A Costly Discovery Misstep: Untimely Damages Evidence Excluded

Short summary

A federal appeals court upheld the exclusion of damages evidence in a copyright/false advertising case (Deque v. BrowserStack) because the plaintiff failed to disclose its $30M damages calculation during discovery. The court applied its five-factor sanction test and found all factors favored exclusion, affirming summary judgment. Takeaway: Federal Rule 26 requires early damages disclosure; waiting until discovery closes risks evidence exclusion and case dismissal.

• •Deque Systems failed to disclose a $30M damages calculation until three days before discovery closed
• •Fourth Circuit applied five-factor sanction test; all factors favored evidence exclusion
• •Plaintiff lost on all claims via summary judgment; lesson: disclose damages early in litigation

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