Free Letter - District Court of Delaware - Delaware

; N Case 1 :04-cv—O1278-KAJ Document 338 Filed 05/24/2006 Page 1 of 2
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May 24, ZUO6
VIA HAND DELIVER Y
Honorable Kent A. Jordan
J. Caieb Boggs Federal Building
844 N. King Street, Room 6325
Wilmington, DE 19801
Re: Cymwzc, Inc. v. Pechiuey Plastic Packaging, Inc., N0. 04-1278-KAJ
Dear Judge Jordan:
As you requested at our initial pre-trial conference, we are providing the following list of
the outstanding items that Pechiney beiieves remain to be discussed at the continued pre·—tria1
hearing conference tomorrow:
Motions in Limirze
1. Pechirzey M—I·L N0. I -— Whether Karl Deily, a Cryovac executive, should be
permitted to testify as to the aileged unaceeptability to customers of the bone»in meet
packaging products sold by its competitor, Curwoed, and as to trade usage in the mem
packaging industry. Cryovacfs intent to introduce trade usage evidence was raised in
a Cryevae pretrial order submission that was provided to Peehiney on the same day
the parties exchanged their motions in Iimine (Pretrial Order, Ex. 2, Essentiej Facts in
Issue and Cryevzufs Expected Froofs Thereon, at 7). In Pechiney’s response to this
Cryovac submission on trade usage, provided on April 5, 2006, Pechiny notified
Cryevac that ifC1·y0vac intended to introduce trade usage testimony through Karl
Deily Pechiney’s motion in limine would also seek to bar this testimony: “ Te the
extent that Cryovae seeks to introduce such evidence through Karl Deiiy, Pechsiney
has filed a motion in Iimine seeking to bar Mr. Deily from giving improper opinion
testimony of this type. That motion should also be construed to bar similar testimony
by any other Cryovac witness." (Pretrial Order, Ex. 3: Pechiney’s Essential Facts at
Issue and Expected Proofs Therecm, at 13-14). Two weeks later, on April 17, 2006,
Cryevac provided Pechiney with its response to Pechiney’s motions in limine, but did
not include 2 discussion of Dei1y’s testimony concerning trade usage.
2. Pechiney M-}-L N0. 2 -- Whether James Newrocki, Cryovaxfs damages expert, should
be permitted to give opinions which Pechiney contends were not previously disciosed
in his expert reports.

· ,_ Case 1 :04-cv—O1278-KAJ Document 338 Filed 05/24/2006 Page 2 of 2
Honorable Kent A. Jordan
May 24, 2006
Page 2
3. Cvgvovac M-I-L No. 4 —- Whether extrinsic evidence should be admitted to determine
whether Cryovads alleged contracts with National Beef are binding and interpret the
meaning of these alleged contracts and speciiiesliy a} whether evidence of National
Beef s own understanding ofthe niioged contracts, as conveyed to Peohiney and
Cryovsc during negotiations, shouid be admitted; and b) whether evidence
concerning representative contracts in the industry should be admitted on the grounds
that Cryovac itself has proposed an instruction on trade usage as s method for
deciding whether its aiiegeci contracts with National Beef are binding and to interpret
the meaning of these alleged contracts (Cryovec: Instruction 3.3.5).
Jury Instructions
1. Instructions Regarding Proof of Wrowzgfid Conduct for Tortious Interference -· Whether
the "w1·ongfu1 conduct" element of Cryovae’s tortious iriterference claims requires (K)
mere infringement, without more, as Cryovac claims (citing the Restatement (Second) of
Torts, Section 767); (2) actual mniice, as Pechiney claims (based on Kansas law); or (3)
proof that defendant acted without justiticstion and with illicit motives, a standard of
proof that Pechiney claims in the eitemative, assuming that the Court does not appiy
Kansas law, but instead applies the law of South Carolina or Delaware. {Instructions
affected: Pechiney Instructions 16.8, 16.9, 18.4, 18.5,18.6, 18.8; Cryovae Instructions
3.5.2, 3.6, 4.5.2, 4.6].
2. Instructions regarding Cczusation -- Whether Cryovac must prove that Pechinefs
infringement was the cause of Nations} Beefs decision to buy from Pechiney, as
Pechjney contends, or whether even conduct of Pe<:hiney’s that was not wrongful or
improper can be the cause, as Cryovac contends. {Instructions affected: Peehiney
Instructions 16.}, 16.11, 18.i, 18.7; Cryovac Instmetions 3.2, 3.5.3, 3.5.4, 4.2, 4.5.3,
4.5.4}.
3. Instructions regarding Marking —— Whether Cryovsc must prove ss part of its casein
chief the date on which it gave notice to Pechiney (through marking or otherwise) of
Pecbiney‘s iniiringement, as Pechiney contends; or whether masking is an affirmative
defense that is waived unless first raised by Pechiney, as Cryovac contends. [Instructions
affected: Fechiney Instruction t5.2].
Very tmly yours,
QT @...%..34 (EAM?
N. Richard YOWGIS `
cc: John W. Shaw (via e-mail)
F ord F. Farsbow (vis e-maii)
466675