Over the past year, we've noticed that the D. Del. judges have shown an increasing willingness to exclude late-disclosed evidence and theories. Until recently, motions to strike were difficult to win under the Third Circuit's Pennypack standard. If the prejudice caused by the late disclosure could be cured, it was almost impossible to get anything excluded.
Today, harkening back to an earlier time, Judge Andrews denied cross-motions to strike allegedly late-disclosed theories from the parties' opening expert reports. Although he found that the defendant's motion presented a close call on late disclosure, he concluded that "[e]ven if these infringement theories were untimely, I find, under the Pennypack factors, that their exclusion is not warranted."
At …
