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`1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`EVERLIGHT ELECTRONICS CO.,
`LTD, and EMCORE CORPORATION,
`Plaintiffs,
`
`v
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`Defendants.
`_________________________/
`
`No. 12-cv-11758
`
`JURY TRIAL
`EXCERPTS OF PROCEEDINGS BEFORE THE HONORABLE GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
`Theodore Levin United States Courthouse
`231 West Lafayette Boulevard
`Detroit, Michigan
`Friday, April 17, 2015
`
`APPEARANCES:
`For the Plaintiffs:
`
`MR. A. MICHAEL PALIZZI
`MR. MICHAEL C. SIMONI
`Miller, Canfield, Paddock and Stone
`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
`51 Madison Avenue, 29th Floor
`New York, New York 10010
`(212) 849-7412
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`VIZIO 1020
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`1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`EVERLIGHT ELECTRONICS CO.,
`LTD, and EMCORE CORPORATION,
`Plaintiffs,
`
`v
`
`NICHIA CORPORATION, and
`NICHIA AMERICA CORPORATION,
`Defendants.
`_________________________/
`
`No. 12-cv-11758
`
`JURY TRIAL
`EXCERPTS OF PROCEEDINGS BEFORE THE HONORABLE GERSHWIN A. DRAIN
`UNITED STATES DISTRICT JUDGE
`Theodore Levin United States Courthouse
`231 West Lafayette Boulevard
`Detroit, Michigan
`Friday, April 17, 2015
`
`APPEARANCES:
`For the Plaintiffs:
`
`MR. A. MICHAEL PALIZZI
`MR. MICHAEL C. SIMONI
`Miller, Canfield, Paddock and Stone
`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
`51 Madison Avenue, 29th Floor
`New York, New York 10010
`(212) 849-7412
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`4:12-cv-11758-GAD-MKM Doc # 528 Filed 05/22/15 Pg 2 of 187 Pg ID 43259
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`2
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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 KAMINSKI
`Foley & Lardner, LLP
`3000 K Street N. W,
`Washington, DC
`20007
`(202) 672-5300
`MR. JOHN R. TRENTACOSTA
`Foley & Lardner
`500 Woodward Avenue
`Detroit, Michigan
`(313) 234-2800
`
`48226
`
`Suite 600
`
`Reported by:
`
`Rene L. Twedt, CRR, RMR, RDR
`Official Federal Court Reporter
`rene_twedt@mied.uscourts.gov
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`TABLE OF CONTENTS
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`PLAINTIFF
`WITNESSES:
`E. FRED SCHUBERT
`Cross-Examination (Continued) by Mr. Nimrod
`Redirect Examination by Mr. Rizzi
`JOHN C. JAROSZ
`Direct Examination by Ms. Mankofsky
`
`EXHIBITS RECEIVED:
`Plaintiff's Exhibit Numbers P13, P43
`Defendant's Exhibit Numbers D60, D130, D137, D203,
`D204, D205, D206, D372, D1964, D2028, D2328
`Defendant's Exhibit Numbers D6127 through D6130
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`PAGE
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`4
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`Detroit, Michigan
`Friday, April 10, 2015
`8:15 a.m.
`
`*
`*
`*
`United States District
`All rise.
`THE CLERK:
`Court for the Eastern District of Michigan is now is session,
`Honorable Gershwin A. Drain presiding.
`Calling civil action Everlight Electronics Company
`versus Nichia Corporation, Number 12-cv-11758.
`You may be seated.
`Please place your appearance on the record.
`MR. NIMROD:
`Good morning, your Honor.
`Ray
`
`Nimrod.
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`Good morning.
`THE COURT:
`From Quinn Emanuel for Everlight.
`MR. NIMROD:
`With me is Matt Traupman, Anastasia Fernands from Quinn
`Emanuel; Mike Palizzi and Mike Simoni from Miller Canfield;
`and our corporate representative, Bernd Kammerer.
`MR. RIZZI:
`Good morning, your Honor.
`THE COURT:
`Good morning.
`MR. RIZZI:
`Steven Rizzi, Foley & Lardner, for
`With me is Ramy Hanna, Lisa Mankofksy, John
`Nichia.
`Trentacosta, Mike Kaminski, and our corporate representative,
`Dr. Dan Doxsee.
`THE COURT:
`
`Okay.
`
`All right.
