Case 1:15-cv-00311-RGA Document 80 Filed 02/17/16 Page 1 of 5 PageID #: 1864
`Case 1:15—cv—OO311—RGA Document 80 Filed 02/17/16 Page 1 of 5 Page|D #: 1864
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`V.
`
`ACTIVISION BLIZZARD, INC.
`
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`V.
`
`ELECTRONIC ARTS INC.,
`
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiffl
`
`V.
`
`TAKE—TWO INTERACTIVE SOFTWARE,
`
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
`
`Defendants.
`
`
`
`
`
`%/$/Q/\J&Z%/&/\/Q/%/\;Q/\/\/\/\/Q/g/\./\)\./\./\/\/g/¢\./\/\y
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`C.A. No. 15-228 (RGA)
`
`PUBLIC VERSION
`
`C.A. No. 15-282 (RGA)
`
`C.A. No. 15-311 (RGA)
`
`LETTER TO THE HONORABLE RICHARD G. ANDREWS FROM
`
`PHILIP A. ROVNER, ESQ. REGARDING DISCOVERY DISPUTES
`
`Public Version Dated: February 17, 2016
`
`

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`Dear Judge Andrews:
`
`A.
`
`Defendants Should Make 30(b)(6) Witnesses Available for Deposition
`
`Defendants are refusing to make witnesses available for depositions in response to
`30(b)(6) Notices served on January 5, 2016, despite originally agreeing to offer witnesses well in
`advance of March 2, 2016, the due date for Acceleration Bay’s infringement contentions. The
`noticed topics seek discovery on core technical issues and, to date, Defendants have not served
`any objections to these deposition notices. Defendants strung Acceleration Bay along for weeks,
`repeatedly indicating that they were working on providing dates for the depositions. When
`Acceleration Bay initially requested a meet and confer, they confirmed that, “Defendants are not
`refusing to produce witnesses.” Ex. 1 (1/24/16 email), Exs. 2-7 (six emails requesting deposition
`dates). During a January 29, 2016 meet and confer, nearly a month after the depositions were
`noticed, Defendants reversed position and stated for the first time that they would not provide
`depositions.
`
`It is not premature for Acceleration Bay to seek depositions prior to service of its
`infringement contentions, where this case was filed 10 months ago, Defendants have claimed
`they completed production of their core technical information, and the parties have been
`diligently pursuing discovery. There is no requirement under the Federal Rules, the Local Rules
`or the Scheduling Order to serve contentions before taking depositions. Moreover, Defendants
`agree that depositions are appropriate at this time, as they have noticed four third-party
`depositions. Further, the depositions Acceleration Bay is seeking will assist its ongoing review
`of Defendants’ source code, especially in the absence of substantial core technical
`documentation from Defendants, which, much to Acceleration Bay’s disbelief Defendants claim
`does not exist beyond what has been provided.
`
`Defendants’ claim that Acceleration Bay has failed to specifically identify the scope of
`the depositions is belied by the specific topics sought in the deposition notices and Defendants’
`original promise to provide witnesses on such topics. See, e.g., C.A. No. 15-228-RGA, Dkt. 59
`at 6—9. As repeatedly indicated to Defendants in writing and during two meet and confers,
`Acceleration Bay seeks discovery on the accused “multiplayer, networking and server-
`interconnection functionality for each of the accused games.” Ex. 2 (1/ 14/ 16 email).
`Acceleration Bay further specifically identified the most relevant topics: “we would like to begin
`with a designee prepared to testify as to the multiplayer, networking and server—interconnection
`functionality for each of the accused games. The highest priority topics are 3-6, 8-11 and 14-
`19.” Ex. 4 (1/22/16 email). After receiving that list, Defendants confirmed they would provide
`witnesses, noting, “[w]e appreciate your prioritizing, and we will work to get you witnesses.”
`Ex. 1 (1/24/16 email). Thus, Defendants understand the discovery Acceleration Bay is seeking.
