunity.

26                      •   Mr. Best will also explain the limited role that Snell & Wilmer had in
27   connection with the drafting of the Cardwell settlement agreement.
28            3. Robert Hayward.

     11400-002/354772
     Case 2:02-cv-02405-HRH          Document 422 33 Filed 12/20/2007       Page 33 of 71
                        •   Mr. Hayward is currently a partner at Kirkland & Ellis, LLP in Chicago,
 1   Illinois. Mr. Hayward is a corporate and securities lawyer.
 2
                        •   At the time of the events in question, he was an associate at Snell &
 3
     Wilmer.
 4
                        •   Mr. Hayward played a relatively small role in the corporate representation
 5
     of Visitalk.
 6
                        •   Mr. Hayward will testify that he was involved, at the associate level, in
 7
     conducting due diligence with respect to Visitalk’s securities.
 8
                        •   Mr. Hayward had little, if any, direct involvement with the client. Mr.
 9
     Hayward simply performed specific tasks that he was directed to perform by the more senior
10

11   lawyers at Snell & Wilmer.

12                      •   Mr. Hayward will testify that he does not recall any of the specific work

13   that he did or documents that he may have reviewed or prepared.
14                      •   Mr. Hayward will also testify about various internal Snell & Wilmer
15   documents. Mr. Hayward will testify that he never concluded that Visitalk violated any of the
16   securities laws.
17
                        •   Mr. Hayward will testify about his recollection of Donahey Deposition
18
     Exhibit 22.
19
              4. David Weiss.
20
                        •   Mr. Weiss is a tax and an estate planning partner at Snell & Wilmer.
21
                        •   Mr. Weiss will testify about his limited representation of Peter
22
     Thimmesch and Michael O’Donnell in estate planning matters in 2000.
23

24            5. Charlie Pulaski, Jr.

25                      •   Mr. Pulaski is a partner who practices tax law at Snell & Wilmer.

26                      •   Mr. Pulaski was asked to perform tax analysis with respect to the
27   “Founders Warrants”.
28

     11400-002/354772
     Case 2:02-cv-02405-HRH          Document 422 34 Filed 12/20/2007       Page 34 of 71
                        •   Mr. Pulaski prepared a Memorandum that was provided to Visitalk’s
 1   Board of Directors containing an analysis, from a tax perspective, of three possible solutions
 2
     to the Founders Warrant issue.
 3
                        •   Mr. Pulaski will testify about his Memorandum and the work that he did
 4
     attendant thereto.
 5
                        •   Mr. Pulaski was not involved in analyzing the Founders Warrants or other
 6
     securities related issues from a corporate or securities perspective.
 7
              6. Mike O’Donnell.
 8
                        •   Mr. O’Donnell was the President of Visitalk and a member of the Board
 9
     of Directors.
10

11                      •   Mr. O’Donnell will testify about the creation of Visitalk and the viability

12   of its product.

13                      •   Mr. O’Donnell will testify about the history and chronology of Visitalk,
14   press-releases issued by Visitalk, press-articles written about Visitalk, and Visitalk’s business
15   model as it compared with the business models of other Internet development stage companies
16   of the late-1990s.
17
                        •   Mr. O’Donnell will testify that his relationship and Visitalk’s relationship
18
     with Snell & Wilmer were strictly business relationships.
19
                        •   Mr. O’Donnell will testify that he was unhappy with the representation of
20
     Bryan Cave.
21
                        •   After Snell & Wilmer was retained, he believed that Snell & Wilmer
22
     provided superior legal services. He will testify that Snell & Wilmer responded very quickly
23

24   to Visitalk’s requests and assisted in identifying various problems with Visitalk’s securities.

25   These problems included issues with the Founders Warrants, including whether those

26   Warrants were disclosed to Series A Shareholders when they invested.
27

28

     11400-002/354772
     Case 2:02-cv-02405-HRH          Document 422 35 Filed 12/20/2007        Page 35 of 71
                        •   Prior to Snell & Wilmer’s identification of potential problems with the
 1   Founders Warrants, Mr. O’Donnell had no idea that there were potential issues with those
 2
     Warrants.
 3
                        •   Mr. O’Donnell will testify about the meeting that occurred in September
 4
     of 1998, involving Peter Thimmesch, Cindy Thimmesch and Marsha O’Donnell, where the
 5
     Board of Directors of Visitalk approved the Founders Warrants.
 6
                        •   Mr. Cardwell was not an employee, shareholder or director at the time of
 7
     this meeting.
 8
                        •   Joe Richardson of Bryan Cave documented this meeting through a
 9
     “Unanimous Consent of the Board of Directors in Lieu of Special Meeting.”
10

11                      •   Mr. O’Donnell will further attest to the “solution” to the Founders

12   Warrants problems that was adopted by Visitalk’s Board of Directors.

13                      •   Mr. O’Donnell will testify that this “solution” was in the best interest of
14   Visitalk.
15                      •   Mr. O’Donnell will verify that Visitalk’s Board conferred with counsel
16   other than Snell & Wilmer about the “solution” to the Founders Warrants issue.
17
                        •   The “solution” to the Warrants consisted of an attempt to secure releases
18
     of claims from Series A Shareholders. If all releases were not obtained, Mr. O’Donnell was
19
     prepared to give up his Founder’s Warrants.
20
                        •   Mr. O’Donnell will also testify about the releases that were obtained from
21
     Series A Shareholders.
22
                        •   Mr. O’Donnell will testify as to the settlement with Mr. Cardwell. Mr.
23

24   O’Donnell will testify that the settlement with Cardwell was in the best interest of Visitalk. It

25   was not a usurpation of a corporate opportunity.

26                      •   Mr. O’Donnell will testify that Visitalk failed because of market forces.
27                      •   Mr. O’Donnell will testify that Visitalk was not a ponzi scheme.
28            7. Cynthia Thimmesch

     11400-002/354772
     Case 2:02-cv-02405-HRH          Document 422 36 Filed 12/20/2007        Page 36 of 71
         Ms. Thimmesch was involved with Visitalk from its inception. She will testify as follows:

 1
                        •   Ms. Thimmesch will testify about the formation of Visitalk, and the
 2
      ground-breaking ideas that underlay its technology.
 3
                        •   Ms. Thimmesch attended the meeting between Peter Thimmesch and
 4
      Michael O’Donnell in the O’Donnells’ garage on September 12, 1998 during which the
 5
      founders agreed on the authorization of warrants to retain control of the corporation.
 6
                        •   Ms. Thimmesch is “100 percent certain” that Mark Cardwell was
 7

 8    neither a shareholder nor director at the time of this meeting.

 9                      •   Ms. Thimmesch will testify about her role at Vistialk from 1998 until

10    August 2000. She will testify about her role coordinating the offering of securities, and that
11    Visitalk was neither unorthodox, nor unreasonable, in its attempts to generate capital
12    through fundraising.
13                      •   Ms. Thimmesch will testify about her dealings with Mike Donahey and
14
      other lawyers at Snell & Wilmer and that Mr. Donahey was “level headed,” “cautious,” and
15
      looked at problems from “every angle.”
16
                        •   Ms. Thimmesch will testify regarding her dealings with David Weiss,
17
      her preparation of the March 20, 2000 memorandum that detailed the background behind
18
      the Founders Warrants, and her limited dealings with Mr. Weiss on estate planning matters.
19
                        •   Ms. Thimmesch will testify about the reasons why Visitalk filed for
20

21    bankruptcy protection, and that Snell & Wilmer had absolutely nothing to do wit Visitalk’s

22    business failings.

