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`·1· · · · · · · · ·IN THE UNITED STATES DISTRICT COURT
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`·2· · · · · · · · · FOR THE EASTERN DISTRICT OF TEXAS
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`·3· · · · · · · · · · · · · MARSHALL DIVISION
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`·4· ·BLITZSAFE TEXAS, LLC· · · · )(
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`·5· · · · · · · · · · · · · · · ·)(· CIVIL DOCKET NO.
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`·6· · · · · · · · · · · · · · · ·)(· 2:15-CV-1274-JRG-RSP
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`·7· ·vs.· · · · · · · · · · · · ·)(· MARSHALL, TEXAS
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`·8· · · · · · · · · · · · · · · ·)(
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`·9· ·HONDA MOTOR COMPANY, LTD,· ·)(
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`10· ·ET AL· · · · · · · · · · · ·)(· JANUARY 30, 2017
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`13· · · · · · · · · · · · PRE-TRIAL CONFERENCE
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`14· · · · · · · ·BEFORE THE HONORABLE JUDGE ROY S. PAYNE
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`15· · · · · · · · · ·UNITED STATES MAGISTRATE JUDGE
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`16
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`17· ·APPEARANCES:
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`18· ·FOR THE PLAINTIFF:· (See sign-in sheets docketed in
`· · · · · · · · · · · · · minutes of this hearing.)
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`20· ·FOR THE DEFENDANT:· (See sign-in sheets docketed in
`· · · · · · · · · · · · · minutes of this hearing.)
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`22
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`23· ·COURT REPORTER:· Ms. Tammy L. Goolsby, CSR
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`24· ·Proceedings taken by Machine Stenotype; transcript was produced
`· · ·by a Computer
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`29961
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`·1· · · · · · · · ·IN THE UNITED STATES DISTRICT COURT
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`·2· · · · · · · · · FOR THE EASTERN DISTRICT OF TEXAS
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`·3· · · · · · · · · · · · · MARSHALL DIVISION
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`·4· ·BLITZSAFE TEXAS, LLC· · · · )(
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`·5· · · · · · · · · · · · · · · ·)(· CIVIL DOCKET NO.
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`·6· · · · · · · · · · · · · · · ·)(· 2:15-CV-1274-JRG-RSP
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`·7· ·vs.· · · · · · · · · · · · ·)(· MARSHALL, TEXAS
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`·8· · · · · · · · · · · · · · · ·)(
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`·9· ·HONDA MOTOR COMPANY, LTD,· ·)(
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`10· ·ET AL· · · · · · · · · · · ·)(· JANUARY 30, 2017
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`11
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`12
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`13· · · · · · · · · · · · PRE-TRIAL CONFERENCE
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`14· · · · · · · ·BEFORE THE HONORABLE JUDGE ROY S. PAYNE
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`15· · · · · · · · · ·UNITED STATES MAGISTRATE JUDGE
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`16
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`17· ·APPEARANCES:
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`18· ·FOR THE PLAINTIFF:· (See sign-in sheets docketed in
`· · · · · · · · · · · · · minutes of this hearing.)
`19
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`20· ·FOR THE DEFENDANT:· (See sign-in sheets docketed in
`· · · · · · · · · · · · · minutes of this hearing.)
`21
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`22
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`23· ·COURT REPORTER:· Ms. Tammy L. Goolsby, CSR
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`24· ·Proceedings taken by Machine Stenotype; transcript was produced
`· · ·by a Computer
`25
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`·1· · · · · · · · · · · · · · · I N D E X
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`·3· ·JANUARY 30, 2017:
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`·1· · · · · · · · · · · · P R O C E E D I N G S
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`·2· · · · · · ·COURT SECURITY OFFICER:· All rise.
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`·3· · · · · · ·THE COURT:· Good afternoon.· Please be seated.· For
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`·4· ·the record, we're here for the resumption of the pre-trial
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`·5· ·conference in Blitzsafe Texas versus Honda Motor Company, Case
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`·6· ·No. 2:15-1274 on our docket.
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`·7· · · · · · ·Would counsel state their appearances for the record?
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`·8· · · · · · ·MR. FINK:· Hello, Your Honor.· Rudy Fink for
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`·9· ·Plaintiff Blitzsafe.· I'm joined here today with Albert
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`10· ·Fabricant, Mr. Shahar Harel, Mr. Peter Lamibrianakos, this is
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`11· ·Mr. Vincent Rubino, and Ms. Jennifer Truelove.
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`12· · · · · · ·THE COURT:· All right.· Thank you, Mr. Fink.
