Case 4:12-cv-11758-GAD-MKM ECF No. 495 filed 04/20/15 PageID.40736 Page 1 of 6
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`Case No. 4:12-CV-11758 GAD-MKM
`Hon. Gershwin A. Drain
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`Jury Trial Demanded
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`EVERLIGHT ELECTRONICS CO.,
`LTD., and EMCORE CORPORATION,
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`Plaintiffs/Counter-
`Defendants,
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`v.
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`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
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`Defendants/Counter-
`Plaintiffs,
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`v.
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`EVERLIGHT AMERICAS, INC.,
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`Defendant.
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`EVERLIGHT’S OPPOSITION TO NICHIA’S MEMORANDUM
`SEEKING TO ADMIT INTO EVIDENCE PROF. SCHUBERT’S
`ANALYSIS CHARTS (DKT. # 494)
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`04646.62321/6693862.1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`
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`
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`
`
`
`
`Case No. 4:12-CV-11758 GAD-MKM
`Hon. Gershwin A. Drain
`
`
`
`
`
`Jury Trial Demanded
`
`EVERLIGHT ELECTRONICS CO.,
`LTD., and EMCORE CORPORATION,
`
`
`Plaintiffs/Counter-
`Defendants,
`
`
`v.
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`
`
`Defendants/Counter-
`Plaintiffs,
`
`v.
`
`EVERLIGHT AMERICAS, INC.,
`
`Defendant.
`
`
`
`EVERLIGHT’S OPPOSITION TO NICHIA’S MEMORANDUM
`SEEKING TO ADMIT INTO EVIDENCE PROF. SCHUBERT’S
`ANALYSIS CHARTS (DKT. # 494)
`
`
`
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`04646.62321/6693862.1
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`Case 4:12-cv-11758-GAD-MKM ECF No. 495 filed 04/20/15 PageID.40737 Page 2 of 6
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`Nichia’s bench memorandum incorrectly asserts that Dr. Schubert’s
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`Analysis Chart (D-182) meets all of the requirements of FRE 1006 and thus should
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`be admitted into evidence. The Analysis Chart is not merely a “summary, chart, or
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`calculation to prove the content of voluminous writings, recordings, or
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`photographs that cannot be conveniently examined in court,” as required by FRE
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`1006. The Analysis Chart contains Dr. Schubert’s expert opinions regarding
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`infringement of each of the asserted claims. Indeed, Nichia’s position in its most
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`recent bench memorandum is directly contrary to the position it took just five days
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`ago, when it admitted that the Analysis Chart did strictly fall within the scope of
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`FRE 1006 but should nevertheless be admitted. Dkt. 488 at 1-2.
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`There is no reasonable dispute that Dr. Schubert’s Chart is “integral to his
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`expert opinion” (Dkt. 464 at 4) and that Dr. Shubert’s infringement opinions are
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`contained in both his expert report and his Analysis Chart, which Nichia has
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`argued is designed to be “used in conjunction with” his expert report (Dkt. 326 at
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`16). Thus, the Analysis Chart is part of Dr. Schubert’s expert report. Dr.
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`Schubert’s placing an “X” for each asserted claim of the ‘925 and ‘960 patents is
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`outside the scope of the FRE 1006 because it is not being used to prove the content
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`of any underlying document. The “X” is Dr. Schubert’s opinion for any given
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`product and this analysis cannot be admitted under FRE 1006.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 495 filed 04/20/15 PageID.40738 Page 3 of 6
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`It is black letter law that expert reports are not admissible as evidence. For
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`example, the Sixth Circuit has explained that “Rule 702 permits the admission of
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`expert opinion testimony not opinions contained in documents prepared out of
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`court.” Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 728 (6th Cir. 1994);
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`see also Blue Cross & Blue Shield United of Wisc. v. Marshfield Clinic, 152 F.3d
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`588 (7th Cir. 1998) (Posner, J.) (holding that expert reports are not evidence but
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`rather “merely discovery materials”); Ake v. General Motors Corp., 942 F.Supp.
