Case 1:15-cv-00311-RGA Document 53-1 Filed 01/11/16 Page 1 of 32 PageID #: 1133
`Case 1:15—cv—OO311—RGA Document 53-1 Filed 01/11/16 Page 1 of 32 Page|D #: 1133
`
`EXHIBIT 1
`
`EXHIBIT 1
`
`

`
`Case 1:15-cv-00311-RGA Document 53-1 Filed 01/11/16 Page 2 of 32 PageID #: 1134
`
`Choa, Jonathan A.
`
`From:
`Sent:
`To:
`
`Cc:
`
`Subject:
`
`Enzminger, David P. [DEnzminger@winston.com]
`Tuesday, December 29, 2015 8:43 PM
`Frankel, Aaron; Tomasulo, Mike; Lin, David K.; skraftschik@MNAT.com; Myers, Dana;
`Blumenfeld, Jack; Cheng, Gino; Kalemeris, Sarah J.; Hodgson, Alissa C
`Andre, Paul; Kobialka, Lisa; Hannah, James; Lee, Hannah; Rovner, Philip A.; Choa, Jonathan
`A.
`RE: Acceleration Bay Actions
`
`Aaron,
`We don’t agree that we’re at impasse. We don’t actually know what your complaint is. The functionality is governed by
`the source code, which we’ve made available. Any delay in reviewing that resulted from plaintiff’s refusal to submit the
`court-ordered protective order, plaintiff’s original position that it would wait until early January to review the materials,
`and its failure to designate the consultant in time for him to clear the waivers. Indeed, Mike even asked you the week
`before the deadline for core technical document production if you desired to review these materials in December,
`because our clients would be closed for the holidays. A week later you changed your mind, and we scrambled to make
`source code available anyway. Plaintiff’s initial review consisted of only a few hours yesterday, and your reviewer
`advised us that he would not return today to continue the review even though he was completely free to do so. We
`simply don’t see how you can possibly claim the production of those materials was inadequate since you’ve barely
`reviewed any of it. In our view, you should finish reviewing the production before complaining that it is inadequate.
`
`As to the publicly available manuals and the like, we are producing them. Either plaintiff did no due diligence on these
`materials or you have done so and correctly concluded that those materials are not core technical documents at the
`level of the accused functionality. Either way, those materials have been available to you since before plaintiff filed the
`lawsuit. Given all of this, it isn’t clear what you think is missing from the productions you’ve barely reviewed. But I’m
`happy to discuss it with you.
`
`Finally, with respect to Bungie, despite a reasonably diligent search, Activision has not located core technical documents
`depicting the accused functionality in Destiny. Those materials are presumably available from Bungie.
`
`From: Frankel, Aaron [mailto:AFrankel@KRAMERLEVIN.com]
`Sent: Tuesday, December 29, 2015 9:48 AM
`To: Enzminger, David P.; Tomasulo, Mike; Lin, David K.; Kraftschik, Stephen; Myers, Dana; Blumenfeld, Jack; Cheng,
`Gino; Kalemeris, Sarah J.; Hodgson, Alissa C
`Cc: Andre, Paul; Kobialka, Lisa; Hannah, James; Lee, Hannah; 'Philip A. Rovner'; 'Jonathan A. Choa'
`Subject: RE: Acceleration Bay Actions
`David,
`It is clear that the parties are at an impasse. In view of the need to
`resolve these issues on a timely basis and as the parties have already
`held a meet and confer and exchanged numerous emails on these issues,
`Plaintiff will proceed to request a hearing date from the Court.
`Since December 20, 2015, Plaintiff has been demanding that Defendants
`comply with the Scheduling Order by producing core technical documents
`beyond source code.
`I have previously articulated to your colleague Mike
`Tomasulo during a meet and confer the reasons why source code alone is
`insufficient under the Scheduling Order. Moreover, while we continue to
`await clearance of our technical expert to access the source code so we
`can conduct a full review, based on our initial review of the source code
`
`1
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`

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`Case 1:15-cv-00311-RGA Document 53-1 Filed 01/11/16 Page 3 of 32 PageID #: 1135
`made available, it appears inadequate with respect to the relevant
`functionality.
`Additionally, Defendants' unwillingness to make reasonable
`efforts to clear Plaintiff's technical consultant to begin reviewing the
`source code has exacerbated the prejudice to Plaintiff from Defendants'
`improper limitation of its core production to source code.
