Friday, May 28, 2010

Late Disclosure of 31 Witnesses Warrants Exclusion of Most Newly Disclosed Witnesses From Trial

Plaintiff's motion to strike 25 of 31 newly-disclosed defense witnesses was granted as to all but 3 witnesses. "[The scheduling] order did not provide for automatic reopening of discovery after the claim construction ruling. Second, even if it did, [defendant] has abused that opportunity by trying to drive a freight train through the eye of a needle. . . . [Defendant's] addition of the new witnesses would be an abuse of the process even were [defendant] reading the scheduling order correctly: [defendant] left [plaintiff] with only five days to attempt to obtain discovery regarding the newly-identified witnesses and essentially shifted to [plaintiff] the burden of asking for an extension of discovery and, in all likelihood, the trial date. . . . This alone warrants striking [defendant's] newly-disclosed witnesses, with the limited exceptions identified below."

Illinois Computer Research LLC v. Harpo Productions, Inc et al., 1-08-cv-07322 (ILND May 26, 2010, Memorandum Opinion & Order) (Kennelly, J.)

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