Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 1 of 31 PageID #: 1273
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`1
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`CA NO. 15-228-RGA,
`15-282-RGA,
`15-311-RGA
`
`January 13, 2016
`
`1:33 o'clock p.m.
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`: : : : : : : : : :
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`ACCELERATION BAY LLC
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD INC., et
`al.,
`
`Defendants,
`.............................
`
`TRANSCRIPT OF DISCOVERY DISPUTE
`BEFORE THE HONORABLE RICHARD G. ANDREWS
`UNITED STATES DISTRICT JUDGE
`
`APPEARANCES:
`
`For Plaintiff:
`
`POTTER, ANDERSON & CORROON
`BY: PHILIP A. ROVNER, ESQ
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`1
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`CA NO. 15-228-RGA,
`15-282-RGA,
`15-311-RGA
`
`January 13, 2016
`
`1:33 o'clock p.m.
`
`: : : : : : : : : :
`
`ACCELERATION BAY LLC
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD INC., et
`al.,
`
`Defendants,
`.............................
`
`TRANSCRIPT OF DISCOVERY DISPUTE
`BEFORE THE HONORABLE RICHARD G. ANDREWS
`UNITED STATES DISTRICT JUDGE
`
`APPEARANCES:
`
`For Plaintiff:
`
`POTTER, ANDERSON & CORROON
`BY: PHILIP A. ROVNER, ESQ
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 2 of 31 PageID #: 1274
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`2
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`-and-
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`BY: AARON M. FRANKEL, ESQ
`
`For Defendants:
`
`MORRIS, NICHOLS, ARSHT & TUNNELL
`BY: JACK B. BLUMENFELD, ESQ
`-and-
`WINSTON & STRAWN LLP
`BY: DAVID P. ENZMINGER, ESQ
`
`Court Reporter:
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`LEONARD A. DIBBS
`Official Court Reporter
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 3 of 31 PageID #: 1275
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`P R O C E E D I N G S
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`(The proceedings occurred at 1:33 o'clock p.m. as
`
`follows:)
`
`THE COURT: All right.
`Good afternoon. Please be seated.
`This is Acceleration Bay LLC v. Activision Blizzard,
`Inc., plus two related cases.
`Mr. Rovner?
`MR. ROVNER: Good afternoon, Your Honor.
`Phil Rovner from Potter, Anderson & Corroon for the
`plaintiff in the three cases, the two related cases.
`And with me is Aaron Frankel from Kramer Levin in New
`
`York.
`
`THE COURT: Mr. Blumenfeld?
`MR. BLUMENFELD: Good afternoon, your Honor.
`Jack Blumenfeld from Morris Nichols for the defendants
`in all three cases.
`With me today is a David Enzminger from Winston &
`Strawn in Los Angeles.
`THE COURT: All right.
`So, mister -- sorry, I read the papers.
`Mr. Frankel, do you want to sum up what your view is,
`plus anything that's happened since -- in the last 24 hours in
`about three minutes or so?
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 4 of 31 PageID #: 1276
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`MR. FRANKEL: Three minutes. Okay, your Honor.
`We're here because we need your help getting this case
`back on track, focusing on the substance. I know there are
`discovery disputes before you all the time.
`I'm not saying that this is the most outrageous conduct
`that we've ever seen, and we need sanctions, and fees, and all
`that.
`
`We have a fundamental disagreement with the defendants
`about their obligations for core-technical discovery, which
`we're hoping that you'll be able to clarify today.
`On December 16th, when we were supposed to get the core
`productions, we got 75,000 pages of documents. There were four
`technical documents from one of the five defendants. The rest
`of it was completely irrelevant.
`And we raised the issue -- what we were told is, we
`really don't have any documents. What you need to look at is
`the source code.
`And since we've pursued this issue, brought this issue
`to the Court's attention, we've received several rounds of
`supplemental production, confirming that these technical
`documents exist, including the Declarations, which were put in
`yesterday, where the officers from several of the defendants
`say, we do have technical documents, other than source code, we
`just don't think they're as important as the source code.
`So we know the documents are there. And we've heard
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 5 of 31 PageID #: 1277
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`from the defendants that they produced some, there's more to
`come, but what we don't have is a date certain.
`So what we're hoping you can do today is to clarify the
`obligation of defendants.
`THE COURT: What kind of technical core documents are
`you expecting them to have, or that they say they have, that you
`have not been given?
