Case 1:15-cv-00311-RGA Document 81 Filed 02/17/16 Page 1 of 4 PageID #: 1926
`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
`1201 NORTH MARKET STREET
`P.O. BOX 1347
`WILMINGTON, DELAWARE 19899-1347
`
`(302) 658-9200
`(302) 658-3989 FAX
`
`JACK B. BLUMENFELD
`(302) 351-9291
`(302) 425-3012 FAX
`jblumenfeld@mnat.com
`
`
`February 10, 2016
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`VIA ELECTRONIC FILING
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`The Honorable Richard G. Andrews
`United States District Court
` For the District of Delaware
`844 North King Street
`Wilmington, DE 19801
`Acceleration Bay LLC–C.A. Nos. 15-228 (RGA); 15-282 (RGA); and 15-311 (RGA)
`Re:
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`Dear Judge Andrews:
`I.
`Protective Order From Depositions And Related Discovery
`Defendants respectfully request the Court help focus and sequence discovery by:
`requiring Plaintiff to provide infringement contentions that identify with particularity the
`networks and functionalities which are accused of infringement before taking technical
`depositions, including FED. R. CIV. P. 30(b)(6) depositions;
`limiting discovery to matters that Plaintiff can demonstrate are relevant to accused
`functionalities identified with particularity in its infringement contentions; and
`requiring that technical depositions occur after the date for substantial completion of
`document production; or, in the alternative, preclude Plaintiff from seeking to retake the
`deposition of any technical witness based on discovery occurring after that deposition.
`This relief is necessary because Plaintiff is demanding discovery regarding every
`technical aspect of the accused games without any meaningful focus. The patents-in-suit relate
`to specific network topologies and functionality, but Plaintiffs have yet to identify with any
`particularity what aspects of the accused games it contends infringe and instead are seeking
`exploratory discovery on every aspect of the accused games in the pursuit of an infringement
`theory.
`Defendants have provided extensive discovery regarding the structure and operation of
`the network architecture for the multiplayer modes for the Accused Products, including source
`code regarding their online gaming features. Nevertheless, Plaintiff demands wide ranging and
`unduly burdensome discovery and refuses to articulate any basis for relevance. Plaintiff refuses
`to provide infringement contentions or otherwise narrow the scope of its overbroad and
`irrelevant deposition topics and document demands:
` Topic 1 asks for a witness on every aspect of the Accused Products: “[t]he design, structure,
`research, development, operation, features, testing and functionality of each of the Accused
`Products, including each program, feature and application of the Accused Products.”). The
`accused products have thousands of features unrelated to this case. (DX1).
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`Case 1:15-cv-00311-RGA Document 81 Filed 02/17/16 Page 2 of 4 PageID #: 1927
`The Honorable Richard G. Andrews
`February 10, 2016
`Page 2
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`o Topics 2-19 are similarly vague and overbroad. For instance, Topics 6-7, 9, 11-12,
`and 14-19, seek discovery of “MultiPlayer Networks,” defined as “networks, software
`and hardware used to provide, support or enable peer to peer and/or multiple player
`functionality in the Accused Products.” Id. (emphasis added). The definition is
`unclear, overbroad and untethered to specifically accused features.
`o Topic 4 asks for a witness on every computer system in the company: (“The
`topology, protocols, design, structure, research, development, operation, features,
`testing and functionality of any network that allows servers to communicate with each
`other, servers to communicate with clients, or clients to communicate with each other
`used by You ….”). Id.
` Plaintiff demands that Defendants produce technical witnesses for all Accused Products
`before it provides any infringement contentions, and it will not agree not to retake those
`depositions. See DX2, (ignoring request to “(3) agree that [its] tactic of taking premature
`depositions cannot serve as a basis for seeking witnesses on the same topics later.”).
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` Plaintiff demands that Defendants answer interrogatories and produce documents and
`witnesses on the unaccused “multiple server network[s]” but refuses to articulate any theory
`of infringement. See DX1 Topics 4, 7, 10; DX4.
`Contrary to well-settled law, Plaintiff is seeking this discovery on matters not relevant to
`its pleaded claims. See FED.R.CIV.P 26(b)(1) advisory committee’s note (2000) (“parties …
`have no entitlement to discovery to develop new claims or defenses that are not already
`identified in the pleadings.”).
`Plaintiff’s discovery conduct also places an undue burden on Defendants and is
`unreasonable in scope. Rule 30(b)(6) requires a deposition notice to “describe with reasonable
`particularity the matters for examination.” However, Topics 1-19 are improperly broad, defying
`any possibility of preparing a witness. See, e.g., Reed v. Bennett, 193 F.R.D. 689, 692 (D. Kan.
