Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43665 Filed 05/22/15 Page 1 of 125
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`EVERLIGHT ELECTRONICS CO.,
`LTD, and EMCORE CORPORATION,
`Plaintiffs,
`
`No. 12-cv-11758
`
`v
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`Defendants.
`_________________________/
`
`JURY TRIAL - VOLUME V of XII
`PROCEEDINGS BEFORE THE HONORABLE GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
`Theodore Levin United States Courthouse
`231 West Lafayette Boulevard
`Detroit, Michigan
`Monday, April 13, 2015
`
`APPEARANCES:
`
`For the Plaintiffs:
`
`MR. A. MICHAEL PALIZZI
`MR. MICHAEL C. SIMONI
`Miller, Canfield, Paddock and
`Stone, PLC
`150 W. Jefferson Avenue, Suite 2500
`Detroit, Michigan
`48226
`(313) 486-7645
`MR. RAYMOND N. NIMROD
`MR. MATTHEW A. TRAUPMAN
`MS. ANASTASIA M. FERNANDS
`Quinn Emanuel Urquhart & Sullivan,
`LLP
`51 Madison Avenue, 29th Floor
`New York, New York 10010
`(212) 849-7412
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`1
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`EVERLIGHT ELECTRONICS CO.,
`LTD, and EMCORE CORPORATION,
`Plaintiffs,
`
`No. 12-cv-11758
`
`v
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`Defendants.
`_________________________/
`
`JURY TRIAL - VOLUME V of XII
`PROCEEDINGS BEFORE THE HONORABLE GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
`Theodore Levin United States Courthouse
`231 West Lafayette Boulevard
`Detroit, Michigan
`Monday, April 13, 2015
`
`APPEARANCES:
`
`For the Plaintiffs:
`
`MR. A. MICHAEL PALIZZI
`MR. MICHAEL C. SIMONI
`Miller, Canfield, Paddock and
`Stone, PLC
`150 W. Jefferson Avenue, Suite 2500
`Detroit, Michigan
`48226
`(313) 486-7645
`MR. RAYMOND N. NIMROD
`MR. MATTHEW A. TRAUPMAN
`MS. ANASTASIA M. FERNANDS
`Quinn Emanuel Urquhart & Sullivan,
`LLP
`51 Madison Avenue, 29th Floor
`New York, New York 10010
`(212) 849-7412
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43666 Filed 05/22/15 Page 2 of 125
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`APPEARANCES:
`For the Defendants:
`
`MR. STEVEN J. RIZZI
`MR. RAMY E. HANNA
`MR. RYAN SCHMID
`Foley and Lardner, LLP
`90 Park Avenue, 37th Floor
`New York, New York 10016
`(212) 682-7474
`MS. LISA S. MANKOFSKY
`MR. MICHAEL D. KAMINSKI
`Foley & Lardner, LLP
`3000 K Street N. W,
`Suite 600
`Washington, DC
`20007
`(202) 672-5300
`MR. JOHN R. TRENTACOSTA
`Foley & Lardner
`500 Woodward Avenue
`Detroit, Michigan
`(313) 234-2800
`
`48226
`
`Reported by:
`
`Merilyn J. Jones, RPR, CSR
`Official Federal Court Reporter
`merilyn_jones@mied.uscourts.gov
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43667 Filed 05/22/15 Page 3 of 125
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`TABLE OF CONTENTS
`
`PLAINTIFF
`WITNESSES:
`YASUNOBU NOGUCHI
`Cross-examination by Mr. Nimrod
`Redirect examination by Mr. Kaminski
`Recross-examination by Mr. Nimrod
`WITNESSES:
`DEFENDANT
`DANIEL DOXSEE
`Direct examination by Ms. Mankofsky
`
`EXHIBITS:
`Plaintiff's Exhibit P99
`Plaintiff's Exhibit P263
`Plaintiff's Exhibit PDX1001
`Plaintiff's Exhibit PDX1002
`Plaintiff's Exhibit PDX1003
`Plaintiff's Exhibit PDX1004
`Plaintiff's Exhibit PDX1005
`Plaintiff's Exhibit PDX1006
`Plaintiff's Exhibit PDX1009
`Defendant's Exhibit D0099
`Defendant's Exhibit D0109
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`PAGE
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43668 Filed 05/22/15 Page 4 of 125
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`Detroit, Michigan
`Monday, April 13, 2015 - 8:02 a.m.