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`13· · · · · · ·MR. AKIN:· Good afternoon, Your Honor.· Randy Akin
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`14· ·for Honda.· Mr. Albert Liou, lead counsel, Robert Kantner,
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`15· ·David Harris, and Jeffrey White.
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`16· · · · · · ·THE COURT:· All right.· Thank you, Mr. Akin.
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`17· · · · · · ·All right.· I know that the principal items on the
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`18· ·agenda for today are the exhibit objections and deposition
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`19· ·designations, but I wanted to check with counsel for both sides
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`20· ·before we start and see if there are other items that they want
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`21· ·placed on the agenda as well.· Anything for the Plaintiff?
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`22· · · · · · ·MR. LAMBRIANAKOS:· Yes, Your Honor.· The Plaintiff
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`23· ·has moved for reconsideration of Your Honor's grant of the
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`24· ·motion in limine number one that was made by Toyota, and
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`25· ·they've also -- Toyota had also issued a notice seeking summary
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`·1· ·judgment based on the result of the motion in limine, and so if
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`·2· ·the Court would like to hear today, we can discuss our
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`·3· ·reasoning for the motion for reconsideration.
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`·4· · · · · · ·THE COURT:· Now, you say that Toyota has filed a
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`·5· ·notice?
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`·6· · · · · · ·MR. LAMBRIANAKOS:· That's correct, but there was a
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`·7· ·notice of joiner filed by Honda on the 27th joining Toyota's
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`·8· ·notice with respect to the effect of the MIL ruling on its
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`·9· ·motion for summary judgment, and so we understand that Honda
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`10· ·intends to attempt to gain the benefit of the Court's ruling on
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`11· ·Toyota's motion in limine.
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`12· · · · · · ·THE COURT:· All right.· I'll add that to the agenda.
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`13· ·Thank you, Mr. Lambrianakos.· Anything for the Defendants?
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`14· · · · · · ·MR. AKIN:· Your Honor, Randy Akin for Honda.· We
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`15· ·received the order of trials, and in it it said that if either
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`16· ·Nissan -- the Nissan case or the Google case settles, then the
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`17· ·Honda case will move up to number two.· If they both settle,
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`18· ·then we pick the jury on February 6th and go to trial on
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`19· ·February 6th.
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`20· · · · · · ·And I wanted to remind the Court that we did put the
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`21· ·Court on notice and we did file a motion for continuance for
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`22· ·one week because of an expert witness problem we had just
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`23· ·during the week of the sixth, and I just want to -- when I saw
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`24· ·the order, it alarmed me a little bit, and I just wanted to
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`25· ·bring that back to the Court's attention.
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`·1· · · · · · ·THE COURT:· I am fairly certain that Judge Gilstrap
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`·2· ·is aware of that conflict, but I'll make sure that he is aware
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`·3· ·of it.
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`·4· · · · · · ·MR. AKIN:· Okay.· Thank you, Judge.
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`·5· · · · · · ·THE COURT:· Thank you.
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`·6· · · · · · ·MR. FABRICANT:· Your Honor, one other matter.
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`·7· · · · · · ·THE COURT:· Yes, sir, Mr. Fabricant.
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`·8· · · · · · ·MR. FABRICANT:· Yes, thank you, Your Honor.· When we
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`·9· ·got Judge Gilstrap's order with respect to the sequence of the
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`10· ·trials, we wanted to bring to Your Honor's attention that our
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`11· ·damages expert Dr. Steven Becker immediately advised us when we
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`12· ·sent that order that depending on the circumstance, should
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`13· ·Blitzsafe be required to go to trial during the week of
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`14· ·February 13th, he is on trial during that week in another
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`15· ·proceeding.
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`16· · · · · · ·So we don't know if that series of events will occur.
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`17· ·If not, it will put us in that slot.· Presently we would not be
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`18· ·in that slot if the Nissan case goes forward and if the Google
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`19· ·case doesn't settle, but certainly it's possible that we would
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`20· ·be in that slot, so we wanted to bring that to the Court's
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`21· ·attention as well.
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`22· · · · · · ·THE COURT:· All right.· And which expert is that
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`23· ·Mr. Fabricant?
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`24· · · · · · ·MR. FABRICANT:· That is Dr. Steven Becker, who is the
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`25· ·damages expert for Blitzsafe in the matter for both Nissan and
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`·1· ·Honda.
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`·2· · · · · · ·THE COURT:· All right.· Thank you.· I'll make sure
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`·3· ·that Judge Gilstrap is aware of that as well.
