l
`
`•
`
`Case 1:15-cv-00311-RGA Document 28 Filed 10/29/15 Page 1 of 12 PageID #: 682
`
`IN THE UNITED STATES DISTRICT COURT
`FORTHE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.
`
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTS INC.,
`
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`1K SPORTS, INC.,
`
`Defendants.
`
`)
`)
`)
`)
`) C.A. No.15-228 (RGA)
`)
`)
`)
`)
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`C.A. No. 15.,282 (RGA)
`
`)
`)
`)
`)
`) C.A. No. 15-311 (RGA)
`)
`)
`)
`)
`)
`)
`
`[~RULE 16 SCHEDULING ORDER
`This z.9 day of October, 2015, the Court having conducted an initial Rule 16(b)
`
`scheduling conference pursuant to Local Rule 16.l(b), and the parties having determined after
`
`discussion that the matter cannot be resolved at this juncture by settlement, voluntary mediation,
`
`or binding arbitration;
`
`IT IS ORDERED that:
`
`

`
`Case 1:15-cv-00311-RGA Document 28 Filed 10/29/15 Page 2 of 12 PageID #: 683
`
`1.
`
`a.
`
`Initial Disclosures & Discovery.
`
`Rule 26(a)(l) Initial Disclosures. Unless otherwise agreed to by the parties, the
`
`parties shall make their initial disclosures pursuant to Federal Rule of Civil Procedure 26(a)(l)
`
`on or before November 2, 2015.
`
`b.
`
`By November 2, 20J5 Plaintiff shall specifically identify the accused products
`
`and the asserted patents Defendants allegedly infringe, and produce the file history for each
`
`asserted patent.
`
`c.
`
`By November '12, 2015, Plaintiff and each Defendant Group 1 shall disclose:
`
`1.
`
`Custodians. The 10 custodians most likely to have discoverable
`
`information in their possession, custody or control, from the most likely to the least likely. The
`
`custodians shall be identified by name, title, role in the instant dispute, and the -subject matter of
`
`the information.
`
`11.
`
`·Non-custodial data sources.2 A list of the non-custodial data
`
`sources that are most likely to contain non-duplicative discoverable information for preservation
`
`and production consideration, from the most likely to the least likely.
`
`111.
`
`Notice. The parties shall identify any issues relating to:
`
`1.
`
`Any ESI (by type, date, custodian, electronic system or
`
`other criteria) that _a party asserts is not reasonably accessible under Fed. R. Civ. P.
`
`26(b )(2)(C)(i).
`
`2.
`
`Third-party discovery under Fed. R. Civ. P. 45 and
`
`otherwise, including the timing and sequencing of such discovery.
`
`3.
`
`Production of information subject to privacy protections,
`
`1 The three Defendant Groups are: (1) Activision/Blizzard, Inc. ("Activision"); (2) Electronics
`Arts, Inc. ("EA"); and (3) Take-Two Interactive Software, Inc., Rockstar Games, Inc., and 2K
`Sports, Inc. (collectively, "Take-Two").
`_
`2 That is, a system or container that stores ESI, but over which an individual custodian does not
`organize, manage or maintain ESI in the system or container (e.g., enterprise system or
`database).
`
`2
`
`

`
`Case 1:15-cv-00311-RGA Document 28 Filed 10/29/15 Page 3 of 12 PageID #: 684
`
`including information that may need to be produced from outside of the United States and
`
`subject to foreign laws.
`
`d.
`
`Defendants shall produce to Plaintiff the core technical documents related to the
`
`accused product(s) and accused networking functionalities (to the extent such documents exist),
`
`including but not limited to operation manuals, product literature, schematics, and specifications
`
`as follows:
`
`i. December 16, 2015: for specific games and version identified in
`
`Original Complaint as to Take-Two and EA and the First Amended
`
`Complaint as to Activision.3
`
`1i. January 25, 2016: for other games or versions identified m
`
`Plaintiff's ID of Accused Products.
`
`e.
`
`Plaintiff shall produce to Defendant(s) an initial claim .chart relating each accused
`
`product to the asserted claims each product allegedly infringes as follows:
`
`i. February 17, 2016: for specific games and version identified in
`
`Original Complaint as to Take-Two and EA and the First Amended
`
`Complaint as to Activision, as well as any other versions of those
`
`games for which core technical documents were produced prior to
`
`December 16, 2015.
`
`IL March 25, 2016: for other games or versions identified m
`
`3 Specifically, those games are:
`
`Activision!Blizzard
`·• World ofWarcraft
`.. Call of Duty: Advanced
`·• Destiny
`
`Warfare
`
`EA
`
`FIFA 15
`
`...
`.. NHL15
`.. Tiger Woods PGA Tour 14
`"' Crysis 3
`·•
`Plants v. Zombies: Garden
`Warfare
`
`Take Two
`·• Grand Theft Auto V
`·• Grand Theft Auto Online
`.. NBA2Kl6
`• NBA2Kl5
`
`3
`
`

