A Blog About Intellectual Property Litigation and the District of Delaware

Pennies. Mark Bosky, Unsplash

I always find it interesting to see what kinds of facts that can succeed in a motion to strike. As I've mentioned, motions to strike in the Third Circuit are governed by the Pennypack factors, which can be tricky to meet and often favor lesser remedies (although the Court does strike things).

Here is what it took to warrant striking portions of an opening infringement report Arendi S.A.R.L. v. LG Electronics, C.A. No. 12-1595-LPS (D. Del.):

  • Disclosing infringement contentions against five new products for the first time;
  • Relying on previously undisclosed evidence;
  • Doing so in the 8th year of a case (albeit one currently without a trial date);
  • Having no explanation for the late disclosure; and then
  • Arguing that the scheduling order did not explicitly require final infringement contentions.

Add all of that up, and–according to the Court—it warrants striking even important evidence.

While the Court did not call out FRCP 26(e) specifically, I feel like this oral order will be a decent cite for the idea that a party cannot sit on its hands and fail to supplement its contentions just because a explicit deadline is not set. In other words, "always be supplementing."

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