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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. 5 AS TO
`PLAINTIFF’S REQUEST FOR RECONSIDERATION
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`On June 28, 2017, Plaintiff filed a brief with exhibits requesting reconsideration of
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`Special Master Order No. 4, as to the denial of Plaintiff’s motion to compel discovery on
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`“updated versions”.
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`RD 10439276v.1
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`Case 1:16-cv-00455-RGA Document 177 Filed 07/06/17 Page 2 of 3 PageID #: 16906
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`On June 30, 2017, Defendants filed their responsive brief with exhibits.
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`This is Special Master Order No. 5 addressing Plaintiff’s request for reconsideration.
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`Plaintiff’s two page brief supporting its request for reconsideration argues that the
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`relevant portion of Special Master Order No. 4, denying Plaintiff’s motion to compel discovery
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`of updated versions, relied on a representation of Defendants’ counsel at the hearing on June 16,
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`2017. Plaintiff contends that a June 22, 2017 deposition, taken after the Special Master Order
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`No. 4 was issued, directly contradicts Defendants’ counsel. That deposition testimony regarded
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`the Frostbite engine and whether it changed the online multi-player functionality.
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`Defendants’ responsive brief thoroughly addresses Plaintiff’s argument. Defendants
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`explained that Plaintiff has taken Defendants’ statement at the June 16, 2017 hearing out of
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`context. Their brief had extensive exhibits, including citations to other depositions regarding the
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`use of the Frostbite engine, and satisfactorily supported the statements of Defendants’ counsel at
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`the June 16, 2017 hearing.
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`At the heart of the dispute between the parties, is the issue as to the adequacy or not of
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`Plaintiff’s infringement contentions. Those infringement contentions appear to cover more than
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`the simple multi-player network. Plaintiff could be seen as arguing that the source code that is
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`not actually used by a game can infringe simply because the unused code remains on the disk
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`sold to customers. Prior orders of this Special Master have cited deficiencies in Plaintiff’s
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`infringement contentions. Since further infringement contention interrogatory responses are due
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`from Plaintiff later this month, it is not timely for the Special Master to specifically address that
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`issue. However, it is worth noting that without clarity as to Plaintiff’s infringement contentions,
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`it is difficult for Defendants to know what aspects and differences in the accused games are
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`relevant to Plaintiff’s infringement theories.
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`RD 10439276v.1
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`2
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`Case 1:16-cv-00455-RGA Document 177 Filed 07/06/17 Page 3 of 3 PageID #: 16907
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`Defendants also remind the Special Master that there were additional reasons in Special
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`Master Order No. 4 to deny Plaintiff’s motion to compel discovery as to alleged updated
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`versions. Special Master Order No. 4 found that Plaintiff had delayed in bringing its motion and
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`that the discovery that would be relevant, if the motion had been granted, would be extensive.
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`PLAINTIFF’S REQUEST FOR RECONSIDERATION OF SPECIAL MASTER
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`ORDER NO. 4 IS DENIED.
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`Dated: July 6, 2017
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`/s/ Allen M. Terrell, Jr.
`Allen M. Terrell, Jr., Special Master
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`RD 10439276v.1
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`3
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