LOOKSMART GROUP, INC., Plaintiff, v. MICROSOFT CORPORATION, Defendant., 386 F. Supp. 3d 1222

Summary

HOLDINGS: [1]-A competitor was not entitled to strike portions of a patent holder's expert report on damages because, while the shift in the patent holder's damages theory was "material" under Fed. R. Civ. P. 26(e)(1)(A), its failure to amend was substantially justified, regardless whether it was harmless, the patent holder could nonetheless pursue its previously undisclosed theory in its expert report if it could establish that the failure was substantially justified or was harmless, and, given that a party's obligation to amend its damages contentions under N.D. Cal. R. 3-8 was "previously unsettled" at best, it would be unfair to strike the patent holder's only damages theory from its expert report, thereby delivering "the coup de grâce to its case."