I am from Minnesota. Home of the noble loon, and dainty ladyslipper. It is a harsh place. I have read in books of lands where a person's word is all they have -- a sacred thing that must be protected at all costs. To barter it away is to invite the most dire peril.
Minnesota is not such a place. The winds are fickle there, and everyone understands that most commitments are contingent upon a (sometimes unlikely) confluence of fortuitous occurrences. If you way, I'll visit Gramma this weekend, there's an implied "if it's not too cold." If you say "I'll bring the cheeseburger soup" it's understood that you mean, "as long as the store has the good melty cheese, and if they don't I'll just grab some bugles and corn nuts." Honor is for the warm.
Obviously, this brings me to Judge Kennelly's opinion this week in 10X Genomics, Inc. v. Bruker Spatial Biology, Inc., C.A. No. 22-cv-261-MFK (D. Del. Mar. 6, 2025). The court there had previously granted a motion to strike the plaintiffs' final infringement contentions for being served late -- on the last day of the discovery period.
The defendant then moved to strike portions of plaintiffs expert reports which allegedly addressed theories only disclosed in the stricken contentions. Judge Kennelly denied the motion, and in doing so reversed the earlier order striking the contentions in part because, in reviewing the new motion, he realized that the plaintiff had not actually missed the court-ordered deadline:
The Court erred in part because it effectively converted an agreement of the parties (regarding the deadline for final infringement contentions) to an order by the Court, which it was not. The parties certainly had good reasons for extending the deadline in the first place, but the particular revised deadline—which is the deadline that 10x's amended contentions did not meet—was not set by the Court. The Court erred in treating it the same a court order
Id. at 2-3.
In reviewing the docket, it looks like the issue was that the scheduling order set a date for final contentions keyed off a Markman order, but that the parties separately agreed to an earlier date certain -- which is the date plaintiff allegedly missed, leading the various motions to strike. The parties never filed a stipulation memorializing the agreement.
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