`THE CLERK:
`All rise.
`The United States District
`Court for the Eastern District of Michigan is now in session,
`Honorable Gershwin A. Drain presiding.
`Calling Civil Action Everlight Electronics Company
`versus Nichia Corporation, Number 12-11758.
`You may be seated.
`Counsel, please put your appearance on the record.
`MR. NIMROD:
`Good morning, your Honor.
`THE COURT:
`Good morning.
`MR. NIMROD:
`Ray Nimrod and Matt Traupman from
`Quinn Emanuel for Everlight.
`And also Mike Palizzi and Mike
`Simoni from Miller Canfield.
`MR. PALIZZI:
`Good morning, Judge.
`THE COURT:
`Good morning.
`Steven
`MR. RIZZI:
`Good morning, your Honor.
`Rizzi from Foley & Lardner for Nichia.
`Also, Lisa Mankofsky,
`John Trentacosta, Ms. Deborah Lange, and our corporate
`designee, Dr. Dan Doxsee.
`And I believe Mr. Kaminski will be
`joining us shortly, as well.
`Let me just wrap
`Okay.
`THE COURT:
`All right.
`up the issue of Dr. Wilding.
`Apparently, he's not going to
`testify; is that correct?
`MR. NIMROD:
`
`That's correct, your Honor.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43669 Filed 05/22/15 Page 5 of 125
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`And let me also
`All right.
`Okay.
`THE COURT:
`just mention a little bit about the procedure from this point
`forward with regard to direct, cross, and redirect.
`We've decided that we're going to end it with
`However, let me just say that that is contingent
`redirect.
`upon whoever does the redirect not going beyond the scope of
`the cross, because there's a great potential for sandbagging
`in this situation.
`And only getting into, just as an example, for
`example, if Mr. Traupman, instead of doing all of his direct
`when he first examined the witness, only doing about half of
`it, then allowing Mr. Rizzi to cross-examine the witness, and
`then doing the other half, which is all new stuff, that would
`have been inappropriate.
`And if that were the case, I would
`have allowed Mr. Rizzi, if he chose to, to cross-examine on the
`new stuff.
`
`So provided there's no sandbagging as I've
`described, I'm going to stop things at redirect.
`And so I
`didn't think that with the first witness or with
`Dr. Bretschneider that Mr. Traupman went beyond the scope of
`the cross.
`
`But, again, just in case that happens in the
`future, or I should say, if some sandbagging happens, I'm going
`to allow recross.
`And that applies to, like I said, both
`sides.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43670 Filed 05/22/15 Page 6 of 125
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`I understand that there's a new issue up
`Okay.
`here with regard to George Crawford and I really haven't had
`a chance to review all of this, but I will.
`But is there
`anything that we need to take up right now with regard to that
`matter, this matter?
`Good morning, your Honor.
`MR. TRAUPMAN:
`Good morning.
`THE COURT:
`I think Mr. Nimrod told your law
`MR. TRAUPMAN:
`clerk that the Crawford issue probably won't get addressed
`until the end of the day, so we could -- you know, if your
`Honor wanted to take some time to read what was submitted this
`morning, we could probably take that at break.
`There are a few other issues that we haven't filed
`briefing on that are going to come probably a little sooner in
`the day, probably aren't going to be as extensive as that.
`I
`don't know if your Honor would like to take those up now or if
`you would like to wait.
`THE COURT:
`time we have.
`On the
`Excuse me, your Honor.
`MS. MANKOFSKY:
`topic of Dr. Crawford, given that Everlight filed its motion
`close to 8:00 a.m., we haven't had a chance to put in any
`submission at all.
`Okay.
`THE COURT:
`MS. MANKOFSKY:
`And so if you were to consider
`
`Well, let's do what we can with the
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`their submission, you wouldn't have a chance to consider ours.
