We've written several times about the Pennypack factors—the Third Circuit standard for determining whether to exclude late-disclosed evidence. Although the standard itself is fairly lenient (focusing on prejudice and whether it can be cured), the D. Del. judges have shown an increasing willingness to exclude evidence under Pennypack in recent years.
Earlier today, for example, Judge Stark applied Pennypack to preclude four witnesses from testifying at an upcoming jury trial (two from each side). The witnesses were disclosed months after the close of fact discovery, and Judge Stark refused to force the parties to use their limited trial prep time for clean-up discovery: "there is not sufficient time in the 12 remaining days before trial to cure this prejudice[.]"
He also found that this "violation of the Court's deadlines appears to have been willful," noting that the "explanations given are unpersuasive":
For example, Autel states that "counsel only recently learned of its [client's] new CEO." . . . Surely, the client itself had to have known of this new arrival months ago.
Likewise, he found that the other side failed to provide "any persuasive reason for its seemingly willful violation of the scheduling order deadlines":
Ms. Ma, DJI's Head of Consumer Marketing, was not disclosed as a witness until April 2021, far past the conclusion of fact discovery in September 2019, notwithstanding that she had worked at DJI for at least several years prior to 2019. Moreover, the witness she is purportedly replacing (Michael Perry) left DJI a year before fact discovery closed, yet "DJI waited three years to inform Autel of this change in circumstance."
Take this lesson to heart, and don't assume that Pennypack will get you off the hook for late-disclosed witnesses and evidence. As we were recently reminded by one of our visiting judges: "Deadlines are not suggestions."
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