23            8. James Fallon.
24           Mr. Fallon was originally hired as a contract employee by Visitalk.com, Inc. in
25   November 1999. He is expected to testify as follows:
26                      •   Mr. Fallon attended two years of college, did not obtain a degree, but at
27
      the time of his deposition had twelve years experience as a software engineer, having
28
      worked for the National Data Corporation, and having acquired technical training in the
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      United States Navy.           Mr. Fallon also worked sporadically as a consultant for a
 1    pharmaceutical and laboratory concerns. It appears that Visitalk was his first foray into
 2
      Internet and/or Internet telephony applications.
 3
                        •      When Mr. Fallon was first retained as a contract employee by Visitalk,
 4
      Visitalk had approximately twenty members of its engineering team along with “a few other
 5
      consultants.”         The head of the Engineering Department when Mr. Fallon began his
 6
      employment in November 1999 was Lance Booth.
 7
                        •      When Mr. Fallon was hired as a contract employee in November 1999,
 8
      he was given the goal of addressing a discrete reliability problem with the Visitalk software.
 9
                        •      Mr. Fallon became a full time Visitalk employee in approximately
10

11    January 2000 and worked continuously for Visitalk until November 29, 2000 as a Senior

12    Engineer.

13                      •      As a Senior Engineer, Mr. Fallon addressed performance issues, and had
14    fixed the “reliability problem” for which he had originally been retained as a contract
15    employee.
16                      •      Mr. Fallon will testify that when he arrived at Visitalk, Visitalk had in
17
      place consumer services and proprietary technology that had been developed to provide
18
      those services. In addition, Visitalk continued to refine, improve, and modify its technology
19
      to meet the needs of its existing customers and to attract additional consumers.
20
                        •      Mr. Fallon is expected to testify that he developed even newer better
21
      technology, including present detection software while he was an employee at Visitalk, and
22
      that Visitalk would have needed to expend even further capital to implement this new
23

24    technology.

25                      •      Mr. Fallon will testify that the technical problems that Visitalk was

26    encountering from November 1999 until November 2000 were common problems in the
27    industry and still are common problems today. But none of those problems led Mr. Fallon
28    at any time to conclude that Visitalk’s services and products were not commercially viable.

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      Indeed, Mr. Fallon will testify that Visitalk maintained a Customer Service Department and
 1    that when consumers lodged complaints about the product, the Engineering Department
 2
      worked to alleviate that problem.
 3
                        •   When Mr. Fallon became the Director of Visitalk’s Engineering
 4
      Department, he had sixty people working for him on very broad technological issues.
 5
                        •   Mr. Fallon will testify that when he joined Visitalk, he believed that
 6
      Visitalk was “way ahead of its time.” That there are “companies that do this now and are
 7
      doing quite well.” And that Visitalk’s conceptual idea “was dead on.” For that reason he
 8
      worked hard to make the company succeed as a going concern.
 9
                        •   Mr. Fallon will testify that he did not have intimate knowledge of the
10

11    financial condition of Visitalk, that he did not have personal knowledge of the expenditures

12    of Visitalk, but believed that more money should have been raised and spent - - not less - -

13    on engineering.
14                      •   Mr. Fallon believed that the company would be able to “make a
15    significant amount of money” as late as October 2000.
16            9. Steve DelBianco.
17
             Mr. DelBianco is expected to testify as follows:
18
                        •   Mr. DelBianco first heard of Visitalk.com Inc. in April 1999 from Mark
19
      Cardwell, who was a former employee of Mr. DelBianco at “Financial Dynamics.” Mr.
20
      DelBianco eventually invested $200,000 in Visitalk by purchasing Series C Preferred Stock
21
      in May 1999.
22
                        •   Mr. DelBianco made a subsequent investment in Visitalk in October
23

24    2000 when he invested $20,000 in the Series F Convertible Debenture having been

25    requested to do so by Michael O’Donnell.

26                      •   Mr. DelBianco made his investment in Visitalk based upon a
27    confidential information statement prepared, not by Snell & Wilmer, but by Bryan Cave and
28    by in-house employees of Visitalk.

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                        •    Mr. DelBianco learned of the issues regarding the Founder’s Warrants,
 1    but never filed suit against Visitalk due to what he believed or was told was the improper
 2
      issuance of Founder’s Warrants, nor did he threaten suit against Visitalk due to what he
 3
      believed was the improper issuance of Founder’s Warrants.
 4
                        •    In making his investment in the Series F round of investments, Mr.
 5
      DelBianco did not rely on any representations made to him by Snell & Wilmer, but relied on
 6
      statements made to him by Mike O’Donnell and other members of the Visitalk Management
 7
      Team.
 8
                        •    Mr. DelBianco will testify that he still has a personal communications
 9
      number issued to him and useable on Visitalk.com Inc.
10

11            10. Jeffrey Hirschberg.

12           Mr. Hirschberg was an outside director of Visitalk who became a Director in or

13   around October 1999. Mr. Hirschberg is expected to testify as follows:
14                      •   Mr. Hirschberg is a lawyer, having received his law degree in 1971 and
15    having practiced in private practice and as legal counsel for the auditing firm Ernest &
16    Young. Mr. Hirschberg will testify that he became familiar with Visitalk.com Inc. in
17
      September 1999, having spoken with Steven Best, a life-long friend, regarding Visitalk.
18
      Mr. Hirschberg will testify that he did not accept the director’s position at Visitalk until he
19
      retired from Ernest & Young at the end of September 1999.
20
                        •   Mr. Hirschberg will testify that during his tenure at Visitalk, he was only
21
      aware of two instances that concerned him regarding the propriety in which the company
22
      was operated. First, Mr. Hirschberg was concerned about the expenditure by the company
23

24    for the move from its old facility to the new facility, which was marshaled by Marcia

25    O’Donnell. The second instance that caused Mr. Hirschberg concern was the expenditure of

26    funds by Peter Thimmesch, which caused him to ask Mr. Best to investigate that matter.
27                      •   Mr. Hirschberg never had concerns during his tenure as a Director with
28    the propriety of securities offerings.

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                        •   Mr. Hirschberg never had concerns regarding the “commercial viability”
 1    of Visitalk’s products. Indeed, he believed that the company may have been “five years
 2
      ahead of its time.”
 3
                        •   Mr. Hirschberg did not become concerned about the financial condition of
 4
      Visitalk until the summer of 2000. Mr. Hirschberg knew of the representation by Snell &
 5
      Wilmer of the Thimmeschs on estate planning matters, but, as a Board Member, was never
 6
      concerned whether there was any waiver of any conflict of interest.
 7
                        •   Mr. Hirschberg recalls having been provided with Snell & Wilmer’s July
 8
      28, 1999 letter to Steven Best. Moreover, Snell & Wilmer’s full disclosure of potential
 9
      liability caused “great concern” and the Board consulted with Steven Best and Snell &
10

11    Wilmer regarding how to approach the issue in an appropriate fashion.

12                      •   Mr. Hirschberg and the Board were advised regarding the possible breach

13    of representations and warranties contained in the Series B and Series C Preferred Stock
14    Purchase Agreements, the contingent liabilities caused by such possible breaches, the duties
15    of disclosure that existed to the company for all future private or public offerings, and the
16    possible liability to the company for the possible violation of securities laws.            Mr.
17
      Hirschberg further recalls having been told that Arthur Anderson was hired for the purposes
18
      relating to the Founder’s Warrants. Mr. Hirschberg also recalls Snell & Wilmer having told
19
      him (and the other Board members) that they had called prior counsel for Visitalk who had
20
      prepared documents relating to the Founder’s Warrants.
21
                        •   Mr. Hirschberg does recall having been apprised of possible securities law
22
      problems relating to Visitalk’s offering securities by lawyers at Snell & Wilmer.
23

24                      •   Mr. Hirschberg does not recall receiving any advice from Richard Mallery

25    (or any other lawyer at Snell & Wilmer) regarding management of the company. Indeed,

26    Mr. Hirschberg understood - - and still understands - - that the management of the company
27    was a company management issue, not a legal issue. Moreover, no input by Richard
28

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      Mallery ever had any effect on the way the company was managed, because that was not his
 1    job.
 2
                        •   Mr. Hirschberg knew about Mr. DelBianco review of Visitalk, reviewed
 3
      his memorandum, but believed that the analysis by Mr. DelBianco was by no means the
 4
      only analysis of the technology by outsiders, and that many had adopted the view that the
 5
      technology was appropriate technology to market.
 6
                        •   Mr. Hirschberg will testify that, with respect to the settling of the
 7
      Cardwell dispute, numerous alternatives were reviewed by the Board, and that the resolution
 8
      “adopted seemed the most reasonable and the most prudent at the time, given the
 9
      alternatives.” Furthermore, Mr. Hirschberg, as a former Board member at the time of the
10

11    Cardwell settlement, did not believe that the sale of Mr. Cardwell’s stock was an

12    “opportunity to sell stock belonging to the company.”

