sman, I think you’re getting some issues entwined. From Doc 84, one reason digEcor is claiming breach of contract is due to EDIG’s delay in delivering the 1,250 players and they are asking for consequential damages of at least $1,000,000 for the delay. From Doc 324, EDIG argues the delay was caused by Maycom and so they are not in breach of contract with digEcor. The judge disagreed and said Maycom’s delay does not mean EDIG did not breach the contract, but that since there is a dispute as to the date the players were to be delivered, he would not grant digEcor summary judgment. The outstanding question then to be determined at trial is will the judge rule EDIG breached the contract for on-time delivery of the players. I don’t think he will because of this paragraph he wrote from Doc 324:

• "That e.Digital is not excused as a matter of law, however, does not mean that digEcor is automatically entitled to a finding of breach. That is because even assuming that e.Digital was under a duty to deliver the digEplayer 5500's, there is a dispute as to the date by which they were required to be delivered. digEcor does not dispute that its own actions in failing to timely provide specifications excused e.Digital from meeting the PO's listed ship date of January 10, 2006. Moreover, neither party argues that there was any express agreement after January 10, 2006 as to what the new delivery date, if any, would be. This state of affairs leaves it to a fact finder to determine when delivery reasonably could be expected, if at all."

EDIG argues that the DRM Agreement, not the Purchase Order, governed the 1,250 player and battery order. EDIG also argues that since the DRM Agreement governs the order, they are liable for only $25,000 in damages per the Agreement, not the $1,000,000 digEcor is asking for. The judge disagreed and ruled the PO, not the DRM Agreement, governs the purchase of the 1,250 players/batteries. Therefore EDIG’s $25,000 maximum liability issue, as it relates to the delayed player issue, is dead. But again, I don’t think the judge will rule a breach of contract in favor of digEcor on the delayed players due to the judge’s paragraph above.

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Since the 1,250 players were eventually delivered, the judge only granted summary judgment on the battery issue. We know from the PO the batteries cost $80,000. In Doc 324 he ruled as follows:

In sum, digEcor is granted a judgment that e.Digital breached a contract to provide 1250 Li-on batteries and that it is entitled to a refund of the batteries’ purchase price.

‘Nite everyone…I’m all EDIGed out today.