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`·4· · · · · · ·All right.· Let's take up first the matter of the
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`·5· ·exhibits starting with the Plaintiff's exhibits and the
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`·6· ·Defendant's objections thereto.
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`·7· · · · · · ·MR. WHITE:· Your Honor, Jeff White for Honda.· I have
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`·8· ·a group of exhibits here that has the same general objections,
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`·9· ·so hopefully this will be a little more efficient by grouping
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`10· ·them together.· I'll read the numbers just so everybody's on
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`11· ·the same page.· These are Plaintiff's Exhibits 359, 369, 376,
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`12· ·394 --
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`13· · · · · · ·THE COURT:· What -- what group are you introducing
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`14· ·here?
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`15· · · · · · ·MR. WHITE:· So these exhibits are all documents that
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`16· ·were relied on by their expert Becker in his expert report, but
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`17· ·these documents all include unauthenticated documents, there's
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`18· ·hearsay, and there's prejudicial and confusing information
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`19· ·within these.
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`20· · · · · · ·We haven't objected to Becker relying on these to
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`21· ·form his opinions, but we don't believe that this -- these
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`22· ·documents that are inadmissible evidence should come in as
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`23· ·exhibits on their own.
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`24· · · · · · ·THE COURT:· All right.· I guess we'll have to take
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`25· ·them up individually unless the Plaintiff has some response
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`·1· ·that applies to all of them across the board because your
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`·2· ·objections clearly vary from exhibit to exhibit.
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`·3· · · · · · ·Does the Plaintiff intend to seek the admission of
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`·4· ·those documents or is it just a matter of wanting the expert to
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`·5· ·be able to rely upon them?
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`·6· · · · · · ·MR. RUBINO:· Your Honor, at this point -- at this
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`·7· ·point we can't say across the board for all the exhibits. I
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`·8· ·believe we just heard a partial list.
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`·9· · · · · · ·At least for the first two that were referenced,
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`10· ·one -- one is a Blitzsafe document and we believe that we do
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`11· ·intend to rely on that.· The other --
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`12· · · · · · ·THE COURT:· Well, let's just take them up with one by
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`13· ·one then so we can get a definitive ruling on them.· What's the
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`14· ·first one you want to address, Mr. White.
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`15· · · · · · ·MR. WHITE:· The first one on the list is Plaintiff's
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`16· ·Exhibit 359.· Can we pull that up, please?· So this is -- looks
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`17· ·to be a printout of a web page.· You can see where the pages
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`18· ·are missing.· It's unclear where it came from.· It looks to be
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`19· ·Blitzsafe's own press release, which would be an out-of-court
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`20· ·statement on their own.· It appears that they would intend to
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`21· ·use it for the truth of the matter asserted about products
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`22· ·listed in this article.
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`23· · · · · · ·THE COURT:· So it's a hearsay objection.
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`24· · · · · · ·MR. WHITE:· Yeah, primarily hearsay.
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`25· · · · · · ·THE COURT:· All right.· What's the response, Mr.
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`·1· ·Harel?
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`·2· · · · · · ·MR. RUBINO:· It's Mr. Rubino, Your Honor.
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`·3· · · · · · ·THE COURT:· Oh, Mr. Rubino.· I'm sorry.
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`·4· · · · · · ·MR. RUBINO:· Our response is that --
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`·5· · · · · · ·THE COURT:· Y'all switched chairs on me.
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`·6· · · · · · ·MR. RUBINO:· Our response is that Blitzsafe doesn't
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`·7· ·intend to proffer this exhibit for the truth of the underlying
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`·8· ·facts.· It is an exhibit for the purpose of the mere existence
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`·9· ·of such a -- such a press release for our damages expert to
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`10· ·rely on.
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`11· · · · · · ·THE COURT:· Why does the existence of the press
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`12· ·release matter to your damages expert?
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`13· · · · · · ·MR. RUBINO:· So our damages expert has spoken about
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`14· ·things like commercial success and industry praise, and we
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`15· ·believe this document goes into that category that we can show
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`16· ·that there were examples of such praise.
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`17· · · · · · ·THE COURT:· This is -- okay.· That sounds like a
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`18· ·hearsay use.· You're saying that the statements in the document
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`19· ·about industry praise are true?
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`20· · · · · · ·MR. RUBINO:· So we are really putting it forth to
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`21· ·show there was some industry praise, but not necessarily for
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`22· ·the truth of the statements made in the document.
