4:12-cv-11758-GAD-MKM Doc # 434 Filed 03/11/15 Pg 1 of 5 Pg ID 35295
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`EVERLIGHT ELECTRONICS CO., LTD.,
`and EMCORE CORPORATION,
`
`Plaintiffs/Counter-Defendants,
`
`Civil Action No.12-cv-11758
`HON. GERSHWIN A. DRAIN
`
`v.
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`
`Defendants/Counter-Plaintiffs,
`
`v.
`
`EVERLIGHT AMERICAS, INC.,
`
`Defendant.
`____________________________________/
`
`ORDER DENYING NICHIA’S MOTION FOR LEAVE TO TAKE THE
`DEPOSITION OF MR. HIROYUKI YAMAMOTO [#414]
`
`Presently before
`
`the Court
`
`is Defendants/Counter-Plaintiffs Nichia
`
`Corporation’s and Nichia America Corporation’s (“Nichia”) Motion for Leave to Take
`
`the Deposition of Mr. Hiroyuki Yamamoto, filed on February 12, 2015.
`
`Plaintiffs/Counter-Defendants Everlight Electronics Co., Ltd. (“Everlight”) filed a
`
`Response on March 2, 2015 and Nichia filed a Reply in Support on March 10, 2015.
`
`Upon review of the parties’ submissions, the Court concludes oral argument is
`
`-1-
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`EVERLIGHT ELECTRONICS CO., LTD.,
`and EMCORE CORPORATION,
`
`Plaintiffs/Counter-Defendants,
`
`Civil Action No.12-cv-11758
`HON. GERSHWIN A. DRAIN
`
`v.
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`
`Defendants/Counter-Plaintiffs,
`
`v.
`
`EVERLIGHT AMERICAS, INC.,
`
`Defendant.
`____________________________________/
`
`ORDER DENYING NICHIA’S MOTION FOR LEAVE TO TAKE THE
`DEPOSITION OF MR. HIROYUKI YAMAMOTO [#414]
`
`Presently before
`
`the Court
`
`is Defendants/Counter-Plaintiffs Nichia
`
`Corporation’s and Nichia America Corporation’s (“Nichia”) Motion for Leave to Take
`
`the Deposition of Mr. Hiroyuki Yamamoto, filed on February 12, 2015.
`
`Plaintiffs/Counter-Defendants Everlight Electronics Co., Ltd. (“Everlight”) filed a
`
`Response on March 2, 2015 and Nichia filed a Reply in Support on March 10, 2015.
`
`Upon review of the parties’ submissions, the Court concludes oral argument is
`
`-1-
`
`
`
`4:12-cv-11758-GAD-MKM Doc # 434 Filed 03/11/15 Pg 2 of 5 Pg ID 35296
`
`unnecessary and the Court will resolve the instant motion on the briefs submitted.
`
`E.D. Mich. L.R. 7.1(f)(2). For the reasons that follow, the Court will deny Nichia’s
`
`Motion for Leave to Take the Deposition of Mr. Hiroyuki Yamamoto.
`
`In its present motion, Nichia seeks leave to depose a former employee, Mr.
`
`Yamamoto, past the April 18, 2014 deadline for taking the depositions of fact and
`
`expert witnesses identified on the parties’ Amended Witness Lists. Nichia identified
`
`Mr. Yamamoto on its interrogatory responses. He was also listed on both Everlight’s
`
`Witness and Amended Witness Lists. During his employment with Nichia, Mr.
`
`Yamamoto was involved in the patent prosecution of the ‘925 Patent. As such, Nichia
`
`maintains that Mr. Yamamoto has relevant information concerning Everlight’s
`
`inequitable conduct claim.
`
`Nichia claims it has been diligent in requesting the deposition of Mr.
`
`Yamamoto. It claims that it did not know Mr. Yamamoto’s location nor how to
`
`contact him during the entire discovery period. Unbeknownst to Nichia, Everlight
`
`hired a private detective to locate Mr. Yamamoto’s whereabouts. By June of 2014,
`
`Everlight had located Mr. Yamamoto and contacted him to ascertain whether he
`
`would cooperate in the ongoing patent litigation. Thereafter, in August of 2014, Mr.
`
`Yamamoto contacted Nichia’s counsel and he is now represented by Foley & Lardner
`
`LLP as a third-party witness. Nichia’s counsel has had numerous contacts with Mr.