`And, frankly, I think our response takes care of the issue, so
`I think we would ask that we actually air our positions right
`now so that you have the benefit of both positions.
`THE COURT:
`Okay.
`Do you want to file something
`with regard to their submission?
`MS. MANKOFSKY:
`I think it's so simple that we
`could just discuss it now, and perhaps with you hearing our
`argument, that would better inform you whether you feel
`anything should be filed.
`THE COURT:
`Do you all want to talk about it
`Is there --
`Sounds like she might have some
`MR. TRAUPMAN:
`proposal to make to me, so maybe we should talk about it off
`the record.
`
`first?
`
`Okay.
`Okay.
`THE COURT:
`MS. MANKOFSKY:
`Well, I think on the record is the
`place to do it.
`I mean, it's very simple.
`As I understand their motion, they think that he's
`offering expert testimony and he shouldn't testify beyond
`his personal knowledge.
`And he is offering no expert
`testimony.
`He isn't going to testify beyond his personal
`knowledge, and, frankly, he's not going to testify to the
`meaning of this patent.
`So it really -- they are -- they would do better
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`to actually hear the questions we intend to ask before
`objecting.
`
`Well, that's -- well, I guess we
`MR. TRAUPMAN:
`need to argue this motion now, then, because that's not --
`that's not going to resolve our issues.
`I'll have to take it
`from the top.
`If you would like me to, I'm happy to do so,
`your Honor, but it might be helpful if you read our bench
`memorandum first.
`But if you would like to do it now, I can.
`THE COURT:
`Okay.
`There are some other things
`that are going to come up before we deal with this, is that
`right?
`
`Yes.
`MR. TRAUPMAN:
`THE COURT:
`Well, let's take up those now, because
`I want to take them up in the order that they come up.
`MR. TRAUPMAN:
`Thank you, your Honor.
`THE COURT:
`Okay.
`MR. TRAUPMAN:
`So the one, one issue that's going
`to come up right in the second witness, we believe, second or
`third witness in Nichia's case, which will be some deposition
`testimony, so, your Honor, as your Honor is, I'm sure, aware,
`you have your trial guidelines that require a witness synopsis
`of describing each witness that is going to testify at the
`trial.
`
`Nichia submitted their witness synopsis three days
`before trial.
`They listed 17 witnesses, including witnesses
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`who would be testifying via deposition.
`On Saturday morning they provided us with
`deposition designations for two witnesses based in Taiwan,
`Everlight witnesses based in Taiwan, that aren't on the witness
`synopsis list.
`Those are Harrison Lin and Mars Kang.
`We don't
`think they should be playing their deposition testimony if they
`are not on the witness synopsis list.
`If they would have told us that they planned to
`call these witnesses, we could have flown them in from Taiwan
`and made them available here in the court, your Honor, but on
`Saturday morning when we got their deposition designations,
`obviously, there is no way that we could get these people on a
`plane from Taiwan and be ready to testify in Detroit on Monday
`morning.
`
`So we would ask that these two, the deposition
`designations of these two witnesses be excluded.
`THE COURT:
`Let me get my --
`MS. MANKOFSKY:
`May I respond?
`THE COURT:
`Just a second.
`I want to get my
`witness list here.
`And just to be clear, your Honor, I
`MR. TRAUPMAN:
`was referring to the witness synopsis that was submitted at
`docket 461 on April 3rd.
`THE COURT:
`
`What's the witness's name
`
`Okay.
`
`again?
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`The two witnesses that aren't on
`MR. TRAUPMAN:
`the witness synopsis list, your Honor, are Mars Kang and
`Harrison Lin.
`THE COURT:
`MR. TRAUPMAN:
`
`Mars, like the planet,
`
`Morris --
`Mars.
`
`M-A-R-S.
`
`L-I-N.
`
`What's the last name?
`THE COURT:
`MR. TRAUPMAN: Kang, K-A-N-G.
`THE COURT:
`Okay.
`And what's the other one?