`MR. FRANKEL: Well, the way software engineering works,
`when you have a large team, is people work from design
`documents, specification documents that describes the
`functionality.
`Then the teams of -- large teams of programmers turn
`those documents into the source code.
`And, for example, in the case of Electronic Arts, there
`are literally 7.5 million files of source code -- not pages or
`lines -- 7.5 million files.
`And without this kind of information, someone could
`spend a lifetime reading through those source code files without
`really getting to the functionality that they need.
`Having those sign documents, and it's the sort of --
`THE COURT: So by "design documents," you mean
`something that is written before the source code is written
`saying, here's roughly what we're trying to accomplish?
`MR. FRANKEL: That's -- that's one type.
`And then another type of documents, which are often
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 6 of 31 PageID #: 1278
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`referred to as wikis. That's sort of, like Wikipedia, it's an
`in-house encyclopedia-type tool that explains how the software
`works.
`
`And some of the defendants have now said that they have
`those documents, and that that is something that they may be
`able to produce to us.
`And that would identify the functionality, and more
`importantly, the specific source code modules, so that we can
`then, in our source code review, find what we need.
`And --
`THE COURT: All right.
`What other sorts of things?
`MR. FRANKEL: Well, I mean, when I say specifications,
`internal reference, design documents, design notes, that's --
`that's a fairly broad category of documents. And if we had
`that, I think that would what we need to have a really
`meaningful source code review.
`And I should say that from the first day that our
`technical consultant was cleared by defendants, we've been there
`every single day. And the source code is in three different
`locations. It's a different city where from where we're
`located, but we're doing our best to get through that stuff, but
`we really do need these documents to guide our review.
`And my hope is, after we can get some clarification,
`and a date certain for the production, and an adjustment to the
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 7 of 31 PageID #: 1279
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`schedule to give us time to get the documents, we should have
`had, and to go through the source code, that I can sit down with
`defense counsel, maybe right after this hearing, and work out a
`plan for getting all this done.
`What we've -- what we've learned is, there are less
`documents than we expected, and that there is some third-party
`sources that we need to get discovery from.
`And if we had been inform by defendants that they
`didn't, you know, have any relevant documents, or they had
`limited relevant documents, and this was going to be a source
`code only review, we would have had a very different discussion
`about the discovery plan for this case, and with respect to the
`Protective Order as well.
`You know, one of the issues that they alluded to in
`their letter brief is that some of the documents we're looking
`for, they've designated as source code, and they put them in the
`source code repositories.
`Now, on that point, as far as we've been able to tell,
`those are not documents that are regularly kept in source code.
`They were just put there a couple of days ago.
`And the defendants have said that they'd be willing to
`work with us to de-designate some of those documents. Maybe --
`these are --
`THE COURT: When you're talking about these, they're
`like the engineers' comments on the code?
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 8 of 31 PageID #: 1280
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`MR. FRANKEL: There are a couple of examples that were
`submitted with defendants' brief. And that's just for one of
`defendants. Not all the defendants have made documents like
`that available.
`In the letter brief it says that these design docs and
`specifications have been produced.
`And they haven't been produced in that we haven't
`gotten a paper copy of them with the Bates number that our
`litigation team can work with.
`What they meant to say is that among the -- again,
`literally seven million files, some of these files have been
`made available. And these are -- this is one of the issues that
`we raised in the Motion for Reconsideration on the source code,
`which is that -- these are not files that you put into a
`compiler, and working source code comes out. You know, that's
`what we suggested the source code definition should be.
`These are 50-page Word documents that explain the
`software functionality and design goals. And here and there
`they may have a few lines of source code, but that's not
`something that you can take and turn into a working source code
`product.
`
`So the defendants have said that they, you know, one
`thing that they could do is, if we requested some of these
`documents, they could redact the source code, and produce the
`documents to us.
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 9 of 31 PageID #: 1281
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`We think that that should be part of the core technical
`production. That's exactly what your Honor's Scheduling Order
`said should be produced. And if we can set a reasonable
`deadline, we think one week, or two weeks for those documents to
`be made available to us, that it would be very helpful to move
`this case forward and focus on substance.
`We just learned that there are some third parties that
`are the exclusive source for some of the information we need.
`And with respect to one of games, this Destiny game, we
`were first told that we would have to go to this third party,
`Bungie, so we served the subpoena asking for documents and a
`deposition on Bungie already.
`But then we found some documents that showed that
`Activision would have design documents that we were looking for.
`We confronted the defendants with that.
