RICHARD G. ANDREWS, District Judge.
Plaintiff filed a motion to strike the testimony of Dr. Eldering "and associated document productions." (D.I. 427).
The Special Master considered these motions, including having a hearing on December 2, 2015 (D.I. 474, Exh. B), and promptly issued Rulings and Recommendations (D.I. 470), recommending resolutions to the motions. Plaintiff objected (D.I. 474), and Defendants responded. (D.I. 492). The issue is now (and, unfortunately, has been for a while) ripe for decision. I do not think oral argument (see D.I. 495) will assist the Court, particularly in light of the full record made before the Special Master.
The first issue is the standard of review. Plaintiff says it is plenary (D.I. 474, p.4); Defendants say it is abuse of discretion. (D.I. 492, pp. 3-4). The relevant rule states that "findings of fact" and "conclusions of law" must be reviewed de novo. Fed. R. Civ. P. 53(f)(3) & (4). On the other hand, "the court may set aside a master's ruling on a procedural matter only for an abuse of discretion." Fed. R. Civ. P. 53(f)(5). What is the line between a procedural matter and a non-procedural matter? A schedule would be a procedural matter.
The Special Master's ruling considered the Pennypack factors, and recommended denying both motions to strike. (D.I. 470, ¶¶ 4-12). In making its objections to the Special Master's ruling, Plaintiff relies principally upon repeated italicization of the phrases "pattern of behavior" and "incurable prejudice" throughout its ten pages of objections.
On the issue of pattern of behavior, I conclude that the record does not establish bad faith or willfulness by Defendants. I note that generally in my numerous interactions with the parties in this case before December 2015, both sides were following the "shifting sands" approach to litigation. Every allegation of misconduct by one side was responded to by raising some prior alleged misconduct by the other side. Defendants' explanations for their actions as responses to Plaintiff's actions are plausible.
On the issue of prejudice, the Special Master noted, "no prejudice exists that cannot be cured with the depositions of Dr. Enderling and Mr. Hoffpauir." (Id., ¶ 10). The "Shared Call Appearance" is a feature in the BroadWorks product. Mr. Hoffpauir is a Broadsoft employee who is the "guru on BroadWorks and prior art versions of BroadWorks." (D.I. 474, Exh. B., p.33). I cannot tell from looking at the docket whether these two individuals have since been deposed, although it was represented that they were going to be.
I also note that, in my opinion, any delay in getting to trial is attributable to the actions of both sides. I further note that the invalidity issue here is a merits defense. I cannot tell where it ranks in importance among the various invalidity issues that have been raised by Defendants. I do tend to think that the fact that both parties are arguing over this particular issue suggests that they do see it as important.
Thus, Plaintiff's objections are
IT IS SO ORDERED.