We've talked about how, when deciding whether a late disclosure should result in waiver, the Court applies the Third Circuits rather forgiving Pennypack factors.
We've also discussed how you really ought to have a reason for a late disclosure.
On Friday, we saw another example of that in Natera, Inc. v. CareDX, C.A. No. 20-038, D.I. 392 (D. Del. Oct. 6, 2023). Magistrate Judge Burke rejected the idea that a party can just not bother to provide an explanation for its late disclosure:
ORAL ORDER: The Court, having reviewed Plaintiff's motion to strike certain [expert] opinions . . . hereby GRANTS the remaining pending portion of the Motion, via which Plaintiff requests that the Court strike references to a new purported non-infringing alternative ("NIA"), for the reasons that follow: (1) [T]here can be no doubt that the opinions at issue relating to the NIA are untimely.; (2) . . . [W]hile "the Pennypack factors may be very forgiving, they are not a sieve." . . . With respect to the fourth Pennypack factor, it at least slightly favors Plaintiff. While the Court would not use the term "bad faith" to describe this late disclosure, the circumstances here do seem to get closer to the "flagrant disregard" of Defendant's discovery obligations. . . . That is because in its briefing, as noted above, Defendant made absolutely no effort to explain why it did not earlier disclose the NIA at issue. The Court cannot countenance a world where, for no good reason at all, parties simply wait until middle of expert discovery to disclose new theories. . . . For these reasons, the Court hereby STRIKES [the relevant paragraphs of the reports]. Ordered by Judge Christopher J. Burke on 10/6/2023.
I have a feeling that last quote—that the "Court cannot countenance a world . . ."—is something we'll see cited going forward.
Along similar lines, the Court held that a disclosure of new theories in the middle of expert reports is "undoubtedly prejudicial":
The first Pennypack factor, which considers surprise or prejudice, would clearly favor Plaintiff. It is undoubtedly surprising and prejudicial when a party springs a new theory in the middle of expert discovery without any prior hint that it might do so.
A clean PDF of the oral order is embedded below, for your citing pleasure.
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