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` UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`Civil Action No.12-cv-11758
`HON. GERSHWIN A. DRAIN
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`EVERLIGHT ELECTRONICS CO., LTD.,
`and EMCORE CORPORATION,
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`Plaintiffs and
`Counter-Defendants,
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`v.
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`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
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`Defendants and
`Counter-Plaintiffs.
`_________________________________/
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`ORDER DENYING NICHIA’S MOTION FOR RECONSIDERATION [#412]
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`I.
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`INTRODUCTION
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`Presently before the Court is Nichia Corporation’s and Nichia America
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`Corporation’s (collectively “Nichia”) Motion for Reconsideration of the Order on
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`Nichia’s Motion to Compel Supplementation of Discovery, filed on February 11,
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`2015. Specifically, Nichia seeks reconsideration of this Court’s January 30, 2015,
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`Order Granting in Part and Denying in Part Nichia’s Motion to Compel
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`Supplementation of Everlight’s Responses to Certain Discovery Requests. The Court
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`required Everlight to produce the supplemental sales data sought by Nichia, but denied
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`Nichia’s request for supplemental discovery on accused products and competition.
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`On February 13, 2015, this Court entered an Order Requiring Everlight
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`Electronics Co., Ltd. (“Everlight”) to file a Response to Nichia’s present motion no
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`later than February 3, 2015. See Dkt. No. 416. The Court’s February 13, 2015, Order
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`also permitted Nichia to file a Reply in support of its present motion no later than
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`March 2, 2015. Id. The parties have submitted their briefing and for the reasons that
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`follow, the Court will deny Nichia’s Motion for Reconsideration of the Order on
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`Nichia’s Motion to Compel Supplementation of Everlight’s Discovery.
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`II.
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`LAW & ANALYSIS
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`In its present motion, Nichia complains that the day after this Court issued its
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`January 30, 2015, Order Granting in Part and Denying in Part Nichia’s Motion to
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`Compel Supplementation of Everlight’s Responses to Certain Discovery Requests,
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`Everlight “produced a small set of competition related documents that it
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`opportunistically picked in an effort to assist its competition arguments.” Nichia’s
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`Mot. at 2. Nichia complains that a multitude of documents discussing competition
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`between Nichia and Everlight were missing from Everlight’s production.
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`Nichia maintains that Everlight should not be permitted to avoid its discovery
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`obligations by claiming it would be burdensome to produce competition documents
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`and such a production would result in the delay of trial, while opportunistically
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`producing only those documents it believes will assist its competition arguments at
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`trial. Therefore, Nichia requests that Everlight be ordered to produce a full
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`supplementation of documents related to the competition issue, or in the alternative,
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`Nichia asks that the Court prohibit Everlight from relying on, or using at trial, the
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`recent incomplete and opportunistic production.
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`Local Rule 7.1(h)(3) of the Local Rules of the United States District Court for
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`the Eastern District of Michigan provides:
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`Generally, and without restricting the Court’s discretion, the Court will
`not grant motions for rehearing or reconsideration that merely present the
`same issues ruled upon by the Court, either expressly or by reasonable
`implication. The movant must not only demonstrate a palpable defect by
`which the Court and the parties and other persons entitled to be heard on
`the motion have been misled but also show that correcting the defect will
`result in a different disposition of the case.
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`E.D. Mich. L.R. 7.1(h)(3). “A ‘palpable defect’ is ‘a defect that is obvious, clear,
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`unmistakable, manifest, or plain.’” United States v. Lockett, 328 F. Supp. 2d 682, 684
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`(E.D. Mich. 2004) (citing United States v. Cican, 156 F. Supp. 2d 661, 668 (E.D.
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`Mich. 2001)). “[A] motion for reconsideration is not properly used as a vehicle to
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`re-hash old arguments or to advance positions that could have been argued earlier but
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`were not.” Smith ex rel. Smith v. Mount Pleasant Pub. Sch., 298 F. Supp. 2d 636, 637
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`(E.D. Mich. 2003) (citing Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146
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`F.3d 367, 374 (6th Cir.1998)).
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`Nichia also moves for relief pursuant to Rule 54(b) of the Federal Rules of Civil
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`Procedure. However, the Court does not find that Rule 54(b) is applicable under the
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`circumstances. Rule 54(b) states in relevant part:
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`When an action presents more than claim for relief . . . or when multiple
`parties are involved, the court may direct entry of a final judgment as to
`one or more, but fewer than all, claims or parties only if the court
`expressly determines that there is no just reason for delay. Otherwise,
`any order or other decision . . . that adjudicates fewer than all the
`claims or the rights and liabilities of fewer than all the parties does
`not end the action . . . and may be revised at any time before the entry of
`judgment [.]
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`Fed. R. Civ. P. 54(b). The Court’s January 30, 2015, Order did not adjudicate any of
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`the claims, counterclaims, rights or liabilities of any of the parties to this action.
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`Rather, it addressed Nichia’s request for discovery past the discovery cutoff. The
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`Supreme Court has noted that Rule 54(b) provides “a practical means of permitting
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`an appeal to be taken from one or more final decisions on individual claims, in
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`multiple claim actions, without waiting for final decisions to be rendered on all claims
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`in the case.” Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 435 (1956). As such,
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`Rule 54(b) appears inapplicable to Nichia’s present motion, and the Court will use the
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`standard set forth in Local Rule 7.1(h)(3) to resolve the issues presented therein.
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`Everlight asserts that its recent production was done solely to refute the
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`misrepresentation of Nichia’s late document production in October and December of
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`last year. Everlight argues that Nichia cherry-picked certain articles from LEDinside
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`magazine in order to suggest to the jury that Nichia and Everlight are direct
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`competitors in the United States for white LEDs. While Everlight intends to object
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`to Nichia’s production of these articles, in the event the Court permits their admission
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`at trial, Everlight produced three articles from the same source as Nichia in order to
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`contradict the impressions provided by the articles produced by Nichia late last year.
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`Nichia’s present motion does not demonstrate a palpable defect by which this
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`Court has been misled, nor that a different disposition of the January 30, 2015, Order
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`is warranted. Everlight’s recent production was done to refute impressions that may
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`occur from admission of the LEDinside articles produced by Nichia in 2014. Nichia’s
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`original motion sought an onerous amount of internal documents and customer
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`communications covering seven document requests that do not appear related to the
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`publicly available LEDinside magazine articles.
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`However, since both parties seem to agree that all the LEDinside magazine
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`articles that have been produced after the discovery cutoff should not be admitted at
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`trial, the Court will grant this aspect of Nichia’s present motion.
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`III. CONCLUSION
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`For the reasons stated above, Nichia’s Motion for Reconsideration of the Order
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`on Nichia’s Motion to Compel Supplementation of Everlight’s Discovery [#412] is
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`DENIED. Neither party may introduce articles from LEDinside magazine that were
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`produced after the discovery deadline.
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`SO ORDERED.
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`Dated: March 10, 2015
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`/s/Gershwin A Drain
`GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
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