No Basis for Striking Expert Reports under Federal Rules of Civil Procedure

The court denied without prejudice plaintiff's motion to strike portions of a report by defendant's invalidity expert. "Federal Rule of Civil Procedure 12(f) governs the court’s authority to strike items from the record, and it permits striking matters only from pleadings. . . . [The expert's] report is not a pleading, nor for that matter a brief or affidavit, and therefore cannot be stricken by the Court. . . . Federal Rules 26 and 37 may provide for the preclusion of certain arguments or the exclusion of evidence in limited circumstances, but in the Court’s estimation these rules are not implicated here. . . . The purpose of [a Rule 26 report] 'is to put the other side on notice about the scope of the expert’s potential testimony.'. . . Rule 37 does not call for the 'striking' of discovery materials; it only limits their future use as evidence. . . . Defendant has not yet presented the Court with invalidity arguments, as Motions for Summary Judgment are not due [for a few weeks]. As it stands now, Plaintiff is essentially seeking an advisory opinion with respect to hypothetical invalidity arguments that are not before the Court."

Wonderland Nurserygoods Co., Ltd. v. Thorley Industries, LLC, 2-12-cv-00196 (PAWD June 7, 2013, Order) (Fischer, J.).