4:12-cv-11758-GAD-MKM Doc # 464 Filed 04/06/15 Pg 1 of 5 Pg ID 37788
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`Case No. 12-11758
`Honorable Gershwin A. Drain
`
`EVERLIGHT ELECTRONICS CO., LTD.,
`and EMCORE CORPORATION,
`
`Plaintiffs/Counter-Defendants,
`
`v.
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`
`Defendants/Counter-Plaintiffs,
`
`v.
`
`EVERLIGHT ELECTRONIC CO., LTD.,
`EMCORE CORPORATION, and
`EVERLIGHT AMERICAS, INC.
`
`Defendant.
`___________________________________/
`
`ORDER GRANTING EVERLIGHT’S MOTION TO STRIKE PROFESSOR
`SCHUBERT’S SECOND CORRECTED SECOND SUPPLEMENTAL ANALYSIS
`CHART [#435]
`
`INTRODUCTION
`
`I.
`
`Trial in the instant patent action is set to commence on April 7, 2015. Involved
`
`are Defendants/Counter-Plaintiffs, Nichia Corporation’s and Nichia America
`
`Corporation’s (“Nichia”) United States Patent Nos. 5,998,925 (the “‘925 patent”) and
`
`7,531,960 (the “‘960 patent”).
`
`-1-
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`Case No. 12-11758
`Honorable Gershwin A. Drain
`
`EVERLIGHT ELECTRONICS CO., LTD.,
`and EMCORE CORPORATION,
`
`Plaintiffs/Counter-Defendants,
`
`v.
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`
`Defendants/Counter-Plaintiffs,
`
`v.
`
`EVERLIGHT ELECTRONIC CO., LTD.,
`EMCORE CORPORATION, and
`EVERLIGHT AMERICAS, INC.
`
`Defendant.
`___________________________________/
`
`ORDER GRANTING EVERLIGHT’S MOTION TO STRIKE PROFESSOR
`SCHUBERT’S SECOND CORRECTED SECOND SUPPLEMENTAL ANALYSIS
`CHART [#435]
`
`INTRODUCTION
`
`I.
`
`Trial in the instant patent action is set to commence on April 7, 2015. Involved
`
`are Defendants/Counter-Plaintiffs, Nichia Corporation’s and Nichia America
`
`Corporation’s (“Nichia”) United States Patent Nos. 5,998,925 (the “‘925 patent”) and
`
`7,531,960 (the “‘960 patent”).
`
`-1-
`
`
`
`4:12-cv-11758-GAD-MKM Doc # 464 Filed 04/06/15 Pg 2 of 5 Pg ID 37789
`
`Presently before the Court is Plaintiff/Counter-Defendant, Everlight Electronics
`
`Co. Ltd.’s (“Everlight”) Motion to Strike Professor Schubert’s Second Corrected
`
`Second Supplemental Analysis Chart, filed on March 11, 2015. Nichia filed a
`
`Response in Opposition on March 30, 2015. Everlight filed a Reply in Support of its
`
`Motion to Strike on April 2, 2015. Upon review of the parties’ submissions, the Court
`
`concludes that oral argument will not aid in the resolution of this matter. Accordingly,
`
`the Court will resolve the instant motion on the briefs. See E.D. Mich. L.R. 7.1(f)(2).
`
`II.
`
`FACTUAL BACKGROUND
`
`Professor E. Fred Schubert is Nichia’s expert on matters relating to
`
`infringement of the ‘925 and the ‘960 patents. Professor Schubert was deposed on
`
`May 9, 2014. At the time of his deposition, a revised version of his Analysis Chart,
`
`specifically the Corrected Second Supplemental Analysis Chart, was the current
`
`version of his Analysis Chart. This Court explained in its Order addressing the parties
`
`competing Daubert motions that:
`
`In his opening report, Schubert indicated that due to the “large number
`of products at issue” he split all of the Accused Products into three
`groups sharing common features and provided representative claim
`charts for each group of asserted claims and an Analysis Chart
`identifying the complete list of Accused Products with phosphor
`information for each Accused Product, along with the specific patent
`claims infringed and the supporting documentation for each product.