13                      •   Mr. Hirschberg never believed it was in the best interests of Visitalk to
14    close its doors and cease operations until the late summer or early fall 2000. Mr. Hirschberg
15    believed that Snell & Wilmer was acting in the best interests of the company at all times,
16    and that Snell & Wilmer provided the Board and the company with sound legal advice.
17
              11. Susan Malone.
18
             Susan Malone was a corporate paralegal at Bryan Cave law firm during the time Bryan
19
     Cave represented Visitalk. She will testify as follows:
20
                        •   Ms. Malone has been a corporate paralegal since 1974 and worked as a
21
      paralegal for Joe Richardson in the years 1998 and 1999. As a corporate paralegal, Ms.
22
      Malone drafts documents, issues stock certificates, keeps minute books, applies for
23

24    employer identification numbers, prepares charter documents, articles, by-laws, consents,

25    and organizational minutes.

26                      •   Ms. Malone will testify that she prepared the stock ledger relied upon by
27    Plaintiff to attempt to establish the “actual” date of Mark Cardwell’s acquisition of shares;
28    that she prepared that document in December 1998, and that she has no idea whether the

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      information contained in the document is accurate. Indeed, she will testify that, instead, she
 1    alone inferred from reviewing the organization minutes of Visitalk that the date Mark
 2
      Cardwell acquired stock was September 4, even though that date is, in fact, inaccurate.
 3
              12. Joe Richardson.
 4
             Mr. Richardson is a lawyer at Bryan Cave. He is expected to testify as follows:
 5
                        •   Mr. Richardson will testify having known Peter Thimmesch since at least
 6
      April 1998, and having attended a meeting with him with respect to a possible venture Mr.
 7
      Thimmesch was interested in. In fact, Mr. Thimmesch identified Bryan Cave LLP as the
 8
      corporate attorney for Interactive Multimedia Communications Corporation in or around
 9
      May 1998.
10

11                      •   Mr. Richardson will testify that he began advising Visitalk as an attorney

12    no later than September 1998, and that when he began representing Visitalk, he was well

13    aware that it was a development stage company, which brought with it a great deal of risk
14    for failure. He will testify that when he began representing Visitalk, their organizational
15    documents were disorganized and incomplete, and that he endeavored to assist Visitalk in
16    organizing and completing those documents.
17
                        •   Mr. Richardson will testify that it is absolutely appropriate to document
18
      activities and actions of the Board that occurred in the past.
19
                        •   Mr. Richardson will testify that he created the Unanimous Consent In
20
      Lieu of a Meeting of the Board of Directors regarding the Founder’s Warrants, that he did
21
      so at the behest of Messrs. Thimmesch and O’Donnell; that he did not include a signature
22
      line for Mr. Cardwell to sign as a Director, because he was informed that Mr. Cardwell was
23

24    not a Director on September 12, 1998, and that he would have included or instructed

25    someone to include him as a signatory to the Unanimous Consent if he had been informed

26    that Mr. Cardwell was, in fact, a Director on September 12, 1998.
27                      •   Mr. Richardson testified that he recalled Peter Thimmesch having told
28    him that the Board, composed solely of Mr. Thimmesch and Mr. O’Donnell, had authorized

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      warrants in order to maintain an ownership percentage of Visitalk.com. Mr. Richardson
 1    will testify that, based on his knowledge as Visitalk.com, Inc.’s former lawyer, the
 2
      Founder’s Warrants were authorized to be issued to Peter Thimmesch and Michael
 3
      O’Donnell on September 12, 1998.
 4
                        •   Mr. Richardson will testify that Bryan Cave offered legal services to
 5
      Visitalk in connection with the sale of Series B and C shares.
 6
                        •   Mr. Richardson will testify that he never advised anyone at Visitalk.com
 7
      that any shareholder of Visitalk held claims against Visitalk relating to the Founder’s
 8
      Warrants, that the existence of any such claims constituted debt of Visitalk, or that the
 9
      existence of any such claims caused Visitalk.com to be insolvent.
10

11                      •   Mr. Richardson will testify that Richard Rothwell’s assertion of the

12    reason that Bryan Cave ceased providing legal services to Visitalk was “bull shit” and

13    “completely inaccurate.” Indeed, Mr. Richardson will testify that his cessation of legal
14    work for Visitalk did not have even the slightest bit to do with either the authorization or
15    issuance of the Founder’s Warrants.
16                      •   Mr. Richardson created numerous documents during his representation of
17
      Visitalk which commemorated the fact that prior to September 15, 1998, Peter Thimmesch
18
      and Mark Cardwell were “the only stockholders” and owned “100% of the shares” of
19
      Visitalk. Moreover, Mr. Richardson did not learn of any information during the time he
20
      represented Visitalk, or subsequent to the time he represented Visitalk, that suggested to him
21
      that as of September 12, 1998 Peter Thimmesch and Michael O’Donnell were not the only
22
      two shareholders of Visitalk.
23

24                      •   Mr. Richardson will testify that there was nothing inappropriate by dating

25    corporate formation documents September 4, 1998, even if they were not created until

26    October 12, 1998.
27            13. Ray Gaston.
28

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                        •   Mr. Gaston was a CPA, lawyer and cousin of Cynthia Thimmesch. He
 1    began working as Visitalk’s Vice President of Finance and Controller from April 1999 until
 2
      January 2001.
 3
                        •   Mr. Gaston will admit that he was instrumental in the preparation of the
 4
      March 18, 1999 Confidential Information Statement, and responsible for the disclosures of
 5
      financial information and other materials contained therein. He will also admit that at no
 6
      time did he inform potential investors in Visitalk that Visitalk was insolvent.
 7
                        •   Mr. Gaston will testify that he was intimately familiar with Visitalk’s
 8
      financial condition from April 1999 until January 2001, and that he never informed a single
 9
      lawyer at Snell & Wilmer that Visitalk was insolvent, that it could not meet its debts as they
10

11    became due in the ordinary course of business, or that Visitalk should curtail or cease its

12    money raising activity through the offering of privately placed securities. To the contrary,

13    Mr. Gaston repeatedly exhorted lawyers at Snell & Wilmer to assist with the raising of
14    funds.
15                      •   Mr. Gaston will admit that he was repeatedly requested by lawyers at
16    Snell & Wilmer to provide accurate and complete financial information, and that he had a
17
      duty to Visitalk to provide accurate and complete financial information, but that the
18
      financial information he provided to Snell & Wilmer did not indicate any insolvency at any
19
      time, nor did such financial information reveal that Visitalk was unable to meet its debts in
20
      the ordinary course of business as they became due.
21
                        •   Mr. Gaston will admit that, though knowing Visitalk had consulted with
22
      bankruptcy counsel in July 2000, he concealed that fact from Snell & Wilmer, and further
23

24    did not give complete, accurate, or detailed financial information to Snell & Wilmer.

25                      •   Mr. Gaston will admit that he was excited about Visitalk’s proprietary

26    technology, believed in the utility and usefulness of Visitalk’s proprietary technology, and
27    that it was not uncommon or unreasonable to expend significant capital without
28    immediately return.

     11400-002/354772
     Case 2:02-cv-02405-HRH           Document 422 45 Filed 12/20/2007       Page 45 of 71
                        •   Mr. Gaston will admit that documents he prepared prior to Visitalk’s
 1    engagement of Snell & Wilmer accurately demonstrate the chronology of events leading up
 2
      to the hiring of Mark Cardwell.
 3
                        •   Mr. Gaston will admit that he assisted in the statement of financial
 4
      condition prepared by Visitalk post-bankruptcy, and that he did not include as contingent
 5
      liabilities any purported claims held by any preferred shareholders related to the Founder’s
 6
      Warrants, or otherwise.
 7
                        •   Mr. Gaston will also admit that he prepared statements of financial
 8
      condition of Visitalk pre-bankruptcy, and that Mr. Gaston never prepared a financial
 9
      document showing alleged claims of shareholders as a “contingent liability.”
10

11            14. Allan Kaplan.

