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."

Intellectual Ventures II LLC v. T-Mobile USA Inc. et al, 1-13-cv-01633 (DED February 6, 2017, Order) (Stark, USDJ)