Case 1:16-cv-00455-RGA Document 95 Filed 04/19/17 Page 1 of 5 PageID #: 8288
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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` C.A. No. 16-453 (RGA)
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` C.A. No. 16-454 (RGA)
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` C.A. No. 16-455 (RGA)
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`ACCELERATION BAY LLC.
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` Plaintiff,
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`V,
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`ACTIVISION BLIZZARD, INC.,
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` Defendant.
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`ACCELERATION BAY LLC,
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` Plaintiff,
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`v.
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`ELECTRONIC ARTS INC.,
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` Defendant.
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`ACCELERATION BAY LLC,
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` Plaintiff.
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`v.
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`TAKE-TWO INTERACTIVE
`SOFTWARE, INC., ROCKSTAR GAMES,
`INC. and 2K SPORTS, INC.,
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` Defendants.
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`SPECIAL MASTER ORDER NO. 2 AS TO MOTIONS TO COMPEL
`BY BOTH PLAINTIFF AND DEFENDANTS
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`On March 31, 2017 Plaintiff and Defendants filed eleven Motions to Compel with
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`Opening Briefs and Exhibits; on April 11, 2017 the parties filed Answering Briefs and Exhibits;
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`and an additional brief and exhibits were filed on April 12, 2017. The Hearing was held on April
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`1
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`Case 1:16-cv-00455-RGA Document 95 Filed 04/19/17 Page 2 of 5 PageID #: 8289
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`14, 2017 before the Special Master (the “Hearing”). This is Special Master Order No. 2 as to all
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`pending motions to compel.
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`Plaintiff filed five motions to compel. Set forth below are my rulings with respect to
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`each motion:
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`P1.
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`Plaintiff moves that Defendant should produce emails as to its use of the search
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`terms. In addition to the production to date by Defendants, Defendants maintain that the
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`additional discovery sought by Plaintiff is irrelevant, overly broad, and burdensome.
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`Defendants’ counsel indicates that Plaintiff’s search request could involve over 800,000 “hits”.
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`Costello’s declaration states that the cost of the search to Defendants would be approximately
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`$250,000.00. Plaintiff will not assume the costs of this search. The Plaintiff’s motion is denied,
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`principally on the ground that the burden of the additional search would be excessive.
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`P2.
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`Plaintiff moves to compel Defendants to amend their invalidity contentions.
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`Plaintiff has some justification for challenging the prior art elections as being in excess of the
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`appropriate limit on the number of contentions and for failure to identify with specificity.
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`However, the invalidity contentions meet the “notice requirement” for this stage of the litigation.
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`As further evidence is developed in the litigation, it may be necessary for Defendants to amend
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`their invalidity contentions. At this time, Plaintiff’s motion to compel is denied.
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`P3.
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`Plaintiff moves for Defendants to produce any agreements they have with Bungie,
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`involving the development of the game of Destiny. Defendants represent that they have
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`produced the documents within their possession, that Bungie is an independent company that
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`developed the game of Destiny, and that they will seek further information from their clients.
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`Subsequent to the Hearing, the parties requested that the Special Master defer a decision while
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`the parties seek a resolution among themselves, and it is so Ordered.
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`2
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`Case 1:16-cv-00455-RGA Document 95 Filed 04/19/17 Page 3 of 5 PageID #: 8290
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`P4. With respect to Plaintiff’s request for a supplemental response to interrogatory
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`No. 6 as to the locations of the development and manufacturing of Defendants’ products,
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`Defendants advised during the Hearing that they will provide further information (Hearing
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`Transcript p. 169). Subsequent to the Hearing, the parties reached an agreement on the motion.
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`Accordingly, the motion to compel is moot.
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`P5.
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`Plaintiff moves to compel Electronic Arts to produce its financials. Revenue
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`from sales prior to 2015 cannot be used to calculate damages in this case. The motion to compel
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`with respect to Electronic Arts’ sales prior to 2015 is denied.
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`Defendants filed six motions to compel. Set forth below are my rulings with respect to
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`each motion:
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`D1. Defendants’ first motion to compel seeks supplemental responses to their
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`interrogatory No. 1, with regard to the dates of conception and practice as to each claim.
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`Plaintiff’s interrogatory response gave the date of November 1996 for conception and “no later
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`than November 1999” with regard to practice on all six patents in litigation. During the Hearing,
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`Plaintiff’s counsel agreed to the definitive dates (Hearing Transcript p. 113). The motion to
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`compel is denied based on Plaintiff’s statement.
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`D2. Defendants moved to compel supplemental responses to their interrogatory No. 5
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`with regard to the testing performed by Plaintiff. This motion involves generally two tests; those
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`conducted prior to the litigation, and those subsequent to the litigation. Testing performed prior
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`to filing the case, known as “play testing”, has been produced, according to Plaintiff. Testing
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`after the filing of the case is privileged and no privilege log is needed with respect to such
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`testing, according to the parties’ Protective Order. Defendants’ motion is denied
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`3
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`Case 1:16-cv-00455-RGA Document 95 Filed 04/19/17 Page 4 of 5 PageID #: 8291
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`D3. Defendants move to compel information as to the hit count by Plaintiff on its
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`email searches. As to the hit counts, Plaintiff has represented that it will produce the hit terms
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`and hit counts shortly after producing the relevant emails next week. If Defendants are not
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`satisfied with what is produced by Plaintiff, Defendants can renew this motion to compel.
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`D4. Defendants moved to compel an email search of Plaintiff’s CEO Joe Ward’s
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`personal email accounts. The motion is addressed to the Plaintiff and is not a subpoena to Mr.
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`Ward. There is an insufficient basis for a “good cause” requirement of a privilege log, since
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`counsel for the Plaintiff has represented that Mr. Ward’s communications with regard to
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`acquiring the patents in question were entirely oral. Accordingly at this time, the motion to
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`compel is denied.
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`D5. Defendants’ motion to require Boeing to produce a privilege log is based upon the
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`argument that Boeing should either be treated as a party, or in any event, is subject to Federal
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`discovery rules with regard to document production. Neither argument is persuasive. There are
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`no grounds at this time to treat Boeing as a party in the case and its connection to Plaintiff has
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`already been disclosed. Plaintiff represents that Boeing has produced all documents within its
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`possession involving the Plaintiff. There is no obligation for Boeing to provide a privilege log
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`for its documents. The motion to compel as to Boeing is denied.
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`D6. Defendants’ final motion is to compel compliance with a subpoena to Messrs.
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`Holt and Bourassa. Messrs. Holt and Bourassa are not parties to the litigation. Plaintiff
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`represents that it has produced their emails (Hearing Transcript p. 34). They were allegedly the
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`inventors of the patents in question and have consulting agreements with the Plaintiff. Their
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`consulting fee of $400 per hour has been disclosed and Plaintiff represents that they have no
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`other financial interest in this litigation. There is no requirement under the Protective Order that
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`Case 1:16-cv-00455-RGA Document 95 Filed 04/19/17 Page 5 of 5 PageID #: 8292
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`a privilege log be produced with regard to Messrs. Holt and Bourassa. The motion to compel
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`compliance with the subpoena is denied.
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`Dated: April 19, 2017
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`/s/ Allen M. Terrell, Jr.
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`Special Master Allen M. Terrell, Jr.
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