In the holding below, Judge Burke found that, under Pennypack, producing documents just over two months before trial was sufficient to provide time for "Defendants to be able to appropriately respond to Plaintiffs' expert's related position."
This is a shorter timeline than typically comes up. For example, Judge Burke has previously struck late-produced material where there were six months remaining before trial, although in that case the other Pennypack factors also played a role.
The facts here were not terrible for defendants. The documents had been produced by individual defendants in a set of related cases. According to the plaintiff, the expert reports at issue used the documents from various defendants to respond to arguments from those defendants, although the reports were also served on other defendants.
The documents were first produced to all defendants about six weeks after the final reports, in between the first and second day of the expert's deposition.
The Court denied the motion after it found no prejudice, and no other Pennypack factors weighed in defendants' favor.