`And, now, just an hour before our letter brief is due,
`we received an e-mail that said that they do have some documents
`for that game.
`We think we should have had them a month ago.
`They've said they're reaching out to the third party
`developers for clearance to produce the documents to us.
`So there is some third-party discovery we need to get.
`We're doing our best to grind our way through the source code.
`But we're going to need some time -- we're going to need some of
`that time back that we've lost pursuing this discovery from
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 10 of 31 PageID #: 1282
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`defendants.
`THE COURT: All right.
`Mr. Enzminger?
`MR. ENZMINGER: Yes. Let me fill in some of the
`omissions from the timeline.
`The first thing I think that's important for the Court
`to understand is that even before the technical production of
`documents, we advised them that the production would largely be
`source code, because what we discovered, when looked for high-
`level descriptions, such as what Mr. Frankel describes, most of
`the clients don't have them.
`That's not the way they design the code. This is
`networking code for games, which -- in which the networking
`aspect of it is not particularly important to the development of
`the game. It's a function to be sure, and it may be an
`important function, but it's not the main part of the game
`development.
`We advised of that even before the 16th, and invited
`them to come review before the holidays, because our clients
`would be closed after that, and they declined.
`On December 20th, nearly ten days later, they changed
`their mind. And even though our clients were out of the office
`over the holidays, we pushed and made the code available.
`We're not withholding any documents. The statement in
`the letter brief of plaintiffs that we didn't produce any
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 11 of 31 PageID #: 1283
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`technical documentation on the 16th is not true.
`In fact, they refer to one document as an example,
`Electronic Arts. One of the defendants does have such
`high-level documents, which were produced on the 16th, to the
`extent that we could find them. We both looked and produced
`what we could find, which is why, in this letter brief, we have
`Declarations from the people who are responsible for the
`networking aspect of the products to say that they looked for it
`--
`
`THE COURT: These are these three software engineers?
`MR. ENZMINGER: Yes.
`THE COURT: Okay. I did read them.
`MR. ENZMINGER: Yes. So they are responsible for the
`networking functions. And looked for the kind of design
`documents that Mr. Frankel is talking about, and didn't find
`any, other than the ones that we've made available to them.
`In the source code repository, it's not just source
`code, but also made available to them all of the technical
`documents regarding the design that we could locate. Some of
`them are marked as --
`THE COURT: So let me -- why don't you finish your
`
`broad --
`
`MR. ENZMINGER: Yes.
`THE COURT: -- statement, and then I've got a few
`questions.
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 12 of 31 PageID #: 1284
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`MR. ENZMINGER: Yes. I'm just flipping to a page to
`one of them, for example, which is why it's designated a source
`code, because the documents typically have the source code
`printed right in the document.
`So it's not -- these are source code materials.
`These are searchable, the code is searchable for those
`able to do it, it's been fully available to them since the
`middle of December.
`And it's hard to say, well, we need documents.
`Well, we don't know what documents they need and that
`we have, because we're not withholding anything.
`It is true we made supplemental productions since then,
`but if the Court goes back and looks at their letter brief,
`they're complaining that those documents don't show the network
`functionality. In other words, they're not core-technical
`documents, which is the only thing we understand them to be
`fighting about.
`The problem is that much of the technical documentation
`surrounding the games, has nothing whatsoever to do with
`multiplayer networking, which is all this case is about.
`That information is found in the source code and they
`can review it. It's available to them and we're not restricting
`their access to it.
`THE COURT: So -- I'm sorry -- go ahead.
`Do you have more?
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 13 of 31 PageID #: 1285
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`MR. ENZMINGER: No. That's all.
`THE COURT: So the two concrete things, or at least the
`first two concrete things that Mr. Frankel mentioned, these
`design documents, and these wiki -- wikis --
`MR. ENZMINGER: Mm-hmm.
`THE COURT: -- do you have anything specifically you
`can respond to in relation to those two things?
`MR. ENZMINGER: Only that with respect to the wikis,
`which is a collection of documents that they've been searched,
`and anything that is related to the networking functionality has
`either been produced or put into the source code repository, if
`it has source code.
`We have offered to make those available to them -- and
`they can verify that -- but in terms of core document
`production, there's not going -- we don't believe, anyway, based
`on our review, and that of our clients, that they're going to
`find additional descriptions of the networking functionality,
`which hasn't already been provided.
`THE COURT: And, in terms of the design documents,
`because there was something in there from, I think, the
`engineers, and maybe it was in your letter, too --
`MR. ENZINGER: Mm-hmm.
