Special Master Lukoff recently resolved another dispute between the paries regarding their inequitable conduct experts’ reports. Robocast, Inc. v. Apple, Inc., et al., C.A. Nos. 11-235-RGA, C.A. No. 10-1055-RGA (D. Del. Oct. 24, 2013). Special Master Lukoff had previously permitted defendants to serve a supplemental expert report in response to plaintiff’s expert’s rebuttal report. Here, plaintiff requested that it be permitted to issue a supplemental rebuttal report to respond to “new opinions” in defendant’s supplemental report. Id. at 2. Plaintiff also requested that it be permitted to an additional deposition of defendant’s expert. Id. Defendants opposed plaintiff’s request because plaintiff’s expert could have addressed the issues in question before his last report. Id.
Special Master Lukoff noted that the Court’s Scheduling Order only permits service of initial and rebuttal expert reports, absent the parties’ agreement or leave of Court. Id. Because Special Master Lukoff gave leave for defendants to supplement their expert report, the court was inclined to now do the same for plaintiff, albeit reluctantly. Id. at 3. While Special Master Lukoff recognized the need for the finality that underpins the provisions of the Scheduling Order, he noted that he was “equally sensitive to a full opportunity on the merits to develop the litigants’ forensic positions on the inequitable conduct issue.” Id. at 4. Defendants identified no prejudice resulting from the additional expert report, therefore, plaintiff was permitted to serve a supplemental rebuttal report and both plaintiff and defendants were permitted additional three-hour depositions of eachother’s experts. Id. at 4-5.
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