Case 1:15-cv-00311-RGA Document 53 Filed 01/11/16 Page 1 of 5 PageID #: 1128
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 15-228 (RGA)
`
`C.A. No. 15-282 (RGA)
`
`C.A. No. 15-311 (RGA)
`
`)))))))))
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`))))))))) )))))))))))
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`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
`2K SPORTS, INC.,
`
`Defendants.
`
`LETTER TO THE HONORABLE RICHARD G. ANDREWS FROM PHILIP A.
`ROVNER, ESQ. REGARDING DISCOVERY DISPUTE CONCERNING
`PRODUCTION OF CORE TECHNICAL DOCUMENTS
`
`

`
`Case 1:15-cv-00311-RGA Document 53 Filed 01/11/16 Page 2 of 5 PageID #: 1129
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`Dear Judge Andrews:
`
`Defendants have decided to ignore the Court’s Scheduling Order that required them to
`“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” by December 16, 2015.
`Dkt. 29, Scheduling Order at ¶1(d) (emphasis added).1 On December 16, Defendants did not
`produce the ordered operation manuals, product literature, schematics, and specifications for the
`accused products or the accused network functionality, but instead produced publicly available
`documents related to validity and SEC filings. Defendants continue to refuse to comply with this
`portion of the Court’s Scheduling Order, and are now arguing that source code satisfies the core
`documents requirement in the Court’s Order.
`
`However, when the issue of core technical documents arose in negotiating the proposed
`scheduling order, Defendants agreed to produce the core technical documents and argued that
`“[t]here is no requirement of early production of source code.” Dkt. 23, Proposed Scheduling
`Order at ¶1(d). The Court agreed with Defendants. Ex. 3, 10/13/15 Hearing Tr. at 34: 8-16.
`Now, however, Defendants claim “that the source code is the key document on how the games
`operate at the level of the patent.” Ex. 1 at 12/28/15 email. Based on this position, Activision
`Blizzard and Take-Two Interactive Software have not produced a single core technical document
`in their core document production, while Electronic Arts (“EA”) produced only four.2
`
`Plaintiff Acceleration Bay respectfully submits that Defendants are in contempt of the
`Court’s Scheduling Order and seeks an order (1) compelling Defendants to comply with their
`obligations under the Scheduling Order to provide an adequate core technical document
`production disclosing the relevant functionality of the accused products and (2) granting
`Acceleration Bay relief by modifying the Scheduling Order with respect
`to infringement
`contentions to address the prejudice Defendants caused by refusing to comply with the
`Scheduling Order and their discovery obligations.
`A.
`Defendants Failed to Provide Schematics, Specifications and Other Non-Source
`Code Documents Describing the Accused Products and Networking Functionality
`
`1 All citations are to Acceleration Bay v. Electronic Arts Inc., Case No. 15-282-RGA.
`2 After the close of business Friday (January 8, 2016), Activision produced 150 pages of
`information about how to install one of the accused products. EA produced 900 pages of
`documents that, on initial review, appear to be relevant but are far from a complete disclosure of
`the accused functionality. Take-Two did not produce any additional documents. Less than two
`hours before the deadline for filing this letter, Activision confirmed that it would be producing
`additional technical documents “shortly,” including for the first time documents regarding the
`accused Destiny game, and EA acknowledged that it had just “produced additional non-source
`code technical documents.” Take-Two did not provide any updated information. Despite the
`upcoming hearing and Plaintiff’s repeated requests, Defendants still have not provided any
`specific information as to what additional technical documents will be produced, when they will
`be produced and by when Defendants will finally complete their core technical productions.
`These recent supplementations only confirm that Defendants’ December 16, 2015 productions
`were incomplete and deficient.
`
`

`
`Case 1:15-cv-00311-RGA Document 53 Filed 01/11/16 Page 3 of 5 PageID #: 1130
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`There is no dispute that the responsive confidential core technical documents which the
`Court ordered Defendants to produce are critical given the specific infringement issues in these
`cases. Defendants simply decided to disregard the Court’s unambiguous and explicit Order, and
`thus are in contempt of such Order. Harris v. City of Phila., 47 F.3d 1311, 1326 (3d Cir. 1995)
`(contempt exists where there is a valid court order, Defendant had knowledge of the order and
`disobeyed it). Particularly troubling is the fact that Defendants do not dispute that these
`technical documents the Court ordered produced exist. See, e.g., Ex. 1 at 12/28/15 Email (“As
`the case proceeds, Defendants will of course continue to produce documents, including technical
`documents.”). Rather, during meet and confers, they have claimed that these documents are
`harder to find and were not a focus of the companies’ initial document collection efforts. That
`Defendants might at some time in the future possibly produce responsive documents, however, is
`not a defense to their contempt of the Court’s Scheduling Order. Robin Woods Inc. v. Woods, 28
`F.3d 396, 399 (3d Cir. 1994).
`Indeed, Defendants have ignored Acceleration Bay’s repeated
`requests that they confirm the date by which they will complete their technical production. See,
`e.g., Ex. 2 (1/8/16 email).
`Until Friday’s limited supplemental production by EA, Defendants only made source
`code available for inspection and dumped irrelevant publicly available documents wholly
`unrelated to the functionality of the accused products, such as SEC filings and documents from
`Defendants’ petitions for inter partes review of the asserted patents. After Acceleration Bay
`immediately pointed out Defendants’ December 16, 2015 production was incomplete,
`Defendants supplemented it on December 30, 2015 with some publicly available user manuals.
`Other than confirming that
`these accused games include multi-player functionality,
`these
`publicly available non-technical manuals do not address the specific network features that relate
`to the accused networking functionality, such as the network topology for the multiplayer
`networks.
`
`As companies selling, supporting and developing computer games for which multiplayer
`functionality is a critical feature, Defendants have significant documentation regarding the
`implementation of the multiplayer functionality for the accused products and, as noted above,
`Defendants do not dispute that such documents exist.
`Indeed, software programmers typically
`use specifications and design documents before Defendants’ teams of programmers write the
`millions of lines of software code underlying the accused products. Thus, there is documentation
`about how those networks operate, including relevant technical notes, descriptions and other
`documentation. The very limited documents EA produced prove this is the case. One EA
`document discusses different network topologies (without linking them to specific games), while
`the other three discuss changes to the multiplayer functionality in specific games, confirming that
`EA does document its multiplayer networking functionality. Moreover, Defendants necessarily
`tested and refined their multiplayer networks, which would generate additional relevant core
`technical documents.
`The Court noted during the parties’ scheduling conference that
`“[d]ocuments describe how [source code] work[s]. That’s usually how I hear the core technical
`production described.” Ex. 3, 10/13/15 Hearing Tr. at 33:1-3. Yet, Defendants unilaterally
`decided not to produce such documents.
`
`B.
`
`Defendants’ Offer of Source Code Inspection Does Not Discharge Their Core
`Technical Document Obligations
`Rather than provide the requisite schematics, specifications and other documentation of
`how their products and networks operate, Defendants have offered source code for inspection.
`
`2
`
`

