Preview
12. Third Party Defendant, John Manning’s Responses and Objections to Third Party Plaintiff and
Counter Claimant, Mike Smith’s Request for Admission, a copy of which is attached as Exh. “L.”CAUSE NUMBER 2004-59790
MICROCHECK SYSTEMS, INC, AND § IN THE DISTRICT COURT OF
MICROCHECK SOLUTIONS, INC.
Plaintiffs,
vs. HARRIS COUNTY, TEXAS
ZIGROSSI & MURPHY; L.L.C,, Individually
and d/b/a EDUCATED SOLUTIONS; CHRIS
ZIGROSSI; SCOTT MURPHY; MIKE
SMITH Individually and d/b/a CMS
TECHNOLOGY a/k/a CMS
TECHNOLOGIES; MICHOICE
TECHNOLOGY SYSTEMS, INC; JIM
HAYDEN; ALEX CAMPBELL; AND
JASON JABLECKI
(OP COD CO? (> OP LOD LOD 60? OD WO? COD 40D LOD 607 COD 607 LOD
Defendants 125™ JUDICIAL DISTRICT
om
THIRD PARTY DEFENDANT, JOHN MANNING’S RESPONSES AND
OBJECTIONS TO THIRD PARTY PLAINTIFF AND
COUNTER CLAIMANT, MIKE SMITH’S REQUESTS FOR ADMISSION
TO: Third Party Plaintiff and Counter Claimant, Mike Smith, by and through his attorney of
record, Roy Murphy, III, Roy Murphy & Associates, 12850 Jones Road, Suite 201,
Houston, Texas 77070
John D. Manning, Third Party Defendant, files his responses and objections to Third
Party Plaintiff and Counter Claimant Mike Smith’s requests for disclosure, pursuant to the Texas
Rules of Civil Procedure.~~ A
Respectfully submitted,
SHEER, E& Cc.
By:
Christopher D. DeMeo
State Bar No. 00796456
R. Edward Perkins
State Bar No. 15790410
2500 Two Houston Center
909 Fannin Street
Houston, Texas 77010-1003
Telephone: (713) 951-1000
Facsimile: (713) 951-1199
Attorneys for Plaintiffs, MicroCheck Solutions,
Inc., MicroCheck Systems, Inc. and Third-party
Defendant/Counter Plaintiff, John D. Manning
CERTIFICATE OF SERVICE
This will certify that a true and correct copy of this document has been forwarded to all
counsel of record pursuant to the Texas Rules of Civil Procedure, on the 16th day of November,
2007.
Christopher D. DeMeo
1201059_1.DOC“~ A
RESPONSES TO REQUESTS FOR DISCLOSURE
REQUEST FOR ADMISSION NO. 1:
Admit or Deny you sent a letter to Steve Adolph, Superintendent of Tempe Union High School
District #213, oe or about October 9, 2007. P Pe eh
RESPONSE: Admitted to the extent that I directed the sending of the letter on
behalf of MicroCheck.
REQUEST FOR ADMISSION NO. 2:
Admit or deny that the attached Exhibit A, is a copy of the letter you sent to Steve Adolph on
October 9, 2007.
RESPONSE: Admitted to the extent that I directed the sending of the attached
letter on behalf of MicroCheck.
REQUEST FOR ADMISSION NO. 3:
Admit or deny you sent the letter attached to Request for Admissions No. 2 and marked as
Exhibit A, acting as the president of Microcheck Solutions.
RESPONSE: Admitted to the extent that I directed the sending of the attached
letter on behalf of MicroCheck.
REQUEST FOR ADMISSION NO. 4:
Admit or deny you also sent 4 copy of Plaintiff's Third Amended Petition and Application for
Injunction pending in the 125" Judicial District Court to Steve Adolph on or about October 9,
RESPONSE: Admitted to the extent that I directed the sending of the letter on
behalf of MicroCheck.
