Case 1:16-cv-00455-RGA Document 202 Filed 07/21/17 Page 1 of 11 PageID #: 17647
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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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`ACTIVISION BLIZZARD, INC.,
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`Defendant.
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`ACCELERATION BAY LLC,
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`ELECTRONIC ARTS INC.,
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`Defendant.
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`ACCELERATION BAY LLC,
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`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
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`Plaintiff,
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`Defendants.
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`v.
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`v.
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`v.
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`Plaintiff,
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`Plaintiff,
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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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`DEFENDANTS’ RESPONSE TO PLAINTIFF’S
`OBJECTIONS TO SPECIAL MASTER ORDER NO. 4
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`OF COUNSEL:
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`Attorneys for Defendants
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`

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`Case 1:16-cv-00455-RGA Document 202 Filed 07/21/17 Page 2 of 11 PageID #: 17648
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`
`David P. Enzminger
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
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`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
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`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
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`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`Andrew R. Sommer
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`July 21, 2017
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`

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`Case 1:16-cv-00455-RGA Document 202 Filed 07/21/17 Page 3 of 11 PageID #: 17649
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`Introduction
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`I.
`With fact discovery scheduled to close on July 31, Acceleration belatedly demands core
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`technical, financial, and marketing discovery on a slew of new products. These seven new
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`products have “their own code base and technical features,” were marketed and distributed
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`separately from the current accused games and therefore differ substantially from the current
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`accused products in terms of Acceleration’s infringement and damages claims. D.I. 217, Ex. A at
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`4.1 As the Special Master observed, Acceleration cannot show that the claims related to the
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`current accused products overlap with the seven new products, because Acceleration has still not
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`provided clear infringement contentions: “Prior orders of this Special Master have cited
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`deficiencies in Plaintiff’s infringement contentions” and “without clarity as to Plaintiff’s
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`infringement contentions, it is difficult for Defendants to know what aspects and differences in
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`the accused games are relevant to Plaintiff’s infringement theories.” D.I. 217, Ex. L at 2.
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`Accordingly, Acceleration’s request would effectively require the restarting of fact discovery
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`from scratch on a new slate of accused products, including all contention discovery, just as fact
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`discovery is coming to a close. Nothing justifies Acceleration’s delay or the burden imposed
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`from full discovery into seven new and distinct products at this late a stage.
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`Indeed, the Special Master twice considered and twice rejected every argument
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`Acceleration now raises—both initially in Order No. 4 and again in Order No. 5 after
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`Acceleration requested reconsideration. See D.I. 217, Ex. A (Order No. 4); Ex. L (Order No. 5).
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`These two orders were correct and plainly not an abuse of discretion. See Callwave Commc’ns
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`LLC v. AT&T Mobility LLC, 2016 WL 3450736, at *1 & n.3 (D. Del. June 16, 2016) (opining
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`that a master’s rulings on the “schedule” and the “scope of discovery” are reviewed for abuse of
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`1 This filing will cite to the exhibits included in Appendix to Acceleration Bay’s Objections to
`Special Master Order No. 4. See D.I. 217.
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`1
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`Case 1:16-cv-00455-RGA Document 202 Filed 07/21/17 Page 4 of 11 PageID #: 17650
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`discretion). Acceleration could have acted in February 2017, after the Court advised Acceleration
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`to raise the addition of new products with the Special Master and warned that “there comes a
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`point … when you have to stop adding new products, so you can get a fixed target to try a case
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`about.” D.I. 217, Ex. M at 11. Rather than bring this issue to the Special Master promptly,
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`Acceleration waited until June, a little over a month before the close of fact discovery.
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`Acceleration has never provided a fixed target with its infringement theories and now seeks to
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`change the products too. Conducting yet another round of source code inspections, technical
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`depositions, document productions, and infringement contentions for seven new products at this
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`stage will not only impose an untenable burden on Defendants, but also inject into the case
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`never-before-seen infringement theories. Acceleration’s objections should be overruled.
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`Acceleration delayed unreasonably in seeking to accuse the new products.
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`II.