`
`Case 1:15-cv-00311-RGA Document 28 Filed 10/29/15 Page 4 of 12 PageID #: 685
`
`Plaintiffs ID of Accused Products.
`
`f.
`
`By April 22, 2016, Defendants shall produce to Plaintiff their initial invalidity
`
`contentions for each asserted claim, as well as the related invalidating references (e.g.,
`
`publications, manuals and patents).
`
`g.
`
`Absent a showing of good cause, follow-up discovery shall be limited to a term of
`
`six ( 6) years before the filing of the complaint, except that discovery related to asserted prior art
`
`or the conception and reduction to practice of the inventions .claimed in any patent-in-suit shall
`
`not be so limited.
`
`2.
`
`Joinder of Other Parties and Amendment of Pleadings.
`
`All motions to join other parties, and to amend or supplement the pleadings, shall be filed
`
`on or before July 22, 2016.
`
`3.
`
`Discovery .
`
`. a.
`
`Discovery Cut Off. All fact discovery in these cases shall be initiated so
`
`that it will be completed on or before January 20, 2017. All expert discovery in this case shall
`
`be initiated so that it will be completed on or before June 2, 2017.
`
`b.
`
`Document Production. Document production shall be substantially
`
`complete by September 14,2016. No later than March 2, 2016, ifthe producing party elects to
`
`use search terms to locate potentially responsive ESI, it shall disclose the search terms to the
`
`requesting party. Absent.a showing of good cause, a requesting party may request no more than
`
`10 additional terms be used in connection with the electronic search. Focused terms, rather than
`
`over-broad terms (e.g. product and company names), sha:Il be employed. The producing party
`
`shall search (i) the non-custodial data sources identified in accordance with paragraph 1 ( c ); and
`
`(ii) emails and other ESI maintained by the custodians identified in accordance with paragraph
`
`l(c).
`
`c.
`
`Requests for Admission.
`
`A maximum of 35 requests for admission are permitted for each side. Requests for
`
`admission regarding the authenticity of a document do not count against this total.
`
`4
`
`

`
`Case 1:15-cv-00311-RGA Document 28 Filed 10/29/15 Page 5 of 12 PageID #: 686
`
`d.
`
`Interrogatories.
`
`Plaintiff may serve 15 common4 interrogatories and 10 additional interrogatories to each
`
`Defendant Group. Defendants may serve 15 common interrogatories and 10 additional
`
`interrogatories per Defendant Group.
`
`e.
`
`Depositions.
`
`i.
`
`Limitation on Hours for Deposition Discovery.
`
`The total number of depositions and time limits will be subject to the Federal Rtiles of
`
`Civil Procedure, and 30(b)(6) depositions will be considered independent of personal
`
`depositions for purposes of the time limits. Defendants may depose each named inventor for a
`
`maximum of 14 hours per inventor, not to exceed 7 hours of deposition time per day. Plaintiff
`
`or Defendants may request additional hours from the Court for good cause. The 14 hours of
`
`deposition for each inventor shall not exceed two days and those two days of deposition will be
`
`scheduled within a reasonable amount of time of each other to alleviate .any undue burden on
`
`the inventor.
`
`The foregoing limitations do not apply to depositions of experts that will be limited to a
`
`maximum of7 hours per expert report. For example, if an expert submits two expert reports on
`
`infringement and an expert report on validity, that expert will be subject to a total of 21 hours of
`
`deposition (7 hours for each of the expert reports on infringement and 7 hours for the expert
`
`report on validity).
`
`IL
`
`Location of Depositions. Unless otherwise agreed to by the
`
`parties, depositions shall take place within fifty (50) miles of the place of employment of the
`
`deponent.
`
`f.
`
`Discovery Matters and Disputes Relating to Protective Orders. Counsel for the
`
`parties shall meet and confer in good faith and attempt to resolve or otherwise narrow any
`
`4 Forthe purposes of this order "common" discovery requests mean that the Plaintiff propounds
`the same request to all Defendant Groups, who answer the request individually, and that
`Defendants propound one request to the Plaintiff who answers the request to all Defendants.
`
`5
`
`

