Case 1:15-cv-00311-RGA Document 125 Filed 04/19/16 Page 1 of 4 PageID #: 3940
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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` C.A. No. 15-228 (RGA)
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` C.A. No. 15-282 (RGA)
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` C.A. No. 15-311 (RGA)
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`ACCELERATION BAY LLC.
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` Plaintiff,
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`V,
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`ACTIVISION BLIZZARD, INC.,
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` Defendant.
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`ACCELERATION BAY LLC,
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` Plaintiff,
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`v.
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`ELECTRONIC ARTS INC.,
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` Defendant.
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`ACCELERATION BAY LLC,
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` Plaintiff.
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`v.
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`TAKE-TWO INTERACTIVE
`SOFTWARE, INC., ROCKSTAR GAMES,
`INC. and 2K SPORTS, INC.,
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` Defendants.
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`SPECIAL MASTER ORDER NO. 2 AS TO CERTAIN DISCOVERY MOTIONS
`BY BOTH PLAINTIFF AND DEFENDANTS
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`Before me are Motions for Discovery from both Plaintiff and Defendants as follows:
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`Plaintiff’s Motion to Compel Depositions, Responses to Interrogatories Nos. 10-11, and
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`Production of Source Code; and Defendants’ Motion to Compel Plaintiff to Further Respond to
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`Case 1:15-cv-00311-RGA Document 125 Filed 04/19/16 Page 2 of 4 PageID #: 3941
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`Interrogatories No. 7 and 9 Regarding Infringement Contentions, Granting a Protective Order as
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`to Further Technical Discovery, and Compelling Plaintiff to Respond to Interrogatory No. 5 and
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`Produce Plaintiff’s Testing of Defendants’ Products.
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`These Motions were heard on April 14, 2016, following submissions by the parties of
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`briefs and reply briefs, affidavits, various exhibits and documents comprising more than two
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`“bankers boxes”. I will first address Plaintiff’s Motion and then Defendants’ Motion.
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`1.
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`Plaintiff’s Motion to Compel Depositions.
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`Plaintiff requests that Defendants produce witnesses in response to Plaintiff’s Rule
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`30(b)(6) Deposition Notices served on January 5, 2016. Defendants contend that they ought not
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`to be compelled to produce witnesses until Plaintiff has provided “proper infringement
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`contentions sufficient to allow Defendants to prepare witnesses”. Plaintiff has produced over
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`5,000 pages of claim charts and other documents purporting to be its infringement claims.
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`Defendants, however, based on the affidavit of Professor Karger, contend that Plaintiff’s
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`infringement contentions provided on or about March 2, 2016 failed to identify what is actually
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`accused and failed to provide notice to Defendants as to how the accused products supposedly
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`meet the key limitations that were added to the claims regarding the patents. Plaintiff responds
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`that Defendants must have understood Plaintiff’s infringement theories sufficiently when
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`Defendants produced what Defendant described as the “relevant” portions of their source code.
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`The legal test as to whether the infringement claims are sufficient for the purpose of
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`scheduling depositions at this stage in the case is a “notice” standard, not whether Plaintiff has
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`provided sufficient evidence of infringement. Invensas Corp. v. Renesas Elecs. Corp. 287
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`F.R.D. 273, 283 (D. Del 2012). Applying both the liberal “notice” standard and considering the
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`negotiations that have occurred between the parties to narrow the scope of the Rule 30(b)(6)
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`Case 1:15-cv-00311-RGA Document 125 Filed 04/19/16 Page 3 of 4 PageID #: 3942
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`deposition, I am satisfied that Plaintiff may proceed with these depostions but only to the extent
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`of the negotiated limitations on the scope of the depositions.
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`2.
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`Plaintiff’s Motion to Compel Responses to Interrogatories Nos. 10-11.
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`Plaintiff’s interrogatories 10-11 are opposed by Defendants on the grounds that the
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`interrogatories were issued that after Plaintiff exceeded its allotment of 15 common
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`interrogatories, and that interrogatories 10-11 are excessively broad and burdensome.
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`Defendants also assert that the interrogatories are redundant of interrogatory 5, to which
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`Defendants have responded.
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`I find for the Defendants as Plaintiff has exceeded the number of common interrogatories
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`and interrogatory 10-11 would appear to cover every aspect of Defendants’ accused games.
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`3.
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`Plaintiff’s Motion for Production of Source Code.
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`Plaintiff seeks production of the source code for a particular game referenced in the briefs
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`as “PvZ2”. Plaintiff represents that it has provided an infringement claim for this game and the
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`Defendants’ only objection to its production relates to the role of one of Plaintiff’s attorneys.
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`During the hearing, Plaintiff assured Defendants that the attorney in question has not and will not
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`review any source code until allowed to do so. Based on that representation, Defendants will
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`produce the requested source code.
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`4.
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`Defendant’s Motion to Compel Plaintiff to Provide Proper Infringement
`Contention and Responses to Interrogatory Nos. 7 and 9.
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`Defendants, relying again on the affidavit of Professor Karger, contend that Plaintiff’s
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`responses to interrogatories 7 and 9 are incomplete. For purposes of scheduling the Rule
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`30(b)(6) deposition, I concluded that Plaintiff’s disclosures were sufficient for that purpose.
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`However, I am not satisfied that Plaintiff has fulfilled its obligation to completely respond to
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`interrogatories 7 and 9. Furthermore, interrogatories impose a burden on a party to supplement
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`Case 1:15-cv-00311-RGA Document 125 Filed 04/19/16 Page 4 of 4 PageID #: 3943
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`its responses as more information becomes available to it. Accordingly, Plaintiff shall provide
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`further responses to interrogatories 7 and 9 as soon as reasonably possible.
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`5.
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`Defendant’s Motion to Require Plaintiff to Respond to Interrogatory No. 5
`and to Produce Its Testing Documents.
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`Defendants seek from interrogatory 5 to learn of Plaintiff’s testing of Defendants’
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`products. Plaintiff objects on the grounds that such testing is privileged and work product.
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`Defendants respond that any privilege has been waived where Plaintiff has relied on such testing
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`to support its infringement contentions. At the hearing, Plaintiff represented that there had been
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`no testing by it for its infringement claims and contentions. Based upon that representation,
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`Defendants were willing to withdrawal their Motion to Compel Further Response to
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`Interrogatory No. 5.
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`In conclusion, I appreciate the thorough briefing and presentation by Counsel for the
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`parties. I would expect them to work in good faith to implement this Order in a timely fashion.
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`/s/ Allen M. Terrell, Jr.
`Special Master Allen M. Terrell, Jr.
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`Dated: April 19, 2016