Monday, November 17, 2014

Supplemental Damages for Pre-Verdict Infringement Requires Bifurcation

The court denied plaintiff's motion for pre-verdict supplemental damages following a jury verdict based on defendant's failure to produce damages discovery. "During discovery, [defendant] failed to produce any financial records later than 2011. . . . [Plaintiff's] expert purported to reserve the right to seek post-2011 damages after trial, and [plaintiff] argues that it 'reserved the right in its complaint and again in its pretrial statement to seek an accounting of all damages.' [Plaintiff's] attempts to reserve these rights do not empower it to take the question of damages from the jury. Damages are part of a trial by jury. If [plaintiff] wished to bifurcate a portion of its damages for a separate, later trial, it would have had to ask the Court to do so, or reached an agreement to that effect with [defendant]."

TransPerfect Global, Inc., et al v. MotionPoint Corporation, 4-10-cv-02590 (CAND November 13, 2014, Order) (Wilken, J.)

Does plaintiff’s failure to compel damages discovery as to pre-verdict time periods bar supplemental damages?

Another decision from the Northern District of California takes the opposite view: “While [plaintiff] did not do everything it could have to compel [defendant] to comply with its discovery obligations, it asked for damages information relating to [a pre-verdict time period] and was essentially stonewalled. [Defendant] cites no case holding that a failure to move to compel or some other relief warrants capping [plaintiff's] access to supplemental damages."

To view other decisions addressing supplemental damages, click this link.

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