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 …
Well, this is a new one for me. In Wirtgen America, Inc. v. Caterpillar, Inc., C.A. No. 17-770-JDW-MPT (D. Del. Jan. 16, 2024), the plaintiff had previously brought an action in the ITC against the defendant, and won—achieving an exclusion order that stood up (in part) on appeal.
Now, in a District of Delaware action on the same patents, plaintiff argues willfulness based in part on the previous ITC ruling. Defendant tried to offer an expert who would testify about how great its defenses were at the ITC:
Caterpillar offers Mr. Bartkowski to opine on how …
Years ago, Judge Stark added language to his form scheduling order to resolve a common dispute: can an expert submit a declaration in support of summary judgment?
The language requires the parties to agree in advance, at the start of the case, whether they will permit this:
Expert Report Supplementation. The parties agree they [will] [will not] [CHOOSE ONE] permit expert declarations to be filed in connection with motions briefing (including case-dispositive motions).
Judge Stark has since moved up, but several D. Del. judges still use this language in their scheduling orders, including Judges Noreika, Hall, Burke, and …
Parties often offer expert declarations during the claim construction process.
These declarations can be of varying utility. Sometimes, parties offer a detailed and helpful explanation of how the technology works. Other times, parties offer a useless, conclusory expert declaration that says little more than "a person of ordinary skill in the art would understand the term to mean [whatever construction the attorneys who hired me proposed]."
But, while declarations are common, in my experience live testimony from experts during a Markman hearing is pretty rare in D. Del. That's why I thought it was worth noting that, this week, Judge Burke granted an opposed request to permit …
In a pair of orders last week in Shopify Inc. v. Express Mobile, Inc., C.A. No. 19-439-RGA (D. Del.), Judge Andrews set out guidelines for the trial testimony of two fact witnesses, who will offer testimony at trial regarding some prior art references (among other things).
The procedural background here is surprising. The patentee moved in limine to exclude the testimony of these witnesses, and the Court addressed the motion at a pre-trial status conference. There, the Court directed that the parties depose the witnesses and that the accused infringer submit proffers of the testimony that will be offered at trial.
The parties then filed a stipulation setting …
