Free Response to Motion - District Court of Delaware - Delaware

Case 1 :04-cv—00583-GIVIS Document 86 Filed 08/22/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
In re: Chapter l I
INACOM CORP., et al., Bankruptcy Case No. OO-2426 (PJW)
Debtors.
INACOM CORP., on behalf of all affiliated Civil Action No. O4-CV-583 (GMS)
debtors,
Plaintiff}
vs.
LEXMARK INTERNATIONAL, INC.,
Defendant and Third-Party
Plaintiff}
vs.
COMPAQ COMPUTER CORP., ITY
CORP., and CUSTOM EDGE, INC.,
Third-Party Defendants.
HEWLETT-PACKARD COMPANY ’S REPLY IN SUPPORT OF ITS MOTION
IN LIMINE TO EXCLUDE TESTIMONY OF KEVIN SARKISIAN
Hewlett-Packard Company ("HP") moves this Court for an order
excluding the testimony of Kevin Sarkisian regarding his purported understanding that a
letter from Bill Francis of Compaq Computer Corp. ("Compaq") to Lexmark constituted
an assumption of all of Inacom’s outstanding debts to Lexmark. Mr. Sarkisian lacks
personal knowledge regarding the letter or the account payable in dispute, and any
vaguely probative value of his testimony is outweighed by undue delay and the
presentation of cumulative evidence.
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Case 1:04-cv—00583-G|\/IS Document 86 Filed 08/22/2005 Page 2 of 3
ARGUMENT
Lexmark dealt with all of its customers, including Inacom, solely through
its sales teams. As described by Mr. Sarkisian, the sales team "owns the customer," is
responsible for the customer’s perfonnance of its obligations to Lexmark, and has all
contacts with the customer on behalf of Lexmark. In fact, Mr. Sarkisian did not have
complete authority over placing a customer on shipping hold because the sales team
could override his decision by going above him in Lexmark’s chain of management.
When a customer such as Inacom had an outstanding unpaid balance, it was the
responsibility of the sales team to collect payment — e.g., William Schuette, Robert
Kendrick, and Todd Pinkston.
As a member ofthe credit department, Mr. Sarkisian had no contacts with
Inacom and was not responsible for collecting amounts owed by Inacom. Moreover, he
was not involved in the day-to-day speciics regarding Compaq’s assumption of Inacom’s
accounts payable. At best, Mr. Sarkisian was involved only to the extent necessary to
determine whether he should recommend placing Inacom on shipping hold, which would
be subject to disagreement by the sales team. Mr. Sarkisian has no personal knowledge
of amounts owed from Irracom to Lexmark, or what was to be assumed by Compaq under
the "terms and conditions of such account." Mr. Sarkisian’s personal interpretation ofthe
meaning of the Francis letter is irrelevant to the issues before the court. Frnthermore, any
potentially relevant aspects of Mr. Sarkisian’s testimony are outweighed by wasting the
Court’s time with the presentation of needless cumulative evidence.
CONCLUSION
Mr. Sarkisian’s purported interpretation of the Francis letter is not based
on any personal knowledge of the underlying transaction. Accordingly, HP requests that
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Case 1:04-cv—00583-Gl\/IS Document 86 Filed 08/22/2005 Page 3 of 3
the Cotut grant an in limine order precluding Mr. Sarkisian from testifying about his
understanding of the Francis letter, including his alleged understanding of the accounts
payable assumed by Compaq under the Asset Purchase Agreement.
Dated: August 22, 2005
Wilmington, Delaware MORRIS, NICHOLS, ARSHT & TUNNELL
William H. Sudell, Jr. (No. 463)
Derek C. Abbott (No. 3376)
Gregory T. Donilon (No. 4244)
Daniel B. Butz (No. 4227)
1201 N. Market Street
Wilmington, DE 198994347
(302) 658-9200
- and -
F RIEDMAN DUMAS & SPRINGWATER LLP
Ellen A. Friedman
Cecily A. Dumas
Gail S. Greenwood
Brandon C. Chaves
One Maritime Plaza, Suite 2475
San Francisco, CA 94111
(415) 834-3800
Attomeys for Third-Party Defendant
Hewlett-Packard Company
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