`
`Case 1:15-cv-00311-RGA Document 53 Filed 01/11/16 Page 4 of 5 PageID #: 1131
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`This fails to discharge Defendants’ discovery obligations for multiple reasons. First, as noted
`above,
`the Scheduling Order specifically required the production of “schematics and
`specifications,” to the extent they exist, as well as other documents relating to the accused
`products and accused networking functionality. Dkt. 29 at ¶ 1(d). The Scheduling Order did not
`provide that Defendants could, alternatively, provide source code for inspection in lieu of
`producing the core technical documents. Furthermore, the parties’ competing proposals to the
`Court regarding core technical discovery confirm that source code inspection was in addition to
`the requirement to produce schematics, specifications and other specifications. Dkt. 23 at 3.
`Defendants took the position that non-source code documentation alone would be sufficient to
`satisfy their discovery obligations. Id. Defendants’ prior arguments belie any attempt to suggest
`now that non-source code documents are not important or that only source code discloses the key
`functionality. And EA’s belated partial production of technical documents confirms that these
`documents exist, are relevant and should have been produce a month ago.
`Second, while source code may control certain software functionality, that functionality is
`described at a very low level. This makes source code a good source of evidence for specific
`operations, but it can be difficult to derive higher-level attributes of the accused software, such as
`the network topology at issue in this case, through reviewing millions of lines of source code
`(especially without the ability to compile the source code and test the back end of the software
`networks in operation). Based on Acceleration Bay’s ongoing review of source code, that is the
`case here.
`Schematics, specifications and other documentation regarding the multiplayer
`networks and functionality used in Defendants’ accused games would readily reveal
`this
`information, and would inform the review of the source code.
`Third, even if the source code fully disclosed the accused network topology and
`functionality (which is very unlikely), Defendants still should have produced documentation of
`this functionality because of the highly burdensome provisions controlling the review of source
`code. At Defendants’ insistence, under the protective order Acceleration Bay can only access
`source code by scheduling inspections during limited hours and cannot, inter alia, take notes
`with a computer, make a single copy, print more than a limited number of pages, scan the source
`code or share it electronically among the litigation team. Accordingly, by limiting the core
`technical production to source code, Defendants are unnecessarily forcing Acceleration Bay to
`go through an extremely burdensome process to attempt to verify the relevant functionality of the
`accused products and to prepare infringement contentions. Defendants’ core technical
`production should, as the Court ordered, include non-source code documents as a far less
`burdensome source of necessary discovery.
`
`C.
`
`Modification of the Deadline and Requirements for Infringement Contentions is
`Warranted
`Acceleration Bay has made diligent efforts to collect the discovery it needs, including
`reviewing Defendants’ source code, requesting the 30(b)(6) depositions of Defendants on the
`operation of the multiplayer networks, and seeking discovery from third parties. Nevertheless, in
`view of Defendants’ failures to produce the core technical documents by December 16, 2015, as
`required by the Scheduling Order and the upcoming February 17, 2016 deadline for infringement
`contentions, it is necessary to seek relief from the Court. As such, Acceleration Bay requests
`that the Court order (1) Defendants to produce the core technical documents in compliance with
`the Court’s Scheduling Order within 7 calendar days and (2) that the time for Acceleration Bay
`to serve initial claim charts is extended by thirty days.
`
`3
`
`

`
`Case 1:15-cv-00311-RGA Document 53 Filed 01/11/16 Page 5 of 5 PageID #: 1132
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`POTTER ANDERSON & CORROON LLP
`
`By: /s/ Philip A. Rovner
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff Acceleration Bay LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`James R. Hannah
`KRAMER LEVIN NAFTALIS &
`FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS &
`FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: January 11, 2016
`
`1213678
`
`4