Judge Sue L. Robinson recently considered plaintiff’s request to strike portions of defendant’s non-infringement expert report because it was based on modifed source code not made available to plaintiff. Juniper Networks, Inc. v. Palo Alto Networks, Inc., C.A. No. 11-1258 (D. Del. Oct. 28, 2013). Defendant did not dispute plaintiff’s argument, but argued that its actions were justified because “plaintiff did not allude to source code at all until its expert’s initial infringement expert report, and, further, that plaintiff’s expert did not disclose any details about his test environment, nor did he ask for the ability to edit the code while preparing his report. Id. at 1.
Judge Robinson noted that the court could not “discern how much of this controversy [was] attorney-generated, and how much of this controversy truly reflect[ed] prejudicial conduct by either party.” Id. at 2. Therefore, Judge Robinson ordered that, “absent a consensual resolution to this dispute,” the parties’ experts would be expected to testify on November 15, at the hearing previously scheduled for claim construction and summary judgment, regarding “the information the parties would need in order to vet the testing and, coincidentally, the information the court needs to resolve the dispute.” Id. The Court would then decide the dispute, with the losing party to pay the costs of the proceeding. Id.