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`23· · · · · · ·Also, to the extent it was authored in part by one of
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`24· ·our witnesses, we could put forward that witness who could
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`25· ·testify to the document or --
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`·1· · · · · · ·THE COURT:· All right.· It is a hearsay document, and
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`·2· ·that's a hearsay use.· You can certainly have your witness
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`·3· ·testify about industry praise if the witness has knowledge of
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`·4· ·that, but I'll sustain the objection to 359.
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`·5· · · · · · ·MR. RUBINO:· Thank you, Your Honor.
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`·6· · · · · · ·THE COURT:· Thank you.· What's the next one?
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`·7· · · · · · ·MR. WHITE:· The next one is Plaintiff's Exhibit 369.
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`·8· · · · · · ·THE COURT:· All right.
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`·9· · · · · · ·MR. WHITE:· So this is a -- what looks to be an
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`10· ·invoice by Mitsubishi Electric Corporation.· There's no witness
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`11· ·that's ever discussed this.· It's not clear where it came from,
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`12· ·and so that would be an authentication objection.
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`13· · · · · · ·And from a hearsay perspective, it's unclear what
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`14· ·they're going to be using this for, but if it's not for the
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`15· ·truth of some statement within this document, I'm not sure what
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`16· ·the use will be.
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`17· · · · · · ·THE COURT:· All right.· What's the response, Mr.
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`18· ·Rubino?
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`19· · · · · · ·MR. RUBINO:· Yes, Your Honor.· Our response is that
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`20· ·at least for this document, certain documents were produced to
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`21· ·us by Mitsubishi in this case as a third party subject to
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`22· ·subpoena, and we had received the documents, and we don't
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`23· ·believe that there's any question as to the authenticity of
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`24· ·this document based on their production to us of their own
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`25· ·records.
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`·1· · · · · · ·Additionally as hearsay, we believe it qualifies as a
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`·2· ·business record based on the production of Mitsubishi and --
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`·3· ·and the testimony of their witness.
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`·4· · · · · · ·THE COURT:· What witness?
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`·5· · · · · · ·MR. RUBINO:· I believe the witness' name was Mr.
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`·6· ·Sackett.
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`·7· · · · · · ·THE COURT:· All right.· Can you show me the testimony
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`·8· ·that you're relying upon?
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`·9· · · · · · ·MR. RUBINO:· I believe so, Your Honor.· It will just
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`10· ·take me one minute.
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`11· · · · · · ·THE COURT:· All right.
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`12· · · · · · ·MR. RUBINO:· Your Honor, I believe we have this
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`13· ·portion of the deposition transcript where the witness was
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`14· ·generally talking about Mitsubishi's documents were produced
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`15· ·subject to the subpoena, and in general testimony like this
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`16· ·about the documents that were produced as business records with
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`17· ·internal part numbers on them we believe satisfies that
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`18· ·exception.
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`19· · · · · · ·THE COURT:· Is there something in the testimony that
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`20· ·refers to this document or a range of documents that includes
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`21· ·this document?
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`22· · · · · · ·MR. RUBINO:· There was not a specific range that
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`23· ·includes this document, Your Honor, but we have statements
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`24· ·about generally the types of documents that were produced from
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`25· ·their records or documents that were kept in their records as
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`·1· ·business records.
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`·2· · · · · · ·THE COURT:· How can we know that the witness was
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`·3· ·including this document in that description?
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`·4· · · · · · ·MR. RUBINO:· Your Honor, these documents were
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`·5· ·produced subject to a subpoena, and the witness testified
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`·6· ·generally about the documents that were produced.· There were
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`·7· ·only 31 documents produced subject to that subpoena.
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`·8· · · · · · ·THE COURT:· I know, but other than you're telling me
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`·9· ·that now, is there anything in this deposition that you can
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`10· ·point to that shows that?
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`11· · · · · · ·MR. RUBINO:· Other than this statement here, no.
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`12· · · · · · ·THE COURT:· Okay.· And what statement are you
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`13· ·referring to?
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`14· · · · · · ·MR. RUBINO:· So the witness was given Mitsubishi
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`15· ·documents one of 31 exhibits and was asked about the documents
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`16· ·produced subject to the subpoena, and the witness testified
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`17· ·that any document -- generally any document of this type that
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`18· ·was created would be kept in Mitsubishi's records.
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`19· · · · · · ·THE COURT:· I mean, is there something that shows
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`20· ·that this document was one of the documents that the witness
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`21· ·was referring to?
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`22· · · · · · ·I'm not trying to be difficult here.· Just how do I
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`23· ·know that?
