Friday, June 5, 2009

Strategic Advocacy is not Gamesmanship

In granting defendant's belated motion to amend its pleadings, the court rejected plaintiff's claims of gamesmanship. "While certainly [defendant's] attorneys have considered the strategic implications of adding the [asserted] patent to the case and found those implications to favor [defendant], that alone is not reason to deny leave. All attorneys consider the strategic implications of which defenses or claims to assert. Doing so is not gamesmanship. Gamesmanship occurs when a party delays in asserting defenses or claims with the intent or hope that the delay will prejudice the other side. Given that the amendment was sought only three weeks after the deadline had passed and while the case was in its very early stages, the Court does not find that gamesmanship played a part in the delay."

Mirror Worlds, LLC v. Apple, Inc., 6-08-cv-00088
(TXED June 2, 2009, Memorandum Opinion & Order) (Davis, J.)

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