`
`-2-
`
`
`
`4:12-cv-11758-GAD-MKM Doc # 464 Filed 04/06/15 Pg 3 of 5 Pg ID 37790
`
`Dkt. No. 374 at 4. As such, the Corrected Second Supplemental Analysis Chart,
`
`together with Professor Schubert’s expert report “provide a detailed limitation-by-
`
`limitation analysis for all of the Accused Products.” Id. On February 17, 2015,
`
`Nichia served a Second Corrected Second Supplemental Analysis Chart, which was
`
`less than two months prior to the start of the trial in this matter.
`
`III. LAW & ANALYSIS
`
`Rule 26(a)(2)(B) of the Federal Rule of Civil Procedure states that expert
`
`witnesses must provide the Court with a written report containing, among other things,
`
`“a complete statement of all opinions the witness will express and the basis and
`
`reasons for them; the facts or data considered by the witness in forming them; [and]
`
`any exhibits that will be used to summarize or support them . . . .” Fed. R. Civ. P.
`
`26(a)(2)(B)(i)-(iii). Rule 26(a)(2)(D) requires that such reports be disclosed at least
`
`90 days before the trial date or as directed by the Court. See Fed. R. Civ. P.
`
`26(a)(2)(D). Rule 37(c)(1) states that “[i]f a party fails to provide information or
`
`identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that
`
`information or witness to supply evidence . . . at trial, unless the failure was
`
`substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
`
`Nichia claims the revised Analysis Chart only provides clerical corrections and
`
`does not alter the substance of Professor Schubert’s opinions in his expert report.
`
`-3-
`
`
`
`4:12-cv-11758-GAD-MKM Doc # 464 Filed 04/06/15 Pg 4 of 5 Pg ID 37791
`
`Therefore, Nichia argues that Professor Schubert’s Second Corrected Supplemental
`
`Analysis Chart should not be stricken by the Court. The Court disagrees with
`
`Nichia’s characterization of the revisions made to Professor Schubert’s Analysis
`
`Chart.
`
`Professor Schubert’s Second Corrected Supplemental Analysis Chart changes
`
`which claims are being asserted against which products. For instance, for roughly 55
`
`accused products, Nichia added infringement allegations for claim 8 of the ‘960
`
`Patent, for 16 of the accused products, Nichia added infringement allegations for
`
`claims 1, 2, 3, 9, and 23 of the ‘925 patent, and claims 8-12 of the ‘960 patent. The
`
`fact that the total number of accused products is unchanged does not mean there has
`
`been no substantive alteration to Professor Schubert’s infringement opinions.
`
`Moreover, the Court does not accept Nichia’s explanation that the substance of
`
`Professor Schubert’s infringement opinions is only contained in his expert report. His
`
`Analysis Chart is integral to his expert opinion because without the Chart there is no
`
`way to identify which claims are being asserted against the nearly 800 accused
`
`products. Professor Schubert’s expert report is meaningless without reference to the
`
`Chart.
`
`The Court also disagrees with Nichia’s representation that Professor Schubert
`
`was diligent in correcting the errors in his Second Corrected Supplemental Analysis
`
`-4-
`
`
`
`4:12-cv-11758-GAD-MKM Doc # 464 Filed 04/06/15 Pg 5 of 5 Pg ID 37792
`
`Chart. Professor Schubert acknowledged during his deposition in May of 2014 that
`
`his Second Corrected Supplemental Analysis Chart contained inconsistencies. Nichia
`
`offers no justification for the nine month delay-from May of 2014 through February
`
`of 2015-for the correction of the known inconsistencies. The Court agrees with
`
`Everlight that the service of a Second Corrected Supplemental Analysis Chart on the
`
`eve of trial is extremely prejudicial to Everlight.
`
`IV. CONCLUSION
`
`For the reasons that follow, Everlight’s Motion to Strike Professor Schubert’s
`
`Second Corrected Second Supplemental Analysis Chart [#435] is GRANTED.
`
`SO ORDERED.
`
`Dated: April 6, 2015
`
`/s/ Gershwin A. Drain
`GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
`
`CERTIFICATE OF SERVICE
`
`Copies of this Order were served upon attorneys of record on
` April 6, 2015, by electronic and/or ordinary mail.
`
`/s/ Tanya Bankston
`Deputy Clerk
`
`-5-
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