`Acceleration should have raised this issue long ago so that it could be resolved well
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`before the close of fact discovery. The Court’s Scheduling Order clearly directed that “[a]ll fact
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`discovery in these cases shall be initiated so that it will be completed on or before July 31,
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`2017.” D.I. 62 at 3 (emphasis added). In that same spirit, the Order directed that “[d]ocument
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`production shall be substantially complete by: May 15, 2017.” Id. Acceleration has no good
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`cause for amending the Scheduling Order. See Fed. R. Civ. P. 16(b); Dow Chem. Canada Inc. v.
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`HRD Corp., 287 F.R.D. 268, 270 (D. Del. 2012) (“To establish good cause, [a party] must show
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`that a more diligent pursuit of discovery was impossible” and “the Court may consider any
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`prejudice to the party opposing the modification.”). And it is untimely to add new products to the
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`case when Acceleration knew of the products’ purported relevance for months and yet only
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`sought to add them at the close of discovery. See Vehicle Interface v. Jaguar, C.A. No. 12-1285
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`(RGA), Oral Order (D. Del. March 14, 2014) (precluding plaintiff from adding new products at
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`the end of discovery); Eon Corp. IP Holdings LLC v. FLO TV Inc., 2013 WL 6504689, at *5 (D.
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`2
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`Case 1:16-cv-00455-RGA Document 202 Filed 07/21/17 Page 5 of 11 PageID #: 17651
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`Del. July 12, 2013) (denying the supplementation of additional accused products “[b]ecause the
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`document production [] triggered by the new disclosures could not be completed within the
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`Court’s production deadline”); Enzo Life Sciences, Inc., v. Gen-Probe, Inc., C.A. No. 12-104
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`(LPS), Hr. Tr. at 37 (D. Del. Dec. 18, 2014) (Ex. 1) (precluding the addition of products based on
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`“seeming lack of diligence or at least lack of justification for the timing,” “prejudice to the
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`defendants” and “impact [on] the schedule”).
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`Acceleration has no excuse for delaying its motion until June, when the discovery dispute
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`was ripe no later than February. Defendants advised Acceleration in January 2017, before
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`discovery even opened, that they objected to including any of the 2017 products in this case and
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`included a provision to that effect in the draft Scheduling Order submitted to the Court. See D.I.
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`217, Ex. H (Ex. B-1). At the February 17 Case Management Conference, Defendants explained
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`their objection to adding new products, noting that Acceleration still had not provided adequate
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`infringement contentions and that, under the aggressively quick schedule proposed by
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`Acceleration, there was little time to conduct discovery into so many new products. D.I. 217, Ex.
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`H (Ex. B-2 at 10:19–24). The Court decided that “a schedule in the question of whether new
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`products can be added …. is, again, something for the Special Master to figure out,” adding that
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`“there comes a point … when you have to stop adding new products, so you can get a fixed
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`target to try a case about.” D.I. 217, Ex. H (Ex. B-2 at 11:1–6). In the months that followed,
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`Defendants continued to object to adding these new products into the case. See D.I. 217, Ex. K
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`(Ex. H (O’Neill Tr.), 14:10–14 (“MR. TOMASULO: Objection. We’re also not producing him
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`as to FIFA 17… Or NHL 17. We don’t believe those games are properly in the case.”)).
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`Acceleration implies that a lengthy meet-and-confer and lack of “a definitive position
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`from Defendants” motivated its delay. See D.I. 216 at 2–4. Not so. Defendants’ objections to
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`3
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`Case 1:16-cv-00455-RGA Document 202 Filed 07/21/17 Page 6 of 11 PageID #: 17652
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`adding any new products were clear and “definitive” in January and February, and Acceleration
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`cites nothing indicating that Defendants waivered in their objections. Acceleration did not broach
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`the subject again until April 26, and Defendants confirmed within a week that their position had
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`not changed. See D.I. 217, Ex. G (Ex. 5 (“As for NBA 2K17, Take-Two will not be producing
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`financial information … as it was not properly identified as an accused product and Plaintiff has
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`not provided any notice of the purported theory of infringement against this product.”)). Weeks
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`later on May 22, Acceleration expressed its intent to move to compel, which it finally did on
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`June 7.
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`The Special Master was well-aware of these facts when he denied Acceleration’s motion,
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`and Acceleration’s objections (which cite no law) amount to nothing more than the assertion that
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`the Special Master does not know undue delay when he sees it. The objection should be
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`overruled.
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`III.
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`Full discovery into the new products now would unfairly burden Defendants
`and disrupt expert discovery.
