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

Case 1:04-cv-00583-G|\/IS Document 67 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 TO EXCLUDE TESTIMONY OF KEVIN SARKISIAN REGARDING
COMPAQ’S ALLEGED ASSUMPTION OF LIABILITIES OR GUARANTY
Lexmark International, Inc. (the "Defendant” or "Lexmark") states as follows for its
response to Hewlett-Packard Company’s ("HP") Motion In Limine to Exclude Testimony of
Kevin Sarkisian Regarding Compaq’s Alleged Assumption of Liabilities of Guaranty.
ARGUMENT
Kevin Sarkisian ("Mr. Sarkisian") was the U.S. Credit Manager of Lexmark when
Lexmark received the February 16, 2000 letter in which Custom Edge, Inc., the subsidiary of
Compaq, promised payment of Inacom’s accounts payable to Lexmark. Deposition of Kevin
Sarkisian, February 9, 2005 ("Sarkisian Depo.") at p. 6. In this position, Mr. Sarkisian had the
authority to put Inacom’s account on a shipping hold. Sarkisian Depo at p. 16, 94. Based on Mr.
Sarkisian’s reading ofthe February 16, 2000 letter, he chose not to impose such a shipping hold
on Inacom. Sarkisian Depo at p. 93. Mr. Sarkisian stated that he considered the letter to be a
sm se4s6sv1/004901.00oos

Case 1:04-cv-00583-Gl\/IS Document 67 Filed 08/15/2005 Page 2 of 3
guaranty. Sarkisian Depo at p.89. Mr. Sarkisian also testified that his receipt of the letter was a
"great relief" Sarkisian Depo at p. 93.
HP’s allegation that Mr. Sarkisian lacks sufficient personal knowledge to testify
regarding the February 16, 2000 letter is disingenuous. Mr. Sarkisian reviewed the letter,
interpreted the letter and determined the proper course of action by Lexmark in light of the letter.
No other witness has more personal knowledge of how the letter was interpreted and what action
(or forbearance) Lexmark took in response to that letter. The allegations raised by HP are more
properly addressed to the weight to be attached to Mr. Sarkisian’s testimony rather than to its
admissibility.
2
sr.1 ss46esv11004907.0o00s

Case 1:04-cv-00583-Gl\/IS Document 67 Filed 08/15/2005 Page 3 of 3
CONCLUSION
For the foregoing reasons, HP’s motion to exclude should be denied and Mr. Sarkisian
should be permitted to testify regarding his receipt, review and reliance on the February 16, 2000
letter.
Dated: August 15, 2005
Respectfully submitted,
Thomas G. Whalen Jr. (No. 4034)
Stevens & Lee, P.C.
1105 North Market Street, 7th Floor
Wilmington, Delaware 19801
Tel: (302) 425-3304
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 Defendant
Lexmark Internationci Inc.
3
s1.1 ss466sv1m0490v.00003

Case 1:04-cv-00583-GMS

Document 67

Filed 08/15/2005

Page 1 of 3

Case 1:04-cv-00583-GMS

Document 67

Filed 08/15/2005

Page 2 of 3

Case 1:04-cv-00583-GMS

Document 67

Filed 08/15/2005

Page 3 of 3