Case 1:16-cv-00455-RGA Document 197 Filed 07/18/17 Page 1 of 8 PageID #: 17520
`Case 1:16-cv-00455-RGA Document 197 Filed 07/18/17 Page 1 of 8 PagelD #: 17520
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`C.A. No. 16-453 (RGA)
`
`ACTIVISION BLIZZARD,INC.,
`
`PUBLIC VERSION
`
`Defendant,
`
`ACCELERATION BAYLLC,
`
`Plaintiff,
`
`Vv,
`
`C.A. No. 16-454 (RGA)
`
`A_aeeeeeeeeNemNeeNeeNeeeeNeeeeeee”
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC.,, and 2K
`SPORTS, INC,,
`
`ELECTRONIC ARTSINC.,,
`
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`Vv.
`
`CA, No, 16-455 (RGA)
`
`Defendants,
`
`PLAINTIFF ACCELERATION BAY LLC’S
`OBJECTIONS TO SPECIAL MASTER ORDERNO. 4
`
`

`

`Case 1:16-cv-00455-RGA Document 197 Filed 07/18/17 Page 2 of 8 PageID #: 17521
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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 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: July 11, 2017
`Public version dated: July 18, 2017
`5306804
`
`

`

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`1.
`
`INTRODUCTION
`
`Pursuant to Rule 53(f)(2) of the Federal Rules of Civil Procedure, Plaintiff Acceleration
`
`Bayrespectfully requests that the Court overrule the Special Master’s June 20, 2017 Order No. 4
`
`(Ex, A, No, 16-453, D.I. 185, the “Order”), which denied Plaintiff’s motion to compel discovery
`
`on the updated versions of Defendants’ accused products.! When discovery in these actions
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`resumed in 2017, Acceleration Bay timely accused of infringement these updated versions ofthe
`
`accused products. As set forth below, Acceleration Bay diligently sought discovery on the
`
`updated accused products and inclusion of these products in these actions is not overly
`
`burdensome given their similarity to the other accused products, as confirmed by Defendants’
`
`witnesses, Moreover, addressing infringement of these updated versions now will avoid the need
`
`for a second waveof actions, conserving the resources of the parties and the Court,
`
`Il.
`
`NATURE AND STAGE OF THE PROCEEDINGS
`
`In connection with the Scheduling Conference in the actions, Defendants proposed that
`
`Acceleration Bay should not be permitted to add additional products. D.I, 46 (Proposed
`Scheduling Order) at § 1.b. The Court declined to include that provision in the Scheduling Order
`and referred any disputes regarding this issue to the Special Master. Ex, M (2/1 7/17 Hearing Tr.)
`
`at 10:13-12:4,
`
`On February 13, 2017, Acceleration Bay provided its Updated Identifications of Accused
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`Products to each Defendant. Exs, C, D, E. Acceleration Bay then sought discovery on a variety
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`of topics relating to all of the accused products, including the updated versions. Acceleration
`
`Bay sought confirmation from Defendants in April 2017 that they would provide this discovery,
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`three months before the July 31, 2017 end of fact discovery in these cases and five months before
`
`' All docketcitations are to C.A. No. 16-453-RGA,and are representative offilings in the related
`cases,
`
`

`

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`the due date for opening expert reports, D.I. 62 at §§ 3(a), 10(a); see also Ex, G at Ex. 5, When
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`Defendants declined to provide this discovery, Acceleration Bay promptly soughtrelief from the
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`Special Master after complying with the formal meet and confer requirements, The Special
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`Master denied Acceleration Bay’s motion to compel. Ex, A. Acceleration Bay timely submits
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`these objections to the Order.
`
`WW.
`
`OBJECTIONS
`
`The Court reviews the Special Master’s Order de novo.
`
`Fed, R, Civ, P. 53(f)’
`
`Acceleration Bay respectfully objects to the Order on the following grounds:
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`(1) the Order’s finding that Acceleration Bay did not promptly pursue this issue is
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`erroneous because Acceleration Bay sought a definitive position from Defendants in April, with
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`three full months of fact discovery remaining, and promptly followed the procedures to seek
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`relief from the Special Master; and
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`(2) the Order’s finding that Acceleration Bay’s requested discovery on the updated games
`
`is unduly burdensomeis erroneous because these products are similar to the earlier versions
`accused of infringement, as confirmed by Defendants’ witnesses, and including them in this
`action will be far less burdensome for the parties and the Court than requiring a subsequent
`
`roundoflitigation,
`
`A.
`
`Acceleration Bay Diligently Included the Updated Versions in the Case and
`Moved to Compel Discovery
`
`Acceleration Bay objects to the Special Master’s finding that Acceleration Bay did not
`
`timely seek discovery into the updated versions of the accused products,
`
`* Acceleration Bay submits these objections pursuant to the Order Appointing Special Master,
`C.A, No, 15-228-RGA,D,I. 94 at 6, In accordance with that Order, Acceleration Bay submits
`herewith an Appendix containing the transcript from the hearing before the Special Master (Ex.
`B) and the materials submitted by the parties in connection with the hearing.
`
`

