It can sometimes be tough to decide whether to ask the Court permission, or to just do something. The answer can vary depending on the thing you are doing and the judge.
But certain things clearly require permission. Say, for example, offering a "supplemental" expert report with a new damages calculation almost two years after the reply expert report, and only 19 days before trial:
There is no dispute that MED-EL failed to disclose Barry Sussman’s most recent damages calculations based on survey results (set forth in Paragraph 11 of his Supplemental Expert Rebuttal Report) during the expert disclosure period. Indeed, the final round of expert reports were due more than two years ago, on November 24, 2021. Mr. Sussman claims to be responding to the Reply Expert Report And Disclosure Of Julie L. Davis from January 14, 2022, but MED-EL disclosed Mr. Sussman’s latest calculations to Advanced Bionics on November 22, 2023—just 19 days before trial is scheduled to begin. And, while MED-EL suggests that Mr. Sussman’s calculation does not qualify as “new” because it relates to something a calculation that Ms. Davis performed, the calculation itself is surely new because Mr. Sussman has not disclosed it before in the case.
Med-El Elektromedizinische Geräte Ges.M.B.H v. Advanced Bionics, LLC, C.A. No. 18-1530-JDW (D. Del. Dec. 8, 2023).
Applying the Pennypack factors, the Court had no trouble holding that the maneuver prejudiced the other side:
MED-EL’s belated disclosure—less than a month before trial—has surprised and prejudiced Advanced Bionics, and there is no reasonable opportunity to cure that prejudice. Indeed, there is no time left for Advanced Bionics to depose Mr. Sussman or otherwise prepare to address this new opinion at trial. Permitting Mr. Sussman to offer this opinion at trial would disrupt the proceedings and would be inefficient because it would require Advanced Bionics to explore this new calculation with Mr. Sussman on the fly, without having the benefit of his deposition testimony on this issue.
Id. at 3. The Court saw through the idea that the report merely updated damages figures or responded to the (nearly two-year-old) opposing report, and struck the new report:
. . . Advanced Bionics has not identified any bad faith or willfulness on MEDEL’s part, and I do not see any. Instead, MED-EL attempted to take advantage of a limited opportunity to update damages figures with current sales data to include a new damages calculation. It does not matter if Mr. Sussman’s supplemental opinion is a “new theory” of damages or a mere “correction” of Ms. Davis’s calculation. If MED-EL or Mr. Sussman wanted to respond to Ms. Davis’s reply expert report, then MED-EL should have sought leave of Court to do so in a timely fashion. Instead, it waited more than 22 months to assert a new damages calculation under the guise of updating some figures. If this evidence were so important to MED-EL’s defense, it could have—and should have—raised the issue long ago. While opting to seek forgiveness rather than permission may not rise to the level of bad faith, there are consequences to such behavior, especially at this late stage of the proceedings.
. . . Having considered all of the relevant factors, I will strike Paragraph 11 of Mr. Sussman’s Supplemental Expert Rebuttal Report and the supporting Exhibit D.1.
Id. at 3-4. It's worth noting that the Court issued its decision the very next day after receiving the answering brief on the issue. It doesn't look like it was a difficult call.
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