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District Court Precludes New Substitute Witness for Failure to Timely Disclose

As trial approached in this patent infringement action, the plaintiff, 511 Innovations, Inc., filed a motion to exclude a witness at trial, Tim Benner from testifying at trial. The motion asserted that the defendant, Samsung, “did not make any written disclosure of Dr. Tim Benner as a potential witness, or even a person with relevant knowledge, until January 23, 2017.”

The disclosure occurred after the close of discovery and only a few weeks before the pretrial conference. In opposing the motion, Samsung explained that it planned to substitute Dr. Benner as its corporate representative at trial, in place of Joy McBeth.

The district court believed that this was highly prejudicial 511 as “Ms. McBeth was extensively deposed as Samsung’s corporate representative, whereas Dr. Benner has not been deposed. The prejudice to Plaintiff is obvious.”

To balance against the prejudice to 511, Samsung argued that Dr. Benner was available for trial and that Ms. McBeth had unspecified family obligations that made it less convenient for her to travel. The district court was not persuaded. ” The Court finds that Defendant has not shown sufficient diligence and good cause to outweigh the prejudice to Plaintiff from having to prepare for a new corporate representative at this late date.”

Accordingly, the district court granted the motion to exclude the witness.

511 Innovations, Inc. v. HTC America, Inc., et al.
, Case No. 2:15-CV-1524-JRG (E.D. Tex.

The authors of are patent trial lawyers at Jeffer Mangels Butler & Mitchell LLP. For more information about this case, contact Stan Gibson at 310.201.3548 or

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