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`24· · · · · · ·MR. RUBINO:· Your Honor, one second.· There was, I
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`25· ·think, a document referenced right above this, if we can pull
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`·1· ·that one off.· Your Honor, they're all Bates stamped --
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`·2· · · · · · ·THE COURT:· All right.
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`·3· · · · · · ·MR. RUBINO:· -- with Mitsubishi's production numbers.
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`·4· ·They were all produced to us.
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`·5· · · · · · ·THE COURT:· And is the witness asked about a Bates
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`·6· ·range that includes this or in any other way refers to this
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`·7· ·document?
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`·8· · · · · · ·MR. RUBINO:· The witness was given Bates-labeled,
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`·9· ·Bates range document one and testified after that as we just
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`10· ·saw that documents like that generally were kept in
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`11· ·Mitsubishi's production.
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`12· · · · · · ·THE COURT:· Okay.· But there's -- there's nothing
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`13· ·showing that this document was one of the documents that he
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`14· ·looked at?
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`15· · · · · · ·MR. RUBINO:· Nothing specific in the record, Your
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`16· ·Honor?
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`17· · · · · · ·THE COURT:· All right.· I'll sustain the objection to
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`18· ·369.
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`19· · · · · · ·MR. RUBINO:· Thank you.
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`20· · · · · · ·MR. LIOU:· Your Honor, this is Albert Liou on behalf
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`21· ·of Honda.· While we're on that topic, there's a group of
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`22· ·documents I believe are in that same category that I'd like to
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`23· ·take up at this time with the Court.
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`24· · · · · · ·THE COURT:· All right.
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`25· · · · · · ·MR. LIOU:· Let me grab one binder.· Your Honor, on
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`·1· ·the subject of third-party produced documents, there's a number
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`·2· ·of supplier proprietary technical documents that were produced
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`·3· ·by third parties, including Mitsubishi, which we were just
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`·4· ·talking about, and the Mitsubishi ones in particular are
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`·5· ·Plaintiff's Exhibits 174 through 191.
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`·6· · · · · · ·And these are internal service manuals of Mitsubishi
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`·7· ·that are hearsay documents, and the supplier -- these documents
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`·8· ·were not used at the supplier's deposition, and, in fact, there
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`·9· ·were some service manuals that were used in which at the
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`10· ·deposition counsel for Honda asked the Mitsubishi deponent if
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`11· ·he could authenticate them as business records, and he, in
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`12· ·fact, could not.· He could not ascertain if they were recorded
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`13· ·by someone with knowledge of the activity, and I will refer the
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`14· ·Court to --
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`15· · · · · · ·THE COURT:· Now, on the exhibit list I'm looking at,
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`16· ·it refers to 174 and following as Honda documents.
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`17· · · · · · ·MR. LIOU:· Yes, Your Honor.· These -- Mitsubishi is a
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`18· ·supplier, and they sell products for Honda vehicles, and there
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`19· ·are some documents that are shared with Honda, but these
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`20· ·service manuals are internal Mitsubishi trade secret documents
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`21· ·that are not shared with Honda.
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`22· · · · · · ·And so while they do have the name Honda in them,
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`23· ·they're -- nobody -- no witness of ours has seen them and
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`24· ·they're treated as -- they were produced as restricted attorney
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`25· ·eyes only information.
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`
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`·1· · · · · · ·And so to the extent that Blitzsafe's technical
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`·2· ·expert relied on them, you know, our understanding is that the
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`·3· ·expert is allowed to rely on documents that are inadmissible,
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`·4· ·but the documents themselves are still hearsay documents that
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`·5· ·are not business records.
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`·6· · · · · · ·THE COURT:· So you're saying that these are documents
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`·7· ·that are entitled Honda Service Manual and they are considered
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`·8· ·trade secrets by Mitsubishi and not provided to Honda?
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`·9· · · · · · ·MR. LIOU:· That's our understanding, Your Honor.
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`10· ·There may be other documents that are delivered with the
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`11· ·product, but these are ones that Honda do not have possession
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`12· ·of and they're never given.
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`13· · · · · · ·And it could be a situation where if a -- if a
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`14· ·product is sent back to Mitsubishi and they need to service it
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`15· ·or determine what the problem was, they may refer to these
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`16· ·internal documents, but these are not documents that were in
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`17· ·Honda's possession.
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`18· · · · · · ·THE COURT:· And is there something in the Mitsubishi
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`19· ·witness' testimony that confirms that?
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`20· · · · · · ·MR. LIOU:· Not that particular point, but there is
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`21· ·a -- there is a line of questioning where the Mitsubishi
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`22· ·witness was unable to ascertain it as a business record.
