IDCC lost a motion filed earlier this week in Delaware to strike portions of a Microsoft's expert witness reports
ORDER
Plaintiff filed a motion and brief on March 24, 2015, requesting "to strike portions of
supplemental initial and rebuttal reports of Defendants' expert." (D.I. 441). At the same time, Plaintiff also filed a letter requesting expedited briefing and decision. (D.I. 444). I saw the letter and requested an expedited letter response. Defendants complied. (D.I. 447). Plaintiffs responded with another letter. (D.I. 448).
Trial is scheduled for April 27, 2015.
It is apparent to me that Plaintiffs filing does not comply with the rules (and the Court's Rule 16 order, see D.I. 39, ~ 12), and, therefore, Plaintiffs motion (D.I. 441) is DISMISSED. See D.Del. LR 7.1.1 ("every nondispositive motion shall be accompanied by an averment of I counsel for the moving party that a reasonable effort has been made to reach agreement with the opposing party on the matters set forth in the motion."). Although Plaintiff does not expressly state that its motion to strike is a "dispositive" motion, that is the implication of its response. (D.I. 448). Just in case, though, Plaintiff also states that it was "imperative" to "bring the issue
before the Court immediately." (Id.).
Most Delaware lawyers understand the difference between dispositive and nondispositive motions. Dispositive motions are motions to dismiss, for summary judgment, for judgmenton the pleadings, etc. See D.Del. LR 72.1 (a)(3) (providing a list o f "dispositive motions"). Nondispositive motions are all other motions. See D.Del. LR 72.l(a)(2). A motion to strike a portion of an expert report for failure to follow proper procedures is the quintessential nondispositive motion.
Further, I expect if the parties make half an effort, they would find their way to a reasonable outcome. Compare D.l. 442 at 15 ("At minimum, [Plaintiff] should be permitted to supplement its exhibit list, and [Plaintiffs expert] should be allowed to respond at trial to the opinions in [Defendants' expert's] supplemental non-infringement report.") with D.l. 447 at 1 ("[Defendants] would not object to [Plaintifrs expert] serving a reply report ... so long as it is done in a time frame that permits [Defendants] to depose [Plaintiffs expert] on that report in advance ofthe currently-scheduled trial.”).
The parties are directed to meet and confer.
IT IS SO ORDERED this 26_day of March 2015