REQUEST FOR ADMISSION NO. 5:
Admit or deny you sent a carbon copy of your letter dated October 9, 2007, a copy of which is
attached to Request for Admission No. 2 and marked as Exhibit A to Sandra E. Dowling, ED,
Superintendent — Maricopa County District School District.
RESPONSE: Admitted to the extent that I directed the sending of the attached
letter as indicated on behalf of MicroCheck.
REQUEST FOR ADMISSION NO. 6:
Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which
is attached to Request for Admission No. 2 and marked as Exhibit A, to Diane Meulemans, Chief
Financial Officer - Tempe Union High School District.
-3-~ A
RESPONSE: Admitted to the extent that I directed the sending of the attached
letter as indicated on behalf of MicroCheck.
REQUEST FOR ADMISSION NO. 7:
Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which
is attached to Request for ‘Admission No. 2 and marked as Exhibit A, to Loralei Poll, Director of
Purchasing — Tempe Union High School District.
RESPONSE: Admitted to the extent that I directed the sending of the attached
letter as indicated on behalf of MicroCheck.
REQUEST FOR ADMISSION NO. 8:
Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which
is attached to Request for Admission No. 2 and marked as Exhibit A, to Diane Palmer, Executive
Assistant to governing Board — Tempe Union High School District.
RESPONSE: Admitted to the extent that I directed the sending of the attached
letter as indicated on behalf of MicroCheck.
REQUEST FOR ADMISSION NO, 9:
Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which
is attached to Request for Admission No. 2 and marked as Exhibit A, to Zita Johnson, Governing
Board President — Tempe Union High School District.
RESPONSE: Admitted to the extent that I directed the sending of the attached
letter as indicated on behalf of MicroCheck.
REQUEST FOR ADMISSION NO. 10:
Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which
is attached to Request for Admission No. 2 and marked as Exhibit A, to Mary Lou Taylor,
Governing Board Vice President - Tempe Union High School District.
RESPONSE: Admitted to the extent that I directed the sending of the attached
letter as indicated on behalf of MicroCheck.
REQUEST FOR ADMISSION NO. 11:
Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which
is attached to est for Admission No. 2 and marked as Exhibit A, to Arrendondo-Savage,
Governing Board Member — Tempe Union High School District.
RESPONSE: Admitted to the extent that I directed the sending of the attached
letter as indicated on behalf of MicroCheck.
-4-“ MS
REQUEST FOR ADMISSION NO. 12:
Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which
is attached to Request for Admission No. 2 and marked as Exhibit A, to Michelle Helm,
Governing Board Member — Tempe Union High School District.
RESPONSE: Admitted to the extent that I directed the sending of the attached
letter as indicated on behalf of MicroCheck.
REQUEST FOR ADMISSION NO. 13:
Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which
is attached to Request for Admission No. 2 and marked as Exhibit A, to Don Keuth, Governing
Board Member — Tempe Union High School District.
RESPONSE: Admitted to the extent that I directed the sending of the attached
letter as indicated on behalf of MicroCheck.
REQUEST FOR ADMISSION NO. 14:
Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which
is attached to Request for Admission No. 2 and marked as Exhibit A, to Chris DeMeo, Sheehy,
Serpe & Ware, Attorneys
RESPONSE: Admit sending the attached letter as indicated.
REQUEST FOR ADMISSION NO. 15:
Admit or deny the letter of October 9, 2007, which you sent to Mr. Steve Adolph, a copy of
which is attached to Request for Admission No. 2 and marked as Exhibit A, was sent with the
intended purpose of sabotaging the Tempe Union High School District award of Bid Solicitation
No. 06-0222 to MiChoice Technology Systems, Inc. the Defendant and Counter Plaintiff in this
lawsuit.
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 16:
Admit or deny the letter of October 9, 2007, which you sent to Mr. Steve Adolph, a copy of
which is stached to Request for Admission No. 2 and marked as Exhibit A, was sent vindictively
and wit ice.
