EVERLIGHT ELECTRONICS CO., LTD et al v. Nichia Corporation et al
ORDER GRANTING MOTION TO COMPEL SAMPLES OF ACCUSED PRODUCTS [#172], GRANTING MOTION TO TAKE SPECIFIC DISCOVERY AFTER FACT DISCOVERY CUTOFF [#174], GRANTING IN PART MOTION FOR SANCTIONS [#189] AND GRANTING MOTION CHALLENGING DESIGNATION OF PRODUCT SAMPLES [#211]. Signed by District Judge Gershwin A. Drain. (Bankston, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
EVERLIGHT ELECTRONICS CO., LTD.,
and EMCORE CORPORATION,
Civil Action No.12-cv-11758
HON. GERSHWIN A. DRAIN
NICHIA CORPORATION, and
NICHIA AMERICA CORPORATION,
EVERLIGHT AMERICAS, INC.,
ORDER GRANTING MOTION TO COMPEL SAMPLES OF ACCUSED PRODUCTS
[#172], GRANTING MOTION TO TAKE SPECIFIC DISCOVERY AFTER FACT
DISCOVERY CUTOFF [#174], GRANTING IN PART MOTION FOR SANCTIONS
[#189] AND GRANTING MOTION CHALLENGING DESIGNATION OF PRODUCT
Presently before the Court are various discovery motions filed by Defendants/CounterPlaintiffs Nichia Corporation and Nichia America Corporation (collectively “Nichia”) in this patent
infringement action. Specifically, the following motions are before the Court: (1) Nichia’s
Emergency Motion to Compel Plaintiffs/Counter-Defendants Everlight Electronics Co., Ltd. and
Emcore Corporation (collectively “Everlight”) to Complete Its Production of Samples of Its Accused
Products, filed on October 16, 2013 [# 172]; (2) Nichia’s Emergency Motion for Permission to Take
Specific Discovery after the Fact Discovery Deadline, also filed on October 16, 2013 [# 174]; (3)
Nichia’s Emergency Motion for Sanctions for Everlight’s Breach of the Docket 182 Order, filed on
November 8, 2013[#189]; and (4) Nichia’s Emergency Motion to Challenge Everlight’s Designation
of Product Samples Under the Protective Order, filed on November 26, 2013[# 211].
These matters are fully briefed and a hearing was held on December 16, 2013. For the
reasons that follow, the Court grants Nichia’s Motion to Compel Everlight to Complete its
Production of Samples, grants Nichia’s Motion for Permission to Take Specific Discovery after the
Fact Discovery Deadline, grants in part Nichia’s Motion for Sanctions and grants Nichia’s Motion
Challenging Everlight’s Designation of Product Samples.
II. LAW & ANALYSIS
A) Nichia’s Emergency Motion to Compel Everlight to Complete Its Production of
Samples of Its Accused Products [#172]
In the present motion, Nichia seeks an Order compelling Everlight to complete its production
of samples of its Accused LED Products. Nichia complains that Everlight has used every tactic to
impede production of its Accused LED Products. At the time Nichia filed the instant motion,
Everlight had produced samples for only 180 out of more than 1,000 Accused LED Products even
though Nichia first sought the requested samples more than a year ago in October of 2012. On
November 4, 2013, eleven days before the close of fact discovery, Everlight produced an additional
1,600 LED sample products.
Everlight responds that Nichia has mischaracterized the facts concerning Everlight’s
production of accused product samples. Everlight claims it has undertaken substantial efforts to
provide the requested samples. See Dkt. 188, Ex. B, Dec. of Joel Lin. On November 1, 2013,
Everlight communicated to Nichia that it would provide samples for its accused products identified
on Nichia’s lists that were sold between April of 2006 and the present that Everlight could
reasonably provide from its worldwide inventory. Moreover, Everlight claims it cannot produce
certain samples unless Nichia covers the costs for producing these samples citing to Cailiper Techs.
Corp. v. Molecular Devices Corp., 213 F.R.D. 555, 558 (N.D. Cal. 2003) (requiring plaintiff to
pay a reasonable price for requested samples). Lastly, for 947 identified LEDs, Nicha provided
incorrect or inaccurate model numbers or model numbers associated with products that were not sold
during the relevant time period. In light of these circumstances, Everlight requested that Nichia
withdraw the present motion, however Nichia refused to withdraw the motion. Based on the
foregoing, Everlight insists that Nichia’s motion should be denied.
