A Blog About Intellectual Property Litigation and the District of Delaware


Entries for tag: Pennypack

Court Excludes "Cobbled Together" Damages Theory Days Before Trial; Plaintiff Wins Infringement But No Damages Award

Andrew E. Russell, Nov. 18, 2021
Trial Expert Reports

Ouch.
Ouch. Emil Kalibradov, Unsplash

Back in September we wrote about how Judge Andrews rejected an expert who relied on a 50/50 starting point to show damages in a patent case. We noted at the time that the defendant had moved to strike any follow-up theory by the plaintiff, and it wasn't clear that the Court had ruled on it before trial began.

Now we know what actually happened. Yesterday, the Court released its opinion on the motion to strike. In its opinion, the Court explained that after the plaintiff lost its damages expert, the plaintiff tried to "cobble together" a damages theory from various facts on the Friday before trial. The Court struck that new theory:

[Plaintiff] NexStep …
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What Can a Patentee Do When the Court Excludes Its Damages Expert? Maybe Force the Other Side’s Damages Expert to Testify for the Patentee.

Andrew E. Russell, Oct. 29, 2021
Damages Experts

With this case, the hits just keep coming...
With this case, the hits just keep coming... Mitya Ivanov, Unsplash

What do you do when your expert's damages opinion gets excluded, the Court rules you cannot proceed based solely on the factual evidence, and you bear the burden of proof?

According to an opinion from Judge Andrews yesterday, one option is to call the other side’s expert—even if the other side otherwise refuses to put her on the stand.

This Case Again?

We've actually talked about this case, Shure Inc. v. ClearOne, Inc., C.A. No. 19-1343-RGA-CJB (D. Del.), quite a bit at this point, including defendant's efforts to use DJ jurisdiction to keep part of the case out of Delaware, and plaintiff's effort …

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Judge Andrews Strikes Last-Minute Damages Report

David M. Fry, Oct. 27, 2021
Damages Pennypack

When it comes to supplemental expert reports, how late is too late?

In a case that's set for trial next month, Judge Andrews recently addressed the parties' objections to a number of orders and R&Rs issued by Magistrate Judge Burke. In one of those orders, Judge Burke granted a motion to exclude some of the plaintiffs' damages calculations as erroneous and unreliable.

The plaintiffs objected, and in the meantime, they served a supplemental damages report attempting "[t]o correct the flawed analysis" excluded by Judge Burke.

Judge Andrews not only overruled the objections, but also found that the supplemental report was submitted too late:

The report was filed less than three weeks before trial. . . . This is …
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Pennypack Strikes Back: The Return of Curative Discovery

David M. Fry, Aug. 23, 2021
Motion to Strike Pennypack

Cave
Cade Roberts, Unsplash

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 …

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Judge Stark Bars Late-Disclosed Witnesses from Trial

David M. Fry, Aug. 4, 2021
Pennypack MIL

Ref
Nathan Shively, Unsplash

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 …

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Judge Bibas: "Deadlines are not suggestions. Litigants must respect them."

Andrew E. Russell, July 19, 2021
Substantial Completion FRCP 26

Penny
Adam Nir, Unsplash

As we've discussed, parties sometimes treat the deadline for "substantial completion of document production" as a soft deadline, doing a "rolling production" afterwards that can be quite voluminous. An opinion from Judge Bibas today shows the risk of not taking that deadline seriously.

In the opinion, Judge Bibas excluded over 60,000 rows of spreadsheet sales data that were produced by a defendant in an Fair Labor Standards Act class action, after the defendant waited until six months after the deadline for substantial completion of document production to produce the data.

As usual for Judge Bibas, his opinion is an interesting read and a bit different from what we typically see from other judges in Delaware. …

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Another Late Expert Opinion Bites the Dust

David M. Fry, March 31, 2021
Motion to Strike Pennypack

We keep writing about how hard it is to win a motion to strike in D. Del., which is generally true. That said, it's still possible to get late-disclosed theories and evidence excluded, especially when there's no good explanation for the delay.

Yesterday afternoon, one plaintiff learned that lesson the hard way. As often happens, the plaintiff argued that the defendant's expert raised new opinions on motivation-to-combine in his reply report.

But instead of moving to strike (or seeking leave to submit a sur-rebuttal report, or dealing with the issue during expert depositions...), the plaintiff simply waited until summary judgment briefing. There, it submitted a rebuttal declaration from its own expert in support of its answering brief on invalidity. …

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Judge Burke Chides Parties for Time-Wasting Motion to Strike

David M. Fry, March 17, 2021
Motion to Strike Pennypack

We've written several posts about the Pennypack factors and how hard it can be to win a motion to strike in D. Del. The upshot is that it's often better to simply reach agreement on a curative remedy rather than spend time on full-blown motion practice.

Case in point: on Monday, Judge Burke denied a motion to strike a two-page supplemental expert declaration on a patentability issue. Applying the Pennypack factors, he concluded

that having to respond to the supplemental declaration (which, after all, relates to one discrete issue, and is only two pages long) would occasion some great prejudice to Defendants. The issue can be resolved by permitting Defendants to file a supplemental sur-rebuttal expert report on …
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Judge Andrews: Late DOE Claims Are DOA

David M. Fry, Feb. 24, 2021
DOE Motion to Strike

Although the Pennypack factors for exclusion are notoriously difficult to meet, judges in D. Del. have been excluding late-disclosed theories more frequently than in the past.

Case in point: on Friday, Judge Andrews granted a motion to strike DOE theories asserted for the first time in an opening expert report. The plaintiff offered a number of excuses for disclosing the theories when it did—"it was only able to collect evidence to support its new DOE theories" after a COVID-delayed source code review, it lacked supporting evidence until a technical deposition in November 2020, and so on.

Judge Andrews not only rejected these excuses, but took it a step further—coming very close to finding that the plaintiff acted in …

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Another Day, Another Doctrine of Equivalents Argument Excluded

Andrew E. Russell, Feb. 1, 2021
Contentions Expert Discovery

Even when plaintiffs know of the potential weak spots in their infringement cases, they sometimes fail to address DOE until too late, or they offer a DOE analysis so weak that it gets excluded or wiped out by summary judgment.

That's what happened last week, when Chief Judge Stark struck a DOE opinion after a plaintiff tried to squeak by on the idea that its late DOE argument should be permitted because it never affirmatively disclaimed DOE:

Arendi's passing reference to DOE in its complaints followed by its lack of affirmative disclaimer of DOE theories (see, e.g., C.A. No. 12−1595 D.I. 238 at 5) ("Arendi has never asserted that its claims were limited to literal infringement") does …
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