By Memorandum Order entered by the Honorable Leonard P. Stark in SZ DJI Technology Co., Ltd. et al. v. Autel Robotics USA LLC et al., Civil Action No. 16-706-LPS (Consolidated) (D.Del. August 4, 2021), the District of Delaware granted Plaintiffs’ motion in limine No. 1 to preclude the trial testimony of certain fact witnesses for Defendants, including the current Chief Executive Officer of Defendants who is a former employee of Plaintiffs.  The Court found that exclusion of the testimony of the witnesses is appropriate because the witnesses were not timely disclosed, and Defendants’ delay was neither substantially justified nor harmless.  Id. at *2.  The Court also analyzed the Pennypack factors and found those factors fully support the Court’s conclusion to preclude the trial testimony of Defendants’ Chief Executive Officer and the other excluded witness.  Id.

A copy of the Memorandum Order is attached.

The general takeaway is the importance of counsel and the parties timely disclosing the identity of potential fact and expert witnesses in accordance with the Federal Rules of Civil Procedure and the applicable deadlines set forth in the Scheduling Order in a given case in the District of Delaware.  This ruling shows that, when a party fails to timely comply with deadlines to disclose the identity of fact witnesses and/or expert witnesses, even the testimony of its own Chief Executive Officer may be excluded from trial in a given case.

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