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense . . . .” Fed. R. Civ. P. 26(a)(1). To prove patent infringement, the
patentee must establish that an accused device contains each limitation of the asserted claim(s). See
Cybor Corp. v. FAST Technologies, Inc., 138 F.3d 1448, 1467 (Fed. Cir. 1998). Courts recognize
the essential nature of accused product samples in patent infringement cases. See P&G v. Be Well
Mktg., No. 12-MC-392, 2013 U.S. Dist. LEXIS 5519, *9-10 (M.D. Pa. Jan. 15, 2013) (ordering
production of representative samples of all accused products); Alloc, Inc. v. Unilin Beheer B.V.,
No. 02-C-1266, 2006 U.S. Dist. LEXIS 24148, *11 (E.D. Wis. Mar. 24, 2006) (granting motion
to compel samples of accused products sold within relevant time period).
Here, there is no dispute that the Accused Product samples are not only relevant, but central
to resolving the issue of infringement of Nichia’s patents-in-suit. Everlight’s claim that it “has either
provided samples or has agreed to provide samples of all relevant LEDS to the extent that Everlight
can reasonably provide samples” is difficult for Nichia, as well as the Court to believe when there
are so many outstanding questions concerning Everlight’s production of its LED samples.
Everlight’s complaints that Nichia has provided inaccurate model numbers or requested samples for
products that have not been sold during the relevant time period1 are disingenuous due to Everlight’s
sloppy production of its samples and documents associated with its products. Due to this, it has
understandably been impossible for Nichia to ascertain the true number of Accused Products at issue
herein. Further, as to Everlight’s claim Nichia must purchase 1,000 samples of certain LEDs, such
an argument is unavailing. Everlight does not explain why all 1,000 samples must be purchased.
For the foregoing reasons, the Court grants Nichia’s present motion. Everlight shall provide
Nichia a complete list of all of its phosphor-based LEDs sold in the United States since April of
2006, sorted by white LEDs and non-white LEDs and produce all samples on Everlight’s list that
have not yet been produced. Everlight shall produce the list no later than December 26, 2013 and
produce the samples no later January 2, 2014.
B) Nichia’s Emergency Motion for Permission to Take Specific Discovery after the Fact
Discovery Deadline [# 174]
In the present motion, Nichia seeks permission to take certain discovery after the fact
discovery cutoff which expired on November 15, 2013. Nichia argues that due to Everlight’s
discovery deficiencies and delays, Nichia needs to take the following limited discovery despite the
expiration of the fact discovery cutoff: (1) follow-up depositions of Everlight’s employees and (2)
to serve subpoenas on third parties for the production of documents.
Nichia points to the following examples to demonstrate the extreme discovery stonewalling
practiced by Everlight during these proceedings to support its request to take specific discovery after
The Court agrees that Everlight need not produce samples for products that have not
been sold during the relevant time period.
November 15, 2013:
Document Production: Everlight has yet to fully complete its production with respect
to fundamental technical and sales documents, which has been the subject of prior
Nichia discovery motions, including docket numbers 119 and 158. Additionally,
Everlight has failed to prepare an adequate privilege log.
Accused LED Product Samples: As demonstrated by the discussion, supra, it is clear
that Everlight has failed to complete its production with respect to samples.
Moreover, as discussed infra, Everlight improperly designated all of its Accused
Products as AEO or Attorney Eyes Only preventing Nichia from utilizing input from
Depositions of Everlight Witnesses: In addition to delaying its production of
witnesses, Everlight has engaged in “document dumps” by providing roughly
512,000 pages worth of documents containing data concerning the phosphor
compositions used in the accused products just prior to, or after the depositions of
its witnesses concerning the subject of these documents. Additionally, Everlight has
produced witnesses who were unprepared to testify about the noticed topics.
