Case 1:16-cv-00453-RGA Document 197 Filed 06/26/17 Page 1 of 4 PagelD #: 21396
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`Vv.
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`ACTIVISION BLIZZARD, INC.,
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`Defendant.
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`PUBLIC VERSION
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`eeeea C.A. No. 16-453-RGA
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`PLAINTIFF ACCELERATION BAY LLC’S
`RESPONSE TO ACTIVISION’S OBJECTIONS TO SPECIAL MASTER ORDERNO.3
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`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneysfor Plaintiff
`Acceleration Bay LLC
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`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: June 19, 2017
`Public Version dated: June 26, 2017
`
`

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`Case 1:16-cv-00453-RGA Document 197 Filed 06/26/17 Page 2 of 4 PagelD #: 21397
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`Acceleration Bay respectfully requests that the Court overrule Activision’s objections to
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`Special Master Order No. 3 (D.I. 155, the “Order’’), in which the Special Master declined to
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`issue sanctions under Federal Rule of Civil Procedure 37(b)(2) in connection with granting
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`Activision’s motion to compel supplementation of Acceleration Bay’s responses to certain
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`interrogatoriesrelating to infringement.
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`Activision’s Objectionsoffer little analysis beyond incorporating by referencetheir letter
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`briefing to the Special Master. See D.I. 174.
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`In response, Acceleration Bay incorporates by
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`reference its letter brief in opposition to Activision’s motion to compel, and, in particular, the
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`section explaining why sanctions are not warranted, even if the Special Master ordered
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`supplementation. See Acceleration Bay’s Opposition Letter Brief at 4-6.'
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`Activision’s Objections presumethat the Special Master found that Acceleration Bay had
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`failed to comply with prior orders regarding the interrogatories at
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`issue. The premise is
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`incorrect. See Acceleration Bay’s Opposition Letter Brief at 1-4. Moreover, the Special Master
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`made no such finding in granting Activision’s Motion. Rather, the Special Master found that
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`further supplementation was appropriate given the stage ofthe case:
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`Plaintiff insists that its infringement claims need only meet a “notice” standard
`when respondingto initial interrogatories as to its infringement claims. Even if
`the Special Master accepts Plaintiff's contention as to the law, concerns
`remain as to the sufficiency of Plaintiff’s disclosures as the parties approach
`the fact discovery cut off. On February 17, 2017, Judge Andrews indicated that
`the Special Master should resolve as muchaspossible forthe parties to adhere to
`the Scheduling Order. During that hearing on February 17, 2017, Defendants
`counsel argued that they still didn’t have adequate infringement contentions from
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`' Tn violation of this Court’s order, Activision did not submit with its objections the relevant part
`of the record on whichit relies. See Order Appointing Special Master (C.A. No. 15-228, D.I. 94)
`at J 6 (requiring an objecting party to submit “any relevant portion of the record made before Mr.
`Terrell which pertains specifically to the objections.”). The transcript of the hearing before the
`Special Masterat issue is Exhibit G to Plaintiff Acceleration Bay LLC’s Appendix in Support of
`Objections To Special Master Order No. 3 (D.I. 173) and Acceleration Bay’s Opposition Letter
`Brief is Exhibit F.
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`

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`Case 1:16-cv-00453-RGA Document 197 Filed 06/26/17 Page 3 of 4 PagelD #: 21398
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`Plaintiff. The Court stated that there comes a time whenthe Plaintiff cannot add
`new products and that the Defendants need to get a fixed target to try the case.
`(Trans. p. 11). With the parties scheduled for a July 10, 2017 claim
`construction (“Markman “) hearing, it is appropriate for Plaintiff to be as
`specific as possible to its infringement claims in its supplementalinterrogatory
`responses.
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`D.I. 155 at 5 (emphasis added). Thus, there has been no finding that Acceleration Bay failed to
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`comply with a prior order, and no basis to award sanctions under Federal Rule of Civil Procedure
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`37(b)(2).
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`The only other argument advanced by Activision in its Objections is that sanctions are
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`necessary because Plaintiff submitted objections to the Order. This theory is entirely meritless,
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`because, notwithstanding Acceleration Bay’s objections in-part to the Order, Acceleration Bay
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`complied with the Order by providing detailed supplemental responses to the interrogatoriesat
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`issue and hundredsof pages ofdetailed claim charts.
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`For these reasons, and as set forth in Acceleration Bay’s Letter Brief in Opposition to
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`Activision’s Motion to Compel, the Court should overrule Activision’s objections.
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`

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`Case 1:16-cv-00453-RGA Document 197 Filed 06/26/17 Page 4 of 4 PagelD #: 21399
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`POTTER ANDERSON & CORROON LLP
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`By:
`
` /s/ Philip A. Rovner
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneysfor Plaintiff
`Acceleration Bay LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`Hannah Lee
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`pandre@kramerlevin.com
`Ikobialka@kramerlevin.com
`hlee@kramerlevin.com
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`afrankel@kramerlevin.com
`
`Dated: June 19, 2017
`Public Version dated: June 26, 2017
`5248629
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