`Defendants' obligations with respect to non-source code documents are not
`limited to publicly available documents. To the contrary, Plaintiff
`expects and Defendants have not denied thus far that Defendants have
`specifications, schematics and other non-source code documents describing
`the relevant functionality of the accused games, including the peer to
`peer networking functionality. Moreover, to the extent there are publicly
`available documents accurately describing the functionality of the accused
`products, Defendants are obligated to include such documents in their core
`technical production, and not to simply tell Plaintiff that there are
`unspecified publicly available documents that may be relevant.
`While you have represented that Destiny was produced by Bungie, Plaintiff
`has provided evidence that Activision is in possession of significant
`documentation regarding the functionality of Bungie. Activision has not
`denied that this is the case, and such documentation should have been
`provided as part of Activision's core document production.
`Regards,
`Aaron
`
`Aaron M. Frankel
`Special Counsel
`
`KRAMER LEVIN
`NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, New York 10036
`O: 212-715-7793 | F: 212-715-8363
`afrankel@kramerlevin.com
`view bio
`www.kramerlevin.com
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is confidential, privileged or
`legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received this communication in error, please
`immediately notify the sender by return e-mail message and delete all copies of the original communication. Thank you for your cooperation.
`
`From: Enzminger, David P. [DEnzminger@winston.com]
`Sent: Monday, December 28, 2015 12:58 PM
`To: Frankel, Aaron; Tomasulo, Mike; Lin, David K.; Kraftschik, Stephen; Myers, Dana; Blumenfeld, Jack; Cheng, Gino;
`Kalemeris, Sarah J.; Hodgson, Alissa C
`Cc: Andre, Paul; Kobialka, Lisa; Hannah, James; Lee, Hannah; 'Philip A. Rovner'; 'Jonathan A. Choa'
`Subject: RE: Acceleration Bay Actions
`
`Aaron,
`
`This responds to your email last night (Sunday, December 27, 2015).
`
`2
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`Case 1:15-cv-00311-RGA Document 53-1 Filed 01/11/16 Page 4 of 32 PageID #: 1136
`
`It is remarkable that Plaintiff threatens Defendants with a motion to compel and for contempt for failing to produce core
`technical documents even before it has begun to review the source code materials that constitute the bulk of
`Defendants' core technical document production. We have consistently advised you that the source code is the key
`document on how the games operate at the level of the patent. Not only have we made that available to you, your
`team is beginning its review of that material this morning.
`
`The suggestion that Defendants should be held in contempt for failing to produce publicly available operations manuals
`and product literature is especially odd. We presume that Plaintiff reviewed them before it filed these suits as part of its
`basic pre-filing due diligence under Octane Fitness. Moreover, we directed you specifically to these public materials as
`part of the core technical document production. If Plaintiff has not obtained these public materials to which we directed
`your attention, we will produce copies of those materials.
`
`The suggestion that Defendants should be held in contempt for failing to produce “schematics and specifications” is
`without merit. As Mr. Tomasulo has repeatedly advised you, the games are governed by their source code that we have
`agreed to make available, and your team is beginning its review today. As the case proceeds, Defendants will of course
`continue to produce documents, including technical documents.
`
`As we believe you know, Destiny is designed and operated by Bungie. Thus, Bungie is the appropriate source of accurate
`information regarding the accused features of Destiny. Activision advised Plaintiff of this as early as November 12 in its
`supplemental initial disclosures. Again, it is remarkable that Plaintiff threatens a motion to compel and for contempt
`against Activision when it has not sought the discovery from the party that created and operates the game.
`
`In any event, it seems to us that it would make more sense for Plaintiff focus its energies on reviewing the source code
`materials Defendants have made available and pursuing whatever additional discovery it needs, rather than making
`threats of discovery and contempt motions before it has even reviewed those materials.