`MR. TRAUPMAN:
`Harrison, H-A-R-R-I-S-O-N, Lin,
`
`Okay.
`
`And you say they are not on the
`
`THE COURT:
`witness synopsis list?
`That's correct.
`MR. TRAUPMAN:
`Okay.
`What does Nichia have to say?
`THE COURT:
`MS. MANKOFSKY:
`A couple of responses.
`One is that the deposition designations for all
`these witnesses were included in the pretrial order.
`Their
`deposition transcripts are on our exhibit list.
`And we're
`talking about designations that will last about less than five
`minutes.
`And Everlight has made a few counter-designations
`that's a very short amount of time.
`And, you know, we don't think Everlight is
`prejudiced by having their witnesses own deposition testimony
`read to the Court.
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`Read to the Court or to the jury?
`THE COURT:
`MS. MANKOFSKY:
`To the jury, including the Court.
`THE COURT:
`Okay.
`MR. TRAUPMAN:
`Your Honor, the rules are the
`They should have put these on the witness list, witness
`rules.
`synopsis list.
`I think we would prefer to have live testimony
`come in in front of the jury because that's obviously going to
`be much more, you know, engaging, and probably more likely that
`the jury is going to be paying attention.
`Forcing us to do
`deposition testimony because they are not on the witness
`synopsis witness list is prejudicial to Everlight.
`MS. MANKOFSKY:
`We didn't understand that the
`witness synopsis list required deposition designations, as
`well.
`There is one witness, Mr. Onikiri, who is on there, but
`it wasn't our understanding it was a requirement.
`We thought
`that given the deposition designations in the pretrial order
`and the transcripts being listed as an exhibit on our exhibit
`list properly brought those, fulfilled our obligations.
`MR. TRAUPMAN:
`Your Honor, that belies what Nichia
`put in their witness synopsis list.
`They have, on page three,
`three witnesses that they say they are going to call by
`deposition unless called live by Everlight.
`So again, it's
`clearly belied by -- what Ms. Mankofsky just said is belied by
`their actions that they took in the witness synopsis list.
`If they wanted to call a witness, and your Honor's
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`rules are pretty clear, any witness who's going to testify at
`trial, doesn't say any live witness, needs to be in the
`synopsis list.
`I don't think these witnesses should testify,
`because they are not on the witness synopsis list.
`MS. MANKOFSKY:
`I said, we had some witnesses on
`our witness synopsis list who we're calling by deposition,
`however, it was not our understanding that it was a
`requirement.
`And for these various Everlight witnesses, again,
`we are seeking less than five minutes of testimony for all of
`the Everlight witnesses as cumulation.
`We understood that we had properly fulfilled our
`obligations through the exhibit list and the deposition
`designations that were part of the pretrial order.
`MR. TRAUPMAN:
`I don't think that it's only five
`I agree they are short, but I don't think five
`minutes.
`minutes is -- it's going to take longer than five minutes.
`And the bottom line is, this is sandbagging by
`We could have had these witnesses live had they
`Nichia.
`properly given us notice of their intent to call them in this
`case.
`They shouldn't testify.
`THE COURT:
`And these were your witnesses?
`MR. TRAUPMAN:
`These are Everlight employees.
`They are not our -- they're Everlight employees, so obviously
`we -- you know, we have some control over them, your Honor, but
`we're not planning on calling these witnesses in our case.
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`But had Nichia said, we would like to call them,
`we could have produced them here in Detroit for live testimony;
`that's my point, your Honor.
`I see Mr. Mars Kang was on
`THE COURT:
`Okay.
`your list, your witness synopsis list to potentially --
`MR. TRAUPMAN:
`He is, your Honor.
`Right now we
`have no intent to call him.
`I mean, when we put that list in,
`obviously, it was earlier in trial and as we have refined our
`case down, we are not planning on calling him.
`And
`And again, he's not here in Taiwan [sic].
`again, had we been given notice by Ever -- excuse me -- by
`Nichia that they were going to call him adversely in their
`case, again, we could have made preparations for him to be here
`in Taiwan -- excuse me -- in Detroit or put him on in our
`case-in-chief.
