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Case 1 :04-cv-01371-JJF Document 412 Filed 10/10/2006 Page 1 of 2
FISH at RICHARDSON 1>.c.
500 Arguello Street
Suite 50o
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94063-1526
Frederick P. Fish
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WK. Richardson
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october 10, 2006 6L° 8”"°"
Web Site
The Honorable Joseph J. Farnan, Jr. WWW-fr-wm
U.S. District Court for the
District of Delaware
844 King Street
Wilmington, DE 19801
Re: Power Integrations, Inc. v. Fairchild Semiconductor International
® USDC—D. Del. - C.A. No. 04-1371 JJF
ATLANTA Dear Judge Faman:
AU““" Power Integrations respectfully opposes Fairchild’s request to admit into evidence
BOSTON Defendants’ Exhibits DX-517, 520, and 521 (D.I. 410) (e-mails from Power
DALLAS lntegrations’ attorneys to the expert consulting firm LECG) on the grounds that the
DAAAWAAA Federal Rules of Evidence prohibit admitting extrinsic evidence to impeach a witness,
NW YORK and on the grounds that any possible probative value is far outweighed by the risk of
prejudice to Power Integrations.
SAN DIEGO
LLLLLON VALLEY The admissibility of evidence to attack a witness’ character is governed by
rw¤~ crms 608(b). The general rule is that a party may ask questions on cross-examination that
WASHINGTON, DC are probative of the truthfulness or untmthfulness of a witness, but may not introduce
extrinsic evidence to support those attacks. Id. Fairchild completely ignores F.R.E.
608(b) in its motion, instead focusing on whether or not the exhibits are hearsay
under F.R.E. 804, and whether or not they are admissible as facts underlying the
expert’s opinion under F.R.E. 705. Because Fairchild’s motion fails to address the
very foundation ofPower Integrations’ objection — namely, that extrinsic evidence
cannot be admitted to impeach a witness — Fairchild’s motion should be denied.
Even if the Court goes beyond this threshold issue of admissibility, Fairchild’s
reliance on F.R.E. 705 is misplaced. It is true that an expert may be required to
disclose the facts underlying his opinion’s on cross-examination. Fairchild’s own
motion, however, is premised on its mistaken belief that Mr. Troxel should have
relied upon these e—mails but did not do so because they were allegedly withheld by
attorneys for Power Integrations.1 Even accepting Fairchild’s skewed presentation of
the facts, F.R.E. 705 provides no path for the admission of these e—mails because the
e-mails were not relied upon by Mr. Troxel in forming his opinions.
I In his testimony, Mr. Troxel made clear that he did not rely on these e-mails and did not
believe they were relevant to his analysis. See Trial Tr. 849: 17-852: 1 1.

Case 1:04—cv—01371-JJF Document 412 Filed 10/10/2006 Page 2 of 2
Frsn at RICHARDSON 1¤.c.
The Honorable Joseph J. Farnan, Jr.
October 10, 2006
Page 2
This situation is very different than United States v. A & S Council Oil C0., 947 F.2d
1128 (4th Cir. 1991), the only case Fairchild cites in support of its motion. In A&S
Council, the Fourth Circuit concluded that the government expert "necessarily
discounted [polygraph results] to reach the opinion he stated in court," namely his
opinion that a witness was competent to testify despite failing the polygraph test. Id.
at 1135. The court held that the defendant was entitled to cross-examine the expert
on why he discounted the polygraph results during his analysis.2 Here, however, Mr.
Troxel did not analyze the e-mails in question, and relied upon other information to
support his conclusion that Power lntegrations could not raise prices to current
customers. Fairchild had an opportunity to cross—examine Mr. Troxel on that
underlying data, precisely as contemplated by F.R.E. 705, and also had the
opportunity to introduce its own rebuttal evidence through its damages expert Dr.
Kceley. There is thus no risk of prejudice to Fairchild if these e—mails are not
admitted into evidence.
There is, however, a serious risk of prejudice to Power Integrations should these e-
mails be admitted. The jury may fail to appreciate why the attomey-client privilege is
necessary, or why the waiver of that privilege (such as through disclosure to expert
witnesses) is protected so zealously by attorneys. There is a significant risk that the
jury would attach an undue importance to the instructions of Power lntegrations’
attomeys to keep the infonnation in these e—mails confidential, which would unduly
prejudice Power lntegrations. As above, the probative value of these e—mails is slight,
given that both parties’ expert witnesses provided other testimony and evidence
conceming future price erosion, and thus in addition to being excluded under F.R.E.
608(b) these e-mails should also be excluded under F.R.E. 403.
Respectfully,
V, -»-\\J,_iV._____i .· .· ·.__ !,g_,\_é__ V
William J , Marsden, Jr.
p —..._ __ 1
50376703.doc i T J
cc: John Day, Esq. (via ECF & electronic mail)
G. Hopkins Guy, Esq. (via electronic mail)
2 The introduction of exculpatory evidence in criminal trials such as A&S Council also
implicates Constitutional concems that are simply not present in the instant case.