Intellectual Ventures II LLC v. T-Mobile USA Inc. et al, 1-13-cv-01633 (DED February 6, 2017, Order) (Stark, USDJ)
Wednesday, February 8, 2017
Expert’s Untimely Disclosure in Reply Report Justifies Cost Shifting of Reasonable Expert Fees
The court denied defendants' motion to strike portions of a reply report of plaintiff's expert for introducing previously undisclosed opinions because the prejudice to defendants could be cured by ordering plaintiff to bear 2/3 of the costs of sur-reply reports. "[T]he Court agrees with Defendants that the [reply report] to some extent exceeds 'the proper scope of a reply' and that portions of it are subject to being excluded under Rule 37(c)(1). . . . There is sufficient time in the approximately 11 months before trial to ameliorate the prejudice to Defendants. . . . [Plaintiff] opposes paying Defendants' expert costs, but the Court agrees with Defendants that the costs of having to largely 'redo' their experts' analysis in light of the [reply report] should not be borne entirely by Defendants. [Plaintiff's expert's correction of an] error has had a prejudicial impact on Defendants, including by delaying their ability to complete expert discovery, and it will cost Defendants additional time and money to respond fully and fairly to the [reply report]. Accordingly, the Court will require [plaintiff] to pay two-thirds of the reasonable expert costs incurred in connection with the preparation of sur-reply reports."