`But again, we were not given any notice of this
`and that's where the prejudice arises, your Honor.
`THE COURT:
`Okay.
`What I'm going to do is I'm
`going to -- you know, since Mr. Kang is on Everlight's witness
`list and potentially somebody that was going to be called and
`may even still be called in rebuttal, I think I'll overrule the
`objection as to Mr. Kang, but I will sustain the objection as
`to Harrison Lin.
`And that's my decision here.
`Okay.
`What else do we need to do?
`MS. MANKOFSKY:
`Your Honor, there's one other
`related issue about deposition designations.
`I think the
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`parties have had some mis -- some disputes or different ideas
`as to how these designations should be done.
`We agree that the designation should be given and
`then the counter-designation should follow in one, one period
`of testimony, but it's our belief --
`THE COURT:
`Let me interrupt you for just -- what
`do you mean when you say designation, a deposition designation?
`MS. MANKOFSKY:
`Well, we intend to read the
`transcript into evidence and have someone play the witness,
`someone play counsel.
`Okay.
`THE COURT:
`MS. MANKOFSKY:
`And our belief is, we ought to be
`able to read our designations for one witness, stop, and then
`allow Everlight to read their counter-designations for that
`witness, and they have a different view of things.
`We think that our proposal makes sense because it
`might make it -- for lots of reasons -- it makes it clear which
`side is asking the questions, and it also makes it clear to
`whose side the time should be allotted.
`You know, the
`designations we make go to our side, counter-designations go to
`their side, and if they have someone asking the questions, it
`will be clear which party is putting in that testimony.
`THE COURT:
`Okay.
`MR. TRAUPMAN:
`So, your Honor, the parties
`discussed this and agreed to a procedure in the joint pretrial
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`order that is exactly 180 degrees opposite from what
`Ms. Mankofsky just said.
`I'm reading to you paragraph 13 of section 13 of
`the pretrial order, page 55.
`THE COURT:
`Okay.
`
`And I don't have that right in
`
`front of me.
`
`Do we have an extra copy?
`MR. TRAUPMAN:
`get you an extra copy, but let me read --
`THE COURT:
`I can actually lay my hands on it in
`about two minutes.
`MR. TRAUPMAN:
`
`I can hand one up to you right now,
`
`We'll
`
`your Honor.
`
`All right.
`THE COURT:
`If you go to page 55, your Honor.
`MR. TRAUPMAN:
`Okay.
`THE COURT:
`MR. TRAUPMAN: Paragraph 13.
`THE COURT:
`Okay.
`MR. TRAUPMAN:
`It says, second paragraph, all
`designations, counter-designations and counter-counter-
`designations for a witness will be played or read to the jury,
`as the case may be, in one consecutive segment in the order the
`testimony appears in the transcript.
`And, you know, and then the rest is irrelevant.
`So we have addressed this exact point that
`Ms. Mankofsky is raising and said it should all be in together
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43680 Filed 05/22/15 Page 16 of 125
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`in one block, and that's important for -- that's important for
`this reason, your Honor, because the counter-designations
`typically --
`
`So we have, obviously,
`
`You say counter-designations, you're
`THE COURT:
`talking about cross examination?
`So, the way the
`MR. TRAUPMAN:
`No, your Honor.
`deposition designations -- if I could show you.
`Can we turn on
`the ELMO, is that possible?
`THE COURT:
`That term is not that familiar to me,
`when you say "designations".
`MR. TRAUPMAN:
`Sure.
`deposition testimony, your Honor.
`THE COURT:
`Okay.
`MR. TRAUPMAN:
`There we go.
`THE COURT:
`That looks right.
`MR. TRAUPMAN:
`Sorry, I had it turned upside down.
`So for instance, your Honor, they would -- they
`have a deposition transcript, they say, we want to designate
`page 57, lines 13 to 23, that's highlighted in blue.
`THE COURT:
`Okay.
`MR. TRAUPMAN:
`And that's the testimony that they
`want to rely on.