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 17:
Admit or deny you have no evidence that Mr. Smith had for months been siphoning thousands of
dollars from Microcheck Systems, Inc. for his own personal use as alleged in Paragraph 20, Page
6 of Plaintiff's Third Amended Petition and Application for Injunctive Relief which you sent to
Steve Adolph on October 9, 2007.
~5-~ A
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 18:
Admit or deny that the allegations in Paragraph 20, Page 6 that Smith bought himself a Lincoln
Town Car with company money is at best a gross distortion, and you knew full well that every
Lincoln Town Car Smith bought with the company, and they were bought with your knowledge
and blessing.
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 19:
Admit or deny that the reason Tempe Union High School District #213 put their software
program for food service technology out for bid in 2007 because they had been informed that
icrocheck Solutions could or would no longer service or maintain the current system provided
by Microcheck Systems.
RESPONSE: After reasonable inquiry the information known or easily available is
insufficient to allow Manning to admit or deny.
REQUEST FOR ADMISSION NO. 20:
Admit or deny that had Microcheck Solutions been willing to properly service Tempe Union
High School District #213’s software previously sold to them by Microcheck Systems, Inc. it
would not have been necessary for them to put out for bid another contract with a new company.
RESPONSE: Manning objects to this request because it is misleading, assumes facts
not in evidence and calls for speculation.
REQUEST FOR ADMISSION NO. 21:
Admit or deny that the letter of October 9, 2007, sent to Steve Adolph, Superintendent of Tempe
Uniton High School, #213, a copy of which is attached and marked at Exhibit A to Request for
Admission 2, constituted defamation by libel and that as such Mr. Smith and MiChoice
Technology Systems, Inc. has been damaged.
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. _22:
Admit or deny that the letter of October 9, 2007, sent to Steve Adolph, Superintendent of Tempe
Union High School, #213, a copy of which is attached and marked at Exhibit A to Request for
Admission 2, constituted tortious interference with an existing contract that MiChoice had with
Tempe Union High School, #213.
RESPONSE: Denied.~ A
REQUEST FOR ADMISSION NO. 23:
Admit or deny that the letter of October 9, 2007, sent to Steve Adolph, Superintendent of Tempe
Uniton High School, #213, a copy of which is attached and marked at Exhibit A to Request for
Admission 2, constituted tortious interference with prospective business relations in the future
and will very likely sabotage MiChoice’s anticipated future contract being entered to by other
entities.
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 24:
Admit or deny that John Manning sent a letter to each party with full knowledge no special
proprietary date format or source code access would be necessary to import and export data from
the existing system.
RESPONSE: Denied.
REQUEST FOR ADMISSION NO. 25:
Admit or deny it is common for different software companies to import and export data through
“comma delimiter text files,” which does not require proprietary source code.
RESPONSE: Manning objects to the request because “different software
companies,” is vague and ambiguous.
Subject to and without waiving these objections, after reasonable
inquiry the information known or easily available is insufficient to
allow Manning to admit or deny what is common for unnamed,
“different” software companies.
REQUEST FOR ADMISSION NO. 26:
Admit or deny it was never the intent of the Tempe Union High School District #213 to limit
competition over this bid by requesting or requiring the use of proprietary data format or source
code.
RESPONSE: After reasonable inquiry the information known or easily available is
insufficient to allow Manning to admit or deny the state of mind of the
Tempe Union High School District.October 9, 2007 ‘
Mr. Steve Adéiph
Superintendent
Tempe Union High School District 213
500 W. Guadahipe Ra.
Tempo, AZ 85283-3599
RE: Tempe Union Meal Accountability System
Dear Mr. Adolph:
We have recently been made aware of the Tempe Union High School District's
award of bid Solicitation No. 06-022 to MiCholcs. With regard to this, we feel the need
to make you aware of certain facts which may influence this decision.