`THE COURT: -- saying, if I understood it correctly,
`and, you know, that's a big if, that they were talking about
`something, which may or may not have been these design
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 14 of 31 PageID #: 1286
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`documents, but saying sort of, well, those are our plans, but
`when we actually do the source code, which is the best guide to
`what the functionality is --
`MR. ENZMINGER: Right.
`THE COURT: -- we also may change our plan.
`And, so, the design documents -- they didn't call them
`design documents I don't think -- but whatever these things are,
`that are written in a more general, or at a -- before the source
`code is actually done level, you know, may be erroneous.
`The things that they're talking about there, do you
`think they might be the same sorts of design documents that Mr.
`Frankel is talking about?
`MR. ENZMINGER: I think they are. And that's included
`in the production of source code that we've made, because it's
`the plan for the source code, and it typically includes modules.
`I'm not aware of -- let me put it this way.
`I'm not aware of a collection of documents that we've
`been able to locate that hasn't been made available to them,
`that we're withholding or just haven't produced.
`THE COURT: So --
`MR. ENZMINGER: I'm not saying it doesn't exist,
`because we continue to look, but we've been looking, and what we
`found we've made available to them.
`THE COURT: Okay.
`So how much of the -- and, so, I heard what you said
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 15 of 31 PageID #: 1287
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`about, you know, we told them before December 16th it would be
`source code, and that sort of thing.
`To the extent the core-technical documents are,
`essentially, source code, and stuff closely related to source
`code, it is a laborious undertaking to -- or is it a laborious
`undertaking to look for whatever it is that's relevant in what
`you've provided?
`I mean, in other words --
`MR. ENZMINGER: Right.
`THE COURT: -- part of what I'm trying to figure out
`here is, there is two -- kind of two issues, I think.
`One is the accusation in the letter, which seems to
`have been toned down bit in person that you're withholding
`things.
`
`And then the second one is, we misunderstood the -- for
`whatever reason, and let's assume that I don't think you're
`withholding things -- but that we misunderstood the scope of the
`-- of what we had to do it in order to do preliminary
`infringement contentions on February 27th, or whatever the date
`is that they're due.
`Sorry. There was a question in there.
`MR. ENZMINGER: I didn't catch the question.
`THE COURT: I was afraid of that.
`MR. ENZMINGER: I think it --
`THE COURT: So, really, what I was saying is, the
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 16 of 31 PageID #: 1288
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`second point that they need more time.
`Do you have something to say about that?
`MR. ENZMINGER: Well, the first time we heard that
`request was in the letter brief, so we haven't actually
`discussed it with them.
`THE COURT: Just tell me what you think.
`MR. ENZMINGER: That's five weeks away.
`You know, they must have had some infringement thoughts
`before they filed the lawsuit.
`THE COURT: I'm sure.
`MR. ENZMINGER: So the source code is available. It
`may be a lot of lines of source code, where it's been provided,
`but it's searchable.
`And the documents, to the extent they exist that are,
`you know, the sort of technical design documents that we've been
`able to locate are there.
`THE COURT: And is it a -- one thing, I don't any
`appreciation for it at all is, to the extent that they're
`technical design documents in your source code repositories, is
`it something that their person, expert, who's looking at this
`can, you know, just like a -- turned into something I understand
`is this -- is this a maze where they're dropped into the middle,
`and they have to poke around to find this, or is this something
`where they enter the maze, and the science about the general
`scope of the maze are right there at the beginning?
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 17 of 31 PageID #: 1289
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`MR. ENZMINGER: Well, with respect to the technical
`design documents, they should be able to zero right in on what
`they're looking for.
`They haven't told us any deficiency with respect to
`those documents.
`With respect to the source code, it is -- it is
`searchable.
`I'm not a source code expert, so I can't tell you how
`easily that is, but I can tell I've employed lots of people who
`had no difficulty finding things in source code that we were
`looking for.
`THE COURT: Okay. All right.
`Have either my questions, or Mr. Enzminger's
`discussion, Mr. Frankel, caused you to want to say something
`more?
`
`MR. FRANKEL: Surprisingly, they have. I'll try to
`keep it brief.
`THE COURT: I'm not surprised, but I understand you're
`using irony or something.
`MR. FRANKEL: Thank you, your Honor.
`And I'll try and just kind of go with some quick hits.
