A Blog About Intellectual Property Litigation and the District of Delaware


Entries for search: pennypack

Judge Bibas: "Deadlines are not suggestions. Litigants must respect them."

Andrew E. Russell, July 19, 2021
Substantial Completion FRCP 26

Penny
Adam Nir, Unsplash

As we've discussed, parties sometimes treat the deadline for "substantial completion of document production" as a soft deadline, doing a "rolling production" afterwards that can be quite voluminous. An opinion from Judge Bibas today shows the risk of not taking that deadline seriously.

In the opinion, Judge Bibas excluded over 60,000 rows of spreadsheet sales data that were produced by a defendant in an Fair Labor Standards Act class action, after the defendant waited until six months after the deadline for substantial completion of document production to produce the data.

As usual for Judge Bibas, his opinion is an interesting read and a bit different from what we typically see from other judges in Delaware. …

View

Special Master Williams, Nominated to Replace Judge Stark, Strikes Late Infringement Contentions

Andrew E. Russell, May 25, 2022
DOE Motion to Strike

Special Master Williams quoted Judge Andrews' recent holding that a new <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Doctrine of Equivalents'>DOE</a> argument
Special Master Williams quoted Judge Andrews' recent holding that a new DOE argument "creates a new balgame." Caitlin Conner, Unsplash

Yesterday, Special Master Gregory B. Williams, who has been nominated to replace Judge Stark, issued an order granting a motion to strike late Doctrine of Equivalents contentions.

In TQ Delta, LLC v. Comcast Cable Communications LLC, C.A. No. 15-611-RGA, D.I. 455 (D. Del. May 24, 2022), plaintiff served a new DOE theory over two months after final contentions were due, after it found—following non-infringement contentions received from the defendants—that its original DOE theory would fail.

Special Master Williams rejected …

View

"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."

Andrew E. Russell, Oct. 10, 2023
Motion to Strike Pennypack

"Why were we late? Aliens! No wait—bigfoot. I don't know." Albert Antony, Unsplash

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 …
View

Judge Stark Bars Late-Disclosed Witnesses from Trial

David M. Fry, Aug. 4, 2021
Pennypack MIL

Ref
Nathan Shively, Unsplash

We've written several times about the Pennypack factors—the Third Circuit standard for determining whether to exclude late-disclosed evidence. Although the standard itself is fairly lenient (focusing on prejudice and whether it can be cured), the D. Del. judges have shown an increasing willingness to exclude evidence under Pennypack in recent years.

Earlier today, for example, Judge Stark applied Pennypack to preclude four witnesses from testifying at an upcoming jury trial (two from each side). The witnesses were disclosed months after the close of fact discovery, and Judge Stark refused to force the parties to use their limited trial prep time for clean-up discovery: "there is not sufficient time in the 12 remaining days before trial …

View

The Risks of Deposing the Other Party's Expert

Andrew E. Russell, Nov. 15, 2024
Expert Witness Expert Discovery

Should we take our chances now with a motion to strike, or later with a <a href='#' class='abbreviation' data-bs-toggle='tooltip' data-placement='top' title='Motion in Limine'>MIL</a>? Or just not play?
Should we take our chances now with a motion to strike, or later with a MIL? Or just not play? Hush Naidoo Jade Photography, Unsplash

You don't have to depose the other parties' experts, and strategically, sometimes it can make sense not to. If you have a good sense that their report(s) are flawed and they may use the deposition to try to add key information to the record (regardless of your questions), it may make sense to avoid the deposition altogether.

That strategy is less common but certainly not unheard of—assuming trial counsel is confident in their positioning and ability to …

View

To Put Right What Once Went Wrong

Nathan R. Hoeschen, Aug. 31, 2023
Declarations Summary Judgment

It's got more of a Rufus from Bill & Ted vibe, but I think you get what I was going for
AI-Generated, displayed with permission

There is probably no more common desire than the ability to go back in time to correct one's mistakes. To use examples from the fascinating life of Jeff Goldblum, you could:

  • Decline that invitation to the trial run of a dinosaur themed amusement park
  • Check your laboratory for bugs before experimenting with teleportation, or alternatively, hire an assistant
  • Suggest someone else lead the pod people away so the group can escape. Ideally, this person would be a bit faster than you.

Most lawyers are bound by more mundane hopes. The job is riddled with tiny-seeming pitfalls with potentially disastrous consequences. Every time you fall into one, you wish you could just call a mulligan and fix …

View

Court: Document Production Two Months Before Trial Sufficient to Avoid Prejudice

Andrew E. Russell, Sept. 14, 2020
Motion to Strike Pennypack

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 …

View

Always Be Supplementing

Nathan R. Hoeschen, Aug. 20, 2020
Expert Discovery Deposition

Unusually Spry Expert Rushes to Supplement Report
Unusually Spry Expert Rushes to Supplement Report Man Holding Handbag, Andy Beales, Unsplash

Judge Andrews recently granted a motion in limine precluding a party from presenting expert opinions that were not disclosed until the expert's deposition -- without analyzing the Pennypack factors.

The correct procedure for challenging a late disclosure of theories or evidence has long been a matter of some debate in Delaware. There are cases suggesting that the party seeking to update its contentions should move for leave to do.

More commonly, a party will simply serve updated contentions or expert reports that the opposing party moves to strike. Regardless, the motions are generally analyzed under the demanding Pennypack factors, with the usual result that the …

View

Court Finds Late Doctrine of Equivalents Theory Prejudicial Because Adding DOE "Creates a New Ballgame"

Andrew E. Russell, July 31, 2020
Expert Discovery Pennypack

Remember these?
Remember these? Tim Gouw, Unsplash

It can be tough to get late-produced theories or evidence excluded in Delaware, because the Court must apply the permissive Pennypack factors that typically favor admission.

The factors include prejudice, ability to cure any prejudice, disruption of trial, and bad faith/willfulness.

But lately, the Court seems to be granting more motions to strike such theories. Today, Judge Andrews granted a motion to strike a late DOE theory offered for the first time in a reply report.

Judge Andrews Isn't Messing Around

He shot down the Pennypack factors in four short and to-the point paragraphs.

As to the first factor, he found prejudice because admission of a late theory requires …

View
Newer
Older

Archive