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`23· · · · · · ·THE COURT:· I'm just asking how do I know what you
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`24· ·just told me?· Is that somewhere in any of this evidence?
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`25· · · · · · ·MR. LIOU:· I can't think of anything from the
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`
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`·1· ·deposition off of the top of my head at the moment, Your Honor.
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`·2· · · · · · ·THE COURT:· This is the first time I have had
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`·3· ·documents that are identified as pertaining to a manufacturer
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`·4· ·and had the manufacturer say they are documents that they know
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`·5· ·nothing about, and I'm just wondering if that's something you
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`·6· ·can support in any evidentiary way.
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`·7· · · · · · ·MR. LIOU:· All I can say, Your Honor, is that we --
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`·8· ·we asked our client if they -- described the type of documents
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`·9· ·to them and asked if they had these, and they did not, and so
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`10· ·we were not able to show them to our client because of the way
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`11· ·they were produced.
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`12· · · · · · ·THE COURT:· Can you show me one?
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`13· · · · · · ·MR. LIOU:· Sure.· It may be -- it may be useful for
`
`14· ·me to show a couple of examples, and there are some Mitsubishi
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`15· ·produced documents which Honda had in its possession, and we
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`16· ·did agree with Plaintiff to allow those in, but this is a
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`17· ·document that is one of the ones I'm talking about which were
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`18· ·not in Honda's possession.
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`19· · · · · · ·THE COURT:· And this looks like the kind of document
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`20· ·that is presented to consumers.
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`21· · · · · · ·MR. LIOU:· It's -- there's some technical details in
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`22· ·there and it's -- there's been testimony in this case where
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`23· ·Plaintiff has asked Honda's witnesses why they chose to put
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`24· ·certain chips in their head units, and the testimony has been
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`25· ·that Honda only supplies the requirements to their suppliers
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`
`
`Case 2:15-cv-01274-JRG-RSP Document 441 Filed 02/03/17 Page 16 of 152 PageID #:
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`·1· ·and the suppliers are the ones who choose what chips to do,
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`·2· ·what -- how to program the units, and all that is proprietary
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`·3· ·information to the suppliers, and Honda does not have access to
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`·4· ·that information.
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`·5· · · · · · ·And so this document includes quite a bit of
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`·6· ·technical information such as circuit board layouts and
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`·7· ·schematics which, you know, again we're not -- we're not --
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`·8· ·we're not contesting Blitzsafe's technical expert's ability to
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`·9· ·write on those documents, but in terms of them getting into
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`10· ·evidence, we would object to that.
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`11· · · · · · ·THE COURT:· Let me see in one of the -- the next page
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`12· ·on this.
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`13· · · · · · ·MR. LIOU:· Would you like to just scroll through the
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`14· ·document, Your Honor?
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`15· · · · · · ·THE COURT:· That might be helpful.· I'm just trying
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`16· ·to figure out if this is something that's designed for
`
`17· ·engineers only or if this is something that would be designed
`
`18· ·for --
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`19· · · · · · ·MR. LIOU:· There's quite a bit more technical
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`20· ·documents if you -- technical information if you scroll down
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`21· ·the list.
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`22· · · · · · ·So there are some -- Honda did produce documents that
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`23· ·have some high level designs like this, which is more in terms
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`24· ·of requirement documents, and we've agreed those can come to
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`25· ·the case, and those have been freely cited to by both experts.
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`
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`Case 2:15-cv-01274-JRG-RSP Document 441 Filed 02/03/17 Page 17 of 152 PageID #:
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`·1· · · · · · ·This is -- we believe that this is something that our
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`·2· ·witnesses cannot prepare with because they're not allowed to
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`·3· ·see these documents, and so for them to come into the case --
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`·4· ·as documents as exhibits, we feel would be unfair.
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`·5· · · · · · ·THE COURT:· But you don't dispute that these are the
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`·6· ·documents that reflect the working of the device that's in your
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`·7· ·client's vehicle.
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`·8· · · · · · ·MR. LIOU:· No, we don't -- we don't dispute that.
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`·9· · · · · · ·THE COURT:· And your -- so what is your objection
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`10· ·then?
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`11· · · · · · ·MR. LIOU:· Primarily hearsay.
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`12· · · · · · ·THE COURT:· All right.· Let me hear the response to
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`13· ·the hearsay objection.
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`14· · · · · · ·MR. FABRICANT:· Good afternoon, Your Honor.· This is
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`15· ·an example, Your Honor, of the situation where we tried to get
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`16· ·all of these documents and records from Honda.· They claim they
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`17· ·didn't have them.· We had to subpoena their supplier.