`
`Bio | VCard | Email | www.winston.com
`
`From: Frankel, Aaron [mailto:AFrankel@KRAMERLEVIN.com]
`Sent: Sunday, December 27, 2015 6:52 PM
`To: Enzminger, David P.; Tomasulo, Mike; Lin, David K.; Kraftschik, Stephen; Myers, Dana; Blumenfeld, Jack; Cheng,
`Gino; Kalemeris, Sarah J.; Hodgson, Alissa C
`Cc: Andre, Paul; Kobialka, Lisa; Hannah, James; Lee, Hannah; 'Philip A. Rovner'; 'Jonathan A. Choa'
`Subject: RE: Acceleration Bay Actions
`
`3
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`

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`Case 1:15-cv-00311-RGA Document 53-1 Filed 01/11/16 Page 5 of 32 PageID #: 1137
`David,
`
`We reached out to David Lin with the name of the attorney conducting the source code review and to work out
`the logistical details.
`
`We disagree that we have not specified the relief we will be seeking from the Court. Plaintiff identified the
`requested relief during my meet and confer with Mike and in the correspondence exchanged between the
`parties. In particular, Plaintiff will be seeking an order compelling Defendants to comply with the Scheduling
`Order by producing "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.” Plaintiff also will seek production of core technical documents for
`the accused Destiny product. Plaintiff will seek further relief in view of the prejudice to its ability to meet its
`deadline to provide infringement contentions, such as limiting the infringement contentions to publicly available
`information and/or modifying the deadline for the production of infringement contentions. Finally, Plaintiff
`will be moving for contempt because Defendants have failed to comply with their obligations under the
`Scheduling Order.
`
`As noted in my previous email, I remain available to further discuss these issues.
`
`Regards,
`Aaron
`
`Aaron M. Frankel
`Special Counsel
`
`KRAMER LEVIN
`NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, New York 10036
`O: 212-715-7793 | F: 212-715-8363
`afrankel@kramerlevin.com
`view bio
`www.kramerlevin.com
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is confidential, privileged or
`legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received this communication in error, please
`immediately notify the sender by return e-mail message and delete all copies of the original communication. Thank you for your cooperation.
`
`From: Enzminger, David P. [DEnzminger@winston.com]
`Sent: Thursday, December 24, 2015 3:19 PM
`To: Frankel, Aaron; Tomasulo, Mike; Lin, David K.; Kraftschik, Stephen; Myers, Dana; Blumenfeld, Jack; Cheng, Gino;
`Kalemeris, Sarah J.; Hodgson, Alissa C
`Cc: Andre, Paul; Kobialka, Lisa; Hannah, James; Lee, Hannah; 'Philip A. Rovner'; 'Jonathan A. Choa'
`Subject: RE: Acceleration Bay Actions
`
`Aaron,
`My colleague, David Lin, will respond concerning logistics for your review. But failing anything more specific, please
`come to our Los Angeles office (address below), and we will get you set up for the review. Before Monday, please let us
`know the names of the people coming so we can advise building security to expedite your ability to get up to our
`reception floor (38th).
`
`The message does not advise us of the “relief you will be seeking from the Court” or a description of any prejudice. The
`record seems well developed. The only issue is one of the plaintiff’s creation by (1) failing to comply with a Court’s order
`
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`Case 1:15-cv-00311-RGA Document 53-1 Filed 01/11/16 Page 6 of 32 PageID #: 1138
`
`to submit the protective order when the Court ordered and (2) then failing to provide notice of your expert in time for
`him to start the review start his review when you wanted. Even under the proposed stipulation, our clients would have
`the right to vet the expert over seven days, and you didn’t give them/us time to do this. The strident tone is particularly
`perplexing as Mike advised you weeks ago that our clients would be closed between Christmas and New Year, and you
`initially advised us then that you would start this review in January, only advising us of your change of heart this week.
`
`Nonetheless, we look forward to receiving you on Monday. I am leaving the office now for the Christmas holiday, and I
`wish you and your team the very best and hope you can take some time to enjoy this time with your families and
`friends.
`
`Bio | VCard | Email | www.winston.com
`
`From: Frankel, Aaron [mailto:AFrankel@KRAMERLEVIN.com]
`Sent: Thursday, December 24, 2015 11:49 AM
`To: Enzminger, David P.; Tomasulo, Mike; Lin, David K.; Kraftschik, Stephen; Myers, Dana; Blumenfeld, Jack; Cheng,
`Gino; Kalemeris, Sarah J.; Hodgson, Alissa C
`Cc: Andre, Paul; Kobialka, Lisa; Hannah, James; Lee, Hannah; 'Philip A. Rovner'; 'Jonathan A. Choa'
`Subject: RE: Acceleration Bay Actions
`
`David:
`
`Plaintiff confirms that it will proceed with the inspection beginning Monday morning. Please provide us with any
`necessary logistical instructions.
