Case 4:12-cv-11758-GAD-MKM ECF No. 539, PageID.44343 Filed 06/01/15 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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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,
`
`v.
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`EVERLIGHT AMERICAS, INC.,
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`Defendant.
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`
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`Case No. 4:12-CV-11758 GAD-MKM
`Hon. Gershwin A. Drain
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`
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`Jury Trial Demanded
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`EVERLIGHT’S SUBMISSION IN SUPPORT OF ITS NOTICE OF
`LODGING OF TRIAL DEMONSTRATIVES (DKT. # 521)
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`
`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.
`
`
`
`
`
`
`
`Case No. 4:12-CV-11758 GAD-MKM
`Hon. Gershwin A. Drain
`
`
`
`
`
`Jury Trial Demanded
`
`
`
`
`
`
`EVERLIGHT’S SUBMISSION IN SUPPORT OF ITS NOTICE OF
`LODGING OF TRIAL DEMONSTRATIVES (DKT. # 521)
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`Case 4:12-cv-11758-GAD-MKM ECF No. 539, PageID.44344 Filed 06/01/15 Page 2 of 7
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`On May 14, 2015, Everlight submitted its Notice of Lodging of Trial
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`Demonstratives (Dkt. 521) (“Notice”). At the May 18, 2015 Status Conference,
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`the Court asked Everlight to file a memorandum in support of its Notice. For the
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`reasons set forth below, Everlight should be allowed to lodge trial demonstratives
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`so that any reviewing court has access to the demonstratives to provide context for
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`testimony and argument discussing them.
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`To be clear, Everlight is not seeking to admit into evidence the
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`demonstratives identified in the Notice; Everlight merely wishes to ensure the
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`record is complete so that any court reviewing the jury’s verdict – this Court in
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`connection with the parties’ post-trial motions and, later, the Federal Circuit – has
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`the benefit of seeing exactly what was presented to jury. Everlight also would not
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`object to Nichia similarly lodging, but not admitting into evidence, its trial
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`demonstratives. Indeed, Everlight believes that the best course is for both parties
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`to lodge their demonstratives with the Court so that this Court and eventually the
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`Federal Circuit have access to the images that are discussed in the trial transcript.
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`I.
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`LODGING DEMONSTRATIVES IS APPROPRIATE
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`It has become common practice for parties to use demonstratives to facilitate
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`presentation of difficult concepts at trial. Recognizing this, courts have allowed,
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`and even required, that demonstratives be lodged as part of the docket, so that they
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`are available to the court during any review of the record. For example, in
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`1
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`Case 4:12-cv-11758-GAD-MKM ECF No. 539, PageID.44345 Filed 06/01/15 Page 3 of 7
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`Astrazeneca AB v. Mylan Labs., Inc. (In re Omeprazole Patent Litigation), 490 F.
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`Supp. 2d 381, 487 (S.D.N.Y. 2007), the court overruled objections to plaintiffs’
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`submission of demonstratives with its proposed findings of fact, stating that “[t]he
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`demonstratives are included in Plaintiffs’ submission for the convenience of the
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`Court, and Plaintiffs properly rely on the expert testimony concerning each
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`demonstrative that was discussed at trial and exhibits that were listed on the
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`demonstrative and properly admitted at trial.” In another discussion of filing
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`demonstratives, the court in Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd.,
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`986 F. Supp. 2d 574, 595 (W.D. Pa. 2013), noted that one particular expert had
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`testified over two days using over 130 slides. When discussing that testimony, the
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`court acknowledged that “the transcript may not always be clear on what parts of a
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`diagram are being described by witnesses.” Id. at 595, fn. 31. To aid in its
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`understanding of the transcript, the Carnegie Melon court required the parties to
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`file all demonstratives used during the trial. Id.
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`The Federal Circuit has also at least tacitly approved the practice of lodging
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`demonstrative exhibits with the trial court when, on appeal, the Federal Circuit
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`considered properly filed demonstratives but refused to consider demonstratives
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`that were not filed and made part of the record below. See Finisar Corp. v.
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`DirecTV Grp., Inc., 2007 U.S. App. LEXIS 4092 (Fed. Cir. Feb. 16, 2007) (Ex. 1).
