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Judge Stark: Motion to strike expert’s rebuttal report DENIED

Judge Stark recently denied defendant’s motion to strike the rebuttal report of plaintiff’s invalidity expert. Stored Value Solutions, Inc. v. Card Activation Technologies, Inc., C.A. No. 09-495-LPS (D. Del. Sept. 27, 2010). Judge Stark found that plaintiff did prejudice defendant by remaining silent about its intention to produce a rebuttal report on invalidity. Plaintiff’s “silence [was] particularly troubling because [plaintiff’s expert] was in the process of preparing her rebuttal report at the same time the parties were meeting and conferring in order to advise the Court as to what remained to be done in this action.” Id. at 4. However, Judge Stark declined to impose the extreme sanction of excluding the report. Instead, Judge Stark made certain amendments to the Scheduling Order, including permission for the parties to submit rebuttal reports if the expert can be deposed on the “full range of his/her opinions[,]” and asked the parties to jointly submit a letter regarding the impact on this decision on the remaining schedule. Id. at 4-5.

Stored Value Solutions, Inc. v. Card Activation Technologies, Inc., C.A. No. 09-495-LPS (D. Del. Sept. 27, …

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