`
`While I will not belabor the point as we have already set forth Plaintiff’s position, Defendants’ conduct has been highly
`prejudicial, and Plaintiff will be seeking relief from the Court. Defendants originally proposed proceeding with a
`representation that the parties would be bound by Defendants’ proposed order until we receive a ruling from the Court,
`which Plaintiff provided. Defendants then requested a stipulation, which we provided. Accordingly, we do not see the
`need for any further delay. Defendants’ refusal to permit Plaintiff’s technical consultant to inspect the source code at
`this time is exacerbating the prejudice to Plaintiff, and Plaintiff will need to re-inspect the source code with our technical
`expert once he is cleared.
`
`Regards,
`Aaron
`
`5
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`

`
`Case 1:15-cv-00311-RGA Document 53-1 Filed 01/11/16 Page 7 of 32 PageID #: 1139
`
`Aaron M. Frankel
`Special Counsel
`
`KRAMER LEVIN
`NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, New York 10036
`O: 212-715-7793 | F: 212-715-8363
`afrankel@kramerlevin.com
`view bio
`www.kramerlevin.com
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is confidential, privileged or
`legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received this communication in error, please
`immediately notify the sender by return e-mail message and delete all copies of the original communication. Thank you for your cooperation.
`From: Enzminger, David P. [mailto:DEnzminger@winston.com]
`Sent: Thursday, December 24, 2015 1:42 PM
`To: Frankel, Aaron; Tomasulo, Mike; Lin, David K.; Kraftschik, Stephen; Myers, Dana; Blumenfeld, Jack; Cheng, Gino;
`Kalemeris, Sarah J.; Hodgson, Alissa C
`Cc: Andre, Paul; Kobialka, Lisa; Hannah, James; Lee, Hannah; 'Philip A. Rovner'; 'Jonathan A. Choa'
`Subject: RE: Acceleration Bay Actions
`
`Aaron,
`
`We are in receipt of the email below, as well as your proposed stipulation and email yesterday.
`
`As you know, Mike is out of the country and our clients will be closed until January 4. Mike alerted you to this fact two
`weeks ago.
`
`We obviously disagree with the allegations of your email. But the proposed stipulation is progress and we will try to
`review it with our clients even before January 4 and get back you as soon as possible.
`
`But we cannot allow Mr. Jian to inspect the defendants' highly confidential source code materials until the order is
`entered and he has been cleared under it. Our clients have the right to conduct a proper vetting of Mr. Jian. This would
`not have been an issue if had Acceleration Bay complied with the Court’s order on entry of the protective order.
`Nonetheless, we will continue to work with you on this.
`
`Please let us know as soon as possible if you will proceed with the source code inspection next week without Mr. Jian.
`
`Bio | VCard | Email | www.winston.com
`
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`Case 1:15-cv-00311-RGA Document 53-1 Filed 01/11/16 Page 8 of 32 PageID #: 1140
`
`From: Frankel, Aaron [mailto:AFrankel@KRAMERLEVIN.com]
`Sent: Thursday, December 24, 2015 10:30 AM
`To: Tomasulo, Mike; Lin, David K.; Kraftschik, Stephen; Myers, Dana; Blumenfeld, Jack; Enzminger, David P.; Cheng,
`Gino; Kalemeris, Sarah J.; Hodgson, Alissa C
`Cc: Andre, Paul; Kobialka, Lisa; Hannah, James; Lee, Hannah; 'Philip A. Rovner'; 'Jonathan A. Choa'
`Subject: RE: Acceleration Bay Actions
`
`Counsel:
`
`While we appreciate that Mike is out of the country and the end of the year holidays are upon us (and Happy Holidays
`from our team to yours), please let us know today if the source code inspection will start on Monday so that we can
`make the necessary travel arrangements for our counsel and technical consultant.
`
`Regards,
`Aaron
`
`Aaron M. Frankel
`Special Counsel
`
`KRAMER LEVIN
`NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, New York 10036
`O: 212-715-7793 | F: 212-715-8363
`afrankel@kramerlevin.com
`view bio
`www.kramerlevin.com
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is confidential, privileged or
`legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received this communication in error, please
`immediately notify the sender by return e-mail message and delete all copies of the original communication. Thank you for your cooperation.