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`In Finisar, the Federal Circuit stated that “[b]ecause the demonstrative exhibits
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`2
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`Case 4:12-cv-11758-GAD-MKM ECF No. 539, PageID.44346 Filed 06/01/15 Page 4 of 7
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`were not filed with the district court, they are not part of the record on appeal and
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`thus should not be included in the joint appendix. Finisar has not shown that the
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`record should be corrected to include demonstrative exhibits that were not filed
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`with the district court, especially when other demonstrative exhibits were filed
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`with the district court.” Id. (emphasis added).
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`II. THE PARTIES HERE SHOULD BE PERMITTED TO LODGE
`DEMONSTRATIVES FOR CONVENIENCE AND CLARITY
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`Everlight seeks to file its demonstratives with this Court for the same
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`reasons that other courts have allowed submission of demonstratives – for the
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`convenience of the Court and to aid in the Court’s understanding of the trial
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`transcript. Everlight is not seeking to use the demonstratives as substantive
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`evidence. It seeks to make them a part of the record solely to provide context and
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`clarity for testimony that refers to the demonstratives.
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`For example, during his direct examination, Everlight’s expert Dr. Eric
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`Bretschneider referred to more than 140 slides. One of those slides, slide 35,
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`illustrates the basic structure of an LED Package. See Slide 35 (Dkt. 521-4, Ex. 4
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`at 3). Dr. Bretschneider used this slide in connection with his testimony to
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`describe how someone would add a phosphor to an LED package:
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`Q. Okay. If we go on to slide 35, if someone wanted to add a
`phosphor into the LED package, how would they go about doing
`that?
`A. The resin here, this is typically an epoxy or silicon
`material that hardens when you heat it up and the easiest way
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`3
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`Case 4:12-cv-11758-GAD-MKM ECF No. 539, PageID.44347 Filed 06/01/15 Page 5 of 7
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`is to put the phosphor in the resin here and then put the lens
`on top later.
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`Apr. 9, 215 Tr. at 16:2-8.
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`Everlight also used a number of slides during its cross-examination of
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`Nichia’s expert, Dr. E. Fred Schubert, including demonstratives displaying the CIE
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`chromaticity diagram and plotting the coordinates of certain phosphor samples on
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`that diagram. See, e.g., PDX-1412, PDX-1413, PDX-1414 (Dkt. 521-8, Ex. 9 at 8-
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`10). The CIE chromaticity diagram illustrates points of color and wavelength on a
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`grid, and the ability to refer to specific slides provides context for questions and
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`answers, such as:
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`Q. Then add the coordinates, please, for [PDX] 1414. Do
`you see we have produced the coordinates [for Sample
`17], and if we plot that, it ends up in the yellow/green
`zone, right?
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`A. Yes.
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`Apr. 17, 2015 Tr. at 85:5-11. As in Carnegie Mellon, having the demonstratives
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`available for review will assist the Court’s understanding of the transcript.
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`As noted above, Everlight is not seeking to admit into evidence any of the
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`demonstratives that it submitted with its Notice. Rather, Everlight simply seeks to
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`make the demonstratives part of the Court’s record so that any reviewing court has
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`the opportunity to review the demonstratives to provide context to testimony. This
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`is especially important for appeal purposes in light of the Federal Circuit’s refusal
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`4
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`Case 4:12-cv-11758-GAD-MKM ECF No. 539, PageID.44348 Filed 06/01/15 Page 6 of 7
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`to expand the appellate record in Finisar. Everlight believes that the Court and the
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`parties are all best served by ensuring that all the slides about which witnesses
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`testified are available for any review in connection with post trial motions or any
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`appeal. To this end, Everlight has no objection and in fact encourages Nichia to
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`also lodge the demonstratives that it used at trial for the same purpose.
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`III. CONCLUSION
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`For the reasons stated herein, Everlight respectfully requests that the Court
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`allow Everlight to lodge the trial demonstratives that Everlight submitted with
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`Docket 521.
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`DATED: June 1, 2015
`
`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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`5
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`Case 4:12-cv-11758-GAD-MKM ECF No. 539, PageID.44349 Filed 06/01/15 Page 7 of 7
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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 June 1, 2015.
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`/s/ Matthew A. Traupman
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`6
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