Civix-DDI, LLC v. Hotels.com, L.P., No. 05 C 6869, Slip Op. (N.D. Ill. Jan. 19, 2011) (St. Eve, J.).
Judge St. Eve granted in part plaintiff Civix-DDI's ("Civix") motion to strike defendants' (collectively "Hotels.com") allegedly "new defenses and witnesses" in this patent case. The Court held as follows:
- Hotels.com was free to update its corporate witnesses based upon changed jobs and responsibilities, so long as the new witnesses were made available for deposition if they might potentially be called at trial.
- Disclosure of a new piece of prior art ten months after the close of fact discovery would prejudice Civix, and Hotels.com did not justify its late disclosure. The prior art was, therefore, excluded pursuant to Fed. R. Civ. P. 37.
- The Court also excluded a license for Google technology that was executed in relevant part in August 2010, about three months before Hotels.com's supplemental interrogatory response disclosing the license. While a three month delay was sometimes acceptable, it was not in this case. Fact discovery closed seven months before the agreement was executed and ten months before the supplemental response identifying the license. And expert discovery was set to close four months after the supplement. Civix, therefore, would have been prejudiced by Hotels.com's three month delay in this case. So, the license was excluded.