`

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`Acceleration Bay filed suit against Defendants in early 2015, and refiled the instance
`
`actions in June 2016, During the period of time in which these cases were dormant following the
`
`dismissal of the 2015-filed cases, Defendants released updated versions of various accused
`
`products. Prior to the February 17, 2017 Case Management Conference, Acceleration Bay
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`served its Updated Identifications of Accused Products,
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`timely identifying these updated
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`versions.> Exs, C, D, E (the “Updated Identifications”), The Updated Identifications explained
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`that, based on publicly available information,
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`these new versions operated in the same, or
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`substantially the same way, as the products already accused of infringement. The similarity of
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`the updated versions was subsequently confirmed by Defendants’ deposition witnesses (as
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`discussed in the following section).
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`When discovery resumed in these actions, Acceleration Bay sought discovery on a
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`variety of topics relating to all of the accused products, including the updated versions. During
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`an extended chain of correspondence beginning on March 6, 2017, following a February 23,
`
`2017 meet and confer, Acceleration Bay asked Defendants to confirm that they would provide
`financial information for the updated versions, Ex. G at Ex, 5 (April 26, 2017 email), At that
`time, the end of fact discovery wasstill three months away and the due date for opening expert
`
`reports was five months away. D.I. 62 at §§ 3(a), 10(a). When Defendants declined,
`
`Acceleration Bay promptly initiated the proceduresto file a motion to compel. Ex. F,
`
`> The “Updated Versions” include the 2017 versions of Take-Two’s NBA 2Kfranchise, EA’s
`FIFA and NHL franchises and Activision’s World of Warcraft and Destiny franchises, as well as
`two additions to the Call of Duty series and several variants of the Blizzard Downloader, which
`Acceleration Bay did not learn about until after the dismissal of the 2015-filed case against
`Activision,
`
`

`

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`Because Acceleration Bay timely served its Updated Identifications and promptly sought
`
`relief from the Special Master, Acceleration Bay objects to the Special Master’s finding that
`
`Acceleration Bay did not timely seek to include the updated versions in these actions,
`
`B.
`
`It Would Not Be Unduly Burdensome to Include the Updated Versions in
`These Actions
`
`Acceleration Bay further respectfully objects to the Order in that it incorrectly finds that
`
`it would be overly burdensome to include the updated versions in the current actions.
`
`Indeed,
`
`including these updated versions of the accused products in the current actions would
`
`significantly reduce the burden on the parties and the Court by avoiding a further seriesoftrials.
`
`

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`FAAdiscovery into these updated products is relevant and should be produced evenifit would
`add extra burden on the accused infringer. See Honeywell Int'l Inc. v. Acer Am. Corp., 655 F.
`
`Supp. 2d 650, 657 (E.D. Tex. 2009) (allowing the plaintiff to obtain discovery on unaccused
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`products that operate in a mannerthat is reasonably similar to the already noticed infringement
`
`theory).
`
`Accordingly, because the updated versions are very similar in relevant part to the
`
`products accused of infringement
`
`in the 2015-filed cases and present
`
`the same issues for
`
`“On July 6, 2017, the Special Master denied Acceleration Bay’s request for reconsideration of
`the Order based on this new evidence,
`See Exs, J, K [Acceleration Bay’s Request for
`Reconsideration]; Ex. L (Special Master Order No. 5).
`
`

`

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`damages and validity, the Special Master erred in concluding that it would be “extremely time
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`consuming and burdensome” for Defendants to provide discovery on them, Order at 4,
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`Moreover, any burden from such discovery is far outweighed by the burden that would be
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`imposed onall parties from another roundoflitigation.
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`IV.
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`CONCLUSION
`
`For the foregoing reasons, Acceleration Bay respectfully requests that the Court sustain
`
`Acceleration Bay’s objections to Special Master Order No, 4, find that the updated versions are
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`included within the scope of these actions and compel Defendants to provide full discovery on
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`them.
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`Given that months have now passed since Acceleration Bay sought this relief and the
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`close of fact discovery is rapidly approaching, Acceleration Bay further requests that the Court
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`direct the parties to meet and confer regarding a schedule to conduct expedited discoveryinto the
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`updated versions without disruption ofthetrial dates scheduled in these actions.
`
`POTTER ANDERSON & CORROON LLP
`
`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
`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: July 11, 2017
`Public version dated: July 18, 2017
`5306804
`
`