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`18· · · · · · ·On this very document, Your Honor would note in the
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`19· ·bottom right-hand corner of the prior page, not this particular
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`20· ·page, if we could scroll back a few page, every page virtually
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`21· ·says your company internal use only.· They're not speaking to
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`22· ·themselves.· They're speaking to Honda, Your Honor, and,
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`23· ·therefore, it's very hard to believe that documents at this
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`24· ·level concerning only the Honda product, made specifically
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`25· ·custom for Honda that accompanied these documents and with the
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`
`
`Case 2:15-cv-01274-JRG-RSP Document 441 Filed 02/03/17 Page 18 of 152 PageID #:
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`·1· ·designation that they're for their use -- internal use only,
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`·2· ·are not documents which were in the possession of Honda, should
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`·3· ·have been produced.
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`·4· · · · · · ·We were forced to subpoena them.· We received them,
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`·5· ·and no one denies that these are authenticate, that these are
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`·6· ·reliable, and when we look at the rules of evidence, that's
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`·7· ·what we're concerned with is reliability, and they're certainly
`
`·8· ·as reliable as possible because they come from the manufacturer
`
`·9· ·of the product that sold these products to Honda.
`
`10· · · · · · ·So these are, we believe, authenticate business
`
`11· ·record of the manufacturer that were made specifically and
`
`12· ·provided to the Defendant Honda companies, and we should not be
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`13· ·precluded from using them at trial, Your Honor.
`
`14· · · · · · ·THE COURT:· All right.
`
`15· · · · · · ·MR. LIOU:· Your Honor, may I respond?
`
`16· · · · · · ·THE COURT:· Yes, Mr. Liou.
`
`17· · · · · · ·MR. LIOU:· Would you please switch to the Elmo?· I'm
`
`18· ·actually referring the Court to an unhighlighted portion, but
`
`19· ·this is the deposition of Honda's 30B6 technical witness, and
`
`20· ·he was asked -- he was actually put in front of him a picture
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`21· ·from Blitzsafe's invalidity contentions.
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`22· · · · · · ·And if you look on page 92, line three, he was asked,
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`23· ·Do you see that?· Does the 2013 Honda Civic with the Mitsubishi
`
`24· ·premium audio system use a NXPSAF7741HV/125.· That is a part
`
`25· ·number of a chip.
`
`
`
`Case 2:15-cv-01274-JRG-RSP Document 441 Filed 02/03/17 Page 19 of 152 PageID #:
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`·1· · · · · · ·And the answer was, Well, if this page depicts the
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`·2· ·2013 Civic, it can be read from this page clearly that it is
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`·3· ·the one being used; however, because it is the supplier who
`
`·4· ·decides whether to select the NXP for use, and that I don't
`
`·5· ·know.
`
`·6· · · · · · ·And the document that you saw earlier with the very
`
`·7· ·tiny text were rows and rows of part numbers that are selected
`
`·8· ·for use in these products, and this is information that Honda
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`·9· ·is not given.
`
`10· · · · · · ·THE COURT:· Well, why shouldn't I deem this to be a
`
`11· ·statement by an agent of Honda?· You sent requirements to
`
`12· ·Mitsubishi.· They manufactured this for you and returned it
`
`13· ·with the product to you or to Honda with these documents. I
`
`14· ·think that 801D2 was designed to cover a situation like this.
`
`15· · · · · · ·MR. LIOU:· I understand Your Honor's comments.· If I
`
`16· ·can -- may I address another category that is somewhat similar,
`
`17· ·but I think is distinguishable?
`
`18· · · · · · ·THE COURT:· All right.
`
`19· · · · · · ·MR. LIOU:· Okay.· Another one of Honda's suppliers
`
`20· ·produced a set of documents that are partially in Japanese and
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`21· ·partially in English, and those are Plaintiff's Exhibit 252 to
`
`22· ·269, if you don't mind pulling up an example, which is 252.
`
`23· · · · · · ·So our objections to these, beyond the hearsay
`
`24· ·objection that Your Honor just heard the argument on, is these
`
`25· ·are also prejudicial, and these are not in quite the same
`
`
`
`Case 2:15-cv-01274-JRG-RSP Document 441 Filed 02/03/17 Page 20 of 152 PageID #:
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`·1· ·format.· This is -- this one in particular was produced as an
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`·2· ·Excel chart, and, again, this is something that is not in
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`·3· ·Honda's possession and Honda is not provided with.