12           Mr. Kaplan was the first independent director of Visitalk.com. He will testify as

13   follows:
14                      •   Mr. Kaplan will testify that he had experience prior to his relationship
15    with Visitalk.com, Inc. in the technology and communications sector, and that he first
16    discussed the concept of Visitalk.com, Inc. with Peter Thimmesch and Michael O’Donnell
17
      30 to 60 days prior to the incorporation of Visitalk.com, Inc.
18
                        •   Mr. Kaplan will testify that he believed that Mr. Thimmesch had
19
      identified a problem with existing technologies that he had developed a groundbreaking
20
      solution to that technology, and that such technology would be successful in the
21
      marketplace.
22
                        •   Mr. Kaplan will testify that he became a Director of Visitalk.com, Inc.
23

24    sometime in or around December 1998 and that he served in an advisory capacity to the

25    corporation, and was sometimes referred to as the Chief Operating Officer.

26                      •   Mr. Kaplan will testify that he was a Series A Investor, and that he
27    learned of issues surrounding the Founder’s Warrants sometime during the Series B round
28    of investments, and had discussions with members of the Visitalk Board of Directors, as

     11400-002/354772
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      well as counsel. Mr. Kaplan then received adequate assurances regarding the Founder’s
 1    Warrants through these discussions. Mr. Kaplan testified that he could not remember if the
 2
      counsel he spoke with was counsel with Bryan Cave or Snell & Wilmer. However, because
 3
      Snell & Wilmer did not represent Visitalk during the Series B offering, and Mr. Kaplan
 4
      testified that issues surrounding the Founder’s Warrants were discussed and resolved to his
 5
      satisfaction during the Series B offering, any counsel with whom he had discussions had to
 6
      have been counsel from Bryan Cave.
 7
                        •   With respect to the Cardwell settlement, Mr. Kaplan was involved in the
 8
      negotiations of the Cardwell settlement, and also worked with the bankers of Visitalk.com
 9
      actively in attempting to reach a financially beneficial settlement for Visitalk. The bankers
10

11    informed Mr. Kaplan that raising additional capital through the Cardwell settlement was

12    “prudent at the time.”        Moreover, Mr. Kaplan and the other members of the Board

13    recognized that the proposed settlement by Mr. Cardwell would have resulted in a reduction
14    in assets by Visitalk.com, whereas the transaction that ultimately took place resulted in a
15    “net increase in assets by the organization without selling any more shares of stock.”
16    Therefore, the transaction benefited Visitalk by increasing its assets, by not diluting existing
17
      shares, and by abiding “what the bankers thought was the best thing to do at the time.”
18
                        •   Mr. Kaplan believes that the concept behind Visitalk was very strong and
19
      still is, but that Visitalk failed for the same reason “a lot of companies” failed:         the
20
      consumer products market and Internet market “dried up,” and then the “bubble burst.”
21
                        •   Mr. Kaplan will testify that Steven Best was in-house counsel during his
22
      tenure as a Board member, that Mr. Best’s duty was to communicate with Snell & Wilmer
23

24    regarding legal issues confronting the company, and that it was perfectly appropriate for

25    Snell & Wilmer to report its findings to Steven Best and not report those findings directly to

26    the Board.
27            15. Richard Mallery.
28           Mr. Mallery is expected to testify as follows:

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                        •   Mr. Mallery will testify that he is a partner with Snell & Wilmer and has
 1    been for the past 42 years. He will testify about his practice areas and position with the law
 2
      firm of Snell & Wilmer.
 3
                        •   Mr. Mallery will also testify regarding his position as officer and director
 4
      of several pro bono companies, including the International Genomics Consortium, the
 5
      Molecular Profiling Institute, and the Sonoran Desert Foundation.
 6
                        •   Mr. Mallery will testify that he first heard of Visitalk in the summer of
 7
      1999 and was introduced by Mark Love to Steve Best.
 8
                        •   Mr. Mallery will testify about his visit to the headquarters of Visitalk and
 9
      his introduction for the first time to Peter Thimmesch and Mike O’Donnell, and their
10

11    demonstration of the Visitalk product.

12                      •   Mr. Mallery will testify regarding the general matters worked upon by

13    Snell & Wilmer for Visitalk, and the partners at Snell & Wilmer who marshaled certain
14    projects, such as Mike Donahey.
15                      •   Mr. Mallery will testify that he is not a securities lawyer and that he
16    depended upon Mike Donahey to identify the securities issues facing Visitalk and to deal
17
      with those issues appropriately.
18
                        •   Mr. Mallery will testify about his understanding regarding the
19
      authorization of Founder’s Warrants to Mr. Thimmesch and Mr. O’Donnell, and that legal
20
      counsel for Visitalk when the initial Founder’s Warrant transaction occurred was Bryan
21
      Cave.
22
                        •   Mr. Mallery will testify regarding the due diligence performed by lawyers
23

24    at Snell & Wilmer regarding the Founder’s Warrants issue, including specific conversations

25    with all percipient witnesses, including Peter Thimmesch, Michael O’Donnell, and Mark

26    Cardwell, all of whom confirm that Mark Cardwell was neither an employee, shareholder,
27    nor director at the time the Founder’s Warrants were authorized for issuance to Peter
28    Thimmesch and Michael O’Donnell.

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                        •   Mr. Mallery will testify about his conversations with Michael O’Donnell
 1    and Stephen Best regarding estate planning for the O’Donnells and the Thimmeschs, and
 2
      that Stephen Best specifically authorized representation of the O’Donnells and the
 3
      Thimmeschs on estate planning matters.
 4
                        •   Mr. Mallery will testify about his relationship with Mr. Thimmesch and
 5
      Mr. O’Donnell, and that such relationship was not familial, close, or intimate in any way.
 6
                        •   Mr. Mallery will testify that he never gave Mr. Thimmesch business
 7
      advice, and such advice was never sought by Mr. Thimmesch.
 8
                        •   Mr. Mallery will testify that no one at Visitalk ever told him that Visitalk
 9
      was insolvent, that its product was not commercially viable, or that it did not have plans to
10

11    generate revenue through its operations.

12                      •   Mr. Mallery will testify that he was not responsible for the day-to-day

13    work on securities matters.
14                      •   Mr. Mallery will testify that he had lunches with either Michael
15    O’Donnell or Peter Thimmesch, that he had dinner one evening with Mr. O’Donnell and
16    Mr. Thimmesch, and that the O’Donnells attended a party (along with approximately 200
17
      other people) at his ranch outside of Payson.
18
                        •   Mr. Mallery will testify that Snell & Wilmer prepared invoices for legal
19
      services on a regular monthly basis that were reviewed and approved by general counsel
20
      Steve Best and that payments were also made in the ordinary course of Visitalk’s business,
21
      and that neither Mr. Mallery nor any other lawyer to his knowledge exerted any influence
22
      on Visitalk by virtue of affinity with any principal of Visitalk.
23

24                      •   Mr. Mallery will testify that he has no specific recollection of discussions

25    with anyone at Visitalk regarding the termination of Mark Cardwell’s employment or

26    negotiation of the settlement regarding Mr. Cardwell’s termination.
27                      •   Mr. Mallery will testify that, to the best of his recollection, no one at
28    Visitalk ever told him that Visitalk was insolvent.

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              16. Richard Rothwell.
 1            Mr. Rothwell is expected to testify as follows:
 2
                        •   Mr. Rothwell will admit that he never threatened or asserted a claim
 3
      against Visitalk as the result of the authorization for the issuance of Founders Warrants to
 4
      Peter Thimmesch and Michael O’Donnell, or for any other matter surrounding Founder’s
 5
      Warrants.
 6
                        •   Mr. Rothwell will testify that he attended a presentation given by Peter
 7
      Thimmesch in September of 1998; that he thought the idea for Visitalk was a “great idea,”
 8
      and that he decided to make an investment in Visitalk.
 9
                        •   Mr. Rothwell will testify that on December 13, 2000, he became the CEO
10

11    and Chairman of the Board of Visitalk, with full knowledge that Visitalk had filed a Petition

12    for Chapter 11 Bankruptcy protection.