Everlight also improperly relied on privilege during some of the witnesses
Conversely, Everlight argues that Nichia has not exercised reasonable diligence in pursuing
necessary discovery. Moreover, Nichia is misleading concerning Everlight’s conduct with respect
to its Rule 30(b)(6) depositions. Everlight insists that Nichia’s topics were overly broad and Nichia
is cherry-picking a few isolated examples in which the witness lacked sufficient knowledge to
answer a question. Everlight further maintains that it did not improperly assert privilege during the
Ewing Liu and Mark Lin depositions. However, this Court has already determined that Everlight
improperly relied on the common-interest doctrine, therefore as to the Liu and Lin witnesses, these
witnesses may be redeposed after the fact discovery cutoff.
A scheduling order may be modified “only for good cause and with the judge’s consent.”
Fed. R. Civ. P. 16(b)(4). The United States Court of Appeals for the Sixth Circuit had held that
“late-moving litigants [are required] to show that despite their diligence they could not meet the
original deadline.” Shane v. Bunzl Distribution USA, Inc., 275 F. App’x 535, 536 (6th Cir. 2008)
(quoting Leary v. Daeschner, 349 F.3d 888, 906-07 (6th Cir. 2003)). In considering a request to
modify the scheduling order, “another relevant consideration is possible prejudice to the party
opposing the modification.” Inge v. Rock Financial Corp., 281 F.3d 613, 625 (6th Cir. 2002).
Here, Nichia has demonstrated that despite its due diligence, it could not meet the fact
discovery cutoff of November 15, 2013, and complete all necessary discovery to establish its claims
and defenses in this matter. Based on the voluminous and recent production of worksheets and
Accused Product samples, in connection with the improper withholding of certain documents based
on privilege, and Everlight’s ongoing supplementation of its Privilege Log,2 the Court finds that
Nichia has established good cause for granting its requested relief and will permit specific fact
discovery to occur past the cutoff set forth in this Court’s August 13, 2013 Order extending fact
discovery cutoff through November 15, 2013.
The record shows that Everlight recently produced over 1,000 samples of its Accused
Products and dumped voluminous discovery responses; responses that Nichia first requested months
ago. From October 22, 2013 through November 3, 2013, Everlight produced 177,334 documents,
including documents containing crucial phosphor composition information that has been the subject
of prior discovery motions before this Court. Everlight also produced an inadequate number of Rule
30(b)(6) witnesses who could not possibly be competent to testify to all of Nichia’s deposition
topics. For example, the depositions of Liu, Lin, and Peter Pan demonstrate that Everlight’s
witnesses were unable to testify to relevant topics such as the phosphors used in the Accused
Products, the manufacturing process used, and the sales revenue generated by Everlight’s sale of the
See this Court’s Order Granting Nichia’s Motion to Compel among other remedies.
See Dkt. No. 238.
The Court finds unpersuasive Everlight’s argument that Nichia has not been diligent with
respect to its discovery requests in this matter. Nichia has attempted to obtain crucial phosphor
composition and sales information and complete production of Everlight’s Accused Product samples
for months, yet Everlight’s production is still incomplete. Further, Everlight has not shown that it
would be prejudiced if the Court permits Nichia to conduct additional, limited discovery.
Accordingly, the Court grants Nichia’s Motion to Compel Specific Discovery after the fact
discovery cutoff. Nichia’s limited fact discovery shall be completed no later than February 1, 2014.
C) Nichia’s Emergency Motion for Sanctions for Everlight’s Breach of the Docket 182
Order [# 189]
On October 23, 2013, this Court entered an Order granting Nichia’s Emergency Motion to
Enforce the Docket 144 Order which required Everlight to “to produce documents responsive to
Nichia’s RFP Nos. 25, 47-49, 53-54, 57, 77, 79-81, and 83-84 within ten days from the date of this
Order.” See Dkt. No. 182. The Court’s Order also required Everlight to serve an “affidavit within
ten days of this Order” identifying “the documents that have not been produced because they are not
within Everlight’s possession, custody or control.” Id. Nichia claims that Everlight has failed to
obey this Court’s Order with respect to both commands. Therefore, Nichia asks that the Court
strike Everlight’s Counts I and IV of its Second Amended Complaint and its first affirmative defense
for non-infringement of Nichia’s patents-in-suit and that Everlight be precluded from introducing
any evidence on these counts or its defense based on Everlight’s failure to comply with this Court’s
Order. Nichia also moves for an award of its reasonable expenses as an additional sanction for
Everlight’s failure to comply with this Court’s Order.
