In Helios Software, LLC, et al. v. SpectorSoft Corp., C.A. No. 12-081-LPS (D. Del. July 18, 2014), Chief Judge Leonard P. Stark addressed plaintiffs’ motion to exclude the testimony of defendant’s expert, Christian B. Hicks, based on discussions that Mr. Hicks had with an employee of defendant that was the Director of Quality Assurance, Scott Bartel. Plaintiffs argued that because of defendant’s “failure to identify Mr. Bartel in its Rule 26 disclosure, and Mr. Hicks’ subsequent reliance on conversations with Mr. Bartel, the Court should exclude the relevant portions of Mr. Hicks’ testimony.” Id. at 2. As Judge Stark noted, the parties met and conferred in an attempt to resolve the dispute, and defendant proposed producing Mr. Bartel for a “3-hour video conference or telephone deposition.” Id. Defendant’s proposal, however, included a number of conditions, including, among other things (i) that the deposition occur at defendant’s office in Vero Beach, Florida where Mr. Bartel works, or at another location in Vero Beach; (ii) “that the deposition be conducted by video conference or telephone” unless plaintiffs advanced the costs and fees for an in-person deposition; (iii) “that the topics of Bartel’s questioning be limited to the subject matter of his discussion with Hicks, and that the deposition could be suspended if Plaintiffs asked questions beyond the scope of such topics and refused to withdraw the questions”; and (iv) that plaintiffs withdraw their motion to exclude. Id. at 3.
Considering the Pennypack factors, Judge Stark concluded that, on balance, defendant’s failure to disclose Mr. Bartel was harmless, and therefore denied plaintiffs’ motion to exclude. Id. at 3-4. However, contrary to a number of the conditions of defendant’s proposal, Judge Stark ordered that defendant shall make “Mr. Bartel available for a three (3) hour deposition on the subject matter that he discussed with Mr. Hicks as well as testing at SpectorSoft, to be conducted at a mutually convenient location, with each party bearing its own costs.” Id. at 4.