The following are the amended counterclaims by EDIG [paraphrased by me] against digEcor and the current status of each. All are found in Doc 78. LL, after reviewing the entire docket history of the case, I did not find any claims by EDIG against digEcor, only these counterclaims. If anyone identifies an error in my research, PLEASE set me straight! Thanks!

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First Counterclaim by EDIG (Declaratory Judgment) from page 2. EDIG is asking for declaratory judgment on the following items:

1. The 2002 NDA was superseded by the 2002 Agreement with regard to the digEplayer, the eVU and/or the subject of this litigation and, therefore, does not limit or bar e.Digital’s rights to or activities regarding the eVU or the digEplayer, and e.Digital is not in breach of that agreement by the design, manufacture, marketing or sale of the eVU;

2. The selection of Triad Engineering and Wolf Electronics to manufacture a replacement player granted e.Digital free and unrestricted access to market the digEplayer design pursuant to the terms of the 2002 Agreement.

3. The 2002 Agreement expired by its terms on October 22, 2005 and, therefore does not limit or bar e.Digital’s current rights to or activities regarding the eVU or the digEplayer, and e.Digital is not in breach of that agreement by the design, manufacture, marketing or sale of the eVU;

4. Any grant to digEcor of an exclusive license under the DRM is limited to the “DRM technology” as defined in Addendum One to the DRM to mean RBE technology, and that the DRM does not limit or bar e.Digital’s rights to or activities regarding the eVU because the eVU does not use RBE, and, therefore, e.Digital is not in breach of paragraph 2 of the DRM;

5. digEcor is in breach of the Purchase Order and DRM and, therefore, is not entitled to enforce any exclusive license granted to it in the DRM against e.Digital; and

6. e.Digital is not in breach of the Purchase Order or the DRM.

STATUS: (Item 1)Though the Court did not rule the 2002 NDA was superseded by the 2002 Agreement, its Memorandum Decision found in Doc 324 decided in EDIG’s favor as to whether it could design, manufacture and market or sale the eVU. It ruled that paragraphs 1, 4, 5 and 6 of the 2002 NDA were void and unenforceable. (Item 2) This has not been ruled on to the best of my knowledge but seems to be a moot point since the Court has ruled EDIG can sell the eVU. (Item 3) I don’t think the Court has ruled the 2002 Agreement has expired yet, but definitely has ruled EDIG can design, manufacture and market or sale the eVU similar to item 1. (Item 4) The Court ruled in favor of EDIG regarding the DRM and RBE technology in its Memorandum Decision found in Doc 65. (Items 5 and 6) IMO, this has been decided in EDIG’s favor in the Court’s Memorandum Decision found in Doc 326, page 9.

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Second Counterclaim (Breach of Contract) from page 9:

1. digEcor and its agents (i.e.,Triad Engineering, Wolf Electronix, DeCuir) use of EDIG’s confidential information in the digEplayer XT project breached the 2002 Agreement and/or other agreements or duty of confidentiality of digEcor.

STATUS: EDIG requested dismissal of this counterclaim in Doc 308 on 12/12/08. Court granted the dismissal in Doc 310.

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Third Counterclaim (Injunction) from page 10:

1. digEcor’s improper use of EDIG’s confidential information has caused and will continue to cause EDIG irreparable harm.

STATUS: EDIG requested dismissal of this counterclaim in Doc 308 on 12/12/08. Court granted the dismissal in Doc 310.

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Fourth Counterclaim (Violation of Utah Trade Secrets Act) from page 10:

1. Some or all of e.Digital’s confidential information that was used by digEcor or its agents in the digEplayer XT project, constituted trade secrets of e.Digital, which digEcor knew or had reason to know it had acquired under circumstances, including express agreements and notices of confidentiality, giving rise to a duty of confidentiality to maintain its secrecy or limits it use in connection with e.Digital’s design activities.

STATUS: EDIG requested dismissal of this counterclaim in Doc 308 on 12/12/08. Court granted the dismissal in Doc 310.

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Fifth Counterclaim (Breach of Duty to Negotiate in Good Faith) from page 12:

1. digEcor’s refusal to respond to terms tentatively agreed to in early negotiations, and their refusal to negotiate any further terms, constitutes bad faith and a breach of its duty to negotiate in good faith a split of maintenance revenues and other revenue sharing provisions breached under the express and implied terms in the 2002 Agreement.

STATUS: In Doc 324, the Court ruled against EDIG and granted digEcor’s request for summary judgment. This counterclaim was dismissed on 03/13/09.

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Sixth Counterclaim (Tortious Interference) from page 14:

1. By improper means and/or for improper purposes, digEcor has interfered with e.Digital’s existing and expected contractual relations.

2. Specifically, digEcor has contacted e.Digital’s customers business associates and made misrepresentations to them regarding e.Digital’s ability to serve its customers, its stability as a business, and the rulings of this Court.

STATUS: EDIG requested dismissal of this counterclaim in Doc 343 on 4/23/09. Court will likely grant the dismissal next week.

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Seventh Counterclaim (Defamation) from page 15:

1. digEcor’s repeated harassing false statements to e.Digital’s existing and potential customers and business associates constitute the publication of false information about e.Digital.

2. digEcor published its false statements with knowledge that they were false, or without regard to the truth or falsity thereof.

3. digEcor’s false statements were not protected by any privilege.

4. digEcor published its false statements with malice.

5. digEcor made its false statements with knowledge that they would likely damage e.Digital.

STATUS: EDIG requested dismissal of this counterclaim in Doc 343 on 4/23/09. Court will likely grant the dismissal next week.

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Eighth Counterclaim (Indemnification) from page 15:

1. digEcor has put e.Digital at risk by selling media players that incorporate e.Digital’s technology alongside unlicensed proprietary technology of other parties, without the consent of those other parties or of e.Digital.

2. e.Digital has been injured by the increased risk caused by digEcor’s wrongful actions, and may suffer further injury if the owners of the unlicensed technology seek redress from e.Digital related to digEcor’s wrongful actions, over which e.Digital has no control.

3. As between digEcor and e.Digital, digEcor is responsible for any liability that arises from its use of unlicensed technology, as digEcor acted of its own accord and without e.Digital’s input or control.

STATUS: EDIG requested dismissal of this counterclaim in Doc 307 on 12/12/08. Court granted the dismissal in Doc 309.

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It appears to me all of EDIG’s counterclaims have been ruled on one way or another. The trial should just be about whether digEcor can prove any of its claims. I’m working on another talking paper similar to this one addressing the current status of each of digEcor’s claims. Hopefully I’ll have it done tomorrow.