Judge Robinson Rules on Motions to Strike or Exclude

In Invista North America S.A.R.L. et al. v. M&G USA Corporation et al., C.A. No. 11-7007-SLR-CJB (D. Del. June 25, 2013), Judge Robinson ruled on three pending motions to strike or exclude testimony.  First, the Court granted in part and denied in part the plaintiffs’ motion to strike portions of a reply expert report and the expert’s references to and reliance upon certain experimental data.  The Court granted the motion only to the extent the expert’s declaration contained previously undisclosed opinions and testimony.  Second, the Court denied the defendants’ motion to exclude expert testimony regarding infringement and secondary considerations. Third, the Court granted the plaintiffs’ motion to strike the defendants’ summary declaration and supplemental interrogatory response regarding the defendants’ core documents, holding that the defendants’ defense regarding the core technical documents was new and untimely raised.

Judge Robinson Denies Motion to Exclude

In Walker Digital, LLC v. Google Inc., et al., C.A. No. 11-309-SLR (D. Del. June 14, 2013), Judge Robinson denied plaintiff Walker Digital, LLC’s motion to exclude a supplemental interrogatory response served by defendant Google Inc.  Walker Digital had sought financial information from Google by way of interrogatory.  Google objected, offering financial information only in 30(b)(6) testimony.  After the close of fact discovery, Google served a supplemental interrogatory response with financial data, but at two subsequent conferences with the Court, Walker Digital stated that it had no issues to raise.  For these reasons, Judge Robinson denied its motion to exclude.  Judge Robinson also granted defendant Microsoft Corporation’s motion to strike infringement theories as untimely.  During depositions taken late in fact discovery, Microsoft witnesses acknowledged internal use of Google Maps, as well as a separate “internal system.”  Walker Digital then alleged infringement on the basis of these facts, including the allegations in an expert report.  The Court found the allegations in the expert report conclusory and lacking an infringement chart; for this reason, and because Microsoft could not engage in fact discovery on these issues to prepare a response, Judge Robinson granted Microsoft’s motion to strike.

Judge Robinson Denies Motion to Amend

In Cradle IP, LLC v. Texas Instruments, Inc., C.A. No. 11-1254-SLR (D. Del. May 23, 2013), Judge Robinson denied defendant Texas Instruments Incorporated’s (“TI”) motion to amend its answer.  TI had moved to amend after the deadline in the scheduling order.  Though TI argued that there was no undue delay, since it notified plaintiff Cradle IP, LLC of its intention to amend before the close of fact discovery and before any deposition had taken place, the Court found that TI’s failure to explain why it sought to amend more than two months past the deadline for amendment rendered the delay undue.  A delay of two months without a showing of bad faith was not sufficient by itself to deny the motion, however.  Judge Robinson thus looked to prejudice, which was found in Cradle’s reliance on the original language of the answer and inability to take fact discovery on the responses in the proposed amended answer.  The same lack of explanation for the late motion led the Court to find that TI failed to show good faith to amend a scheduling order under Fed. R. Civ. P. 16(b)(4), which exists only when a schedule “cannot reasonably be met despite the diligence of the party seeking the extension.”

Judge Robinson Denies in Part and Grants in Part Battling Daubert Motions

In Golden Bridge Technology, Inc. v. Apple Inc., C.A. No. 10-428-SLR (D. Del. Apr. 9, 2013), Judge Robinson decided four motions to exclude or strike expert testimony.  First, the Court granted the plaintiff’s Daubert motion with respect to expert opinions on inventors’ lack of diligence in preparing and filing a patent application, but denied the motion with respect to the expert’s opinion on whether certain patents were invalid for failure to meet the written description requirement.  Second, the Court granted the defendant’s motion to exclude expert testimony from a patent attorney regarding attorney diligence, as such testimony, not based on records but on speculation, would not be helpful to a jury.  The Court also denied the defendant’s motion to exclude an expert’s invalidity opinions and a motion to strike expert opinions on infringement because they were based on incomplete tests or erroneous claim interpretation.  The Court found that such disagreement over test results under the Court’s construction, which was issued after the expert opinions, was more properly reserved for cross-examination.  Similarly, the Court denied the plaintiff’s second Daubert motion with respect to the defendant’s expert opinion on the definition of a claim limitation because it was more properly reserved for cross-examination.  Finally, the Court denied the defendant’s motion to strike portions of the plaintiff’s expert opinions and materials submitted after the close of expert discovery, as they were necessary to respond to new opinions and criticisms in the defendant’s rebuttal expert report. 

Magistrate Judge Burke Denies Defendants’ Motion to Stay the Court’s Memorandum Order

In Invista North America S.A.R.L., & Auriga Polymers Inc. v. M&G USA Corp. and M&G Polymers USA, LLC, C.A. No. 11-1007-SLR-CJB (D. Del. Apr. 5, 2013), Magistrate Judge Burke denied the defendants’ motion to stay.  On March 28, 2013, the Court issued an order granting the plaintiff’s discovery-related motion, thereby allowing the plaintiff’s foreign counsel access to confidential documents and also to disclose twelve documents produced by the defendants in two pending foreign actions.  The defendants filed a motion to stay the effect of that portion of the order during the pendency of its objections, arguing that the Court’s decision was “clearly erroneous and contrary to the law of this Court.”  Denying the defendants’ motion, Magistrate Judge Burke held that the defendants failed to make a showing that they were likely to succeed on the merits.  According to Magistrate Judge Burke, the magnitude of the defendants’ claimed irreparable injury was not great under the circumstances, and there was some articulable harm to the plaintiff if the Court’s order was stayed.  The public interest factor did not meaningfully favor either side.  Magistrate Judge Burke found that under such circumstances, the defendants’ arguments, especially in light of a weak showing of a likelihood of success on the merits, did not support the “extraordinary remedy” of a stay of the Court’s decision.  On June 5, 2013, Judge Robinson adopted the March 28, 2013 Report and Recommendation and overruled the defendants’ objections, holding that Judge Burke supported his decision to modify the protective order with sound reasoning and relevant case law.  In her order, Judge Robinson also adopted the April 5, 2013 Report and Recommendation.  According to Judge Robinson, the imposition of a stay under the circumstances was not warranted.