UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

HEMLOCK SEMICONDUCTOR 

CORPORATION, 

Plaintiff, 

v. 

KYOCERA CORPORATION, 

Defendant. 

 

Case No. 15-CV-11236-TLL-PTM 

Hon. Thomas L. Ludington 

HEMLOCK SEMICONDUCTOR, 

LLC, 

Plaintiff, 

v. 

KYOCERA CORPORATION, 

Defendant. 

PLAINTIFFS’ REPLY IN FURTHER SUPPORT OF 

THEIR MOTION TO MODIFY THE PROTECTIVE ORDER 

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 Plaintiffs Hemlock Semiconductor Corporation and Hemlock 

Semiconductor LLC (together “Hemlock”) respectfully submit this Reply brief in 

further support of their motion to modify the Protective Order, to permit them to 

use documents produced by Defendant Kyocera Corporation (“Kyocera”) in this 

action as part of their defense against a related lawsuit that Kyocera filed against 

Hemlock in the Tokyo District Court. 

PRELIMINARY STATEMENT 

 Unsurprisingly (but tellingly), nowhere in Kyocera’s 24-page opposition 

does it ever answer the one and only question pertinent to this motion: what (if 

any) harm to Kyocera’s secrecy interests would be caused by Hemlock submitting 

Kyocera’s own documents, under seal, to the Tokyo District Court in an action 

Kyocera chose to bring against Hemlock in that very court? Kyocera fails to 

identify any alleged harm. It never answers the question, because the answer is 

painfully obvious: none. Kyocera will suffer no harm to its secrecy interests. 

Under Sixth Circuit law, that ends the inquiry. 

 This motion does, however, pose a serious threat to Kyocera, but the harm 

has nothing to do with claimed confidentiality over 10-year-old documents about 

contract negotiation. The harm will be that the Tokyo court will get to see for 

itself the true facts which completely belie Kyocera’s spurious allegations against 

Hemlock in Japan. That is the reason behind Kyocera’s frantic 24-page non1:15-cv-11236-TLL-PTM Doc # 99 Filed 04/29/16 Pg 2 of 9 Pg ID 5064
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responsive opposition, in which Kyocera bobs and weaves, attempts to shift the 

burden, and ties itself into a knot saying anything it can think of to try and hide its 

own documents from the very court in which it chose to be a plaintiff. This Court 

should hear none of it. 

 Kyocera has no good-faith basis to oppose this motion, and the Court should 

grant it accordingly. 

ARGUMENT 

I. Kyocera Fails To Identify Any Harm To Its Secrecy Interests That 

Would Result From Hemlock’s Proposed Modification 

Kyocera completely ignores case law from both the Sixth Circuit and this 

Court making clear that the only question on a motion to modify a protective order 

is whether the proposed modification would harm the non-moving party’s secrecy 

interests. See Meyer Goldberg, Inc., of Lorain v. Fisher Foods, Inc., 823 F.2d 159, 

163 (6th Cir. 1987); Aetna Inc. v. Blue Cross Blue Shield of Michigan, No. 11-

15346, 2015 WL 1499002, at *2 (E.D. Mich. Mar. 31, 2015); Kerasotes Michigan 

Theatres, Inc. v. Nat’l Amusements, Inc., 139 F.R.D. 102, 106 (E.D. Mich. 1991). 

Kyocera does concede that “[t]he central consideration governing a motion to 

modify a protective order is the need to balance the potential harm to the party 

seeking protection against the requesting party’s need for the information.” Opp. 

at 9 (internal quotation marks omitted). But Kyocera fails to meet even this 

standard, making zero effort to explain how submission of its own documents in 

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the antitrust action it chose to commence in the Tokyo District Court could 

possibly harm its secrecy interests. 

The only thing Kyocera musters is that this Court has no jurisdiction over 

Japanese individuals, such that it cannot enforce the Protective Order if Hemlock’s 

Japanese counsel or the Tokyo court should happen to violate it. See Opp. at 

16-17. This does not answer the question and is truly grasping at straws—and, not 

surprisingly, is completely unsupported by any case law or authority.1

With no legitimate explanation as to how disclosure of its documents to the 

Tokyo court would harm its secrecy interests, Kyocera tries to shift the burden to 

Hemlock, arguing that Hemlock has failed to demonstrate “good cause” for its 

proposed modification. See Opp. at 9-10. Even if the Sixth Circuit required a 

showing of good cause to modify a protective order—which, pursuant to Meyer 

Goldberg and Aetna, it does not—Hemlock has demonstrated ample need for its 

proposed modification. Hemlock is defending itself against an antitrust lawsuit 

that Kyocera brought in Japan, and Kyocera has produced relevant documents in 

this litigation that disprove its Japanese allegations. For example, the Tokyo 

District Court has ordered Hemlock to submit evidence rebutting Kyocera’s 

 

1

 Kyocera also argues that it “relied” on the Protective Order in producing 

documents in a prompt and efficient manner, and that its “production process 

would have been considerably slower” if the Protective Order had not been in 

place. Opp. at 14. Even if true, this has absolutely no relevance to the question of 

whether submission to the Tokyo court of Kyocera’s documents—which have 

already been produced to Hemlock—would harm Kyocera’s secrecy interests. 

