Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:04-cv-00583-G|\/IS Document 68 Filed 08/15/2005 Page 1 of 3
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
INACOM CORP., et al.
Plaintiffs
v. Civil Action No. 04-CV-583 (GMS)
LEXMARK INTERNATIONAL, INC.
Defendant
LEXMARK ’S RESPONSE TO HEWLETT-PACKARD COMPANY’S
MOTION IN LIMINE T0 EXCLUDE EVIDENCE OF A
GUARANTY BASED ON FRANCIS LETTER
Lexmark International, Inc. (the “Defendant" or "Lexmark") states as follows for its
response to Hewlett-Packard Company’s (“HP") Motion In Limirze to Exclude Evidence of a
Guaranty Based on the ‘F1‘&I1CIS, Letter.
STATEMENT OF FACTS
Lexmark hereby incorporates by reference the facts as set forth in its Proposed Findings
of Fact and Conclusions of Law as to Its Third Patty Complaint.
ARGUMENT
I. Hewlett-Packard Misapprehended Lexmark’s Position, and Its
Motion In Limine Should Be Denied
HP presumes in its Motion that Lexmark’s position in regards to the "Francis” letter is
that it stands as a secondary obligation and guaranty agreement. Such is an improper
characterization of Lexmark’s position, which is that the Francis letter evidences an outright
contractual assumption of debts owed Lexmark.
su ssascesvr/004907.000os

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Given HP’s fimdamental misapprehension, there is no legitimate rationale for granting
the motion as requested, and accordingly HP’s motion to exclude evidence of a guaranty should
be denied as inapplicable to Lexmark’s position in this proceeding.
II. Regardless of Whether the Francis Letter Constituted an Assumption
or a Guaranty, Sufficient Consideration Was Bargained For
I-IP’s assertions aside, it is Lexmark’s understanding, for the purposes of immediate
argument only, that whether legal forbearance is sufficient consideration is irrelevant. Rather, it
was the Francis letter of February 16, 2000, obligating Compaq “to pay all of the outstanding
amount on the referenced account” which stood as consideration for Lexmark’s performance
under the contract. See Oral Deposition of Ben K. Wells, March 30, 2005; Exhibit 4. And in
return for this consideration, Compaq intended to receive value duly bargained for, as Mr. Ben
Wells testified at his deposition:
Examination by Mr. Hersey:
Q: So your testimony is that you approved the form of the letter, but you
don’t know who the letters were sent to'?
A: Correct.
Q: And the reason for the letter was to ensure the continued flow of
products from these vendors that would be necessary to configure
Compaq products at Custom Edge?
A: That’s correct.
Wells Depo. at 76: 1-9 (emphasis added).
It is thus evidenced that HP’s assertion in its pending motion in limine is disproved by the
facts elicited during discovery, and regardless of how the Francis letter might be characterized,
such confusion cannot legitimately serve as a basis by which to preclude Lexmark from of`fering
evidence at trial.
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CONCLUSION
For the foregoing reasons, Lexmark respectfully requests that the Court deny HP’s
motion in limine seeking to exclude evidence of a guaranty agreement based upon the Francis
letter. Despite HP’s misapprehension of Lexmark’s position or fundamental mistmderstanding
as to what constitutes bargained-for consideration, such evidence should rightfully be presented
for proper evaluation at trial.
Dated: August 15, 2005
Respectfully submitted,
Thomas G. Whalen Jr. igo. 4034)
Stevens & Lee, P.C.
1105 North Market Street, 7th Floor
Wilmington, Delaware 19801
Tel: (302) 425-33047
Fax: (302) 654-5181
and
Culver V. Halliday
Emily L. Pagorski
Stoll, Keenon & Park, LLP
2650 AEGON Center
400 West Market Street
Louisville, Kentucky 40202-3377
Tel: (502) 568-9100
Fax: (502) 568-5700
Attorneys for Dekndunt
Lexmark International, Inc.
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