Delaware Patent Litigation Report : Delaware Intellectual Property Lawyer & Attorney : Morris James Law Firm : Delaware Patent Litigation Report

Defendant moves to strike the rebuttal report of plaintiff’s invalidity expert which was submitted 10 days before expiration of the expert discovery deadline.  Defendant claims the rebuttal report contains extensive new opinions and additional citations, all of which should have been disclosed in the original report.  The scheduling order makes no reference either to permitting or precluding rebuttal reports from the party having the burden of proof.  The rebuttal report cites to additional portions of authorities relied upon in the opening report.  However, this would be appropriate testimony in a deposition or trial and, therefore, is also appropriate in a rebuttal expert report.   While it would have been far preferable if plaintiff had disclosed its intention to produce another report on invalidity, the court notes that the "extreme sanction" of exclusion of this "critical evidence" is not justified.