Disputed contention, even if untimely, is allowed as harmless error
Webxchange Inc. v. Fedex Corporation, et al., C.A. No.08-133b-JJF, January 20, 2010.
Farnan, J. Defendants’ motion to strike Plaintiff’s Third supplemental Response to Defendants’ Interrogatory No. 1 and for a protective order and motion for leave to file a surreply in opposition to Plaintiff’s motion to compel deposition testimony is denied. Plaintiff’s motion to compel deposition testimony is granted in part and denied in part.
The motions at issue relate to Plaintiff’s contentions of infringement, particularly of FedEx’s “shipping” system. Defendants contend that “shipping” was not disclosed in the second supplemental infringement contention, and was only listed as an untimely Third Supplement served eight months too late. Plaintiff contends that “shipping” was timely disclosed in the second supplement, and only clarified in the third supplement. The court finds the issue of whether there was disclosure in the second supplement is debatable, but in any event any untimeliness is harmless error. The current schedule allows ample time for discovery and there is no evidence of bad faith. Plaintiff moves to compel defendants to provide testimony regarding the shipping component. The motion is granted based on the absence of a reason for limiting the discussion of shipping in the deposition. The court finds that an award of costs and fees in this case is not appropriate as defendants were substantially justified in taking the position they did. The court further denied the motion for leave to file a surreply after reviewing the proposed surreply and determining that it did not contain clarification or missing facts that would illuminate issues for the court.