`
`-2-
`
`
`
`4:12-cv-11758-GAD-MKM Doc # 434 Filed 03/11/15 Pg 3 of 5 Pg ID 35297
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`Yamamoto throughout September and October of 2014.
`
`In December of 2014, Nichia informed Everlight that Mr. Yamamoto had
`
`agreed to sit for a deposition in Osaka, Japan. Nichia offered to pay the costs of the
`
`court reporter, videographer, interpreter, and room reservation at the Osaka Consulate
`
`and agreed that Everlight could participate by telephone.
`
`A scheduling order may be modified “only for good cause and with the judge’s
`
`consent.” Fed. R. Civ. P. 16(b)(4). The United States Court of Appeals for the
`
`Sixth Circuit has held that “late-moving litigants [are required] to show that despite
`
`their diligence they could not meet the original deadline.” Shane v. Bunzl
`
`Distribution USA, Inc., 275 F. App’x 535, 536 (6th Cir. 2008) (quoting Leary v.
`
`Daeschner, 349 F.3d 888, 906-07 (6th Cir. 2003)); Inge v. Rock Financial Corp., 281
`
`F.3d 613, 625 (6th Cir. 2002) (“The primary measure of Rule 16's ‘good cause’
`
`standard is the moving party’s diligence in attempting to meet the case management
`
`order’s requirements.”). In considering a request to modify the scheduling order,
`
`“another relevant consideration is possible prejudice to the party opposing the
`
`modification.” Inge, 281 F.3d at 625.
`
`Here, Nichia has not demonstrated diligence. Nichia fails to advise the Court
`
`of any efforts it undertook to locate Mr. Yamamoto. Additionally, Nichia was
`
`woefully dilatory in seeking to take Mr. Yamamoto’s deposition since making contact
`
`-3-
`
`
`
`4:12-cv-11758-GAD-MKM Doc # 434 Filed 03/11/15 Pg 4 of 5 Pg ID 35298
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`with him in August of 2014. Nichia asserts that when it first was contacted by Mr.
`
`Yamamoto, the Court’s November trial date precluded a deposition because there was
`
`inadequate time. However, the Court re-scheduled the November trial for March of
`
`2015 on September 24, 2015. The trial date was again moved in November of 2014
`
`to its current date of April 7, 2015. Nichia admits that it met with Mr. Yamamoto in
`
`September and October of 2014, apparently in an effort to ascertain whether to depose
`
`him.
`
`Nichia does not explain in its present motion why it did not attempt to contact
`
`Everlight about deposing Mr. Yamamoto until December 19, 2014, when it learned
`
`on September 24, 2014 that the trial would be delayed until March of the following
`
`year. Nor did Nichia contact Everlight when the trial date was again moved to April
`
`of 2015. Moreover, Nichia complains that Everlight has done an “about face,” relying
`
`on Everlight’s previous statement that it would agree to a deposition of Mr.
`
`Yamamoto and other witnesses “in accordance with the Court’s scheduling order.”
`
`See Nichia’s Mot., Ex. B. Everlight’s agreement to depose certain witnesses,
`
`including Mr. Yamamoto, cannot be considered an agreement in perpetuity.
`
`Additionally, Nichia’s request to depose Mr. Yamamoto at this late stage in the
`
`proceedings would be highly prejudicial to Everlight. Everlight will have no
`
`opportunity to develop new evidence after the deposition. Moreover, Nichia’s claim
`
`-4-
`
`
`
`4:12-cv-11758-GAD-MKM Doc # 434 Filed 03/11/15 Pg 5 of 5 Pg ID 35299
`
`that it will be prejudiced if it is precluded from deposing Mr. Yamamoto appears
`
`disingenuous. If Mr. Yamamoto was essential to Nichia’s defense to Everlight’s
`
`claim of inequitable conduct, Nichia would have listed him on its Witness Lists and
`
`made some effort to locate him.
`
`For all of the foregoing reasons, Nichia’s Motion for Leave to Take the
`
`Deposition of Mr. Hiroyuki Yamamoto [#414] is DENIED.
`
`SO ORDERED.
`
`Dated: March 11, 2015
`
`/s/Gershwin A Drain
`GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
`
`-5-
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