`And we say, well, what's important is, it's
`important to get the context of this particular question, so
`when they sent -- this was all indicated as the procedure in
`the pretrial order -- they say, we want these 13 lines -- 13
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43681 Filed 05/22/15 Page 17 of 125
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`to 23.
`
`And we say, well, it's important to get the
`context surrounding that, because obviously it isn't just a
`snippet out of the deposition, so we counter-designate.
`We
`say, to give the jury a fair impression we need to have the
`surrounding -- the surrounding text.
`So we counter -- just
`this example, we counter-designated the other lines highlighted
`here in the transcript that are -- in this case, immediately
`precede the testimony.
`So what Ms. Mankofsky wants to do is have the jury
`hear this little snippet of testimony and then all the other
`little snippets of testimony that Nichia wants, and then have
`our snippets of testimony read afterwards, but they are not
`going to be put in context.
`The jury is going to have no way
`of knowing that this particular -- our snippet of testimony
`immediately precedes their snippet of testimony, putting it in
`the proper context.
`It's going to be completely confusing to the jury,
`and again, completely counter to what the parties agree to in
`the pretrial order.
`The pretrial order says all designations,
`counter-designations, and we actually had an opportunity, then,
`once they saw our counter-designations, that if they wanted to
`designate yet more, they could have, I don't think that's an
`issue here today, are to be read as one continuous script,
`starting from page one of the transcript, that's how you get
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43682 Filed 05/22/15 Page 18 of 125
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`That's what the
`the proper context in front of the jury.
`parties agreed to do in the joint pretrial order.
`And now they
`are -- Nichia is attempting to completely walk back from what
`they agreed to do in the pretrial order, and what, honestly,
`makes common sense, because it's the only way --
`THE COURT:
`Okay.
`Hold on just a second.
`just make sure I understand what you want to do.
`So who has got yellow?
`MR. TRAUPMAN:
`That's Everlight, your Honor.
`THE COURT:
`So Everlight has got yellow.
`So you
`wanted to use all of the yellow in conjunction with that blue
`part that follows the yellow?
`MR. TRAUPMAN:
`That's right.
`THE COURT:
`And how big are those sections?
`how long is this transcript, first of all?
`MR. TRAUPMAN:
`The whole transcript is 280-some
`pages, your Honor.
`So the jury is going to hear a small
`percentage of the whole transcript.
`THE COURT:
`Okay.
`Hold on just a second.
`How much of that 200-some pages is colored either
`yellow or blue?
`MR. TRAUPMAN:
`
`Let me
`
`And
`
`I can't -- I'd guess less than five
`
`percent.
`
`THE COURT:
`MR. TRAUPMAN:
`
`So what are we talking about?
`I mean, I agree with Mr. Mankofsky,
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43683 Filed 05/22/15 Page 19 of 125
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`I don't think it's five minutes short, but ten to
`it's short.
`fifteen minutes short of reading time.
`And, again, but it's
`important, though, that the testimony gets heard in the order
`that-- I don't know if your Honor, you know, has read too many
`deposition transcripts lately, but oftentimes they will refer
`back to something earlier that happened in the day, we were
`talking about this earlier.
`The transcripts need to be read in
`order from basically page one, and if you -- what she -- what
`Ms. Mankofsky is proposing to do is read Nichia's designations
`in order from page one and then go back to Everlight and have
`Everlight reread in order from page one.
`THE COURT:
`Okay.
`Stop.
`Is that what you want to do?
`MS. MANKOFSKY:
`It's hard to answer that question,
`because he has completely put this in a misleading light.
`The pretrial --
`THE COURT:
`Let me just say that it makes sense
`to do it in order and in sequence.
`MS. MANKOFSKY:
`The pretrial order said one
`consecutive segment, and that's exactly what we're proposing.
`If this witness were live, we would ask whatever
`questions we want and they would ask whatever questions they
`want and there would be no requirement that something come
`before the other.
`And, frankly, I don't think it is the case that
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43684 Filed 05/22/15 Page 20 of 125
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`I think that
`something refers back and that it's misleading.
`is a hypothetical situation that isn't the case for this very
`small amount of testimony that both sides have designated.
`THE COURT:
`Do you know how many pages it is?
