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 the Defendant to present new defenses, and because DOE is a big change from a direct infringement theory:
a belated attempt to introduce a DOE theory of infringement is “not a mere correction of information, but instead, creates a new ballgame.”
He dealt with the next two factors, the ability to cure and disruption of trial, in a single sentence:
Although the COVID-19 pandemic has already disrupted plans for an “orderly and efficient trial,” re-opening discovery to give Defendant an opportunity to cure the prejudice would only disrupt the schedule further.
For the last factor, the Court found the delay willful because the plaintiff knew it had an obligation to disclose the theory earlier.
He also rejected the idea that the theories are important to the case, because Plaintiff can still rely on it's literal infringement theory presented in its opening report.
He then struck the new DOE theory.
More Exclusion of Late Theories Is Good
It seems to me that we've had more Pennypack exclusions than usual lately. If so, in my view, its a good thing.
The factors as often applied are tilted towards letting things in, as long as the offering party's explanation for the delay is anything short of willful behavior. That enables parties to be lax in their contentions and interrogatory responses, which in turn bogs down the rest of the case.
Worst of all, when the schedule is not enforced rigorously, it essentially punishes those who do follow it. They wind up putting their theories out first, often in the dark, and then have to fight an often-uphill battle to exclude the other side's late theories (not to mention having to deal with how to respond to those late-disclose theories, when the response is also technically late). Enforcing schedules is good for everyone in the long run.
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