The court granted plaintiff's motion to strike defendant's new noninfringement theory presented during cross-examination of plaintiff's infringement expert at trial. "[Defendant's] attorney asked [plaintiff's expert] hypothetical questions about this theory [at deposition], but did not disclose the reason for these questions. [Defendant] argues that since [plaintiff] has the burden to prove infringement, [it] had no duty to disclose its noninfringement theories. . . . Under [the court's Discovery Order], [defendant] was obligated to disclose its [new] theory. Moreover, if [defendant] intended its non-infringement or damages experts to testify regarding this theory, it was obligated to disclose the theory in its experts’ reports. . . . Instead of disclosing its [new] theory, [defendant] chose to lay behind the log and attempt to ambush [plaintiff] with this theory at trial. This Court does not tolerate such tactics and gamesmanship. The Court expects the parties to be forthcoming and work together to try the case on its merits. Having chosen not to disclose this theory that it has been aware of for several months, [defendant] is therefore precluded from using the theory at trial."
Clear With Computers, LLC v. Hyundai Motor America, Inc., 6-09-cv-00479 (TXED July 5, 2011, Order) (Davis, J.)