`From: Frankel, Aaron
`Sent: Wednesday, December 23, 2015 3:35 PM
`To: Tomasulo, Mike; Lin, David K.; Kraftschik, Stephen; Myers, Dana; Blumenfeld, Jack; Enzminger, David P.; Cheng,
`Gino; Kalemeris, Sarah J.; Hodgson, Alissa C
`Cc: Andre, Paul; Kobialka, Lisa; Hannah, James; Lee, Hannah; 'Philip A. Rovner'; 'Jonathan A. Choa'
`Subject: RE: Acceleration Bay Actions
`
`Mike,
`
`We are deeply troubled by Defendants’ approach to core technical discovery, and we will be requesting a
`hearing date with the Court on a motion to compel and for contempt.
`
`As we discussed during our meet and confer, Defendants’ obligations under the Scheduling Order extend
`beyond making available source code. Indeed the Scheduling Order requires that, “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” (emphasis added). Defendants have plainly failed to comply with that
`
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`Case 1:15-cv-00311-RGA Document 53-1 Filed 01/11/16 Page 9 of 32 PageID #: 1141
`obligation, and have also failed to confirm that the requisite materials will be produced immediately. Other
`than offering source code for inspection, Defendants’ core production was non-existent for two defendants and
`comprised of only three limited documents for the third. As also noted, neither documents nor source code have
`been offered for Destiny, an accused product. Defendants’ failures are highly prejudicial given the upcoming
`deadline for Plaintiff to provide infringement contentions.
`
`We disagree that Plaintiff is to blame for any of the issues regarding the timing of the initial source code
`inspections. You first raised the issue of source code inspections on December 11, 2015, noting inaccurately
`that Defendants’ source code would be made available “as part of their production of core technical
`documents.” (emphasis added). That statement was misleading at best, as you did not indicate that source code
`would be the entirety of the core technical production (with the exception of the three documents produced for
`one of the defendants). When we stated that Plaintiff would begin review of the source code in January, that
`was based on the assumption that Defendants would be complying with their obligation to provide a meaningful
`set of “operation manuals, product literature, schematics and specifications” describing the operation of the
`accused products and in particular the accused networking functionalities. Plaintiff promptly requested an
`immediate review of the source code upon discovering that this was not the case. Defendants’ purported
`concerns with scheduling the source code inspections during the holidays, permitting an inspection before the
`entry of a protective order and refusing to clear Plaintiff’s technical consultant confirm the prejudice to Plaintiff
`from limiting the core technical production to source code.
`
`Defendants had previously offered to permit the source code inspections to proceed, subject to “Confirmation
`that Plaintiff’s counsel will abide by the terms of the protective order filed with the Court on December 8 until
`such time as the Court enters a different order,” which we have provided, along with a signed undertaking from
`Mr. Jian. Although we do not believe it is necessary, to keep this process moving along, Plaintiff is further
`willing to enter into a stipulation that Defendants’ proposed order can control on an interim basis (without
`prejudice to Plaintiff’s pending motion for reconsideration). To partially mitigate further prejudice caused by
`Defendants’ misguided approach to core discovery, Plaintiff requests that it be permitted to conduct its
`inspection with its technical consultant upon the filing of the stipulation. Plaintiff remains prepared to proceed
`on the proposed dates, and we request confirmation of those dates as soon as possible for both Plaintiff’s
`counsel and its consultant.
`
`Finally, the disclosures regarding Mr. Jian are complete. He has no relationships with any of the parties or
`affiliated entities, his CV provides a complete list of his employers (other than volunteering for the Art Center
`of the Chinese Performing Arts Of America and the disclosed consulting projects, Mr. Jian retired in 2012), he
`has not testified as an expert during the past four years, and the addendum to his CV provides a complete list of
`his consulting projects over the past four years. Accordingly, we ask that Mr. Jian be cleared as a consultant in
`advance of the offered dates so that Plaintiff may proceed with a meaningful inspection of Defendants’ source
`code.
`
`While we have already conferred on these issues, I am generally available to further discuss any of the above.