`
`·4· · · · · · ·We understand that these correspond to a subpoena to
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`·5· ·one of Honda's suppliers regarding a product called the i-mid,
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`·6· ·and this was a late produced production by the supplier.· Honda
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`·7· ·actually themselves produced i-mid specifications of their own,
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`·8· ·and these were i-mid specifications that were in Honda's
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`·9· ·possession, and we did that early in the case before expert
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`10· ·reports were due.
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`11· · · · · · ·Blitzsafe's expert chose not to cite to any of those
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`12· ·document, but instead he relied on these documents and
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`13· ·submitted a supplemental expert report, and we let that
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`14· ·report -- we did not object to that report, and our expert
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`15· ·submitted a rebuttal to that report.
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`16· · · · · · ·And, again, this is just another category of
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`17· ·documents, Your Honor, that we're not contesting the experts
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`18· ·have an ability to rely, but in terms of coming in evidence, we
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`19· ·believe they're hearsay, and in this case, since they were
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`20· ·never translated and they're in Japanese there's -- there's
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`21· ·also prejudicial factors and a confusing factor here.
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`22· · · · · · ·THE COURT:· Well, I'm -- with respect to 174 to 191,
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`23· ·I'm overruling the objection and they will be admitted.
`
`24· · · · · · ·With respect to the new category that you just
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`25· ·addressed, let me hear from the Plaintiff, 252 to 269.
`
`
`
`Case 2:15-cv-01274-JRG-RSP Document 441 Filed 02/03/17 Page 21 of 152 PageID #:
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`·1· · · · · · ·MR. FABRICANT:· Your Honor, these documents were
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`·2· ·produced after discovery was over, and we never had an
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`·3· ·opportunity to depose a Honda witness concerning the documents,
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`·4· ·and, therefore, in addition to the fact that, again, the
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`·5· ·reliability of the documents is not in dispute, there's nothing
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`·6· ·about the content of the documents that's challenged.· They
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`·7· ·were produced subsequent to discovery.
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`·8· · · · · · ·THE COURT:· Who were they produced by?
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`·9· · · · · · ·MR. FABRICANT:· Panasonic, which is a -- which is a
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`10· ·supplier.
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`11· · · · · · ·THE COURT:· And are they in Japanese.
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`12· · · · · · ·MR. FABRICANT:· There are some Japanese words, Your
`
`13· ·Honor, but we don't believe the existence of Japanese words
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`14· ·renders meaningless or -- there are -- there are plenty of
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`15· ·information that's in English or is depicted in figures or
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`16· ·schedules, which is not the subject of a line item of Japanese.
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`17· · · · · · ·And, again, we were put at a disadvantage because we
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`18· ·did not have an opportunity to depose the party that produced
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`19· ·the documents, but, again, there's no -- Honda has had these.
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`20· ·They've never objected to the content of them, to the
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`21· ·reliability of what's contained within them.· They can't point
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`22· ·to the Court, we believe, any mistakes or errors or information
`
`23· ·that wasn't contained in the original and we would submit that
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`24· ·they're admissible pursuant to the rules which look to the
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`25· ·reliability.
`
`
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`Case 2:15-cv-01274-JRG-RSP Document 441 Filed 02/03/17 Page 22 of 152 PageID #:
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`·1· · · · · · ·THE COURT:· What kind of information are you
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`·2· ·contending is understandable despite the Japanese in the
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`·3· ·documents, if you can show me an example?
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`·4· · · · · · ·MR. FABRICANT:· Your Honor, there are circuit
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`·5· ·diagrams in these documents which don't require the knowledge
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`·6· ·of the English language.· If we could have a moment, we can
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`·7· ·pull it up.
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`·8· · · · · · ·THE COURT:· All right.· I ask because normally a
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`·9· ·diagram has some text labeling or some other words that
`
`10· ·identify what it depicts.
`
`11· · · · · · ·MR. FABRICANT:· So an example of a diagram, Your
`
`12· ·Honor, I believe that an expert in the field who is answering
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`13· ·questions concerning this particular document as an example can
`
`14· ·testify confidently concerning the circuit diagram, which the
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`15· ·expert understands and is indicated on the diagram, and that
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`16· ·they there would not be any confusion that this is really
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`17· ·regarding the components which are depicted, where they're
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`18· ·located, what their function is, and the expert should be
`
`19· ·allowed to testify with respect to them using them in front of
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`20· ·the jury.
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`21· · · · · · ·THE COURT:· All right.· For the record, this is from
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`22· ·Exhibit 259, I believe; is that right?
`
`23· ·
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