Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-01278-KAJ

Document 345

Filed 06/01/2006

Page 1 of 2
The Nemours Building 1007 North Orange Street P.O. Box 2207 Wilmington, DE 19899 TEL (302) 658 9141 FAX (302) 658 5614 1990 M Street, NW, Suite 800 Washington DC 20036 TEL (202) 331 7111 FAX (202) 293 6229 Wells Fargo Center South Tower, Suite 3150 355 South Grand Avenue Los Angeles CA 90071 TEL (213) 787 2500 FAX (213) 687 0498

Jaclyn Mason
Associate (302) 888-6433 (302) 255-4275 EMAIL [email protected] REPLY TO Wilmington Office
TEL FAX

June 1, 2006

WEB

www.cblh.com

VIA CM/ECF AND HAND DELIVERY Honorable Kent A. Jordan J. Caleb Boggs Federal Building 844 N. King Street Room 6325, Lockbox 10 Wilmington, DE 19801 Re: Cryovac, Inc. v. Pechiney Plastic Packaging, Inc., C.A. 04-1278-KAJ

Dear Judge Jordan: At the May 25, 2006 pre-trial hearing, Your Honor asked Pechiney about the timing of Mr. Spadt's opinion letter in relation to the ClearShield product modification. See Transcript at p. 13 (copy attached). As Your Honor requested, Pechiney's counsel contacted an associate in Chicago by telephone during the hearing to look into the question. Pechiney's counsel then confirmed that the first sale of any ClearShield product was in March 2004, nine months before Mr. Spadt's opinion letter. See Transcript at p. 23 ("MR. PATRAS: ... I can tell you that the first sales of any ClearShield product were in March 2004. So the Spadt opinion letter is within nine months of there being any sale of any product.") (copy attached). Your Honor then stated that Pechiney would be allowed to put Mr. Spadt's opinion letters into evidence. See Transcript at pp. 23-24 ("THE COURT: ...I'm going to let those things in and you can go after them hammer-and-tongs on cross, but... under these circumstances, the facts of this case, it's appropriate to allow the defense to put that in front of a jury. ") (copy attached). After Your Honor decided to allow the use of Mr. Spadt's opinion letters, Pechiney's counsel reported that, based on information provided by telephone from Chicago during the hearing, the first specification sheet showing the ClearShield product modification was dated October 22, 2004. See Transcript at pp. 26-27 (copy attached).

Case 1:04-cv-01278-KAJ Honorable Kent A. Jordan June 1, 2006 Page 2

Document 345

Filed 06/01/2006

Page 2 of 2

Upon counsel's return to Chicago after the hearing and after a more extensive review of the documents, the first commercial specifications of the modified ClearShield product were indeed dated October 22, 2004. See Product Specifications Z-9001, Z9002, B-3200, B-3201, B-3300, B-3301. However, Pechiney made sales of some modified ClearShield products that were manufactured under developmental specifications dated before October 22, 2004. For example, developmental product specification DZ-9000 was dated February 9, 2004. The first sale under any of these developmental specifications occurred in March 2004 and was of a film made under developmental specification DZ-9000. We hope this additional information satisfactorily answers Your Honor's question from the hearing. Respectfully submitted, /s/ Jaclyn M. Mason Jaclyn M. Mason

Encl. cc: Ford F. Farabow, Esq. (by e-mail w/ encl.) John W. Shaw, Esq. (by e- mail w/ encl.) N. Richard Powers, Esq. (by e- mail w/ encl.) Donald R. Cassling, Esq. (by e- mail w/ encl.) Patrick L. Patras, Esq. (by e- mail w/encl.)

468109