`You know, just to be clear on the timing of the
`documents, when defendants say they've produced everything that
`they have, you know, most of the documents, except for four,
`came on Friday.
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 18 of 31 PageID #: 1290
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`So it's not -- we were supposed to have to this stuff a
`month ago.
`And in the e-mail that we got just shortly before we
`filed our letter brief from Activision, it said that, we
`produced documents on Friday, and we'll produce additional
`documents shortly. And we understand that there may be some
`additional documents coming in from the other defendants as
`well.
`
`And then there is a request that will be forthcoming
`shortly about --
`THE COURT: I'm sorry. But these additional documents
`shall be produced shortly, you know, you said you had 75,000
`pages of documents in the first go-round, and only four of them
`were relevant.
`What do you understand is going to be produced shortly?
`MR. FRANKEL: Well, I'm -- I'm relying on defendants'
`representations that they're making their best efforts to find
`this material, and I appreciate that, and --
`THE COURT: And, I guess, partly -- what material -- I
`mean, certainly there seems to be things in the record saying a
`lot of the things that you're asking for, they don't have,
`right?
`
`MR. FRANKEL: Well, I'm -- I'm not sure that it's as
`clear as counsel is making it.
`You know, even in the Declarations it says, well,
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 19 of 31 PageID #: 1291
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`Activision does have technical documents, other than the source
`code. Those documents are not reliable references to determine
`the precise functionality.
`Now, that may or may not be the case, but we would like
`those documents, so that we can have a more meaningful and
`productive review of the source code.
`THE COURT: So my impression is -- and maybe I'm wrong
`-- is that these are the things that you're calling design
`documents, and that I think I've heard, are at these source code
`repositories.
`Am I misunderstanding either of you there?
`MR. ENZMINGER: Well, it's not -- well, go ahead. I
`mean, probably since I'm the one responding, it makes sense for
`me to explain.
`It's not a co-equal set of documents. If you think of
`a vin diagram. There's a difference between technical documents
`and core-technical documents that relate to the functionality
`that's accused.
`Their document requests are broad. They asked for
`everything. A lot of what they've ask for has nothing to do
`with the technical aspects of this case.
`We are not withholding that information from them,
`because it's not core-technical documentation.
`The core-technical documentation, relating to the
`accused functionality of the patent, is provided to them. It
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 20 of 31 PageID #: 1292
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`was provided to them in the source code repository. And to the
`extent that we could find it, it was provided to them.
`The fact that there may be other operations manuals, or
`things that detail other parts of the game, doesn't make it not
`responsive to their document request.
`But that's not what we're talking about here.
`We're talking about, have we complied with our
`obligation to produce core-technical documents --
`THE COURT: So --
`MR. ENZMINGER: -- and I don't even see how one could
`make an argument that we haven't, when we've given them the
`source code.
`THE COURT: And, so, Mr. Enzminger, are you saying that
`the things that Mr. Frankel is saying, they promised more
`documents?
`That's, yes, you promised more documents, but they
`aren't actually the core documents, so we don't really need to
`consider that too much further?
`MR. ENZMINGER: Well, I wouldn't say we don't need to
`consider it, because I take seriously the obligation to produce
`what they've asked for.
`What I would say is, that those documents are not going
`to be core documents in terms of how does the functionality of
`the accused -- the accused functionality operated.
`That information is in the source code and in the
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 21 of 31 PageID #: 1293
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`materials we've provided.
`THE COURT: And is it your representation -- and I
`heard you earlier you saying you're not a source code expert --
`MR. ENZMINGER: Right.
`THE COURT: -- but you're in good company here.
`Are you saying that their experts, with the things that
`are at the source code repository, have a reasonable roadmap to
`find what they need to find?
`MR. ENZMINGER: I believe that is the case.
`MR. FRANKEL: Well, your Honor --
`MR. ENZMINGER: We haven't heard to the contrary.
`THE COURT: Well, that's the reason I'm looking at Mr.
`Frankel here.
`MR. FRANKEL: Well, that -- I mean, that's going to be
`the next wave. I mean, we've been going through what's been
`made available to us. There is a range of the quality of the
`documents.
`As I mentioned, Electronic Arts gave us seven million
`files, as well as on Friday, a number of helpful documents that
`we would have appreciated receiving a month ago, when they
`should have been made available.
`At the other extreme is the Take-Two Rockstar defendant
`where there's a hundred source code files, and literally not a
`single explanatory or design document. They haven't produced --
`we've gotten three waves of production from the defendants, and
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 22 of 31 PageID #: 1294
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`we have not gotten a single page.