In the "Scope of Work" page of the solicitation, it states that the Tempe "current
system ig outdated and the manafacturer is no longer willing to maintain the
system." (meaning MicroCheck). This is an incorrect statement. I called and spoke to
the purchasing agent, Loraloi Poll, Director of Purchasing the day that I received the
“Notice of intent to Issue a Solicitation". Ms, Poll said that someone from MicroCheck
must have sent’an e-mail stating that. I was adamant that no one from MicroCheck ever
refused to provide service and support for their MicroCheck food service point of sale
system. To the contrary, MicroCheck is now and has always been willing to provide
support, She checked bur couldnt find saything to back up that ststement snd apologized,
saying that it should have been stated better.
In the same paragraph, it also states the following; “The District intends to phase
in a new system, ane school at a tire ond it will bs leperative for the new systert to be
able to import (export) the data daily from the current MicroCheck System's database
and integrate i into the proposed system daily reports, thus allowing both systems to
run poraltel” Te appears that the bid was written specifically as 2 sole source bid and
eer — a
9777 tact Guit Bank Suite ©-3 | Houston, TX 77040 | TOR Pree: 800-847-4524 | Loca 713-256-7801 | Fac 7IS-O568197Tempe Union High School District
October 9, 2007
Page -2-
the bid would have to go to the company that had the proprietary date format and source
code,
‘The requirement of phasing m ous school at a time and importing and exporting
the data daily from the current MicroCheck Systems database and integrate it into the
Proposed system dally reports, thus allowing both systems to run in parallel implies that
the only company that could legitimately accomplish this in the allotted time frame
would require the use of MicroCheck's proprietary data format and source code,
Tempe Union School District has been valued customer of MicroCheck for over
15 years. Mike Smith, the past President of MicroCheck ‘has had a 15 plus years
relationship with yout food service department during his tenure as an officer of
MisroCheck. In October of’ 2004, Mike Smith resigned as President of MlcroCheck,
claiming early retirement.
‘We feel compelled to inform you that in November 2006, the 125%, Judicial
District Court of Harris County Texas entered an order of Temporary Injunction against
Mike Smith, CMS Technology, Scott Murphy, and MiChoice Technology Systems, Inc.
from using MicroCheck Syutews, Inc. source corls or software illegally. This case is -
currently set for trial this month for the purpose of obtaining a permanent injunction and
damages as are set out in out attached complaint.
In the court order, Miko Smith, Scott Murphy and MiChoice are “hereby
temporarily enjoined from using, either directly or indirectly, in any form or fashion, for
any purpose whatsoever, source code containing the lines of matching cods identified by
Mr. Isaac. This injunction includes, but is not Jimited to, using such source code to
produce, develop, or maintain existing software or hardware products, to create, update or
otherwise develop new software or hardware products; and/or to promote, advertise, or
otherwise communicate to any third party regarding existing or new software or hardware
products.”
Mr. Isaac is the court appointed expert witness who has identifted that as much as
90% of MicroCheck’s source code is contained in the software of MiChoice. The
MicroCheck software was developed by MicroCheck over a long period of time and is
the intellectual property of MicroCheck, No. use of this software has ever been
authorized to Mike Smith or MiChoice Technologies, Inc., and it has been admitted that
his agents took this software from the offices of MicroCheck Systems, Inc, illegally in
We would request thit Tempe Union High Schoo! District not participate in any
illegal activity to aid Mike Smith or MiChoice Technologies, Ino. in violating the Court'sTempe Union High School District
October 9, 2007
Page -3-
order or in using the MicroCheck software or soures code without the express written
authorization of MicroCheck,
MicroCheck stands ready, willing, and able to flail! our bid a3 submitted to
Temupe Union High School District in Solicitation No. 06-022.
please know that we stand available to handle all your needs in the meal accountability
area, We look forward to hearing from you.
We are somry tat this matter has involved ons of our customers, such as you, but
Cea:
Sandra E, Dowling, Ed. D, Superintendent - Marioopa County Schoo!