Everlight counters that Nichia seeks extraordinary relief by requesting dismissal of
Everlight’s declaratory judgment claim of non-infringement and preclusion of Everlight’s ability
to oppose Nicha’s counterclaim of infringement. Everlight maintains that the Court’s Order required
counsel to prepare an affidavit, and counsel has prepared the affidavit. Even though Everlight’s
counsel did not sign the affidavit, rather Mark, Hsien-Chia Lin prepared and signed the Court
ordered affidavit, Everlight understood full well that it was certifying, pursuant to Fed. R. Civ. P.
11(b)(3) that the factual contentions have evidentiary support “to the best of [counsel’s] knowledge,
information, and belief[,]” when it served Lin’s affidavit. Everlight further complains that Nichia
fails to identify any deficiencies in Everlight’s production with respect to the specific requests within
the scope of the Docket 182 Order.
When a party has disobeyed a discovery order, the court may enter an order “prohibiting the
disobedient party from supporting or opposing designated claims or defenses, or from introducing
designated matters in evidence.” Fed. R. Civ. P. 37(b)(2)(A)(ii). In addition, a court has inherent
power to sanction parties for contempt and abusive litigation practices, including dismissing a case.
Ocean Innovations, Inc. v. Quarterberth, Inc., No. 1:03-cv-00913, 2011 U.S. Dist. LEXIS 41614,
*20 (N.D. Ohio Apr. 18, 2011) (default judgment entered in a patent infringement action where the
defendant breached a discovery order).
This Court must consider the following factors to determine whether sanctions pursuant to
Rule 37 are appropriate: (1) whether the adversary was prejudiced by the disobedient party’s failure
to cooperate in discovery, (2) whether the disobedient party was warned the failure to cooperate
could lead to dismissal, and (3) whether less drastic sanctions were considered. Am. Book Co,. v.
Consolidated Group of Companies, Inc., No. 3:09-cv-112, 2011 U.S. Dist. LEXIS 34794, *10
(E.D. Tenn. Mar. 9, 2011); see also Limu Co., LLC v. Burling, No. 6:12-cv-347, 2013 U.S. Dist.
LEXIS 91227, *4 (M.D. Fla. Jun. 28, 2013) (disobedient party prohibited from supporting its
affirmative defenses where it did not provide a credible explanation for its breach of order); Tech.
Recycling Corp. v. City of Taylor, Nos. 04-1798, 04-2205, 2006 U.S. App. LEXIS 16590, *16
(6th Cir. Jun. 28, 2006); Lowe v. Vadlamudi, No. 08-10269, 2012 U.S. Dist. LEXIS 122112, *10
(E.D. Mich. Aug. 28, 2012).
Dismissal and preclusion of evidence are considered drastic remedies that are appropriate
only in extreme situations where a party has exhibited “flagrant bad faith and callous disregard of
the rules.” Graff v. Haverhill N. Coke Co., 2012 U.S.Dist. LEXIS 26399, at *6 (S.D. Ohio Feb.
29, 2012); Reed v. Bennet, 312 F.3d 1190 (10th Cir. 2002); Pall Corp. v. 3M Purification Inc.,
279 F.R.D. 209 (E.D.N.Y. 2011). This is because such sanctions “interfere with the overriding
policy of deciding cases on their merits.” Titan Indus. Corp. v. Fed. Ins. Co., 1995 U.S. Dist.
LEXIS 10253, at *6-7 (S.D.N.Y. July 25, 1995); Williams v. Pledged Prop. II, LLC, 2011 U.S.
Dist. LEXIS 23453, at *4-5 (E.D. Mich. Feb. 17, 2011).
Here, it appears that Everlight has been less than prompt in producing certain documents
since it did not produce documents responsive to Nichia’s RFP Nos. 25, 47-49, 53-54, 57, 77, 7981, and 83-84 until Nichia filed three motions to compel. Some of Everlight’s production occurred
on November 3, 2013. However, Everlight produced more documents on November 15, 2013,
which was clearly past the Court’s deadline for production in its Docket 182 Order. Even with this
late production, Everlight has yet to fully comply with its production requirements ordered by the
Court. Everlight also incorrectly interpreted this Court’s affidavit requirement as permitting its
preparation and the signature to come from someone other than Everlight’s counsel. Thus, the first
factor this Court must consider, whether Nichia has been prejudiced, weighs in favor of Nichia.