`And as someone who did software engineering in a
`university setting, it's just inconceivable that given the size
`of these games, the millions of lines of code, that it would
`have been created without a single page of shared documentation
`about how it works.
`Now, they've made their representations about what
`exists and what doesn't. We're going to proceed and move
`forward with discovery.
`THE COURT: Just hold on a second on that.
`So, Mr. Enzminger, on Rockstar, do you have any comment
`on them in particular?
`MR. ENZMINGER: Yes. I'm -- I'm somewhat -- and to use
`irony -- surprised.
`But we're being accused of both over-producing in the
`case of Electronic Arts. We've given them too much material.
`It's too burdensome for them to review.
`And with respect to Rockstar, because the production
`was much more focused, and related to the functionality at issue
`in the case, we're being excused of producing too little.
`THE COURT: But the responsive point that I think Mr.
`Frankel's saying in so many words, that there's nothing other
`than source code that they're getting, that have been made
`available on behalf of Take-Two.
`And, you know, is that right?
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 23 of 31 PageID #: 1295
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`MR. ENZMINGER: What they've been given is the source
`code files for the network -- the multi-player networking
`function, which is the only thing that's in issue in the case.
`And that would include the source code. It also includes
`comments with the source code.
`We've looked for higher-level descriptions of those
`that the plaintiff surmises must exist. And we are told that it
`-- that those kinds of documents weren't created, or if they
`have, they haven't been located, and it's not for lack of
`searching.
`THE COURT: Okay. All right.
`So --
`MR. ROVNER: Your Honor, do you mind if I say one thing
`that might clear up why we're sort of at loggerheads here?
`THE COURT: Anything could be helpful, Mr. Rovner.
`MR. ROVNER: I hope it will be helpful.
`MR. FRANKEL: I don't know why we're -- I didn't even
`know that we're at loggerheads.
`MR. ROVNER: The problem is, we are operating under the
`assumption -- and you've asked pointed questions -- we think
`that the written documents, the physical documents are
`available.
`And they're saying that they're not.
`The reason in part that we think that is not only
`because we think they must exist to create the source code, but
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 24 of 31 PageID #: 1296
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`when we were here before the Court in the Scheduling Conference,
`we were told by the defendants that we don't have any obligation
`to give you source code early, we'll give you the written paper.
`So they came in late September, early October saying,
`we're going -- to comply with our core-technical document
`requirement, we're going to give you paper.
`And it was right in the Order. That's how the language
`in the Order came to be.
`So what happened is, okay, we're going to get paper.
`But then in December -- it was either December 11th or
`December 16th -- when the date came to get the paper, we were
`told, oh, no, no, we're going to give you the source code, and
`that is going to satisfy all of our obligations.
`Well, it was exactly the opposite from what we were
`told, so, obviously, that raised suspicion on our side, and
`that's why were here today.
`We're being told something that was very different than
`what we were told --
`THE COURT: Hold on a second, Mr. Rovner.
`Yes. So the thing that I'm most interested in is, Mr.
`Rovner is fairly specific that it was December 11th where they
`were told, no, you're going to get source code and --
`MR. ENZMINGER: They got both.
`THE COURT: Well, hold on a minute.
`Are you looking to contradict, Mr. Rovner?
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`MR. FRANKEL: To clarify or embellish on his comments.
`I think it's sort of a side show in defendants' brief.
`I would like to correct record.
`We were not told on December 11th that defendants'
`production would be, quote, "largely source code," which is what
`counsel just said.
`What we were told is -- on the 11th -- one or more of
`the defendants in part may make source code available.
`And then we were also told that defendants were going
`to be shutting down for the holidays. If we wanted to do source
`code before the end of the year, we needed to jump on that.
`So we --
`THE COURT: That's enough on that. Thank you.
`Mr. Enzminger, you were going to say something?
`MR. ENZMINGER: Yes. What I was going to say is, we
`produced both.
`We produced the paper that we could find, and we
`produced the source code, because we felt that the paper was not
`adequate to comply with the core-technical documents.
`THE COURT: And you're probably not going to get any
`dispute on that.
`But what -- and, you know, I looked -- transcript, I
`think, of the Scheduling Conference, I don't think that's on the
`docket. Maybe you all have a copy of it.
`But, in any event, I looked to see what it was that I
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`Case 1:15-cv-00311-RGA Document 55 Filed 01/17/16 Page 26 of 3
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