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Judge Sue L. Robinson: Belated Discovery Justifies New Defense


A recent memorandum order by district judge Sue L. Robinson illustrates the importance of supplementing discovery – and the risks of discovery delay. In response to certain allegedly late-produced discovery, the defendants supplemented their contention-interrogatory responses to assert enablement and written-description defenses. The plaintiff objected and moved to strike the new defenses, which came after the supplementation deadline in the scheduling order.

The Court refused to strike the Section 112 defenses on the ground that “[t]he evidentiary basis for the defense rests, in large part, on information within the plaintiff’s control.” Plaintiff, therefore, “has the opportunity to respond within the context of expert discovery.” Although unaddressed in the Court’s order, perhaps defendants’ explanation that the defenses could not be asserted until they received the belated discovery carried the day.

Smithkline Beecham Corp. v. Barr Pharmaceuticals Inc., C.A. No. 08-112-SLR (D. Del. Sept. 23, 2009) (Robinson, J.).

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