Drafts of Patent Expert Opinions are Discoverable
The patent infringement case involving Iridex v. Synergetics ( previously posted 2/24/07) is gearing up for trial, scheduled to begin April 16, 2007. The Eastern District of Missouri decided a number of pretrial motions in a pair of orders, 2007 WL 776120 and 2007 WL 781254.
The court granted Iridex's motion for summary judgment on the non-patent counterclaims and all validity defenses, except as to obviousness. Finding issues of fact on this defense, Synergetics will be allowed to present the obviousness defense to the jury. The court also declined Synergetics' motions for discovery because it submitted discovery after the deadline established by the Court.
Most importantly, the court ordered production of expert draft reports. Synergetics' expert witnesses testified that Synergetics' attorneys prepared the first drafts of their reports. Then the witnesses and attorneys exchanged revisions. The court held these drafts and correspondences are discoverable and ordered Synergetics to produce them. The court also required the attorneys to provide a declaration explaining the chronology of the drafts, which Iridex can use during cross examination.