13                      •   Mr. Rothwell will claim that after he became CEO of Visitalk in
14    December 2000, he began “working 7 days a week” at Visitalk “investigating their financial
15    records, present and past, vigorously.”
16                      •   Mr. Rothwell will testify that he authorized the filing of the initial
17
      Complaint in this litigation.
18
                        •   However, Mr. Rothwell will admit that prior to authorizing the filing of
19
      the Complaint and despite his assertion that he did a “vigorous” investigation of Visitalk’s
20
      records, he did not review the “Unanimous Consent of Board of Directors in Lieu of Special
21
      Meeting” regarding the authorization of the Founder’s Warrants at any time prior to
22
      authorizing the filing of the Complaint in this matter.
23

24                      •   Mr. Rothwell will further admit there was nothing improper about

25    preparing the Unanimous Consent in November 1998, and dating it as of September 12,

26    1998.
27

28

     11400-002/354772
     Case 2:02-cv-02405-HRH           Document 422 50 Filed 12/20/2007      Page 50 of 71
                        •   Mr. Rothwell will further admit that he never reviewed the Board of
 1    Directors Meeting Minutes of November 24, 1999, nor any Board Minutes prior to
 2
      authorizing the filing of the Complaint in this matter.
 3
                        •   Mr. Rothwell will admit that he had access to information contained in
 4
      Visitalk’s files, but did not review the Memorandum from Cindy Thimmesch to David
 5
      Weiss dated March 20, 2000 prior to authorizing the filing of the Complaint in this matter.
 6
                        •   Mr. Rothwell will admit that he knows of no shareholder who ever filed a
 7
      claim against Visitalk.com, Inc. as a result of the issuance, authorization, or attempted
 8
      authorization or issuance of Founder’s Warrants to Mr. Thimmesch and Mr. O’Donnell.
 9
                        •   Mr. Rothwell will further admit, that despite claiming to have conducted a
10

11    “vigorous investigation,” he did not review the November 2, 1999 Memorandum from

12    Michael Donahey to the Board of Directors of Visitalk.

13                      •   Mr. Rothwell will admit that he agreed to release any and all claims
14    related to the Founder’s Warrants on or before December 13, 1999, long before any alleged
15    statements made by Richard Mallery at a Shareholder’s Meeting on December 27, 1999.
16                      •   Mr. Rothwell will further admit that he signed the Series A Release
17
      without relying on any statements made by lawyers at Snell & Wilmer and without
18
      discussing the Release with any lawyers at Snell & Wilmer.
19
                        •   Mr. Rothwell will admit that he does not know of any harm or damage
20
      caused to Visitalk as a result of the existence of Founder’s Warrants, nor can Mr. Rothwell
21
      identify a single potential investor who refused to invest in Visitalk because of the
22
      Founder’s Warrants.
23

24                      •   Mr. Rothwell will admit that he has consistently taken the position that

25    Visitalk had valuable assets, had the potential of generating substantial revenue, and

26    maintained that position as CEO of Visitalk in Bankruptcy. Indeed, Mr. Rothwell so
27    strongly believed in the potential success of Visitalk that he sent two letters to potential
28

     11400-002/354772
     Case 2:02-cv-02405-HRH            Document 422 51 Filed 12/20/2007       Page 51 of 71
      investors in December 2000 - - after Visitalk filed Bankruptcy - - requesting an infusion of
 1    cash into Visitalk.
 2
                        •      Mr. Rothwell will admit that he prepared and signed under oath monthly
 3
      business operating reports on behalf of Visitalk, and that he never identified a single claim
 4
      allegedly held by any shareholder as a liability, contingent liability, or debt of Visitalk.
 5
                        •      Mr. Rothwell will admit that upon becoming CEO of Visitalk in
 6
      Bankruptcy he had fiduciary duties, but never informed any shareholder that a shareholder
 7
      possessed claims against Visitalk.com, Inc.
 8
              17. Scott Theobald.
 9
             Scott Theobald has been retained as Snell & Wilmer’s standard of care expert. His
10

11   summary of qualifications is attached hereto as Exhibit A. Mr. Theobald will testify as

12   follows:

13                 •        Mr. Theobald will testify regarding his nineteen year career in private law
14    practice, and his experience as acting in lead counsel in numerous private securities
15    offerings made under the so called “safe harbor” exemption of Regulation D, which
16    facilitates the sale of securities and private transactions. He will also testify about his
17
      experience with clients and matters in the technology sector, as well as a wide variety of
18
      other industries. Mr. Theobald will also testify about his experience in connection with the
19
      initial public offering of securities and his representation of publicly traded companies with
20
      regard to their compliance and reporting obligations under the Securities Exchange Act of
21
      1934. Mr. Theobald will also testify regarding his advice to broker-dealers, mutual funds,
22
      venture capitalists, private equity funds, hedge funds, registered representatives
23

24    (stockbrokers), and other persons and businesses with regard to their respective obligations

25    under the federal and state securities laws.

26                 •        Mr. Theobald will testify regarding the duty of care that applies to the
27    lawyers at Snell & Wilmer who performed work on behalf of Visitalk.
28

     11400-002/354772
     Case 2:02-cv-02405-HRH               Document 422 52 Filed 12/20/2007     Page 52 of 71
                   •    Mr. Theobald will testify regarding the standard of care as it applies to
 1    “development stage” companies, especially the standard of care that applies to attorneys
 2
      who are assisting in the sale of private securities offerings on behalf of development stage
 3
      companies.
 4
                   •    Mr. Theobald will testify regarding the propriety of communication between
 5
      lawyers at Snell & Wilmer and Visitalk’s in house General Counsel, Stephen Best.
 6
                   •    Mr. Theobald will testify that in his professional opinion, Snell & Wilmer
 7
      met and/or exceeded the applicable standard of care in connection with the matter involving
 8
      the so-called “Founders’ Warrants.”
 9
                   •    Mr. Theobald will testify that Snell & Wilmer met the standard of care in its
10

11    assistance to Visitalk in securing releases from Series A investors, and in correcting the

12    books and records of Visitalk to properly reflect historical fact.

13                 •    Mr. Theobald will testify regarding what matters constitute material
14    information in connection with the private sale of securities, what disclosures are required to
15    be made to “accredited investors,” as that term is defined by Rule 501(a) of Regulation D,
16    and that Snell & Wilmer, in all respects, met its obligation to assist Visitalk in providing
17
      appropriate disclosure to shareholders.
18
                   •    Mr. Theobald will testify that Snell & Wilmer acted appropriately and within
19
      the standard of care by following the admonition, early on in its representation, to “handle
20
      this [the Founders’ Warrants] matter on a discreet and confidential basis,” and that Snell &
21
      Wilmer also met the standard of care by recognizing that its early analysis was based on
22
      assumptions that it later determined to have been incorrect in certain respects.
23

24                 •    Mr. Theobald will testify that the July 28, 1999 letter to Visitalk contains

25    sufficient notice and appropriate advice to Visitalk and its Board of Directors regarding the

26    matters discussed therein, and that Snell & Wilmer met the applicable standard of care by
27    delivering the letter to Visitalk’s General Counsel, Mr. Best.
28

     11400-002/354772
     Case 2:02-cv-02405-HRH           Document 422 53 Filed 12/20/2007       Page 53 of 71
                   •     Mr. Theobald will testify that Snell & Wilmer met the applicable standard of
 1    care by offering several legally viable alternatives for resolving the difficult issues relating
 2
      to the Founders’ Warrants and by apprising Visitalk of the risks associated with each
 3
      proposed solution.
 4
                   •     No applicable securities law required Visitalk to initiate a rescission offering,
 5
      and therefore Snell & Wilmer had not duty to notify Visitalk generally, or to notify the
 6
      Visitalk Board of Directors specifically, that Visitalk had any obligation to make a
 7
      rescission offering.
 8
                   •     Visitalk was permitted under the applicable securities laws to extend the
 9
      closing date of the offering of its Series C Preferred Stock. Therefore, Snell & Wilmer had
10

11    no duty to advise Visitalk or its Board of Directors that Visitalk could not lawfully extend

