Special Master recommends denial of plaintiff’s request for leave to serve supplemental report rebutting defendant’s supplemental report.
Special Master Paul M. Lukoff recently recommended denying a plaintiff’s request for leave to serve a supplemental expert report in rebuttal of the defendant’s supplemental (and unexpected) report. Robocast, Inc. v. Microsoft Corp., C.A. No. 10-1055 (RGA) (D. Del. Jan. 21, 2014). The plaintiff argued it should be permitted a supplemental report to rebut the defendant’s own supplemental report, which the Court had permitted. The defendant countered that the Court previously made clear that no further reports would be permitted and, further, that it would be prejudiced if the plaintiff were allowed to serve a supplemental report at this stage because there would be no opportunity to depose the expert on the new opinions. The Special Master supported his recommendation that the plaintiff not be permitted to serve a supplemental rebuttal report by explaining that “[t]he parties have been around and around this technical mulberry bush so many times that they must be bored with the repetitive nature of their activities.” The Special Master explained further that, based on declarations filed during summary judgment briefing, the defendant was so familiar with the opinions of the plaintiff’s expert that “the defendant will have lost nothing in connection with its ability to question this particular expert witness” at trial. Id. at 3. As a result, Special Master Lukoff recommended denying the plaintiff’s request for permission to serve a supplemental rebuttal report, but recommended that the plaintiff’s expert be permitted to provide rebuttal testimony at trial. Id.