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This is not an illustration of the Pennypack factors in action
This is not an illustration of the Pennypack factors in action Lindsay Cotter, Unsplash

I just came across the above quote, which is from a discovery dispute back in April where Judge Burke struck a very-late-disclosed witness.

It's an interesting—and accurate—description of the Pennypack factors. Most DE patent litigators are familiar with Pennypack, which set forth a loose set of factors for deciding whether to apply the "extreme" sanction of excluding "critical" evidence. Meyers v. Pennypack Woods Home Ownership Ass’n, 559 F.2d 894, 905 (3d Cir. 1977).

Even though Pennypack issued way back in 1977, modified versions of its list of factors are still applied today. When they come up, they most often favor the party producing late evidence.

Some suggest that Pennypack is basically an open door to late supplementation, but that's not true. Late disclosures can still be excluded, as evidenced by Judge Burke's decision here.

I expect we'll see this quote popping up again in future discovery dispute letters, because it pithily captures the nature of Pennypack as it is often applied in D. Del.


P.S. Judge Burke's order is interesting in its own right.

The plaintiff had designated its COO as a witness to "describe the company and its mission." When its COO then departed the company, plaintiff waited 5 months to disclose a replacement.

Plaintiff claimed the delay was partially due to "a 'thorough process' to decide whom it should designate."

Judge Burke struck the replacement witness from trial. According to the Court, "'[u]ntimely' does not do this 'process' justice."

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