Diane Meulemens, Chief Financial Officer - Teénps Union High School District
Lorelei Poll, Ditector of Purchasing
Diane Palmer, Executive Assistant to Governing Board
Zita Johnson, Goveming Board President _
Mary Loy Taylor, Governing Board Vice President
Robin Arrendondo-Savage, Governing Board Member
Michelle Hetm, Governing Board Member
Don Keuth, Governing Board member
Mr. Chris DeMeo, Sheehy, Serpe & Ware, Attorneys
a
Preview
12. Third Party Defendant, John Manning’s Responses and Objections to Third Party Plaintiff and Counter Claimant, Mike Smith’s Request for Admission, a copy of which is attached as Exh. “L.”CAUSE NUMBER 2004-59790 MICROCHECK SYSTEMS, INC, AND § IN THE DISTRICT COURT OF MICROCHECK SOLUTIONS, INC. Plaintiffs, vs. HARRIS COUNTY, TEXAS ZIGROSSI & MURPHY; L.L.C,, Individually and d/b/a EDUCATED SOLUTIONS; CHRIS ZIGROSSI; SCOTT MURPHY; MIKE SMITH Individually and d/b/a CMS TECHNOLOGY a/k/a CMS TECHNOLOGIES; MICHOICE TECHNOLOGY SYSTEMS, INC; JIM HAYDEN; ALEX CAMPBELL; AND JASON JABLECKI (OP COD CO? (> OP LOD LOD 60? OD WO? COD 40D LOD 607 COD 607 LOD Defendants 125™ JUDICIAL DISTRICT om THIRD PARTY DEFENDANT, JOHN MANNING’S RESPONSES AND OBJECTIONS TO THIRD PARTY PLAINTIFF AND COUNTER CLAIMANT, MIKE SMITH’S REQUESTS FOR ADMISSION TO: Third Party Plaintiff and Counter Claimant, Mike Smith, by and through his attorney of record, Roy Murphy, III, Roy Murphy & Associates, 12850 Jones Road, Suite 201, Houston, Texas 77070 John D. Manning, Third Party Defendant, files his responses and objections to Third Party Plaintiff and Counter Claimant Mike Smith’s requests for disclosure, pursuant to the Texas Rules of Civil Procedure.~~ A Respectfully submitted, SHEER, E& Cc. By: Christopher D. DeMeo State Bar No. 00796456 R. Edward Perkins State Bar No. 15790410 2500 Two Houston Center 909 Fannin Street Houston, Texas 77010-1003 Telephone: (713) 951-1000 Facsimile: (713) 951-1199 Attorneys for Plaintiffs, MicroCheck Solutions, Inc., MicroCheck Systems, Inc. and Third-party Defendant/Counter Plaintiff, John D. Manning CERTIFICATE OF SERVICE This will certify that a true and correct copy of this document has been forwarded to all counsel of record pursuant to the Texas Rules of Civil Procedure, on the 16th day of November, 2007. Christopher D. DeMeo 1201059_1.DOC“~ A RESPONSES TO REQUESTS FOR DISCLOSURE REQUEST FOR ADMISSION NO. 1: Admit or Deny you sent a letter to Steve Adolph, Superintendent of Tempe Union High School District #213, oe or about October 9, 2007. P Pe eh RESPONSE: Admitted to the extent that I directed the sending of the letter on behalf of MicroCheck. REQUEST FOR ADMISSION NO. 2: Admit or deny that the attached Exhibit A, is a copy of the letter you sent to Steve Adolph on October 9, 2007. RESPONSE: Admitted to the extent that I directed the sending of the attached letter on behalf of MicroCheck. REQUEST FOR ADMISSION NO. 3: Admit or deny you sent the letter attached to Request for Admissions No. 2 and marked as Exhibit A, acting as the president of Microcheck Solutions. RESPONSE: Admitted to the extent that I directed the sending of the attached letter on behalf of MicroCheck. REQUEST FOR ADMISSION NO. 4: Admit or deny you also sent 4 copy of Plaintiff's Third Amended Petition and Application for Injunction pending in the 125" Judicial District Court to Steve Adolph on or about October 9, RESPONSE: Admitted to the extent that I directed the sending of the letter on behalf of MicroCheck. REQUEST FOR ADMISSION NO. 5: Admit or deny you sent a carbon copy of your letter dated October 9, 2007, a copy of which is attached to Request for Admission No. 2 and marked as Exhibit A to Sandra E. Dowling, ED, Superintendent — Maricopa County District School District. RESPONSE: Admitted to the extent that I directed the sending of the attached letter as indicated on behalf of MicroCheck. REQUEST FOR ADMISSION NO. 6: Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which is attached to Request for Admission No. 2 and marked as Exhibit A, to Diane Meulemans, Chief Financial Officer - Tempe Union High School District. -3-~ A RESPONSE: Admitted to the extent that I directed the sending of the attached letter as indicated on behalf of MicroCheck. REQUEST FOR ADMISSION NO. 7: Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which