`
`I understand we
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`4:12-cv-11758-GAD-MKM Doc # 528 Filed 05/22/15 Pg 5 of 187 Pg ID 43262
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`have an issue.
`You can be seated.
`I understand we have some issue about
`Dr. Schubert's testimony, is that --
`MR. RIZZI:
`The issue is with the exhibits, your
`Honor, that we had moved in two days ago with regard to
`Dr. Schubert's testimony.
`As you may recall, they made a motion to exclude
`those TAEUS reports which your Honor overruled.
`All of those
`reports are on our exhibit list.
`They were the subject of
`Professor Schubert's testimony.
`He did not -- while he was on the stand he did not
`list out each and every one, and we think it would be a waste
`of time for him to have to read these into the record while he
`is on the stand, but they are apparently objecting to the fact
`that he didn't explicitly reference them during his testimony,
`as well as some other documents that he used to formulate his
`opinions as summarized in the analysis chart, which is now --
`which they don't object to and which is part of the record.
`We submit, your Honor, there should not be any
`basis for them to maintain any objection to any of the
`documents on this list.
`Your Honor, we understand the
`MR. NIMROD:
`demonstrative -- the analysis chart you said could come in as a
`demonstrative and you would consider whether it could come in
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`6
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`So we're not agreeing that it can come in as
`
`as anything else.
`a regular exhibit.
`Okay.
`THE COURT:
`They only referred to one, two,
`MR. NIMROD:
`three, four, five, six, seven, eight documents on direct that
`they are trying to move in and then they have, it looks like,
`100-plus exhibits that they did not use with him.
`So you can't just go and say, we're going to dump
`all these in the record now, you have to use them with a
`witness.
`They have not been used at all by any witness in
`these proceedings so they should not come in as exhibits that
`are admitted before the jury.
`They didn't use them, they were not presented, and
`therefore, they shouldn't come in.
`It would be like if we just
`had 50 prior art references that were referred to in something
`that Dr. Bretschneider used and now we're going to admit them
`all and he didn't talk about any of them.
`They have not been
`used.
`They shouldn't come in.
`MR. RIZZI:
`Your Honor, this an issue we have
`already addressed.
`First of all, as to the analysis chart, they used
`it as part of their cross examination of Professor Schubert, so
`there is no basis for them to maintain any objection for it to
`actually be admitted, not just as a demonstrative.
`And as to all of the other documents, while he
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`didn't explicitly mention the Bates numbers for them, they were
`all part of his analysis that he did.
`He walked through his
`whole chart.
`He explained how he did analysis on all the
`products.
`If they are forcing us to waste time and put him
`back on the stand to basically reference all those Bates
`numbers, we will go through that, but we just think that's not
`a good use of anyone's time.
`MR. NIMROD:
`Well, your Honor, on the analysis
`chart, if it's a demonstrative, I certainly agree to cross on
`it, just like any other demonstrative.
`That doesn't mean I
`agree to admit it, I concede it should come into evidence,
`pretty apparent.
`I can use his expert report and cross him on that,
`it doesn't come in, it's just to cross them.
`That's number
`one.
`
`And they didn't use any of these reports, so they
`shouldn't could in.
`The jury is going to wonder what they are.
`There is going to be a big stack of documents they haven't seen
`before.
`
`Professor Schubert made clear what
`MR. RIZZI:
`those documents are and how they could be referenced.
`THE COURT:
`He did talk about doing an examination
`of all of the products.
`MR. RIZZI:
`THE COURT:
`
`And with respect to the analysis --
`You know, I'm not sure that there is
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`So was
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`about that.
`
`a -- I'm not sure that he has to go through each one and
`identify it.
`I just don't see that as being necessary.
`there anything else you had to say, Mr. Nimrod?
`MR. NIMROD:
`The analysis chart, your Honor, is
`that still coming in as a demonstrative?
`THE COURT:
`You know, I haven't made a decision
`Was that in the report?
`That was in his report?
`MR. RIZZI:
`Yes, your Honor.
`MR. NIMROD:
`The point there is, it's actually
`part of his report.
`His opinions are in it.
`If the expert
`reports don't come in, that shouldn't come in.
`I think you
`Honor said that you conceded the demonstrative, but you were
`going to withhold judgment on whether or not it comes in as an
`exhibit.
`
`THE COURT:
`MR. NIMROD:
`
`That's exactly what I said.
`Yeah.
`I suppose we could take that up
`
`later.
`
`Yes, let's do that.