12    the closing date for the Series C Preferred Stock offering or that Visitalk could not or should

13    not submit to purchasers and prospective purchasers the Updated Confidential Information
14    Statement prepared by Snell & Wilmer and others, dated December 13, 1999.
15                 •     Snell & Wilmer met the applicable standard of care in recommending, and in
16    collaborating with others in the preparation of the Visitalk Updated Confidential
17
      Information Statement dated December 13, 1999.
18
                   •     Snell & Wilmer had not duty to substitute its own business judgment for that
19
      of Visitalk’s Board of Directors with regard to Visitalk’s affairs. More particularly, Snell &
20
      Wilmer had not duty to inform or attempt to persuade Visitalk of any of the following:
21
                        a.    That Visitalk was or was not financially capable of undertaking any
22
                              particular action at any particular point in time;
23

24                      b.    That Visitalk was solvent or insolvent at any particular point in time;

25                      c.    That Visitalk should or must consider the possibility of seeking

26                            bankruptcy counsel or filing for protection from creditors under the
27                            bankruptcy laws of the United States.
28

     11400-002/354772
     Case 2:02-cv-02405-HRH             Document 422 54 Filed 12/20/2007           Page 54 of 71
                        d.      That Visitalk should or must consider ceasing operations, liquidating its
 1                              assets, refraining from selling securities or making any other similar
 2
                                business judgment or decision.     To the contrary, Snell & Wilmer’s
 3
                                duties to Visitalk in connection with Visitalk’s general business
 4
                                decisions and affairs were limited to taking reasonable steps to respond
 5
                                in a reasonably timely fashion to requests from Visitalk’s in house
 6
                                General Counsel for legal advice, so long as the related details and
 7
                                attendant circumstances were made known in reasonable detail to Snell
 8
                                & Wilmer sufficiently in advance to permit such information to be
 9
                                timely analyzed, and the corresponding legal advice to be timely
10

11                              formulated and communicated to Visitalk;

12                      e.      To advise Visitalk to comply with applicable securities laws; and

13                      f.      To take reasonable steps to assist Visitalk in meeting its disclosure and
14                              other legal obligations under the securities laws, recognizing that Snell
15                              & Wilmer acted subject to the direction of Visitalk’s in house General
16                              Counsel, who, ultimately, was the lawyer chiefly responsible for the
17
                                conduct of Visitalk’s legal affairs and its compliance with applicable
18
                                laws, rules and regulations.
19
                   •         Snell & Wilmer had no duty, and no other legitimate justification, to make
20
      any effort to “side-step” Visitalk’s in house General Counsel, Stephen Best. No evidence
21
      indicates that Mr. Best had any conflict of interest or improper motive, or that he had acted
22
      irresponsibly in any manner in communicating the legal advice of Snell & Wilmer to
23

24    Visitalk’s Board of Directors. Absent some showing that there was reasonable cause to

25    doubt whether Mr. Best was acting in the best interests of Visitalk, Snell & Wilmer clearly

26    met the applicable duty of care by communicating legal advice to Visitalk and its Board of
27    Directors, through Mr. Best.
28

     11400-002/354772
     Case 2:02-cv-02405-HRH              Document 422 55 Filed 12/20/2007       Page 55 of 71
                   •    Snell & Wilmer had no duty to advise Visitalk that Visitalk was required by
 1    law to make rescission offers to the holders of any shares of Visitalk Preferred Stock.
 2
      Moreover, Snell & Wilmer had no duty to advise Visitalk that it could not raise funds from
 3
      the offering of Series F Convertible Debentures.
 4
                   •    The proposed settlement between Mark Cardwell did not constitute or
 5
      involve any unlawful usurpation of any corporate opportunity of Visitalk. Therefore, Snell
 6
      & Wilmer had no duty to advise Visitalk or its Board of Directors that the proposed
 7
      settlement agreement between Mark Cardwell and the corporation constituted an unlawful
 8
      usurpation of a corporate opportunity.      Snell & Wilmer struck an appropriate balance
 9
      between acting as an advisor to Visitalk, raising objective concerns about risks that might
10

11    stem from the possible applicability of the broker-dealer regulations, and acting as an

12    advocate for Visitalk in a transaction that ultimately proved to be highly beneficial to the

13    corporation. Snell & Wilmer met the applicable standard of care in accepting and acting on
14    the reasonable business judgment of its client to proceed with assisting with the Cardwell
15    transaction, while at the same time appropriately advising the client that the proposed
16    transaction involved certain attendant risks that were incapable of being eliminated or
17
      significantly reduced.
18
                   •    In analyzing and handling Visitalk matters related to integration under
19
      Regulation D, Snell & Wilmer met the applicable standard of care.
20
                   •    Evidence of Visitalk’s financial condition that was available to Snell &
21
      Wilmer during the month of November, 1999 indicated that Visitalk was solvent, at the
22
      time, for all purposes that ordinarily and reasonably would be significant to securities
23

24    lawyers that might have been involved in counseling Visitalk with regard to the kind and

25    extent of any disclosure obligations that might have applied to Visitalk.

26                 •    Snell & Wilmer had no duty to advise Visitalk or its Board of Directors that
27    Visitalk should have engaged an independent third party expert to advise Visitalk on the
28    question of whether Visitalk had developed a commercially viable product. Such a decision

     11400-002/354772
     Case 2:02-cv-02405-HRH         Document 422 56 Filed 12/20/2007        Page 56 of 71
      is a business decision within the province of the Board of Directors, rather than a legal
 1    decision.         Moreover, no applicable law or regulation required Visitalk to engage an
 2
      independent expert of this kind.
 3
                   •        No evidence indicates Visitalk’s sales of securities during the period
 4
      November, 1999 through August, 2000 violated the applicable securities laws. Snell &
 5
      Wilmer met the applicable duty of care, as well as its duty of loyalty to Visitalk, in
 6
      continuing to provide corporate and securities legal advice to Visitalk regarding its
 7
      securities sales during this period.
 8
                   •        A securities lawyer has no duty generally, under applicable law, to obtain
 9
      any release of claims from shareholders of the lawyer’s corporate client. In this case, for
10

11    that reason, Snell & Wilmer had no duty to obtain releases for Visitalk from Series A or

12    Series B Preferred Shareholders. Notwithstanding Snell & Wilmer’s lack of duty under the

13    law as to this point, the firm did, in fact, assist Visitalk in obtaining releases from Series A
14    Preferred Shareholders.
15                 •        No reasonable interpretation of the evidence adduced in this case suggests
16    that Snell & Wilmer aided, abetted, advised, permitted, or encouraged Mr. Thimmesch or
17
      Mr. O’Donnell to breach any fiduciary duty either of them may have owed to Visitalk.
18
                   •        Snell & Wilmer exercised reasonable diligence and otherwise met the
19
      applicable standard of care in investigating the facts and in drawing conclusions from those
20
      facts concerning the authorization of the Founder’s Warrants by Visitalk.
21
                   •        With regard to the alleged statement made by Richard Mallery at a
22
      shareholders’ meeting in December, 1999, neither Mr. Mallery, nor any other lawyer at
23

24    Snell & Wilmer, fell below the standard of care as a result of the making of such statement,

25    if such statement was made at all, because such statement should have been regarded by

26    anyone who heard it as speculative, contingent, and non-authoritative, both on the basis of
27    the written disclaimers that had already been made by Series A investors, and as an
28

     11400-002/354772
     Case 2:02-cv-02405-HRH             Document 422 57 Filed 12/20/2007      Page 57 of 71
      objective matter of common sense among the persons in attendance, who qualified as
 1    “accredited investors.”
 2
                   •          Mr. Lemon lacks the specialized professional knowledge and experience to
 3
      testify regarding the role and duties of corporate and securities counsel in connection with
 4
      the offering of private securities at development stage companies; the text and relevant case
 5
      law interpreting the Securities Act of 1933 and the Securities Act of 1934; the Arizona
 6
      Securities Act and the regulations promulgated thereunder; Title 10 of the Arizona Revised
 7
      Statutes, setting out the Arizona law of corporations; the customs, conventions and
 8
      generally accepted practices and standards of members of the Arizona State Bar who
 9
      practice in the areas of corporate and securities law; and corporate financial accounting,
10