is attached to Request for ‘Admission No. 2 and marked as Exhibit A, to Loralei Poll, Director of Purchasing — Tempe Union High School District. RESPONSE: Admitted to the extent that I directed the sending of the attached letter as indicated on behalf of MicroCheck. REQUEST FOR ADMISSION NO. 8: Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which is attached to Request for Admission No. 2 and marked as Exhibit A, to Diane Palmer, Executive Assistant to governing Board — Tempe Union High School District. RESPONSE: Admitted to the extent that I directed the sending of the attached letter as indicated on behalf of MicroCheck. REQUEST FOR ADMISSION NO, 9: Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which is attached to Request for Admission No. 2 and marked as Exhibit A, to Zita Johnson, Governing Board President — Tempe Union High School District. RESPONSE: Admitted to the extent that I directed the sending of the attached letter as indicated on behalf of MicroCheck. REQUEST FOR ADMISSION NO. 10: Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which is attached to Request for Admission No. 2 and marked as Exhibit A, to Mary Lou Taylor, Governing Board Vice President - Tempe Union High School District. RESPONSE: Admitted to the extent that I directed the sending of the attached letter as indicated on behalf of MicroCheck. REQUEST FOR ADMISSION NO. 11: Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which is attached to est for Admission No. 2 and marked as Exhibit A, to Arrendondo-Savage, Governing Board Member — Tempe Union High School District. RESPONSE: Admitted to the extent that I directed the sending of the attached letter as indicated on behalf of MicroCheck. -4-“ MS REQUEST FOR ADMISSION NO. 12: Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which is attached to Request for Admission No. 2 and marked as Exhibit A, to Michelle Helm, Governing Board Member — Tempe Union High School District. RESPONSE: Admitted to the extent that I directed the sending of the attached letter as indicated on behalf of MicroCheck. REQUEST FOR ADMISSION NO. 13: Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which is attached to Request for Admission No. 2 and marked as Exhibit A, to Don Keuth, Governing Board Member — Tempe Union High School District. RESPONSE: Admitted to the extent that I directed the sending of the attached letter as indicated on behalf of MicroCheck. REQUEST FOR ADMISSION NO. 14: Admit or deny you sent a copy of your October 9, 2007, letter to Steve Adolph, a copy of which is attached to Request for Admission No. 2 and marked as Exhibit A, to Chris DeMeo, Sheehy, Serpe & Ware, Attorneys RESPONSE: Admit sending the attached letter as indicated. REQUEST FOR ADMISSION NO. 15: Admit or deny the letter of October 9, 2007, which you sent to Mr. Steve Adolph, a copy of which is attached to Request for Admission No. 2 and marked as Exhibit A, was sent with the intended purpose of sabotaging the Tempe Union High School District award of Bid Solicitation No. 06-0222 to MiChoice Technology Systems, Inc. the Defendant and Counter Plaintiff in this lawsuit. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 16: Admit or deny the letter of October 9, 2007, which you sent to Mr. Steve Adolph, a copy of which is stached to Request for Admission No. 2 and marked as Exhibit A, was sent vindictively and wit ice. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 17: Admit or deny you have no evidence that Mr. Smith had for months been siphoning thousands of dollars from Microcheck Systems, Inc. for his own personal use as alleged in Paragraph 20, Page 6 of Plaintiff's Third Amended Petition and Application for Injunctive Relief which you sent to Steve Adolph on October 9, 2007. ~5-~ A RESPONSE: Denied. REQUEST FOR ADMISSION NO. 18: Admit or deny that the allegations in Paragraph 20, Page 6 that Smith bought himself a Lincoln Town Car with company money is at best a gross distortion, and you knew full well that every Lincoln Town Car Smith bought with the company, and they were bought with your knowledge and blessing. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 19: Admit or deny that the reason Tempe Union High School District #213 put their software program for food service technology out for bid in 2007 because they had been informed that icrocheck Solutions could or would no longer service or maintain the current system provided by Microcheck Systems. RESPONSE: After reasonable inquiry the information known or easily available is insufficient to allow Manning to admit or deny. REQUEST FOR ADMISSION NO. 20: Admit or deny that had Microcheck Solutions been willing to properly service Tempe Union High School District #213’s software previously sold to them by Microcheck Systems, Inc. it would not have been necessary for them to put out for bid another contract with a new company. RESPONSE: Manning objects to this request because it is misleading, assumes facts not in evidence and calls for speculation. REQUEST FOR ADMISSION NO. 21: Admit or deny that the letter of October 9, 2007, sent to Steve Adolph, Superintendent of Tempe Uniton High School, #213, a copy of which is attached and marked at Exhibit A to Request for Admission 2, constituted defamation by libel and that as such Mr. Smith and MiChoice Technology Systems, Inc. has been damaged. RESPONSE: Denied. REQUEST FOR ADMISSION NO. _22: Admit or deny that the letter of October 9, 2007, sent to Steve Adolph, Superintendent of Tempe Union High School, #213, a copy of which is attached and marked at Exhibit A to Request for Admission 2, constituted tortious interference with an existing contract that MiChoice had with Tempe Union High School, #213. RESPONSE: Denied.~ A REQUEST FOR ADMISSION NO. 23: Admit or deny that the letter of October 9, 2007, sent to Steve Adolph, Superintendent of Tempe Uniton High School, #213, a copy of which is attached and marked at Exhibit A to Request for Admission 2, constituted tortious interference with prospective business relations in the future and will very likely sabotage MiChoice’s anticipated future contract being entered to by other entities. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 24: Admit or deny that John Manning sent a letter to each party with full knowledge no special proprietary date format or source code access would be necessary to import and export data from the existing system. RESPONSE: Denied. REQUEST FOR ADMISSION NO. 25: Admit or deny it is common for different software companies to import and export data through “comma delimiter text files,” which does not require proprietary source code. RESPONSE: Manning objects to the request because “different software companies,” is vague and ambiguous. Subject to and without waiving these objections, after reasonable inquiry the information known or easily available is insufficient to allow Manning to admit or deny what is common for unnamed, “different” software companies. REQUEST FOR ADMISSION NO. 26: Admit or deny it was never the intent of the Tempe Union High School District #213 to limit competition over this bid by requesting or requiring the use of proprietary data format or source code. RESPONSE: After reasonable inquiry the information known or easily available is insufficient to allow Manning to admit or deny the state of mind of the Tempe Union High School District.October 9, 2007 ‘ Mr. Steve Adéiph Superintendent Tempe Union High School District 213 500 W. Guadahipe Ra. Tempo, AZ 85283-3599 RE: Tempe Union Meal Accountability System Dear Mr. Adolph: We have recently been made aware of the Tempe Union High School District's award of bid Solicitation No. 06-022 to MiCholcs. With regard to this, we feel the need to make you aware of certain facts which may influence this decision. In the "Scope of Work" page of the solicitation, it states that the Tempe "current system ig outdated and the manafacturer is no longer willing to maintain the system." (meaning MicroCheck). This is an incorrect statement. I called and spoke to the purchasing agent, Loraloi Poll, Director of Purchasing the day that I received the “Notice of intent to Issue a Solicitation". Ms, Poll said that someone from MicroCheck must have sent’an e-mail stating that. I was adamant that no one from MicroCheck ever refused to provide service and support for their MicroCheck food service point of sale system. To the contrary, MicroCheck is now and has always been willing to provide support, She checked bur couldnt find saything to back up that ststement snd