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D. Del. Special Master: No Prejudice, and Therefore No Sanction, for Untimely Produced Expert Discovery

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A special master in the District of Delaware recently recommended against the imposition of sanctions for a party’s failure to timely produce expert-discovery materials. In the decision, issued by Special Master Vincent J. Poppiti, the special master considered and rejected a motion to exclude the evidence – certain product testing materials created by Chipworks – on the ground that the receiving party had the ability, and failed, to cure any claimed prejudice:

“Honeywell was served with Dr. Schlam’s Expert Report on September 15, 2009, and was therefore aware of the Chipworks testing as of that date. Although Honeywell inquired whether a Chipworks representative would testify at trial, Honeywell ignored Defendants’ offers to make a Chipworks representative available for deposition . . . . [Instead,] Honeywell chose to wait until October 14, 2009 to file the instant motion – a full two weeks after receipt of the [untimely Chipworks materials relied on by Dr. Schlam].”

Because the untimely Chipworks testing materials were already known to Honeywell, according to the special master, the two-week delay erased any potential for prejudice.

Honeywell Int’l Inc. v. Apple Computer Inc., C.A. No. 04-1337-JJF (D. Del. Nov. 3, 2009) (Poppiti, S.M.).

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