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 the outset, he noted that the Pennypack factors are less forgiving in complex cases:
I note that in "sophisticated, complex litigation involving parties represented by competent counsel," courts "have been less indulgent" in applying the Pennypack factors and "more willing to exclude evidence without a strict showing that each of the Pennypack factors has been satisfied." Bridgestone Sports Co. v. Acushnet Co., 2007 WL 521894, at *4 (D. Del. Feb. 15, 2007). There is little doubt that this litigation, which has already spanned the better part of a decade, is "complex" and that the parties have been represented by "competent counsel."
He denied the motion nonetheless, finding that "[a]ny prejudice Defendant suffered can be or has been remedied and the infringement theories and supporting expert opinions are important to Plaintiff's infringement case."
So what's the difference between this case and the recent D. Del. decisions striking late-disclosed theories and evidence? For one thing, Judge Andrews emphasized that there was "no trial scheduled for" this group of patents, and thus there was plenty of time to take curative discovery.
He also noted the apparent lack of bad faith or willfulness. This has been a significant factor in several recent exclusion orders, including from Judge Stark and Judge Andrews.
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