11    particularly in matters relating to and illustrating the difference between a potential claim of

12    liability that might be asserted against a corporation and the actual incurrence of legal

13    indebtedness to which must, under generally accepted accounting principles consistently
14    applied, be disclosed as a liability on the balance sheet of a corporation.
15                      18.    Gary Stuart.
16                             Mr. Stuart is an expert witness who will testify about the allegations
17
      raised that Snell & Wilmer had a conflict of interest in representing the interest of Visitalk
18
      and in representing Michael O’Donnell and Peter Thimmesch in connection with estate
19
      planning matters.
20
                        •      Mr. Stuart will initially testify as to his background and qualifications.
21
      His summary of qualifications is attached hereto as Exhibit B.
22
                        •      Mr. Stuart will opine that Snell & Wilmer did not have a conflict of
23

24    interest, and that ER 1.13 permitted concurrent representation of Visitalk and the

25    Thimmesches and O’Donnell’s on estate planning matters.

26                      •      Mr. Stuart will explain that Snell & Wilmer did not represent the interests
27    of Mr. O’Donnell and Mr. Thimmesch until after the “problems” with the Founder’s
28    Warrants were resolved.

     11400-002/354772
     Case 2:02-cv-02405-HRH               Document 422 58 Filed 12/20/2007        Page 58 of 71
                        •     Mr. Stuart will further testify that there was never any “adversity”
 1    between the interests of Messrs. O’Donnell and Thimmesch and Visitalk pertinent to Snell
 2
      & Wilmer’s representation.
 3
              19. David Weekly.
 4
                              Mr. Weekly is an accountant by trade and is affiliated with FTI
 5
      Consulting, Inc. He is defendant’s damages expert. His summary of qualifications is
 6
      attached hereto as Exhibit C. Mr. Weekly has studied the damage claim of the plaintiff’s
 7
      expert, Renee Jenkins, and formed the following opinions.
 8
                        •     Jenkins’ calculations are based on and supported by unreasonable
 9
      assumptions. Her calculations contain significant errors.
10

11                      •     Jenkins’ opinion that Visitalk, Inc. was a Ponzi scheme is unsupported.

12    She has provided no proof for her opinion and has not considered the basic characteristics

13    of the Ponzi scheme.
14                      •     Jenkins did not exercise due professional care and did not obtain
15    sufficient relevant data to support her findings.
16                      •     In sum, Mr. Weekly does not believe that there is any substantial
17
      evidence demonstrating that Visitalk was damaged by anything that Snell & Wilmer did or
18
      did not do.
19
                        20.   Michael Tucker.
20
                              Mr. Tucker is Snell & Wilmer’s expert on preference and bankruptcy
21
     related issues. Mr. Tucker’s summary of qualifications is attached hereto as Exhibit D.
22
                        •      Mr. Tucker will testify in accordance with his Expert Report dated
23

24    March 6, 2007; his deposition dated May 29, 2007; and his declaration dated August 6,

25    2007; and the exhibits attached to and referenced in each of the above; including 1) his

26    rebuttal of the opinions of Mr. Scherf; 2) his opinion regarding the amounts, if any, of the
27    Visitalk payments to Snell & Wilmer that are subject to preference; 3) his opinion regarding
28    the new value defense as set forth in detail in the referenced materials; and 4) that his

     11400-002/354772
     Case 2:02-cv-02405-HRH             Document 422 59 Filed 12/20/2007      Page 59 of 71
      review of the bankruptcy filings demonstrate the absence of any shareholder claims related
 1    to the Founders’ Warrants or similar issues.
 2
                        •      Mr. Tucker will testify that the evidence does not support a finding of
 3
      “insolvency” with the alleged preference period.
 4
                        •      Mr. Tucker will testify that the evidence does not support a conclusion
 5
      that Snell & Wilmer was an “insider.”
 6
                        •      Mr. Tucker will testify that the payments to Snell & Wilmer were in the
 7
      “ordinary course of business,” and that they payments within 90 days of bankruptcy almost
 8
      completely represented “new value” to the debtor. Moreover, if any amounts paid to Snell
 9
      & Wilmer within the year prior to filing are considered preferential, then Snell & Wilmer is
10

11    entitled to a “new value” defense of $324,144.10.

12                            SNELL & WILMER’S DEPOSITION DESIGNATIONS1

13
                        21.    Deposition of Marsha O’Donnell
14
              4:1 – 4:5
15

16
              5:16 – 6:11

17            10:5 – 10:12

18            12:13 – 15:4
19            19:7 – 19:17
20            21:4 – 22:3
21            22:4 – 24:6
22            25:9 – 25:15
23
              27:6 – 32:1
24
                        22.    Deposition of Giles Sommerville
25
              Volume I
26

27            1
              In the event the following individuals do not testify live, then Snell & Wilmer
28   designates the following deposition sections, and where applicable, concomitant video
     excerpts.
     11400-002/354772
     Case 2:02-cv-02405-HRH              Document 422 60 Filed 12/20/2007      Page 60 of 71
              5:1 – 5:4
 1            9:17 – 10:20
 2
              10:25 – 11:14
 3
              11:18 – 11:24
 4
              13:9 – 15:15
 5
              17:5 – 18:12
 6
              18:13 – 22:19
 7
              24:2 – 26:11
 8
              34:9 – 38:3
 9
              43:18 – 44:21
10

11            54:21 – 55:25

12            68:24 – 69:9

13            70:4 – 71:2
14            74:9 – 75:12
15            77:5 – 78:20
16            105:3 – 105:17
17
              105:22 – 107:10
18
              107:24 – 109:11
19
              110:16 – 111:6
20
              111:9 – 112:5
21
              112:6 – 112:17
22
              165:1 – 171:4
23

24            172:3 – 173:5

25            173:6 – 174:1

26            174:2 – 174:9
27            174:14 – 177:21
28            191:6 – 192:6

     11400-002/354772
     Case 2:02-cv-02405-HRH     Document 422 61 Filed 12/20/2007   Page 61 of 71
              192:7 – 192:22
 1            Volume II
 2
              248:2 – 249:2
 3
              249:9 – 250:24
 4
              282:13 – 282:20
 5
              312:24 – 314:15
 6
              348:23 – 350:3
 7
              415:4 – 416:1
 8
              424:14 – 425:22
 9
              427:15 – 429:7
10

11            438:3 – 438:18

12                      23.   Deposition of Robert Corry

13            6:2 – 8:19
14            9:14 – 9:22
15            12:22 – 13:13
16            18:7 – 18:22
17
              19:1 – 20:2
18
              23:14 – 24:8
19
              25:20 – 26:18
20
              26:24 – 29:4
21
              32:3 – 35:10
22
              37:25 – 39:4
23

24            42:16 – 43:17

25            46:8 – 46:21

26            61:8 – 62:6
27            65:11 – 66:6
28            67:21 – 68:1

     11400-002/354772
     Case 2:02-cv-02405-HRH            Document 422 62 Filed 12/20/2007   Page 62 of 71
              68:16 – 68:19
 1            97:21 – 99:7
 2
              102:23 – 105:21
 3
              109:13 – 110:11
 4
              113:2 – 113:19
 5
              116:1 – 116:5
 6
              127:17 – 131:11
 7
              132:17 – 132:23
 8
              134:6 – 135:21
 9
              135:22 – 137:14
10

11            137:17 – 139:2

12            139:3 – 140:1

13            142:22 – 144:2
14            150:7 – 151:15
15            153:10 – 154:4
16            159:14 – 161:10
17
                        24.   Deposition of Peter Thimmesch
18
              Volume II
19
              315:2 – 316:11
20
              317:4 – 319:18
21
              323:7 – 325:6
22
              326:9 – 328:6
23

24            329:11 – 334:17

25            335:2 – 339:10

26            340:17 – 350:20
27            352:5 – 353:11
28            354:1 – 358:9

