Case 2:09-cv-00104-LDG-GWF Document 97

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JOHN B. BULGOZDY, Cal Bar No. 219897 E-mail: bulgozdyj@sec.gov DAVID J. VAN HAVERMAAT, Cal. Bar No. 175761 E-mail: vanhavermaatd@sec.gov Attorney for Plaintiff Securities and Exchange Commission Rosalind R. Tyson, Regional Director Michele Wein Layne, Associate Regional Director 5670 Wilshire Boulevard, 11th Floor Los Angeles, California 90036 Telephone: (323) 965-3998 Facsimile: (323) 965-3908

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA SECURITIES AND EXCHANGE COMMISSION, Plaintiff, vs. MARCO GLISSON, Defendant Case No. 2:09-cv-00104-LDG-GWF PLAINTIFF SECURITIES AND EXCHANGE COMMISSIONS REPLY MEMORANDUM IN SUPPORT OF MOTION IN LIMINE TO EXCLUDE AT TRIAL TESTIMONY OF CERTAIN WITNESSES THAT WERE NOT DISCLOSED BY DEFENDANT DURING DISCOVERY

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Plaintiff Securities and Exchange Commission (Commission) moved in limine for an order excluding testimony from six defense witnesses because defendant Marco Glisson (Glisson) failed to disclose these witnesses in his initial disclosures or during discovery. In response to the motion in limine, Glisson does not dispute that the identities of these witnesses were not disclosed in initial disclosures or during discovery. Instead, Glisson summarily asserts that the witnesses will testify only about Glissons 2010 conduct, which is the first time that Glisson has identified the relevant subjects on which the witnesses will offer testimony. Glisson fails to explain how his position in opposition to this motion is consistent with his position, in a separate motion, that all evidence of his 2010 conduct should be excluded as not relevant. Indeed, based on Glissons opposition to this motion, it appears that six of the nine witnesses he identified by name in the Joint Pretrial Order (other than himself, his wife, and a lawyer) are to testify about 2010 conduct, which would appear to be an admission on his part that the 2010 conduct is relevant. While Glisson claims that his 2010 conduct goes beyond the scope of the pleadings and for that reason he has identified these witnesses, Glisson fails to address his sworn promise to the Court made in 2009 in opposition to the Commissions motion for summary judgment, that he would never sell CMKM shares again. Contrary to Glissons sworn promise to the Court, Glisson sold billions of shares of CMKM in 2010 and reaped over $1.6 million in profits. Glissons 2010 conduct is relevant to his current assurances to the Court that he will not engage in any transactions in CMKM in the future, to show that such assurances have no credibility. It is unclear how Glissons six witnesses will have relevant evidence concerning his duplicity. For example, when Glisson was asked whether he had any conversations with Al Hodges during 2010, he replied: No.

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However, defendant now proposes to offer Mr. Hodges to testify about his 2010 conduct, which given Glissons prior testimony, is a complete surprise. Glisson has failed to meet his burden of demonstrating that the failure to comply with Rule 26(a) was substantially justified or harmless. Torres v. City of Los Angeles, 548 F.3d 1197, 1213 (9th Cir. 2008). In fact, Glisson does not even attempt to argue that his failure to identify these witnesses does not prejudice the Commission or is harmless. Glissons complete failure to comply with Rule 26 makes the sanctions provided in Rule 37(c)(1) particularly appropriate to prevent litigation by surprise. See Igbinovia v. Catholic Healthcare West, 2010 U.S. Dist. Lexis 129316 (D. Nev. Dec. 7, 2010). If the Court is inclined not to exclude these witnesses, then at a minimum, to avoid unfair surprise and prejudice to plaintiff at trial, Glisson should be ordered to make these witnesses available for deposition at a reasonable place and time, agreeable to the Commission, well in advance of the trial now set to commence in April 2012.

Date: December 12, 2011

Respectfully submitted,

/s/ John B. Bulgozdy John B. Bulgozdy David J. VanHavermaat Attorneys for Plaintiff Securities and Exchange Commission