This week, Judge Burke issued an interesting oral order on a discovery dispute about the admissibility of "new" expert opinions in rebuttal reports.
In the order, he sets forth a simple baseline test for what a party has to show to strike purportedly "new" expert opinions in a rebuttal report. To succeed in striking a "new" theory, a party must show at least:
(a) how they clearly disclosed that theory well before final . . . contentions were due . . . ; (b) how the same theory was thereafter found in their opening expert reports . . . ; and (c) how [the opposing party] never provided any substantive response to that theory until the submission of [their] rebuttal expert reports regarding invalidity. (If a theory does not at least meet the above criteria, the Court will not be striking [the] response to that theory from [the] rebuttal expert reports.)
He also declined to strike two other theories from rebuttal reports, both times faulting the defendants:
- He held that defendants' shifting objections to plaintiff's interrogatory responses meant that purportedly "new" rebuttal opinions were not actually "new," because even at oral argument the defendants could not clearly articulate a specific problem with plaintiff's interrogatory responses.
- He held that defendants' final contentions “included [obviousness] combinations within incredibly broad and vague disclosures that made reference to 20+-reference combinations; those kind of disclosures are hardly notice of anything.” He therefore permitted previously undisclosed non-obviousness opinions in rebuttal.
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