Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-01371-JJF Document 410 Filed 10/06/2006 Page 1 of 2
ASHEY S. GEDDES
ATTORNEYS AND COUNSELLORS AT LAW TELEPHONE
302-654-IBBB
222 DELAWARE AVENUE
R. o. Box uso aogtgimtsey
WILMINGTON, DELAWARE 19899
October 6, 2006
The Honorable Joseph J. Faman, Jr.
U.S. District Court
District of Delaware
844 King Street
Wilmington, DE 19801
Re: Power Integrations, Inc. v. Fairchild Semiconductor International,
C.A. No. 04-1371 JJF
Dear Judge Farnan:
Fairchild respectfully submits this letter brief requesting that Defendants’ Exhibits DX-
5 l7, 520 and 521 (the “Exhibits") (emails from Power Integrations’ attomeys to LECG
concerning Power Integrations’ alleged damages) be admitted as evidence in this case. Those
emails show that Power Integrations deliberately withheld from Mr. Troxel, its own damages
expert, Power Integrations information that directly contradicted the assumptions underlying Mr.
Troxel’s claim of damages due to price erosion. Specifically, Mr. Troxel testihed that Power
Integrations told him that Power Integrations was unable to raise prices while, in fact, Power
Inte grations had provided LECG with charts indicating that Power lntegrations not only could —
but had — raised its average prices in many instances.
The Exhibits should be admitted pursuant to Federal Rule of Evidence 804(b)(3) as an
admission by Power lntegrations made through its agents, the firm of Fish & Richardson. The
Exhibits make clear that Power Integrations was withholding from its damages expert
information that directly contradicted his damages calculations. Moreover, these Exhibits
demonstrate that Power Integrations understood the significance of this information since it
provided it to its damages consultants, LECG and speciically instructed them not to forward it to
Mr. Troxel.
The Exhibits are admissible under Federal Rule of Evidence 705, which provides, in
relevant part, that an "expert may in any event be required to disclose the underlying facts or data
[relating to his opinion] on cross-examination? Although the emails undermine, rather than
support, Mr. Troxel’s opinion, that is no reason to bar their admission. On the contrary,
admitting them serves the core purpose of Rule 705’s provision for the admission of otherwise
inadmissible underlying information — to allow the jury to determine the credibility and weight to
be accorded the expert opinion testimony presented to it. The rule is defeated if only evidence
supporting the opinion is admitted.
The Fourth Circuit, reversing a judgment for failure to admit evidence that the expert had
not relied on but which militated against his conclusions, explained this principle:
Full examination of the underpirmings of an expert’s opinion is permitted

Case 1 :04-cv-01371-JJF Document 410 Filed 10/06/2006 Page 2 of 2
The Honorable Joseph J. Farnan, Jr.
October 6, 2006
Page 2
because the expert, like all witnesses, puts his credibility in issue by taking
the stand. Jackson ’s polygraph result is relevant to Rollins’ credibility
because Rollins must have necessarily discounted it to reach the opinion
he stated in court .... Counsel should have been permitted to fully explore
the bases of Rollins’ opinion, including inquiry about J ackson’s polygraph
result. Rule 703 creates a shield by which a party may enjoy the benefit of
inadmissible evidence by wrapping it in an expert’s opinion; Rule 705 is
the cross-examiner’s sword, and, within very broad limits, he may wield it
as he likes.
United States v. A & S Council Oil Co., 947 F.2d 1128, 1135 (4th Cir. 1991) (emphasis added).
Similarly, here, the emails at issue contain stem instructions that no documents should pass from
LECG to Mr. Troxel, showing that Mr. Troxel should not have relied on LECG’s findings or the
limited information provided to him by Power lntegrations. Just like the hearsay polygraph
result in A & S Council Oil, evidence of what Mr. Troxel did not rely on must be admitted to
balance the (otherwise equally inadmissible) evidence of what he did rely on.
As the Fourth Circuit explained, Rule 703 allows a party to enjoy the benetit of
inadmissible hearsay “by wrapping it in an expert’s opinion." Id. Rule 705 balances that
exception to nonnal limitations on admissibility by allowing the opposing party to bring into
evidence, through cross-examination, of all "underlying facts or data" that bear on how an expert
arrived at his opinion. This includes hearsay evidence not relied upon by the expert that tends to
refute his analysis. Id. That is exactly what the three emails at issue are. They show that in
arriving at the conclusion that PI could not raise its prices, Mr. Troxel did not consider LECG’s
contrary findings. It would be an incorrect application of Rules 703 and 705 to allow all of the
hearsay evidence supporting Mr. Troxel’s opinion testimony into evidence but to exclude only
these two emails.
Fairchild respectfully requests that the Court admit Defendants’ Exhibits DX-517, DX-
520 and DX—52l as substantive evidence.
Respectmlly,
/s/ John G. Day
J olm G. Day
JGD: nml
173938.1
cc: William J. Marsden, Jr. Esquire (by hand delivery)
Frank E. Scherkenbach, Esquire (by hand delivery)
Howard G. Pollack, Esquire (by hand delivery)
G. Hopkins Guy, III, Esquire (by hand delivery)