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- ilnd;;1:09-cv-04530_de904 RegisterActionDate "2012-08-21" @default.
- ilnd;;1:09-cv-04530_de904 RegisterActionDescriptionText "MINUTE entry before Honorable Jeffrey Cole: In 2006, Fujitsu conducted an extensive inspection of a Tellabs optical scanner purchased on eBay along with confidential manuals that accompanied the scanner. Almost from the beginning, the content and results of that inspection have been the source of a heated and continuing dispute, with Tellabs contending that it was entitled to the documents prepared in connection with that inspection by Fujitsu's engineers and Fujitsu adamantly resisting production. The somewhat complicated but singularly important background of the dispute is told in the extensive Memorandum Opinion and Order of 5/1/12. 647 . See Tellabs Operations, Inc. v. Fujitsu Ltd., 2012 WL 1520333 (N.D.Ill. 2012). In brief, the Opinion concluded that the 2006 inspection was done for competitive and economic reasons and that Fujitsu was simply responding to its loss to Tellabs of an extraordinarily lucrative bid by Verizon. Fujitsu made a conscious decision not to file objections to that opinion and order with Chief Judge Holderman. Thereafter, it contended, notwithstanding the Memorandum Opinion and Order that the 2006 inspection was protected by the attorney/client privilege. What the parties did not dispute, however, was that if Dr. Willner, Fujitsu's expert, saw or considered either the 2006 inspection or the 2008 invalidity infringement contentions of Tellabs, then the 2006 inspections would have to be produced. Indeed, Mr. Brooks, one of the counsel for Tellabs, repeatedly made that representation. Mr. Brooks also represented on various occasions that Dr. Willner, in fact, had not seen the 2008 invalidity contentions. See Tellabs's Brief Regarding Dr. Willner's Consideration of Fujitsu's July 2008 Infringement Contentions. [852, Attachment A]. Recently, it was learned that Dr. Willner, in fact, had in his possession the 2008 infringement contentions and his expert report of April 16, 2012, explicitly stated in varying places that he had "reviewed and considered the very things this court was assured he would never see, let alone consider. I sua sponte ordered an evidentiary hearing in response to the filing of Tellabs's recent brief. 852 . At the hearing, Dr. Willner testified, as did Gino Cheng, the managing associate for the Orrick form in California, who helped prepare Dr. Willner's expert report. In brief, Dr. Willner and Mr. Cheng, while acknowledging that the Willner report stated unequivocally that Dr. Willner had indeed reviewed and considered the prohibited materials, claimed that Dr. Willner had not reviewed or considered the materials and that Dr. Willner's statement of what he had considered and reviewed was "mistaken As explained more fully in the Memorandum Opinion and Order that I shall be entering in the next few days, that testimony was implausible, but more importantly, was contradicted by the undisputed evidence in the case. In short, I reject the claim of mistake and the claim that Dr. Willner did not review and consider the very information his expert report avows he did. Dr. Willner and Mr. Cheng may well be certain that their recollection of events is accurate. But as Justice Holmes said, "certitude is not the test of certainty." More recently, Judge Easterbrook put it this way: Memory often plays tricks.... People may remember what they want to remember, whether it happened or not, and the lack of correlation between the strength and accuracy of ones recollection is one of the most important findings of the psychology of memory. Jarad v. Gonzales, 461 F.3d 867, 871 (7th Cir. 2006). Given the pendency of the trial before Judge Holderman, I thought it important to at least set forth my conclusion in advance of the Memorandum Opinion and Order so that the parties and Judge Holderman could assess whether there will be any impact on the upcoming trial. The bottom line is that Tellabs is entitled to all of the documents generated in connection with the 2006 inspection of Tellabs's three modules. This holding moots Fujitsu's claim of attorney/client privilege regarding the 2006 inspection -- as Mr. Brooks effectively realized would occur if this information ere somehow considered by Dr. Willner. See Ex. A to Tellabs's Brief.Mailed notice (jms, ) (Entered: 08/21/2012)" @default.
- ilnd;;1:09-cv-04530_de904 AdministrativeID "897" @default.
- ilnd;;1:09-cv-04530_de904 OntologyLabel minute_entry @default.
- ilnd;;1:09-cv-04530_de904 hasReferenceToOtherEntry ilnd;;1:09-cv-04530_de595 @default.
- ilnd;;1:09-cv-04530_de904 hasReferenceToOtherEntry ilnd;;1:09-cv-04530_de859 @default.