`THE COURT:
`They
`One last point on that.
`MR. RIZZI:
`questioned him on other parts of the analysis chart that he
`didn't even talk about, so there's no possible basis for them
`to maintain any objection on that.
`MR. NIMROD:
`The whole chart, it was a
`demonstrative.
`I'm free to talk about any of that.
`THE COURT:
`That doesn't necessarily mean that
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`We're
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`it's going to come in as an exhibit, whether we talked about it
`or not.
`We can talk about a lot of things and they don't
`actually necessarily come into evidence.
`MR. RIZZI:
`Okay.
`Well, we have case law.
`prepared to file a motion if we need to.
`THE COURT:
`We can talk about that later.
`MR. RIZZI:
`Thank you, your Honor.
`THE COURT:
`All right.
`MR. RIZZI:
`In terms of getting the TAEUS reports
`into evidence and the other documents that are --
`THE COURT:
`I think he referenced them enough, and
`talked about doing the analysis, to receive them into evidence,
`so.
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`So can we just provide a list to the
`MR. RIZZI:
`court reporter?
`Would that --
`I have got a list
`THE COURT:
`You can do that.
`here and we can talk about that again later.
`MR. RIZZI:
`We just want to make sure they get
`into the record, your Honor.
`THE COURT:
`Okay.
`MR. RIZZI:
`Thank you.
`THE COURT:
`All right.
`to continue, Mr. Nimrod?
`MR. NIMROD:
`THE COURT:
`
`I am, your Honor.
`Okay.
`All right.
`
`Then let's bring
`
`Let's see.
`
`Are you ready
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`the jury in.
`
`Gentlemen, did you -- is there any way that we can
`get to the jury by the end of Tuesday, is that possible?
`MR. RIZZI:
`I believe so, your Honor.
`The way the
`timing seems to work out, I think we only have two more days of
`testimony and then closing arguments on Tuesday.
`MR. NIMROD:
`We would expect so, your Honor.
`THE COURT:
`Okay.
`THE CLERK:
`All rise for the jury.
`(At 8:29 a.m. jury present)
`THE COURT:
`All right.
`You may be seated.
`All right.
`Good morning, ladies and gentlemen.
`JURORS:
`Good morning.
`THE COURT:
`I guess the Tigers really didn't play
`yesterday, so no comment there, but they will play today.
`One of the things, and I'm not sure if I clarified
`this or told you about this when I was selecting the jury, but
`once the case gets to you and you start deliberating, we
`typically go full days.
`For example -- well, I think the case is either
`going to get to you to deliberate on either Tuesday or
`Wednesday.
`And once you start deliberating we go full days
`until about 5:00 or somewhere around there.
`So just so you
`know, scheduling wise, that is what we're going to do, unless
`someone has a problem with that and has some other commitments.
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`And then the majority will rule, depending on how many want to
`stay or how many want to break at our usual time of 1:00.
`So I just wanted to give you a little bit of
`a heads up on that.
`So either Tuesday or Wednesday will be a
`full day, at least in terms of deliberations.
`So keep that in
`mind.
`
`Mr. Nimrod, are you ready to continue
`
`All right.
`with your examination?
`I am, your Honor.
`MR. NIMROD:
`All right.
`You may.
`THE COURT:
`Thank you.
`Good morning.
`MR. NIMROD:
`JURORS:
`Good morning.
`CROSS-EXAMINATION
`
`BY MR. NIMROD:
`Q.
`Good morning, Dr. Schubert.
`A.
`Good morning.
`Q.
`I would like to just pick up where I left off yesterday.
`Can we go back to slide PDX1213?
`We were talking about some -- what I thought were
`discrepancies in
`your analysis chart.
`Do you recall that?
`A.
`Yes.
`Q.
`Now, I showed the jury three examples and I believe you
`showed three in your direct testimony with Nichia's counsel.
`Do you recall that?
`A.
`Yes.
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`Your Honor, sorry, we have to clear
`
`
`
`MR. RIZZI:
`the courtroom.
`Okay.
`THE COURT:
`(At 8:31 a.m. individuals left courtroom)
`THE COURT:
`All right.
`MR. NIMROD:
`Thank you.
`THE COURT:
`Okay.
`MR. NIMROD:
`Thank you.
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`4:12-cv-11758-GAD-MKM Doc # 528 Filed 05/22/15 Pg 18 of 187 Pg ID 43275
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