`
`Regards,
`Aaron
`
`Aaron M. Frankel
`Special Counsel
`
`KRAMER LEVIN
`NAFTALIS & FRANKEL LLP
`
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`Case 1:15-cv-00311-RGA Document 53-1 Filed 01/11/16 Page 10 of 32 PageID #: 1142
`1177 Avenue of the Americas
`New York, New York 10036
`O: 212-715-7793 | F: 212-715-8363
`afrankel@kramerlevin.com
`view bio
`www.kramerlevin.com
`
`This communication (including any attachments) is intended solely for the recipient(s) named above and may contain information that is confidential, privileged or
`legally protected. Any unauthorized use or dissemination of this communication is strictly prohibited. If you have received this communication in error, please
`immediately notify the sender by return e-mail message and delete all copies of the original communication. Thank you for your cooperation.
`From: Salyer, Robin A. [mailto:RSalyer@winston.com] On Behalf Of Tomasulo, Mike
`Sent: Wednesday, December 23, 2015 12:37 PM
`To: Frankel, Aaron; Tomasulo, Mike; Lin, David K.; Kraftschik, Stephen; Myers, Dana; Blumenfeld, Jack; Enzminger,
`David P.; Cheng, Gino; Kalemeris, Sarah J.; Hodgson, Alissa C
`Cc: Andre, Paul; Kobialka, Lisa; Hannah, James; Lee, Hannah; 'Philip A. Rovner'; 'Jonathan A. Choa'
`Subject: RE: Acceleration Bay Actions
`
`Aaron,
`
`Thank you for your email.
`
`
`
`In the absence of an entered protective order, with regards to you and your attorneys, we can make source
`code available on the following dates. I still need to confirm start times but will endeavor to meet your
`requested start times.
`EA (WS Los Angeles):
`
`o Monday, 12/28 - Tuesday, 12/29
`Activision:
`o Santa Monica (COD source code)
` Tuesday 1/5 and Wednesday 1/6
`o Irvine (WoW source code)
` Thursday 1/7 and Friday 1/8
`If you will stipulate to the entry of an interim protective order, we can produce the Take-Two Source code at
`or offices in the first week of January as well. There are third party confidentiality issues that require the
`actual entry of a protective order.
`
`With regards to the consultant you identified for the first time yesterday, we are currently in the process of
`reviewing the notice you provided. We want to, however, address the following preliminary issues.
`
`First, while we are doing everything we can to provide access to source code over the holidays, we simply
`cannot allow Mr. Jian or any other third party to inspect any source code until a protective order has actually
`been entered and they have been properly cleared under it. The Court’s December 1, 2015 Order required
`the parties to submit a joint protective order consistent with that Order. We requested repeatedly that week
`that we submit a joint protective order. Even after Plaintiff filed its motion for reconsideration, we explained
`that a motion for reconsideration did not relieve the parties of their obligation to comply with the Court’s
`December 1 Order. Timely compliance with the Court’s December 1 Order would have resolved many of the
`issues we are encountering. In any event, we continue to be willing to stipulate to the entry of the December
`8 Protective Order as an interim protective order. I believe I suggested this again yesterday during our
`conference.
`
`Also, to expedite matters when a protective order is actually entered, let me note two additional items. First,
`Mr. Jian’s undertaking appears to be incomplete. In his CV, Mr. Jian’s professional experience stops at
`
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`Case 1:15-cv-00311-RGA Document 53-1 Filed 01/11/16 Page 11 of 32 PageID #: 1143
`
`February 2012. There is no description of Mr. Jian’s professional experience from February 2012 to present,
`which is nearly four years. The disclosure also does not state whether Mr. Jian has “any previous or current
`relationship (personal or professional) with any of the Parties or any entity that the either Receiving Party or
`the Outside Consultant has reason to believe is an Affiliate of any of the Parties.” (See Proposed Protective
`Order, ¶ 6.1(e).) The disclosure also appears to be missing a list of cases where he has testified in the last four
`years and a list of all companies with he has consulted for or been employed by within the last four years.
`(See Proposed Protective Order, ¶ 6.1(f & g)). At least, nothing is clearly labeled as such. Lastly, please note
`that there are less than two business days remaining this year -- our clients are officially closed beginning
`12/24 and do not reopen until 1/4. This is why we specifically asked you on December 11 if you intended to
`review source code during this period. You advised us that you did not intend to arrange for source code
`review in December. The protective order provides for seven business days for review and objection upon
`submission of a complete undertaking. As is apparent, we are doing everything we can to accommodate
`Plaintiff’s last minute requests with respect to inspection of source code over the holidays, and we will
`continue to do so. But, we cannot allow Mr. Jian or any other third party to be part of any source code
`inspection until the protective order is entered the proper procedures are followed. Given this, please let us
`know immediately if you will proceed with a source code inspection as offered without Mr. Jian.
