A Blog About Intellectual Property Litigation and the District of Delaware


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The law can always surprise you. Sometimes this is a bad thing. For instance, I was surprised and saddened to learn that, in the city of Wilmington, you can only have a chicken if it is an emotional support animal who lives at least half of the year in your home. Unfortunately, Learned Claw is not yet house-trained.

Sometimes, though its a good surprise. The sort that you can wring a blog post out of if you can pad it with a personal anecdote (*coughs*).

For instance, I was surprised to learn that there was a dispute about the standard for reviewing one of the most common disputes in all of Delaware -- whether to strike contentions under the Pennypack factors.

The specific context at issue in the painfully long-running case of TQ Delta LLC v. Comcast Cable Communications LLC, was an objection to a Special Master's Order. The underlying dispute was your usual Pennypack issue, with one party complaining that the other had disclosed a new DOE theory too late in the game, and the other arguing that the theory was not really new at all. The Special Master went through all of the usual factors and ultimately struck the new theory.

It got interesting in the objections. There, the parties disputed whether striking late disclosures was a "procedural matter" or substantive, and thus whether it should be reviewed for abuse of discretion or de novo. See Fed. R. Civ. P. 53(f). Judge Andrews ultimately held that the dispute was substantive, stating:

[W]hile there is an argument that this is a procedural matter which should be reviewed for abuse of discretion, I think there is more than just a procedural issue here, and I therefore review it de novo . . . .

TQ Delta LLC v. Comcast Cable Communications LLC, C.A. No. 15-611-RGA (D. Del. Sept. 7, 2022) (Mem.)

He ultimately sided with the Special Master regardless, striking the contentions. The opinion is worth reading in full (its quite short) and is also noteable for being one of the very few cases where the Court finds that the "bad faith" factor favors exclusion, noting that the plaintiff had already faced numerous Pennypack motions based on late disclosures in the related cases:

I agree with the Special Master’s Pennypack analysis (perhaps with the exception that I would find TQ’s actions to be in bad faith, based on the number of times they have taken identical actions before, . . . and thus would have weighted that factor against TQ instead of calling it neutral) . . . .

Id.

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