A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Delay

Delay Is a Motion Killer: Part Four

Andrew E. Russell, Jan. 16, 2026
Motion to Strike Delay

Expect Delays
Erik Mclean, Unsplash

Don't let your discovery motions sit! We got another opinion this month denying a discovery motion in part due to a party's delay, this time from visiting Judge Bibas of the Third Circuit:

ORAL ORDER: I DENY Vertex's motion to strike, D.I. 178 . I apply the Pennypack factors: (1) the surprise or prejudice to Vertex; (2) the ability of Vertex to cure the prejudice; (3) the likelihood of disruption of trial; (4) the bad faith or willfulness involved in not complying with the disclosure rules; and (5) the importance of the evidence sought to be excluded. Meyers v. Pennypack Woods Home Ownership Ass'n, 559 F.2d 894, 90405 (3d Cir. 1977). Lupin had disclosed enough that …
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Delay Is a Motion Killer: Part Two

Andrew E. Russell, May 8, 2024
Discovery Disputes Motion Practice

Do It Now
Brett Jordan, Unsplash

Last month we wrote about how delay is a motion killer. Procrastination is a problem most of us litigators share. But if you want your discovery motion granted, it's best to move now not later. Keep up the pressure.

We got another example of that yesterday in Tot Power Control, S.L. v. LG Electronics Inc., C.A. No. 21-1304-MN (D. Del. Apr. 23, 2024) (unsealed May 7, 2024). Tot is an opinion by Judge Fallon on several discovery motions, and two of them were denied due to delay.

First, the Court denied a request to compel plaintiff to produce communications related to valuations it received. Back in June 2023, the plaintiff had agreed …

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Delay Is a Motion Killer

Andrew E. Russell, April 15, 2024
Delay Motion Practice

Stick Figure Watch
AI-Generated, displayed with permission

If there is one thing that tends to kill discovery motions, it's delay. If you want to have the best chance of winning your motion to compel, supplement, strike, etc., you need to bring the motion early. Don't wait.

We got a good example of that last week in CosmoKey Solutions GmbH & Co. KG v. Duo Security, Inc., C.A. No. 18-1477-JLH, D.I. 163 (D. Del. Apr. 9, 2024). There, a defendant sought to compel a deposition of an inventor before a Markman hearing, arguing that the testimony was important for claim construction. The Court denied the request, in part because they waited too long:

ORAL ORDER: The Court has reviewed the discovery …
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