`
`Case 1:15-cv-00311-RGA Document 28 Filed 10/29/15 Page 6 of 12 PageID #: 687
`
`discovery issue in dispute or dispute related to the protective order. Should counsel find they are
`
`unable to resolve a discovery matter or a dispute relating to a protective order, the parties
`
`. involved in the discovery matter or protective order dispute shall contact the Court's Case
`
`Managerto schedule an in-person conference/argument. Unless otherwise ordered, by no later
`
`than forty-eight hours prior to the conference/argument, the party seeking relief shall file with
`
`the Court a letter, not to exceed three pages, outlining the issues in dispute and its position on
`
`those issues. By no later than twenty..:four hours prior to the conference/argument, any party
`
`opposing ·the application for relief may file a letter, not to exceed three pages, outlining that
`
`party's reasons for its opposition. Should any document( s) be filed under seal, .a courtesy copy
`
`of the sealed document(s) must be provided to the Court within one hour of e-filing the
`
`document( s ).
`
`If a discovery-related motion is filed without leave of the Court, it will be denied without
`
`prejudice to the moving party's right to bring the dispute to the Court through the discovery
`
`matters procedures set forth in this Order.
`
`4.
`
`Application to Court for Protective Order. Should counsel find it will be
`
`necessary to apply to the Court for a protective order specifying terms and conditions for ·the
`
`disclosure of confidential information, counsel should confer and attempt to reach an agreement
`
`on a proposed form of order and submit it to the Court by November 20, 2015. Should counsel
`
`be unable to reach an agreement on a proposed form of order, col.1;Ilsel must follow the provisions
`
`of Paragraph 3(f) above. The proposed protective order includes the following paragraph:
`
`Other Proceedings. By entering this order and limiting the
`disclosure of information in this case, the Court does not intend to
`preclude another court from finding that information may be
`relevant and subject to disclosure in another case. Any person or
`party subject to this order who becomes subject to a motion to
`disclose another party's information designated as confidential
`pursuant to this order shall promptly notify that party of the motion
`so that the party may have an opportunity to appear and be heard
`on whether that information should be disclosed.
`
`5.
`
`Papers Filed Under Seal. When filing papers under seal, counsel shall deliver to
`
`6
`
`

`
`Case 1:15-cv-00311-RGA Document 28 Filed 10/29/15 Page 7 of 12 PageID #: 688
`
`the Clerk an original and one copy of the papers. A redacted version of any sealed document
`
`shall be filed electronically within seven days of the filing of the sealed document.
`
`6.
`
`Courtesy Copies. The parties shall provide to the Court two courtesy copies of all
`
`briefs and one courtesy copy of any other document filed in support of any briefs (i.e.,
`
`appendices, exhibits, declarations, affidavits etc.). This provision also applies to papers filed
`
`under seal.
`
`7.
`
`a.
`
`Claim Construction Issue Identification.
`
`On or before -May 25 2016, the parties shall exchange a list of those claim
`
`term( s )/phrase( s) that th~y believe need construction.
`
`b.
`
`On or before .June 8, 2016, the parties shall exchange their proposed claim
`
`constructions of those term( s )/phrases( s ).
`
`_c.
`
`. d.
`
`These documents will not be filed with the Court .
`
`Subsequent to exchanging those lists, the parties will meet and confer on or before
`
`June T5, 2016, to prepare a Joint Claim Construction Chart to be filed no later than June .23,
`
`2016.
`
`e.
`
`The Joint Claim Construction Chart, in Word or WordPerfect format, shall bee-
`
`mailed simultaneously with filing to rga_civil@ded.uscourts.gov. The parties' Joint Claim
`
`Construction Chart should identify for the Court the terin(s)/phrase(s) of the claim(s) in issue,
`
`and should include each party's proposed construction of the disputed .claim language with
`
`citation( s) only to the intrinsic evidence in support of their respective proposed constructions. A
`
`copy of the patent( s) in issue as well as those portions of the intrinsic record relied upon shall be
`
`submitted with this Joint Claim Construction Chart. In this joint submission, the parties shall not
`
`provide argument.
`
`Claim Construction Briefing.
`
`Plaintiff shall serve, but not file, its opening brief, not to exceed 20 pages, on July
`
`8.
`
`a.
`
`14, 2016.
`
`b.
`
`Defendants shall serve, but not file, their answering brief, not to exceed 30 pages,
`
`7
`
`

