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.