`MS. MANKOFSKY:
`Sure.
`I can tell you exactly.
`THE COURT:
`Okay.
`Tell me.
`MS. MANKOFSKY:
`So if we take one of the
`witnesses, Mr. Onikiri --
`THE COURT:
`And which witness is this, by the way?
`MS. MANKOFSKY:
`Mr. Onikiri is a third-party
`witness from Citizen Electronics, who you might recall came up
`in some motions.
`And I could tell you page and line numbers,
`but I can also tell you that when we have timed how long this
`lasts with the questions with the answers, it's six minutes of
`testimony.
`They have made very minor counter-designations.
`And that's the case for all these witnesses.
`We
`are talking about the tiniest amount of testimony.
`And if we
`designate a particular question in response, they're trying to
`highlight some other point, they designate a different question
`in response.
`It's not the situation where the question and
`response that we designated needs context, it's really very
`different questions and answers.
`In fact, let's take a look at what he put up here.
`THE COURT:
`Okay.
`We don't have a lot of time
`Is this something we're going to get to today?
`
`here now.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43685 Filed 05/22/15 Page 21 of 125
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`Yes.
`MS. MANKOFSKY:
`Yes, it is, your Honor.
`MR. TRAUPMAN:
`Your Honor, I mean, the joint pretrial order is
`very explicit on this.
`It should be dispositive.
`They have
`agreed to this already and they are trying to go back on it.
`It's very clear, it says all designations, that's
`the stuff in blue, counter-designations, that's the stuff in
`yellow, and it says counter-counter-designations, we don't have
`that here, but all designations and counter-designations for a
`witness will be played or read to the jury, as the case may be,
`in one consecutive segment.
`That's what they agreed.
`That's
`what they're trying to walk away from right now.
`THE COURT:
`What do you say that means?
`MR. TRAUPMAN:
`All designations, that's the stuff
`in blue, your Honor.
`All counter-designations, that's the
`stuff in yellow, will be played or read to the jury, as the
`case may be, in one consecutive segment.
`That's what I'm
`talking about.
`THE COURT:
`in that order, too?
`MR. TRAUPMAN:
`
`And so you're saying that it should be
`
`Yes.
`
`Yes, that's exactly what I'm
`
`saying.
`
`It's our point, consecutive means
`MS. MANKOFSKY:
`we read our designations, they read theirs, and it's clear to
`the jury who is giving what testimony, it's clear to you how it
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43686 Filed 05/22/15 Page 22 of 125
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`gets timed.
`
`Well, your Honor --
`MR. TRAUPMAN:
`Let's look at --
`MS. MANKOFSKY:
`Well, your Honor, that would be two
`MR. TRAUPMAN:
`consecutive -- that would be two consecutive --
`Just a minute.
`THE COURT:
`Okay.
`Just a minute.
`MS. MANKOFSKY:
`He said that you need context.
`Let's look at what we designated.
`This is one instance, and
`frankly, this may not even be representative.
`Due to the LED that emits some kind of white
`light, and he says you need context, well, the context is, what
`does CCT stand for?
`You don't need context.
`We should be able to put in the evidence we want,
`they will put in the evidence they want, and it's clear to the
`jury who is putting in what evidence, and it's clear to you how
`much time should be charged to both parties, and it is
`consecutive.
`
`Is this direct examination,
`THE COURT:
`cross-examination, redirect?
`MR. TRAUPMAN:
`This is all cross examination, your
`This is all questioning by Nichia's attorneys of this
`Honor.
`Everlight's attorneys didn't ask this witness a
`witness.
`single question.
`And to be clear, it is in context, because CCT is
`color temperature, you know, coordinated color temperature.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43687 Filed 05/22/15 Page 23 of 125
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`It's how they measure white, and that's exactly the point.
`They got -- and there's a whole designation up on the next page
`talking about warm white, cool white, neutral white, which you
`heard from Mr. Kammerer, that's how Everlight designates their
`products.
`
`They want to just designate, then, the last
`portion of this colloquy between the witness and the examiner
`when they talk about white, generally, when in context they are
`talking about three different types of white.