`
`Case 1:15-cv-00311-RGA Document 28 Filed 10/29/15 Page 8 of 12 PageID #: 689
`
`on August4, 2016.
`
`c.
`
`Plaintiff shall serve, but not file its reply brief, not to exceed 20 pages, on August
`
`22, 2016.
`
`d.
`
`Defendants shall serve, but not file, their sur-reply brief, not to .exceed 10 pages,
`
`on September2, 2016.
`
`e.
`
`No later than September 9, 2016, the parties shall file a Joint Claim Construction
`
`Brief. The parties shall copy and paste their untiled briefs into one brief, with their positions on
`
`each claim term in sequential order, in substantially the form below.
`
`~OINT •CLAIM CONSTRUCTION ·BRIEF
`
`I.
`
`II.
`
`A.
`
`Agreed-upon Constructions
`
`Disputed Constructions
`
`[TERM 1]
`
`1. Plaintiffs Opening Position
`2. Defendants' Answering Position
`3. Plaintiffs Reply Position
`4. Defendants' Sur..:Reply Position
`
`B.
`
`[TERM2]
`
`1. Plaintiffs Opening Position
`2. Defendants' Answering Position
`3. Plaintiffs Reply Position
`4. Defendants' Sur-Reply Position
`
`Etc. The parties need not include any general summaries of the law relating to claim
`
`construction. If there are any materials that would be submitted in an appendix, the parties shall
`
`submit them in a Joint Appendix.
`
`9.
`
`Hearing on Claim Construction. Beginning at 9:00 a.m. Off-October 5, 2016, the
`
`Court will hear argument on claim construction. Absent prior approval of the Court (which, if it
`
`is sought, must be done so by joint letter submission no later than the date on which answering
`
`claim construction briefs are due), the parties shall not present testimony at the argument, and the
`
`argument shall not exceed a total of three hours.
`
`8
`
`

`
`Case 1:15-cv-00311-RGA Document 28 Filed 10/29/15 Page 9 of 12 PageID #: 690
`
`10.
`
`Election of Asserted Claims and Asserted Prior Art.
`
`a.
`
`No later than the time for service of Plaintiffs last initial claim chart (March 25,
`
`2016), Plaintiff will serve a Preliminary Election of Asserted Claims, of no more than ten claims
`
`from each patent and not more than a total of 32 claims.
`
`b.
`
`No later than the time for service of Defendants' invalidity contentions (April 22,
`
`2016), Defendants shall serve a Preliminary Election of Prior Art, which shall assert no more
`
`than 1welve prior art references against each patent and not more than a total of 40 references.
`
`c.
`
`No later than 14 days after close of fact discovery (February 3, 2017), Plaintiff
`
`shall serve a Final Election of Asserted Claims, of no more than five asserted claims per patent
`
`from among the ten previously identified claims and no more than a total of 16 claims.
`
`d.
`
`No later than 14 days after service of a Final Election of Asserted Claims
`
`(February 17_, 2017), the Defendants shall serve a Final Election of Asserted Prior Art, which
`
`shall identify no more than six asserted prior art references per patent from .among the twelve
`
`prior art references previously identified for that particular patent and no more than a total of20
`
`references.
`
`11.
`
`Disclosure of Expert Testimony.
`
`a.
`
`Expert Reports. For the party who has the initial burden of proof on the
`
`subject matter, the initial Federal Rule 26( a )(2) disclosure of expert testimony is due on or before
`
`March 1, 2017. The supplemental disclosure to contradict or rebut evidence on the same matter
`
`identified by another party is due on or before March 31, 2017 . Reply expert reports from the
`
`party with the initial burden of proof are due on or before April 21, 2017. No other expert
`
`reports will be permitted without either the consent of all parties or leave of the Court. Along
`
`with the submissions of the expert reports, the parties shall advise of the dates, times, and
`
`locations of their experts' availability for depositions. Depositions of experts shall be completed
`
`on or before.June2, 2017.
`
`b.
`
`Objections to Expert Testimony. To the extent any objection to expert
`
`testimony is made pursuant to the principles announced in Daubert v. Merrell Dow Pharm., Inc.,
`
`9
`
`

