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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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`)))))))))
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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. 3
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`Today defendants have requested an 'emergency' conference tomorrow to postpone the
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`scheduled hearing on plaintiff's motion to compel discovery. For the reasons below, I decline to
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`hold such emergency conference and require defendants to respond as follows:
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`1
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`Case 1:15-cv-00311-RGA Document 146 Filed 06/06/16 Page 2 of 3 PageID #: 4112
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`I was advised on May 20th that the parties had agreed on a schedule for
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`briefing and hearing plaintiff's motion. On May 27th I believe defendants received plaintiff's
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`brief. Defendants now want to postpone the hearing because the plaintiff did not disclose issues
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`and failed to 'meet and confer'. While I do consider such efforts of counsel to resolve discovery
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`disputes to be important and necessary, I had reason to believe that such efforts had been
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`fruitless; thus, giving rise to plaintiff's motion.
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`It is difficult to understand why defendants did not recognize these alleged problems
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`before agreeing on the briefing and hearing schedule or promptly after getting plaintiff's brief. I
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`would appreciate defendants' response to my concern.
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`Nevertheless, if defendants sincerely believe that progress can be made to resolve
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`some or all of the issues in plaintiff's motion, I would be pleased to learn that. Thus, I suggest
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`that the parties confer as soon as possible as to having a substantive 'meet and confer' to resolve
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`these discovery issues. Defendants can advise me as to the outcome of such an effort to now
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`have a 'meet and confer'. If there is no such 'meet and confer', defendants should be prepared to
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`respond plaintiff's brief as scheduled. Nothing herein should preclude defendants from raising in
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`their brief the points and issues in their e mail today if plaintiff won't participate in a meaningful
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`'meet and confer'.
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`Whether now or in their responsive brief, the defendants should address a central
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`point in plaintiff's brief which appears to be that defendants had agreed previously to make much
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`of the discovery that is sought in plaintiff's motion. Maybe a useful response from defendants
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`would be a chart listing the specific discoveries sought by plaintiff, next a column indicating
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`whether defendants had agreed, and if not a column indicating the extent of discovery offered by
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`2
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`Case 1:15-cv-00311-RGA Document 146 Filed 06/06/16 Page 3 of 3 PageID #: 4113
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`defendants. A final column could set forth defendants' position as to why the objected to
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`discovery should not be ordered.
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`Finally, defendants now or in their brief need to respond to the legal basis for
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`plaintiff's motion, which is that the George-Pacific case makes much of the sought discovery
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`relevant to calculating damages, assuming that liability is determined. The two Delaware cases
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`by Judge Longobardi seem consistent with the George-Pacific case. Do defendants dispute the
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`applicability of Georgia-Pacific, or do they contend that some or all of discovery is too detailed
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`to be encompassed by Georgia-Pacific?
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`I will await hearing from the defendants and will continue to hold the Hearing of
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`June 8th on my calendar pending considering defendants' response to this Order.
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`Dated: June 2, 2016
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`/s/ Allen M. Terrell, Jr.
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`Special Master Allen M. Terrell, Jr.
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`3
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