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`869, 877-78 (W.D.N.Y. 1996) (“[T]he [expert] report is not admissible as a basis
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`for [the expert’s] expert opinion. The report is his opinion. [The expert] may
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`testify about things in the report, but the report itself is inadmissible.”).
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`At a minimum, if Nichia wishes to admit the Analysis Chart into evidence, it
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`needs to redact the columns regarding his opinions on infringement as well as the
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`column labeled “Phosphor Distribution from Testing” because this column also
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`represents Dr. Schubert’s subjective analysis. April 17 Trial Tr. at 89:2-91:9.
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`Moreover, Nichia is incorrect that it is established that the Analysis Chart is
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`accurate. To be clear, Everlight has not identified only three errors in Dr.
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`Schubert’s Analysis Chart. Everlight presented three exemplary errors to the jury
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`in much the same way that Nichia presented only three “exemplary” infringement
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`analyses to the jury. It is Nichia’s burden to show that the summary evidence is
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`accurate. Anderson v. Otis Elevator Co., 2012 U.S. Dist. LEXIS 161816, at *8-9
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`Case 4:12-cv-11758-GAD-MKM ECF No. 495 filed 04/20/15 PageID.40739 Page 4 of 6
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`(E.D. Mich. Nov. 13, 2012) (Ex. A.). It is not Everlight’s burden to disprove the
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`accuracy of Dr. Schubert’s Analysis Chart. Here, Dr. Schubert admitted that there
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`were “inconsistencies” in Everlight’s documents. April 16 Trial Tr. at 116:21-25.
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`Yet, Nichia has not come forward with any explanation about how these
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`“inconsistencies” were resolved. Nichia has therefore failed to show that the
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`Analysis Chart is accurate, providing an independent reason for not admitting the
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`Analysis Chart as substantive evidence.
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`Finally, Nichia’s reliance on BCCI Holdings (Lux.) S.A. v. Khalil, 184
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`F.R.D. 3 (D.D.C. 1999) is misplaced. BCCI does not hold that an expert can
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`incorporate his expert report into his trial testimony and thereby make his expert
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`report admissible evidence, as Nichia alleges. Rather, BCCI deals with a situation
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`where the witness gave an interview to the police which were recorded. Id. at 5.
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`At a subsequent deposition, the witness confirmed that his tape recorded
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`statements to the police were accurate. Id. at 5-6. The Court in BCCI noted that in
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`certain circumstances, a prior statement can be incorporated into a witness’
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`testimony such that it is admissible non-hearsay. However, it is clear in BCCI that
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`this discussion relates prior statements regarding factual issues, not expert analyses
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`set forth in a 9500 line spreadsheet. Indeed, the rule Nichia proposes would mean
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`expert reports would be routinely admissible simply by having an expert take the
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`stand and “adopt” the contents of her expert report. Such a rule is directly contrary
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`Case 4:12-cv-11758-GAD-MKM ECF No. 495 filed 04/20/15 PageID.40740 Page 5 of 6
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`to Sixth Circuit law holding that expert reports are not admissible. Engebretsen,
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`21 F.3d at 728. The Court should deny Nichia’s motion to admit Dr. Schubert’s
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`Analysis Chart as substantive evidence.
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`DATED: April 20, 2015
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`Raymond N. Nimrod
`Matthew A. Traupman
`QUINN EMANUEL URQUHART
`& SULLIVAN, LLP
`51 Madison Avenue, 22nd Floor
`New York, NY 10010
`(212) 849-7000
`raynimrod@quinnemanuel.com
`
`Respectfully submitted,
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`By: /s/ Matthew A. Traupman
`A. Michael Palizzi (P47262)
`MILLER, CANFIELD, PADDOCK
` AND STONE, P.L.C.
`150 West Jefferson, Ste. 2500
`Detroit, Michigan 48226
`(313) 963-4620
`palizzi@millercanfield.com
`Attorneys for Plaintiffs
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`04646.62321/6693862.1
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`Case 4:12-cv-11758-GAD-MKM ECF No. 495 filed 04/20/15 PageID.40741 Page 6 of 6
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing was served on all
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`counsel of record by ECF on April 20, 2015.
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`/s/ Matthew A. Traupman
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`04646.62321/6693862.1
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