In an intellectual property dispute between two sporting goods manufacturers, a federal judge from the District of Minnesota has denied the plaintiff’s attempt to exclude evidence that the defendant introduced after discovery.
However, the court did allow plaintiff Airborne Athletics, Inc. an extended discovery period, so as not to prejudice Airborne.
The impetus for the lawsuit was Airborne’s allegations that defendant Shoot-A-Way, Inc. infringed upon its patents for its passing and shot analysis machine with its product called “The Gun.”
“At issue in this motion is whether evidence involving a recently-disclosed and redesigned ‘Gun’ may be offered at trial,” wrote the court. “Shoot-A-Way intends to show the availability of acceptable, non-infringing substitutes during the period of alleged infringement — in the form of the new, recently-disclosed ‘Gun’ machine — to defeat Airborne’s lost profits claims.”
The plaintiff countered that the product should be excluded because “(1) the new product did not exist at the time of the complaint or by the deadline to amend the complaint; and (2) the new product was not produced during discovery.” Furthermore, allowing the product in as evidence will require “additional discovery (and) will delay trial and add to the expense of this litigation.”
In response, Shoot-A-Way argues that “evidence of Shoot-A-Way’s current ‘Gun’ product is vital to its defense to Airborne’s lost profits claims.”
At play in the case is Fed. R. Civ. P. 26, which addresses discovery.
“Shoot-A-Way’s disclosure of the new product was indeed late in terms of the discovery deadlines, but it was not very late,” wrote the court. “The new product was disclosed shortly after the close of discovery, not on the eve of trial, and Shoot-A-Way notified Airborne within a matter of days of when it purportedly redesigned its product and offered it for sale.
“Shoot-A-Way supplemented its discovery responses to reflect the redesigned Gun, and offered plaintiff’s counsel an opportunity to inspect the product.”
Airborne Athletics, Inc. v. Shoot-A-Way, Inc.; D. Minn.; Civil No. 10-3785 (SRN/JJK), 2012 U.S. Dist. LEXIS 117591; 8/21/12
Attorneys of Record: (for plaintiff) David R. Fairbairn, Catherine Shultz and Stuart A. Nelson, Kinney & Lange, PA, Minneapolis, Minnesota. (for defendant) Alan W. Kowalchyk, Eric R. Chad and Heather Kliebenstein, Merchant & Gould, PC, Minneapolis, Minnesota.
