The pre-trial hearing was held on 04/30/09 and the transcript is now available. It is digEcor Doc 367 uploaded here: http://www.box.net/shared/bz4d8bjeok

Starting on page 6,

THE COURT: One other thing, let me tell you, and I'll hear what you've got to say, I've looked at the motion still that's pending for summary judgment on the damage limitation, my inclination is to grant the motion as to the amount of damages, since you've agreed that it's limited to the $25,000, but to deny the motion as to all other preclusive effects that the clause may have on other aspects. Frankly, in reading it, I think there are factual issues that I need to hear before I can decide what the effect of that would be on the other claims. So that is the direction I'm thinking of going, and it doesn't probably help you a whole lot, but I think that's the way we need to go.

MR. STRAIGHT: Your Honor, that's kind of where I assumed because opposing counsel didn't oppose the summary judgment motion on the nature of the cap, but I do think there needs to be some facts on – our argument is they get zero, it doesn't even get to the 25, and then on these other issues we have some arguments about whether one of the injunction claims is even a viable claim in the case.

THE COURT: I understood that that argument and the language of the agreement we'll have to have some argument on because the language is not the model of clarity. If it were, you probably wouldn't be here, so we've got to deal with that issue.

MR. TUFTS: Your Honor, can I ask you a question about that to make sure I understand what you are saying?

THE COURT: Yes.

MR. TUFTS: You've issued a ruling where you've indicated that the two contracts were separate contracts in terms of the one doesn't govern the terms of the other. You've indicated in that ruling we can seek the consequential damages, present that as a factual issue at trial. I believe -- what I believe is happening is they are trying to sort of narrow your ruling and potentially slip a reconsideration request in there, and I would like to –

THE COURT: My intent in the ruling was to say that those two are separate contracts, and thepurchase order didn't get exported into the DRM contract, or vice versa, did the terms of the DRM contract get imported into the purchase order. So I think whatever your damage claims are independently on the purchase order is still fair game. And with respect to the DRM contract, the ultimate issue, as I understand it, is going to be whether there were zero damages and whether that's enforceable, or whether or not there is -- whether those clauses should be read to preclude injunctive relief, and I'm not going to decide those two issues. Does that help?