`And that's
`exactly why this needs to be read as they agreed to in the
`pretrial order, one consecutive readthrough, not two
`consecutive readthroughs.
`It depends on the witness.
`MS. MANKOFSKY:
`So it depends on the witness.
`Mr. Onikiri is all direct.
`THE COURT:
`Okay.
`Well, you know, I think it
`makes sense to read it in order and let's do that, just to read
`it in order.
`
`Will each side read their own?
`MS. MANKOFSKY:
`MR. NIMROD:
`Your Honor, no, typically what
`happens is the one side that's putting it on reads it, and if
`they want, we can break up the time later, but usually you
`don't have two people go back and forth.
`One person reads the
`questions and answers.
`It doesn't really make sense to have
`another person jump up.
`THE COURT:
`
`If this is all cross-examination, is
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43688 Filed 05/22/15 Page 24 of 125
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`that what it is?
`For example, for Mr. Onikiri, it's
`MS. MANKOFSKY:
`He is just using one example of one Everlight
`
`all direct.
`witness.
`
`The point is, your Honor, it was
`MR. TRAUPMAN:
`every question that is being played today regardless of who
`was designated came from an Ever -- excuse me -- a Nichia
`attorney.
`There is no Everlight questioning at all.
`Whether
`or not you classify it as direct or cross, that's not the --
`that's irrelevant.
`It's all from Nichia's attorneys and we
`just designated the questions that they asked.
`THE COURT:
`Okay.
`All right.
`Then if it's
`all cross by Nichia, then Nichia should read it all and
`include both the designation and the -- what is it, the
`And
`counter-designation and the counter-counter-designation.
`we will do it that way.
`We will do it that way.
`I'll require
`Nichia to do it all, if this is all your cross examination,
`and it will all be charged against you, also.
`All right.
`Are we ready for the jury, then?
`Is this the first witness that's --
`MS. MANKOFSKY:
`Excuse me, your Honor.
`one other issue.
`Okay.
`THE COURT:
`MS. MANKOFSKY:
`We expect that Everlight is going
`to call Mr. Noguchi.
`And we intend to call Dr. Doxsee as our
`
`We do have
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43689 Filed 05/22/15 Page 25 of 125
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`And in the disclosure of witnesses, we
`first witness.
`mentioned these deposition designations and we mentioned a
`third-party witness, Dr. Crawford.
`We would ask for permission to call Dr. Crawford
`after Dr. Doxsee and do the deposition designations last so
`that we make sure we get Dr. Crawford's testimony in to allow
`him to leave as opposed to keeping him here another day.
`He
`lives in San Francisco, California.
`THE COURT:
`Okay.
`Well, if we can get to him,
`we'll get to him.
`It doesn't matter if you take him out of
`order.
`
`We don't care.
`MR. PALIZZI:
`There's one, there's one objection to an exhibit
`that they intend to introduce through Dr. Doxsee.
`I'll do it
`real, real quick.
`THE COURT:
`MR. PALIZZI:
`THE COURT:
`
`Doctor --
`Doxsee, their first witness.
`Are we going to get to him before a
`
`break?
`
`at a break?
`
`MR. PALIZZI:
`
`Probably not.
`
`Do you want to do it
`
`Let's do it at a break.
`THE COURT:
`Let me take just a couple of minutes
`All right.
`and then we'll get started and you can call your first witness.
`Take a quick break.
`Just stay where you are seated.
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`Case 4:12-cv-11758-GAD-MKM ECF No. 530, PageID.43690 Filed 05/22/15 Page 26 of 125
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`(At 8:30 a.m. to 8:33 a.m. court in recess)
`THE CLERK:
`Remain seated and we're back in
`
`session.
`
`in.
`
`THE COURT:
`
`All right.
`
`Let's bring the jurors
`
`You can be seated.
`
`All rise for the jury.
`THE CLERK:
`(At 8:33 a.m. jury present)
`THE COURT:
`All right.
`And good morning to you.
`JURORS:
`Good morning.
`THE COURT:
`I trust all of yo
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