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assertion that it was forced into accepting the exclusive jurisdiction provisions in 

the parties’ long-term supply agreements, and Hemlock has identified specific 

Kyocera-produced documents in this action that are crucial to such a rebuttal. 

Given that the two actions involve identical parties and facts, it is clear that 

Hemlock’s continued defense against Kyocera’s Japanese suit will require 

submission of Kyocera’s documents to the Tokyo court. Under these 

circumstances, Hemlock has demonstrated good cause. 

II. Nothing In Kyocera’s Opposition Changes The Sixth Circuit Standard 

Or Kyocera’s Failure To Meet It 

Recognizing that it faces an uphill battle in opposing Hemlock’s motion, 

Kyocera beseeches the Court to assess a host of other miscellaneous factors, which 

have only been considered by district courts outside of this Circuit. See Opp. at 

9-10. The Court should decline Kyocera’s invitation to re-write Sixth Circuit law 

regarding modifications of protective orders. And in any event, none of Kyocera’s 

proposed factors changes the overriding fact that (a) Hemlock has demonstrated a 

need to modify the Protective Order; and (b) Kyocera has failed to demonstrate 

that Hemlock’s proposed modification would cause any harm to Kyocera’s secrecy 

interests. 

Kyocera also argues that Hemlock’s proposed modification is overbroad 

because it fails to identify specific documents that Hemlock wishes to submit to the 

Tokyo District Court. See Opp. at 17-18, 23-24. As an initial matter, Hemlock has 

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identified several specific documents that it needs to submit to the Tokyo court in 

the near future. See Mem. Of Law (Dkt. # 92-1) at 7. But more importantly, 

Kyocera’s overbreadth argument is, again, not grounded in Sixth Circuit law, 

which only requires that the proposed modification not harm secrecy interests. 

Under this standard, the breadth of Hemlock’s proposed modification does not 

matter: whether Hemlock is permitted to submit only a handful of Kyocera’s 

documents to the Tokyo court or whether it is permitted to submit dozens, the harm 

to Kyocera’s secrecy interests will be exactly the same—zero.2

 

In fact, Kyocera’s overbreadth argument only reinforces that Kyocera is 

simply trying to keep from the Tokyo court documents at odds with its Japanese 

antitrust allegations. Instead of a commonsense modification of the Protective 

Order in this action, Kyocera seems to suggest that Hemlock should have to 

navigate Japan’s restrictive discovery procedures and petition the Tokyo court—on 

a one-by-one basis—for piecemeal production of documents that Kyocera has 

already produced to Hemlock. Kyocera knows that this could hinder Hemlock’s 

ability to defend itself effectively and efficiently in the Japanese action. But the 

 

2

 In connection with this argument, Kyocera makes the bizarre claim that 

Hemlock’s proposed modification would be “overly intrusive and burdensome” for 

Kyocera because Kyocera would be “forc[ed] . . . to review its entire production” 

in order “to determine whether Hemlock has any genuine need to introduce these 

documents” to the Tokyo court. Opp. at 23. Kyocera does not explain why it 

would have to re-review its document productions in connection with Hemlock’s 

submission of Kyocera’s documents to the Tokyo court. 

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Japanese antitrust action is a baseless attempt by Kyocera to avoid its contractual 

obligations to Hemlock, and it should not be permitted to impede Hemlock’s 

ability to demonstrate to the Tokyo court—with Kyocera’s own documents—how 

vacuous those claims are. 

Finally, Kyocera fails to cite even one case where cross-use of U.S. 

discovery materials in related foreign litigation has been denied. Instead, Kyocera 

makes a flimsy attempt to distinguish the unanimous line of cases (cited in 

Hemlock’s opening brief) granting cross-use motions similar to the one Hemlock 

brings here. See Opp. at 20-21. None of Kyocera’s meaningless distinctions have 

any merit, and Hemlock’s motion should be granted accordingly. 

 

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Dated: April 29, 2016 By: /s/ Alvin Lee 

 

ORRICK, HERRINGTON & SUTCLIFFE LLP 

J. Peter Coll, Jr. 

John Ansbro 

Alvin Lee 

51 West 52nd Street 

New York, New York 10019 

Telephone: (212) 506-5000 

Facsimile: (212) 506-5151 

pcoll@orrick.com 

jansbro@orrick.com 

alee@orrick.com 

BRAUN, KENDRICK, FINKBEINER, PLC 

Craig W. Horn (P34281) 

4301 Fashion Square Boulevard 

Saginaw, Michigan 48603 

Telephone: (989) 498-2100 

crahor@BraunKendrick.com 

Attorneys for Plaintiffs Hemlock Semiconductor 

Corporation and Hemlock Semiconductor, LLC 

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CERTIFICATE OF SERVICE 

I hereby certify that on April 29, 2016, I electronically filed the foregoing 

Plaintiffs’ Reply In Further Support Of Their Motion To Modify The Protective 

Order with the Clerk of the Court using the ECF System, which will send 

notification of such filing to all attorneys of record. 

 By: /s/ Alvin Lee 

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