A Blog About Intellectual Property Litigation and the District of Delaware

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It's a common dilemma in expert discovery: the other side's expert says something new in an opening report, you move to strike it, and you get a hearing date after the deadline for your rebuttal report. Do you have your expert respond (and weaken your prejudice arguments)? Or do you double down on your motion to strike (and risk losing the ability to respond altogether)?

In D. Del., the second option is a huge gamble. Yes, it's possible to persuade our judges to strike late-disclosed expert opinions (even under the Third Circuit's lenient Pennypack factors). But if you won't get a ruling before your responsive report is due, ignoring the new material can be dangerous.

Judge Burke addressed these kinds of self-help measures in an oral order on Tuesday. The parties requested a discovery teleconference during expert discovery, and Judge Burke set a hearing for February 8. In doing so, he noted that:

certain of Defendants' requests for relief appear to relate to deadlines occurring before the date of the teleconference. Defendants should be prepared that even if their motion is ultimately successful, they will receive no relief prior to February 8. Relatedly, Defendants are on notice that they should do whatever they feel they need to do in the interim to ensure that, if they ultimately do not prevail on their motion, they have not forfeited any rights due to their failure to take certain actions.

Most orders don't have this language, but the risk is always there. So next time you move to strike, be careful about putting all your chips on exclusion.

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