`
`Case 1:15-cv-00311-RGA Document 28 Filed 10/29/15 Page 10 of 12 PageID #: 691
`
`509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be made by
`
`motion no later than the deadline for dispositive motions set forth herein, unless otherwise
`
`ordered by the Court.
`
`12. Case Dispositive Motions. All case dispositive motions, an opening brief, and
`
`affidavits, if any, in support of the motion shall be served and filed on or before June-30, 2017.
`
`Any opposition brief is due on or before 21 days after the filing of the opening brief. Any reply
`
`brief is due on or before 14 days after the filing of the opposition brief. No case dispositive
`
`motion under Rule 56 may be filed more than ten days before the above date without leave of the
`
`Court.
`
`13. Applications by Motion. Except as otherwise specified herein, any application to
`
`the Court shall be by written motion. Any non-dispositive motion should contain the statement
`
`required by Local Rule 7 .1.1.
`
`14.
`
`Pretrial Conference. On September 22, 2017 (Activision Blizzard); November
`
`17, 2017 (Electronic Arts); January 26, 2018.(Take-Two), the Court will hold a Rule 16(e)
`
`final pretrial conference in Court with counsel beginning at 9:00 a.m. The parties shall file a
`
`joint proposed final pretrial order in compliance with Local Rule 16.3(c) no later than 5:00 p.m.
`
`on the third business day before the date of the final pretrial conference. Unless otherwise
`
`ordered by the Court, the parties shall comply with the timeframes set forth in Local Rule 16.3(d)
`
`the preparation of the proposed joint fmal pretrial order.
`
`15. Motions in Limine. Motions in limine shall not be separately filed. All in limine
`
`requests and responses thereto shall be set forth in the proposed pretrial order. Each party shall
`
`be limited to three in limine requests, unless otherwise permitted by the Court. The in limine
`
`request and any response shall contain the authorities relied upon; each in limine request may be
`
`supported qy a maximum of three pages of argument and may be opposed by a maximum of
`
`three pages of argument, and the party making the in limine request may add a maximum of one
`
`additional page in reply in support of its request.
`
`If more than one party is supporting or
`
`opposing an in limine request, such support or opposition shall be combined in a single three
`
`10
`
`

`
`Case 1:15-cv-00311-RGA Document 28 Filed 10/29/15 Page 11 of 12 PageID #: 692
`
`page submission (and, if the moving party, a single one page reply). No separate briefing shall
`
`be submitted on in liminerequests, unless otherwise permitted by the Court.
`
`16.
`
`Jury Instructions, Voir Dire, and Special Verdict Forms. Pursuant to Local Rules
`
`4 7 .1 (a )(2) and 51.1, the parties shall file (i) proposed voir dire, (ii) preliminary jury instructions,
`
`(iii) final jury instructions, and (iv) special verdict forms no later than 5 p.m. on the third
`
`business day before the date of the final pretrial conference. The parties shall submit
`
`simultaneously with filing each ofthe foregoing four documents in Word or WordPerfect format
`
`to rga _ civil@ded.uscourts.gov.
`
`17. Trial.
`
`This matter is scheduled for an 8-day jury trial beginning at 9:30 a.m. on ·October 4,
`
`2017 (Activision Blizzard); December 4, 2017 (Electronic Arts); February 5, 2018 (Take(cid:173)
`
`Two) with the subsequent trial days beginning at 9:30 a.m. Until the case is submitted ·to the
`
`jury for deliberations, the jury will be excused each day at 4:30 p:m. The trial will be timed, as
`
`counsel will be allocated a total number of hours in which to present their respective cases.
`
`18. ADR Process. This matter is referred to a magistrate judge to explore ·the
`
`possibility of alternative dispute resolution.
`
`19. Email Service. The parties have consented to service by email, in accordance
`
`with Rule 5(b )(2)(E) of the Federal Rules of Civil Procedure. The parties agree that service on
`
`any party by email shall be made on both local and national counsel of that party.
`
`20.
`
`Privilege. The parties are not required to -prepare privilege logs or otherwise
`
`schedule documents withheld from production to the extent they (1) relate to activities
`
`undertaken in compliance with the duty to preserve information under Fed. R. Civ. P.
`
`26(b )(3)(A) and (B), or (2) are withheld from production on the basis of privilege and/or other
`
`exemption or immunity from production and are generated after the filing of the Complaint. All
`
`other withheld documents must be logged in full compliance with Fed. R. Civ. P. 26(b)(5)(A).
`
`11
`
`

`
`Case 1:15-cv-00311-RGA Document 28 Filed 10/29/15 Page 12 of 12 PageID #: 693
`
`DATED: Oii~ 1o ! 6' ™~~
`
`HONORABLERl liARDG.ANDREWS.
`UNITED STATES DISTRICT JUDGE
`
`12