`
`Finally, despite not identifying which witnesses they will be designating for the
`depositions, Defendants are demanding that Acceleration Bay agree not to depose these
`unknown witnesses again at a later date. Acceleration Bay cannot agree a priori to limits on
`discovery when it does not know who Defendants will designate, what Defendants’ objections to
`the topics are, or whether Defendants will modify the topics, as they have not served any
`objections or responses to the 30(b)(6) Notices. Defendants’ failure to engage in deposition
`discovery is simply a delay tactic that needs to end. Acceleration Bay requests that Defendants
`be ordered to make witnesses available for deposition without further delay.
`
`

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`B.
`
`Take Two Should Make Available the Full Source Code For the Accused Games
`
`Take Two refuses to make available for inspection the full source code for the accused
`games. Instead, it cherry-picked about- excerpted from three different games, a very
`small portion of the total source code. In contrast, Electronic Arts and Activision, who provided
`the entire code for their accused games
`). The prejudice from Take Two’s position is compounded by
`the fact that it has not provided a single technical document, relying only on its very limited offer
`of source code to satisfy its core technical production obligations.
`
`Take Two’s limited selection of files does not disclose the functionality of the accused
`products and, therefore, does not satisfy the Defendants’ burden to produce the “core technical
`documents” required in the Court’s Scheduling Order. Each of the accused Take Two games
`includes numerous modes and features, almost all of which incorporate and interact with the
`accused multiplayer functionality. Source code is a series of interrelated and cross—referenced
`files, and access to the full context of the source code is necessary to trace accused functionality
`through a game. Courts have previously required production of all source code for accused
`products and rejected Take Two’s position that it may offer for inspection only selected excerpts.
`See, e.g., InT0uch Techs., Inc. v. VGO Comm ’ns, Inc., No. CV 11-9185 PA (AJWX), 2012 WL
`7783405, at *1 (C.D. Cal. Apr. 23, 2012) C‘.
`.
`. experience suggests that the ability of plaintiffs
`counsel .
`.
`. to properly understand the directly relevant portions of the source code may depend
`in part on their ability to review other portions of the source code .
`.
`. to place the directly
`relevant portions of the source code in context”); see also Fleming v. Escort, Inc., No. CV 09-
`105-S~BLW, 2010 WL 3833995, at *2 (D. Idaho Sept. 24, 2010) (patentee entitled to complete
`source code in order to verify defendant’s claims that missing code was unimportant or related to
`non-infringing products); Forterra 5323., Inc. v. Avatar Factory, No. C-05-04472 PVT, 2006 WL
`2458804, at *1—2 (N .D. Cal. Aug. 22, 2006) (permitting access to full source code for accused
`software as relevant under broad standard of Rule 26).
`
`There is no merit to Take Two’s claim that it does not know what accused features are
`
`missing from the source code. Acceleration Bay’s complaint provided a detailed explanation of
`how the various features of the accused games interact with multiplayer functionality, and it
`further provided a list of additional exemplary game modes intertwined with the accused
`multiplayer fiinctionality that were not included in the available source code. C.A. No. 15-311-
`RGA, Dkt. 1 at 1111 7-140; Ex. 8 (1/29/16 email). Accordingly, Take Two should be ordered to
`make available for inspection all source code for the accused products without further delay.
`
`C.
`
`Activision Should Provide Discovery From its Wholly—Owned Subsidiary
`Demonware
`
`Activision should be ordered to provide discovery from its wholly—owned subsidiary
`Demonware, including documents and deposition witnesses. Shortly after receiving Activision’s
`extremely limited core technical discovery, Acceleration Bay pointed out that Activision had not
`identified third-party sources of source code or discovery relating to the accused products. Ex. 9
`(12/18/15 letter). Despite repeated follow ups, Activision did not respond to this inquiry for
`seven weeks.