`
`As previously discussed, we disagree with your position that Defendants have not complied with our
`obligations. The source code for the games, along with the games themselves, govern the accused features
`and therefore constitute the core technical documents. Moreover, as I explained, we went to and continue to
`go to great lengths to make source code available, both because these are the governing technical documents
`and because Plaintiff itself demanded and actually moved the Court to order defendants to produce source
`code as core technical documents. Given that this is a software case and that plaintiff demanded that we
`produce source code, it does not seem reasonable to argue that defendants’ production of source code is
`deficient or justifies expedited motion practice.
`
`Regarding Destiny, we received your production and will look into the matter.
`
`Lastly, as I said on the call yesterday, please note that I will out of the country until the new year. In the
`meantime, please direct correspondence to my partner Dave Enzminger, but please continue to copy me.
`
`In the meantime, please accept my wishes for a happy holiday season.
`
`Regards,
`
`Mike
`
`Michael A. Tomasulo
`Partner
`Winston & Strawn LLP
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`Case 1:15-cv-00311-RGA Document 53-1 Filed 01/11/16 Page 12 of 32 PageID #: 1144
`
`From: Frankel, Aaron [mailto:AFrankel@KRAMERLEVIN.com]
`Sent: Tuesday, December 22, 2015 12:33 PM
`To: Tomasulo, Mike; Lin, David K.; Kraftschik, Stephen; Myers, Dana; Blumenfeld, Jack; Enzminger, David P.; Salyer,
`Robin A.; Cheng, Gino; Kalemeris, Sarah J.; Hodgson, Alissa C
`Cc: Andre, Paul; Kobialka, Lisa; Hannah, James; Lee, Hannah; 'Philip A. Rovner'; 'Jonathan A. Choa'
`Subject: RE: Acceleration Bay Actions
`
`Mike,
`
`Thank you for the meet and confer call yesterday.
`
`Plaintiff requests an initial inspection of the EA and T2 source code on Tuesday 12/29 and Wednesday 12/30 at
`the LA WS office. We propose a 9:00 AM start time for both days. Plaintiff requests an initial inspection of
`the COD source code on Tuesday 1/5 and Wednesday 1/6, with a 10 AM start time each day. Plaintiff requests
`an initial inspection of the WoW source code on Thursday 1/7 and Friday 1/8, with a 9:00 AM start time.
`Please confirm these dates and times.
`
`Please find attached the disclosure materials and executed undertaking for Plaintiff's consultant Andy Jian, who
`will be reviewing the source code materials along with one or more of Plaintiff's counsel.
`
`Without waiver of the currently pending motion for reconsideration, Plaintiff's counsel confirms that it will
`abide by the terms of the protective order filed with the Court on December 8, 2015 until such time as the Court
`enters a different order.
`
`As stated during the meet and confer, it is Plaintiff's position that Defendants were obligated to include non-
`source code documents in their core production. Plaintiff expects that Defendants' non-source code technical
`documents will provide a relevant explanation of the functionality of the accused products and would not be
`subject to the extremely burdensome source code provisions of the anticipated protective order. In view of the
`upcoming deadline for Plaintiff to provide infringement contentions, Plaintiff reserves the right to seek
`expedited relief from the Court to the extent Defendants do not to commit to producing such materials
`forthwith.
`
`Finally, as mentioned during the call, based on publicly available information (including an Activision/Bungie
`publishing contract Plaintiff will be producing shortly), it appears that Activision is in possession of documents
`describing the functionality of Destiny, including its peer to peer networking functionality. Such documents
`should have been included in Activision's core document production, even if Activision does not have copies of
`the Destiny source code. Please produce these documents forthwith or certify that Activision does not have any
`documents describing the relevant functionality of Destiny.
`
`Regards,
`Aaron
`
`Aaron M. Frankel
`Special Counsel
`
`KRAMER LEVIN
`NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, New York 10036
`O: 212-715-7793 | F: 212-715-8363
`afrankel@kramerlevin.com
`view bio
`
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`Case 1:15-cv-00311-RGA Document 53-1 Filed 01/11/16 Page 13 of 32 PageID