apologized, saying that it should have been stated better. In the same paragraph, it also states the following; “The District intends to phase in a new system, ane school at a tire ond it will bs leperative for the new systert to be able to import (export) the data daily from the current MicroCheck System's database and integrate i into the proposed system daily reports, thus allowing both systems to run poraltel” Te appears that the bid was written specifically as 2 sole source bid and eer — a 9777 tact Guit Bank Suite ©-3 | Houston, TX 77040 | TOR Pree: 800-847-4524 | Loca 713-256-7801 | Fac 7IS-O568197Tempe Union High School District October 9, 2007 Page -2- the bid would have to go to the company that had the proprietary date format and source code, ‘The requirement of phasing m ous school at a time and importing and exporting the data daily from the current MicroCheck Systems database and integrate it into the Proposed system dally reports, thus allowing both systems to run in parallel implies that the only company that could legitimately accomplish this in the allotted time frame would require the use of MicroCheck's proprietary data format and source code, Tempe Union School District has been valued customer of MicroCheck for over 15 years. Mike Smith, the past President of MicroCheck ‘has had a 15 plus years relationship with yout food service department during his tenure as an officer of MisroCheck. In October of’ 2004, Mike Smith resigned as President of MlcroCheck, claiming early retirement. ‘We feel compelled to inform you that in November 2006, the 125%, Judicial District Court of Harris County Texas entered an order of Temporary Injunction against Mike Smith, CMS Technology, Scott Murphy, and MiChoice Technology Systems, Inc. from using MicroCheck Syutews, Inc. source corls or software illegally. This case is - currently set for trial this month for the purpose of obtaining a permanent injunction and damages as are set out in out attached complaint. In the court order, Miko Smith, Scott Murphy and MiChoice are “hereby temporarily enjoined from using, either directly or indirectly, in any form or fashion, for any purpose whatsoever, source code containing the lines of matching cods identified by Mr. Isaac. This injunction includes, but is not Jimited to, using such source code to produce, develop, or maintain existing software or hardware products, to create, update or otherwise develop new software or hardware products; and/or to promote, advertise, or otherwise communicate to any third party regarding existing or new software or hardware products.” Mr. Isaac is the court appointed expert witness who has identifted that as much as 90% of MicroCheck’s source code is contained in the software of MiChoice. The MicroCheck software was developed by MicroCheck over a long period of time and is the intellectual property of MicroCheck, No. use of this software has ever been authorized to Mike Smith or MiChoice Technologies, Inc., and it has been admitted that his agents took this software from the offices of MicroCheck Systems, Inc, illegally in We would request thit Tempe Union High Schoo! District not participate in any illegal activity to aid Mike Smith or MiChoice Technologies, Ino. in violating the Court'sTempe Union High School District October 9, 2007 Page -3- order or in using the MicroCheck software or soures code without the express written authorization of MicroCheck, MicroCheck stands ready, willing, and able to flail! our bid a3 submitted to Temupe Union High School District in Solicitation No. 06-022. please know that we stand available to handle all your needs in the meal accountability area, We look forward to hearing from you. We are somry tat this matter has involved ons of our customers, such as you, but Cea: Sandra E, Dowling, Ed. D, Superintendent - Marioopa County Schoo! Diane Meulemens, Chief Financial Officer - Teénps Union High School District Lorelei Poll, Ditector of Purchasing Diane Palmer, Executive Assistant to Governing Board Zita Johnson, Goveming Board President _ Mary Loy Taylor, Governing Board Vice President Robin Arrendondo-Savage, Governing Board Member Michelle Hetm, Governing Board Member Don Keuth, Governing Board member Mr. Chris DeMeo, Sheehy, Serpe & Ware, Attorneys a