`In the meanwhile, based on its own investigation, Acceleration Bay learned that
`accused multiplayer functionality was provided for various accused Activision games, including
`Call of Duty and Destiny, by its wholly-owned subsidiary Demonware.
`
`

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`Acceleration Bay promptly requested that Activision confirm it would seek core technical
`and additional discovery from its wholly-owned subsidiary. Activision refused to do so unless
`Acceleration Bay identified claim elements attributed to Demonware. But Acceleration Bay has
`
`done just that,
`
`
`
`
`(describing infringing functionality).
`
`See, e.g., Ex. 10 (2/5/16 email)
`C.A. No. 15-228—RGA, Dkt. 7 at 111] 35-38, 47
`
`Activision is obligated to make reasonable efforts to obtain core technical and other
`discovery from all of its wholly~owned subsidiaries, including Demonware, and should be
`ordered to do so without further delay. It is “no defense to claim that the information [or
`documents requested are] within the possession of a wholly owned subsidiary.” Ethypharm S.A.
`France v. Abbott Labs., 271 F.R.D. 82, 93-94 (D. Del. 2010) (internal quotation and citation
`omitted); E.I. duPont ale Nemours & Co. v. Phillips Petroleum Co., 621 F. Supp. 310, 312 n.3
`(D. Del. 1985) (“A parent corporation must produce documents, pursuant to a Fed. R. Civ. P. 34
`request, of a wholly-owned subsidiary even though the subsidiary is not a party to the action .
`.
`.
`such documents are within the possession, custody or control of the parent corporation.”).2
`
`D.
`
`Defendants Should Produce Discovery Related to Foreign Sales of Accused Products
`
`Defendants should be ordered to provide requested discovery relating to foreign revenue,
`billings, expenses, costs, and profit information for the accused products, as related to the
`domestic manufacture, use, sale, offer for sale, and/or importation of accused products. See Ex.
`
`11 (Activision at Nos. 29-33; Ex. 12 Take Two at Nos. 20-24; Ex. 13 Electronic Arts at Nos.
`
`
`
`See, e. g., Induction Innovations, Inc. v. Paclzolok, No. 13 CV 5102, 2015 WL
`95 82982, at *8—9 (N.D. Ill. Dec. 31, 2015) (holding foreign sales of patented products made in
`the U.S. must be included in royalty base).
`In addition, to the extent the accused products were
`made outside of the United States but imported into the United States or the commitments for
`sales were made domestically, such revenues are relevant and discoverable. See, e. g., Carnegie
`Mellon Univ. v. Marvell Tech. Grp. Lta’., 807 F.3d 1283, 1309-10 (Fed. Cir. 2015); GE
`Healthcare Bio-Sciences AB v. Bi0—Rad Labs., Inc., No. 1:14-CV—07080-LTS—SN, 2015 WL
`
`7582967, at *2 (S.D.N.Y. Nov. 25, 2015).
`
`I It now appears that a reason for Activision’s thin core technical production is because it never
`went to the developer of a major component of the accused multiplayer connection technology.
`Notably, Activision failed to mention in its declaration submitted in connection with the prior
`discovery conference regarding the absence of core technical documents that its wholly-owned
`subsidiary Demonware likely had the requested documentation. See Dkt. 67, Ex. ACTX1 at 11 5.
`
`2 Acceleration Bay also raised concerns regarding Activision’s apparent failure to collect
`substantial discovery from Sledgehammer and Treyarch, its who1ly~owned subsidiaries who
`developed two of the accused games. Activision represented that it did produce documents from
`those subsidiaries and is not withholding discovery from them.
`
`

`
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`POTTER ANDERSON & CORROON LLP
`
`By: /s/ Philig A. Rovner
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`Hercules Plaza
`P.O. Box 951
`
`Wilmington, DE 19899
`(302) 984-6000
`proVner@Qotteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for PlaintiffAcceleration 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: February 10, 2016
`Public Version Dated: February 17, 2016
`1216178