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Case 1 :04-cv-00148-GIVIS Document 65-5 Filed 08/15/2005 Page 1 of 4
UNITED STATES DISTRICT COURT .
FOR THE DISTRICT OF DELAWARE
T In re: ·
Civil Action No. 1:04-cv-00148-GMS
INACOM CORPORATION, et al.,
Debtors. .
l / Bankr. Case No. 00-02426 (PJW)
INACOM CORPORATION, Adv. Pro. No. 02-03496 (PJW)
Plaintiff,
v.
TECH DATA CORPORATION,
A Third-Party Plaintiff,
vs. _
HEWLETT-PACKARD COMPANY, _ `
COMPAQ COMPUTER CORP.,
ITY CORP., and CUSTOM EDGE, INC.,
Third-Party Defendants.
/
l TECH DATA CORPORATION’S RESPONSE TO HEWLETT-PACKARD
COMPANY’S MOTION IN LIMINE TO EXCLUDE EVIDENCE OF A
GUARANTY BASED ON FRANCIS LETTER
TECH DATA CORPORATION, the defendant herein (the "Defendant" or "Tech
A Data"), by and through its undersigned attorneys, hereby responds to Hewlett-Packard
Company’s ("HP") Motion In Limine to Exclude Evidence of a Guaranty Based on the
‘Francis’ Letter.
STATEMENT OF FACTS 0
Tech Data hereby incorporates by reference the facts as set forth in its Proposed
Findings of Fact and Conclusions of Law as to Its Third Party Complaint.

Case 1:04-cv-00148-Gl\/IS Document 65-5 Filed 08/15/2005 Page 2 of 4
ARGUMENT
I. Hewlett—Packard Misapprehended Tech Data’s Position, and Its p
Motion In Limine Should Be Denied
HP presumes in its Motion that Tech Data’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 Tech Data’s position, which is that the Francis letter
evidences an outright contractual assumption of debts owed Tech Data.
Given this fundamental misapprehension on the part of HP, 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 Tech Data’s position in this
T proceeding. t q _
II. Regardless of Whether the Francis Letter Constituted an Assumption
or a Guaranty, Sufficient Consideration Was Bargained For
HP’s assertions aside, it is Tech Data’s understanding for the purposes of
immediate argument only that legal forbearance as 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 Tech
Data’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:
L {210346.000;/Nos60r>19_1) 2

, Case 1:04-cv-00148-Gl\/IS Document 65-5 Filed 08/15/2005 Page 3 of 4
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 he 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
n 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
l prec_lude Tech Data from offering evidence at trial.
` ' Conclusion
For the foregoing reasons, Tech Data respectfully requests that the Court deny
. HP’s motion in limine seeking to exclude evidence of a guaranty agreement based upon
t the Francis letter. Whether due to HP’s misapprehension of Tech Data’s legal position, or
as a result of a fundamental misunderstanding as to what constitutes bargained-for
consideration, such evidence should rightfully be presented for proper evaluation at trial.
Dated: August 15, 2005
HERLIHY, HARKER & KAVANAUGH
/s/ James F. Harker
. James F. Harker (Bar No. 255)
Local Counsel for Defendant
1300 North Market Street, Suite 400
Wilmington, Delaware 19899
_ Telephone: (302) 654-3111
-and-
{2103460002/NO560619_1 l 3

Case 1:04-cv-00148-GI\/IS Document 65-5 Filed 08/15/2005 Page 4 of 4
ADORNO & YOSS, LLP
Charles M. Tatelbaum
(Admitted Pro Hao Vice)
Stephen C. Hunt
(Admitted Pro Hac Vice)
350 E. Las Olas Boulevard, Suite 1700
Fort Lauderdale, FL 33301
_ » Telephone: (954) 763-1200
Facsimile: (954) 766-7800
Attorneys for Third-Party Plaim%
_ . Tech Data Corporation .
t210s4<».0002/N0s60619_1 1 I 4

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