Moreover, Everlight’s protestations of burdensome requests by Nichia and its claims that it
has fully complied with its Rule 26 obligations and this Court’s Docket 182 Order are unpersuasive.
The Court would be remiss to ignore the fact that this is the third time it has seen the parties on some
of the same issues. See Aug. 2, 2013 Dkt. No. 120 at 7-8 (requesting documents pertaining to
“product specifications, manufacturing descriptions, and information concerning components of the
productions . . . and the chemical composition of the phosphor.”) It is now mid-December and
Everlight has yet to produce all of the documents responsive to Nichia’s RFPs, nor the Court ordered
affidavit required by this Court’s Docket 182 Order. However, Everlight has represented to this
Court that “it has produced what it has been able to identify pursuant to a reasonable search” on
several prior occasions. Obviously, Everlight was either incorrect or blatantly misrepresenting the
record. Either scenario is unacceptable. It is perplexing to the Court that Everlight maintains
Nichia’s present motion should be denied when Everlight has mislead both Nichia and the Court
before with respect to its document production. Everlight produced almost 40% of its entire
document production between October 22, 2013 and November 3, 2013, yet in August, Everlight
claimed its production was complete.
As to the second factor, whether Everlight has been previously warned that failure to comply
with its discovery obligations could lead to dismissal of its non-infringement declaratory judgment
claim and its defense, this factor weighs in favor of Everlight. This Court has not previously warned
Everlight that a possible sanction for improper conduct during these proceedings could be dismissal
of Everlight’s claims and defense. While the Court ultimately concludes that sanctions are
appropriate under the circumstances, it is reluctant to impose the drastic sanction of outright
dismissal of Everlight’s claims and defense.
Lastly, less drastic sanctions have only been threatened by this Court; the Court has to date
declined to impose any sanctions against Everlight based on its conduct with respect to discovery
during the instant proceedings. However, at the last hearing in this matter, concerning Nichia’s
Motion to Enforce Docket No 144 Order and Everlight’s Representations Made in Court, and in the
Court’s 182 Order Granting Nichia’s Motion to Compel, the Court warned Everlight that $5,000.00
would be awarded in sanctions for any violation of its Order. See Dkt. No. 182. Therefore, while
the Court finds that dismissal of Everlight’s claims and defense is unwarranted pursuant to the Sixth
Circuit’s factors, a sanction for repeated discovery deficiencies is appropriate. Accordingly, the
Court will award Nichia, in addition to the $5,000 sanction award, its reasonable attorney fees and
costs incurred as a result of filing Nichia’s Motions (Dkt. Nos. 172, 174, 189 and 211). Everlight
shall pay the $5,000 sanction plus Nichia’s reasonable attorney fees and costs incurred as result of
filing the above identified motions within fourteen days of Nichia’s service of its bill for reasonable
attorney fees and costs.
D) Nichia’s Emergency Motion to Challenge Everlight’s Designation of Product Samples
Under the Protective Order [# 211]
In the instant motion, Nichia seeks an Order pursuant to paragraph 5 of the Stipulated
Protective Order (Dkt. No. 81) to challenge Everlight’s designation of its Accused Product samples
as Confidential-For Attorney Eyes Only (“AEO”). Between August 9, 2013 and October 18, 2013,
Everlight produced a total of 185 samples of its Accused LED products. On November 1, 2013,
Everlight notified Nichia for the first time that it intended to designate all future productions of its
LED samples as AEO and to retroactively designate all previously produced samples as AEO.
Nichia argues that Everlight’s AEO designation is improper for at least three reasons. First,
many of the samples are publicly available, therefore it is improper to designate them as AEO. Next,
Nichia argues that Everlight failed to comply with the requirements set forth in the Protective Order
for designating tangible items as being AEO. Finally, with respect to Everlight’s retroactive
designation, Everlight is clearly untimely pursuant to the Protective Order’s requirement that the
parties make timely AEO designations. Nichia maintains that it has been severely prejudiced since
it cannot prepare its opening expert reports on infringement, due December 20, 2013, without being
able to confer with its client about Everlight’s samples.