     11400-002/354772
     Case 2:02-cv-02405-HRH            Document 422 63 Filed 12/20/2007   Page 63 of 71
              358:15 – 358:21
 1            363:8 – 367:16
 2
              368:3 – 369.5
 3
              374:8 – 379:3
 4
              379:1 – 379:22
 5
              380:9 – 381:10
 6
              385:20 – 386:19
 7
              388:4 – 388:11
 8
              392:16 – 398:8
 9
              400:5 – 403:9
10

11            404:13 – 410:22

12            411:2 – 413:8

13            413:21 – 414:7
14            415:7 – 415:21
15            417:11 – 420:7
16            423:6 – 425:19
17
              427:16 – 429:5
18
              430:2 – 435:22
19
              437:5 – 442:14
20
              443:12 – 444:12
21
              449:16 – 451:7
22
              455:18 – 456:5
23

24            457:9 – 458:14

25            460:14 – 460:22

26            464:18 – 465:9
27            467:10 – 467:17
28            468:3 – 468:7

     11400-002/354772
     Case 2:02-cv-02405-HRH     Document 422 64 Filed 12/20/2007   Page 64 of 71
              468:20 – 469:13
 1            472:5 – 473:4
 2
              474:8 – 476:18
 3
              483:13 – 485:9
 4
              509:8 – 512:9
 5
              513:8 – 514:1
 6
              514:7 – 516:18
 7
              519:11 – 521:1
 8
                        25.   Deposition of Debra Kuhns
 9
              5:1 – 5:4
10

11            5:11 – 6:7

12            6:11 – 7:18

13            7:19 – 7:24
14            8:10 – 8:20
15            9:3 – 9:21
16            9:24 – 12:20
17
              14:2 – 14:9
18
              17:14 – 18:15
19
              19:8 – 21:17
20
              24:19 – 24:25
21
              26:6 – 27:1
22
              28:10 – 28:24
23

24            31:4 – 31:8

25            32:1 – 34:9

26            35:23 – 36:17
27            37:14 – 37:18
28            38:5 – 39:1

     11400-002/354772
     Case 2:02-cv-02405-HRH            Document 422 65 Filed 12/20/2007   Page 65 of 71
              41:6 – 41:11
 1            42:10 – 42:20
 2
              45:8 – 45:20
 3
              62:1 – 62:6
 4
              62:17 – 63:1
 5
              75:9 – 76:1
 6
              76:9 – 77:14
 7
              78:10 – 78:13
 8
              124:15 – 125:11
 9

10

11                      26.   STEVE BEST: Volume 1

12
             10:9 – 14:21.
13
             15:6 – 18:13.
14
             18:15 – 20:9.
15
             20:20 – 22:24.
16
             23:2 – 24:11.
17
             25:2 – 11.
18
             25:24 – 27:25.
19
             28:3 – 19.
20
             29:2 – 21.
21
             30:3 – 14.
22
             33:3 – 14.
23
             34:11 – 19.
24
             36:1 – 37:8
25
             37:16 – 18.
26
             37:20 – 22.
27
             37:24 – 38:25.
28
             39:3 – 15.
     11400-002/354772
     Case 2:02-cv-02405-HRH           Document 422 66 Filed 12/20/2007   Page 66 of 71
             39:18 – 40:1.
 1           40:8 – 44:6.
 2           50:19 – 52:9.
 3           56:1 – 57:10.
 4           57:13 – 58:16.
 5           59:7 – 60:14.
 6           61:10 – 62:14.
 7           66:3 – 9.
 8           67:9 – 68:10.
 9           68:24 – 70:3.
10           94:19 – 95:24.
11                      27.   STEVE BEST Volume 2
12           63:11-15.
13           63:17 – 64:19.
14           65:6 – 10.
15           65:12-18.
16           65:62-66:17.
17           66:18 – 67:15.
18           67:16-21.
19           68:1-4.
20           68:6-17.
21           68:19 – 69:8.
22           69:10-12.
23           75:22 – 77:2.
24           77:20 – 78:19.
25           78:21 – 79:16.
26           79:19 – 80:12.
27           84:3 – 12.
28           151:4 – 152:2.

     11400-002/354772
     Case 2:02-cv-02405-HRH           Document 422 67 Filed 12/20/2007   Page 67 of 71
             152:4 – 19.
 1           152:21.
 2           153:1 – 13.
 3           153:15-17.
 4           153:19-21.
 5           154:1-3.
 6           154:5 – 155:15.
 7           155:17 – 156:2.
 8           156:4 – 14.
 9           156:20 – 158:13.
10           158:15-16.
11           158:18 – 160:16.
12           160:19 – 163:18.
13           164:11-14.
14           164:16 – 166:4.
15           167:17 – 168:6.
16           168:14 – 171:14.
17           171:18 – 175:20.
18           175:22 – 176:9.
19           176:18 – 22.
20           177:2 – 182:7.
21           182:9 – 20.
22           182:22 – 184:6.
23                      28.   Deposition of Jeffrey Hirschberg
24            11:17 – 14:13
25            16:9 – 19:11
26
              19:19 – 22:6
27
              23:4 – 24:16
28
              26:3 – 27:11
     11400-002/354772
     Case 2:02-cv-02405-HRH             Document 422 68 Filed 12/20/2007   Page 68 of 71
              27:21 – 28:4
 1            32:5 – 32:19
 2
              34:11 – 35:9
 3
              50:7 – 51:6
 4
              53:11 – 53:22
 5
              55:11 – 56:8
 6
              76:1 – 77:13
 7
              79:12 – 80:14
 8
              81:3 – 81:12
 9
              87:8 – 80:17
10

11            120:15 – 121:16

12            124:13 – 126:1

13            129:12 – 130:14
14            131:14 – 132:20
15            135:1 – 136:3
16            137:7 – 138:1
17
              140:15 – 141:19
18
              146:7 – 147:7
19
              148:15 – 149:18
20
              150:7 – 150:17
21
              160:10 – 161:13
22
              163:16 – 164:10
23

24            191:21 – 195:10

25            196:3 – 201:2

26            201:14 – 202:10
27            204:21 – 206:6
28            206:7 – 209:4

     11400-002/354772
     Case 2:02-cv-02405-HRH     Document 422 69 Filed 12/20/2007   Page 69 of 71
              209:8 – 211:20
 1            212:11 – 214:21
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              216:7 – 217:3
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              220:2 – 222:20
 4
              223:5 – 224:2
 5

 6
     APPROVED AS TO FORM AND CONTENT:
 7

 8   s/ Christopher R. Kaup                        s/ Scot Claus
     Attorney for Plaintiff Biltmore               Attorney for Defendant Snell & Wilmer
 9

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     11400-002/354772
     Case 2:02-cv-02405-HRH        Document 422 70 Filed 12/20/2007   Page 70 of 71
                                    CERTIFICATE OF SERVICE
 1       I hereby certify that on December 20, 2007, I electronically transmitted this JOINT
   STATEMENT OF ISSUES; JOINT STATEMENT OF UNDISPUTED FACTS; and
 2 LISTS OF WITNESSES with the Clerk’s Office using the CM/ECF System for filing and
   transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
 3
       Gary L. Birnbaum                                Mark J. Giunta
 4     Timothy J. Thomason                             845 North Third Avenue
       James P. Armstrong                              Phoenix, Arizona 85003-1408
 5     Mariscal, Weeks, McIntyre & Friedlander, P.A.
 6     2901 N. Central Avenue, Suite 200
       Phoenix, AZ 85012
 7     Attorneys for Defendant Snell & Wilmer, LLP

 8

 9      s/ Sara Lovato, CBA

10
     COPIES of the foregoing were mailed this 20th of December, 2007, via first class mail postage
11   prepaid to:
12     Honorable H. Russell Holland                   Peter Thimmesch
       United States District Court                   11329 Stonehouse Place
13     222 West 7th Avenue - No. 54                   Potomac Falls, VA 20165-5123;
       Anchorage, Alaska 99513
14
                                                      and also to
15
                                                       Peter Thimmesch
16                                                     11337 Stonehouse Place
17                                                     Potomac Falls, VA 20165

18
        s/ Sara Lovato, CBA
19

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     11400-002/354772
     Case 2:02-cv-02405-HRH        Document 422 71 Filed 12/20/2007      Page 71 of 71

				
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