Chief Judge Leonard P. Stark recently considered the parties’ motions to strike expert reports Intellectual Ventures I LLC v. AT&T Mobility LLC, et al., No. 12-193-LPS, 13-1632-LPS, 13-1633-LPS, 13-1635-LPS, 13-1636-LPS, 13-1637-LPS, 15-799-LPS, 15-800-LPS (D. Del. Jan. 31, 2017).
Regarding defendants’ motion to strike portions of the reply report of Dr. Vojcic, Judge Stark granted the motion in part finding that Dr. Vojcic did improperly introduce new opinions in his reply report when he corrected an error identified by defendants’ expert and revised his opinions in reply. Id. at 3-4. Judge Stark did not strike the new opinions, but granted defendants leave to serve sur-reply reports and compelled Dr. Vojcic to produce a supplemental reply report “limited to the bases for his new opinions.” Id. at 5. Judge Stark also required plaintiff to pay 2/3 of the “reasonable expert costs incurred in connection with the preparation of sur-reply reports.” Id. at 6.
Regarding defendant T-Mobile’s motion to strike portions of the reply report of Mr. Bratic, Judge Stark concluded that the relevant factors favored exclusion. The portions in question were a “confirmatory analysis” submitted in response to defendants’ expert’s criticism of the absence of evidence supporting Mr. Bratic’s conclusions in his opening report. Judge Stark determined exclusion was warranted because the evidence on which the reply report was based was available to Mr. Bratic at the time he served his opening report and his reply report “gives an entirely new, different theory,” rather than merely respond to defendant’s rebuttal opinions. Id. at 7. Exclusion, rather than cure, was warranted due to the nature of the prejudice to defendants and plaintiff’s violation of the scheduling order:
There is prejudice to Defendants, in not having had an opportunity to retain a survey expert and in having to respond to a new theory (based on which IV·seeks enormous damages), although there is also time to cure that prejudice without disrupting trial. While there is no evidence of bad faith or willful misconduct, the Bratic Reply violates the scheduling order because large portions of it are not a proper reply. IV’s explanation for withholding the “confirmatory analysis” until a reply report is unconvincing strongly suggesting that Mr. Bratic’s omission of it from his opinion from his opening report was intentional and reflected his view as to its relative unimportance.
Id. at 8.
Regarding plaintiff’s motion to strike potions of the reply report of Dr. Shamos, Judge Stark denied the motion finding that Dr. Shamos’s reply properly relies on certain prior art to rebut the assertions in plaintiff’s expert’s report. Id. at 9.
Regarding defendant U.S. Cellular’s motion to strike the revised exhibits to the Bratic reports, served almost ten months after the deadline in the scheduling order, Judge Stark agreed that plaintiff’s service of the supplemental exhibits was untimely. Id. at 10-11. Plaintiff argued that errors were corrected as soon as possible and were permissible under Fed. R. Civ. P. 26(e). Judge Stark disagreed: “Although parties are always under an obligation to supplement expert reports when it becomes necessary to do so, parties may not use their obligation to supplement as an excuse to violate the clear terms of a scheduling order, unilaterally buying themselves additional time to make disclosures, thereby unduly prejudicing other parties.” Id. at 11.