Everlight counters that it has produced a comprehensive collection of its phosphor-based
LED product line which contain sensitive proprietary information that would seriously damage
Everlight competitively if it were disclosed to Nichia. Moreover, Everlight claims that more than
400 of its LED samples are made and sold for specific customers –oftentimes based on non-public
specific specifications–and cannot be purchased publicly except by that customer. Everlight claims
it inadvertently did not designate its first four productions of samples as AEO, but notified Nichia
on November 1, 2013 that these samples should have been designated as AEO. Nichia responded
that it disagreed with Everlight’s designation and admitted that it had already provided some of the
produced samples to its client. Everlight claims that Nichia improperly used these samples in other
litigation occurring in the Eastern District of Texas. Everlight bases this contention on the fact that
Nichia recently amended its pleadings in the Texas action with information that could have only
come from the production of samples in this litigation. Everlight argues that the present motion has
more to do with Nichia obtaining ammunition for other litigation against Everlight, which is
demonstrated by Nichia’s refusal to restrict use of Everlight’s samples for purposes of this litigation
only. Lastly, Everlight disputes that Nichia has been prejudiced by the AEO designation since the
Protective Order permits Nichia’s experts access to the designated samples. Everlight requests that
the Court deny Nichia’s motion, compel Nichia to disclose the identities of the individuals to whom
Everlight’s samples were made available to, and order Nichia to amend its pleadings in the Eastern
District of Texas.
Here, Everlight is improperly seeking protection for all of its LED products even though only
400 of those samples are purportedly manufactured for specific customers only. Further, while
Everlight maintains that it has produced a complete collection of its phosphor-based LEDs, the
record shows this is inaccurate. Everlight cannot designate all of its products as AEO where 75%
of its sample products are available to the general public. Further, Everlight has not demonstrated
that the 400 LED samples made for specific customers warrant AEO protection. The fact that LEDs
are sold to certain customers does not necessarily mean that these samples are materially different
from the other produced samples. Everlight merely states, without record support, that its customers
“may order particular LEDs with unique specifications.” See Liu Decl., ¶ 5. However, to address
Everlight’s concerns, the Court will allow the customer-specific LED samples to be used for
purposes of this litigation only. Based on the foregoing, Nichia’s Motion Challenging Everlight’s
Designation of its Product Samples as AEO is granted.
For the reasons stated above, Nichia’s Emergency Motion to Compel Everlight to Complete
Its Production of Samples of Its Accused Products is GRANTED [#172]. Everlight shall provide
Nichia a complete list of all of its phosphor-based LEDs sold in the United States since April of
2006, sorted by white LEDs and non-white LEDs and produce all samples on Everlight’s list that
have not yet been produced. Everlight shall produce the list no later than December 26. 2013 and
produce the samples no later January 2, 2014. Failure to produce the samples by close of
business, eastern standard time, on January 2, 2014, shall result in the imposition of a daily
sanction of $5,000.00 for each day that the production remains incomplete.
Nichia’s Emergency Motion for Permission to Take Specific Discovery after the Fact
Discovery Deadline [Dkt. No. 174] is GRANTED. Nichia shall complete its post-deadline fact
discovery no later than February 1, 2014.
Nichia’s Emergency Motion for Sanctions for Everlight’s Breach of the Docket 182 Order.
No. 189] is GRANTED IN PART. The Court hereby imposes sanctions in the amount of $5,000
plus Nichia’s reasonable attorney fees and costs incurred as a result of filing motion numbers 172,
174, 189 and 211. Upon Nichia’s service of its bill for reasonable costs and attorney fees, Everlight
shall have fourteen days to remit full payment.
Nichia’s Emergency Motion to Challenge Everlight’s Designation of Product Samples Under
the Protective Order [Dkt. No. 211] is GRANTED.
The parties shall brief indefiniteness in their summary judgment briefing. The parties’
briefing (Motions for Summary Judgment and Response Briefs) shall not exceed fifty (50) pages in
length. The parties may file Reply Briefs consistent with this Court’s Local Rules.
Dated: December 20, 2013
/s/Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
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