`2000) (overbroad Rule 30(b)(6) notice subjects noticed party “to an impossible task.”); see also
`Unzicker v. A.W. Chesterston Co., No. 11-cv-66288, 2012 WL 1966028, at *1 (E.D. Pa. May 31,
`2012); Tailored Lighting, Inc. v. Osram, Inc., 255 F.R.D. 340, 349-50 (W.D.N.Y. 2009).
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`Proceeding with depositions at this stage of the case, without the benefit of focused infringement
`contentions, is both unfair and inefficient. It will almost surely lead to Plaintiff’s seeking to
`retake those depositions, wastefully duplicating efforts. Indeed, Plaintiff refuses to forego
`further depositions on these topics or from these witnesses, arguing that its future document
`collection efforts may warrant additional testimony. They should not be burdened with having to
`prepare for and appear in an unbounded, never-ending series of depositions.
`It is for this reason that some judges in this District routinely follow this orderly approach
`Defendants seek. For example, Judge Robinson does not permit substantive depositions until
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`Case 1:15-cv-00311-RGA Document 81 Filed 02/17/16 Page 3 of 4 PageID #: 1928
`The Honorable Richard G. Andrews
`February 10, 2016
`Page 3
`after the completion of document production. See also, e.g., DX5, Judge Farnan’s Scheduling
`Order (No. 08-876-JJF, D.I. 74), ¶4.d (“Depositions shall not commence until the discovery
`required by ¶ 4(a), (b) [regarding contention interrogatories], and (c) [regarding requests for
`admissions] is completed.”). Initial infringement contentions, as observed by Judge Robinson,
`merely provide a “starting point…to help people focus the continuation of discovery.” DX6, Tr.
`at 14 & 19 (D. Del. Nov. 6, 2013). Taking depositions without proper infringement contentions
`and before substantial completion of document production is inefficient, costly, and almost
`guarantees duplicative discovery.
`Finally, the requested relief will not prejudice Plaintiff. Plaintiff will suffer no prejudice
`if its ability to take depositions and that discovery is postponed until it has served reasonably
`specific infringement contentions and has all the documents it needs. Assuming that Plaintiff
`already had an infringement theory when it sued,
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` And at the very least, it has a year to take
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`discovery after it serves contentions.
`II.
`Hamilton Capital XII Loan Agreement And Other Withheld Documents
`Defendants also request an order to compel production of a Loan Agreement, and any
`related documents, between Plaintiff’s predecessor, Acceleration Bay, Inc., and Hamilton Capital
`XII LLC (“Hamilton”). Specifically, the February 27, 2015 “Patent Security Agreement”
`between Acceleration Bay Inc. and Hamilton, filed with the U.S. Patent Office (see DX7), refers
`to a “Loan Agreement” that Acceleration Bay refuses to produce on the grounds of “relevance
`and common interest.” (DX8).
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` Plaintiff has failed to explain how or why the Loan Agreement is
`protected by common interest privilege. See Leader Techs., Inc. v. Facebook, Inc., 719 F. Supp.
`2d 373, 377 (D. Del. 2010).
`Defendants further request an order compelling a privilege log for documents withheld by
`Plaintiff regarding its interactions with
`
` Although the Interim
`Protective Order provides that documents need not be logged after the retention of litigation
`counsel, it makes clear that “[t]his agreement is without prejudice to any Party’s ability to make
`a particularized request for a limited privilege log relating to specific documents, or upon an
`appropriate showing of the potential discoverability of the documents over any privilege or
`protection objections.” (No. 15-228, D.I. 49). Defendants’ request is narrowly tailored to only
`those documents involving Plaintiff and its immediate
` (i) Boeing
`and (ii) Hamilton or other litigation funding companies. Communications related to negotiations
`over contemplated business transactions may be relevant to a number of issues, including
`ownership of the patents, whether plaintiff has standing to bring suit, patent valuation, market
`share, damages, royalty rates, and pre-suit investigative diligence, inter alia. Under well-
`developed law, such documents are unlikely to be privileged in any event.
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`Case 1:15-cv-00311-RGA Document 81 Filed 02/17/16 Page 4 of 4 PageID #: 1929
`The Honorable Richard G. Andrews
`February 10, 2016
`Page 4
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`Respectfully,
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`/s/ Jack B. Blumenfeld
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`Jack B. Blumenfeld (#1014)
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`JBB/dlw
`Enclosures
`cc:
`Clerk of Court (Via Hand Delivery; w/ encl.)
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`All Counsel of Record (Via Electronic Mail; w/ encl.)