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`The Special Master, having supervised discovery in these cases for months, correctly
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`concluded that the discovery Acceleration demands would be “extremely time consuming and
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`burdensome.” D.I. 217, Ex. A at 4. The “full discovery” Acceleration demands would require
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`source code inspections, technical depositions, and extensive document production for seven
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`new products,2 all while Defendants are conducting expert discovery and preparing for summary
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`judgment. D.I. 216 at 6 (requesting “full discovery” on an “expedited” schedule to avoid
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`“disruption of the trial dates scheduled in these actions”).
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`2 Acceleration seeks full discovery on the following new products: Call of Duty: Infinite
`Warfare, Call of Duty: Modern Warfare Remastered, World of Warcraft: Legion Expansion and
`the Blizzard Peer-to-Peer Transfer Downloader, FIFA 17 and NHL 17 (including the Standard,
`Deluxe, and Super Deluxe Editions), and NBA 2K17. See D.I. 217, Exs. C, D, E.
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`4
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`Case 1:16-cv-00455-RGA Document 202 Filed 07/21/17 Page 7 of 11 PageID #: 17653
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`The additional discovery would be extensive and burdensome. Source code production is
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`“a heavy burden” as “[s]ource codes are [a company’s] most sensitive and confidential property”
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`and their production requires “extreme measures … to protect their confidentiality.” Via Vadis
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`Controlling GmbH v. Skype, Inc., 2013 WL 646236, at *3 (D. Del. Feb. 21, 2013). And it would
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`be a heavy burden indeed to force Defendants to prepare and produce for the first time the source
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`code for their cutting-edge products. Acceleration will presumably seek at least one technical
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`deposition per product, for a total of seven additional depositions. Defendants would have to
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`prepare seven additional technical witnesses and also need to review and produce additional
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`technical, marketing, and financial documents.
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`Contrary to Acceleration’s characterization, these are not merely “updated versions [that]
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`are very similar in relevant part” to currently-accused games (D.I. 216 at 5), but as the Special
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`Master has noted, the ways in which the new products materially differ cannot be fully known
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`because Acceleration has never provided clear infringement contentions, D.I. 217, Ex. L at 2
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`(“Prior orders of this Special Master have cited deficiencies in Plaintiff’s infringement
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`contentions …. [W]ithout clarity as to Plaintiff’s infringement contentions, it is difficult for
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`Defendants to know what aspects and differences in the accused games are relevant to Plaintiff’s
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`infringement theories.”).
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`As Defendants explained to the Special Master, these are distinct products having their
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`own code base with millions of lines of code. Each new game has its own marketing plans,
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`different key selling points, and potentially different members of the development and marketing
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`team. The products vary year over year. See, e.g., D.I. 217, Ex. K (Ex. H (O’Neill Tr.), 16:22-25,
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`17:3-9 (“Q. Do you know if there’s any major differences between the 2015 and 2016 years on
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`the -- on how the networking technology is implemented? A. There are iterations on -- on how
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`5
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`the technologies are used. I think it’s difficult for me to speak generally about the scope of the
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`changes. There are definitely changes year over year and game teams may use our technology
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`differently year over year.”)). For example, NHL 17 multiplayer features new modes, an updated
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`EASHL multiplayer mode, updated game physics and presentation, and a new manner for
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`dealing with players joining and leaving a game. See, e.g., D.I. 217, Ex. H (Ex. B-8; Ex. B-9; Ex.
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`B-10, Ex. B-11). Call of Duty: Infinite Warfare was produced by an entirely separate subsidiary,
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`Infinity Ward, than the other accused games, and includes a number of newly added features
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`from previous Call of Duty titles, including new graphics and voiceover, all of which potentially
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`impact Plaintiff’s infringement theories. FIFA 17 uses an entirely new engine, called Frostbite,
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`which introduced enormous changes in the product’s source code. Discovery on these new
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`products is not a matter of “updating,” but rather starting discovery anew for each new product.
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`Acceleration knows these new products are distinct, which is why it requests “full discovery” on
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`them.
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`In objecting to the Special Master’s Order, Acceleration repeats a canard about “new
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`evidence” discovered “[s]ubsequent to the Order” regarding FIFA 17’s new Frostbite engine, but
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`the Special Master considered and rejected that argument on reconsideration. D.I. 216 at 5 & n.4.
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`Indeed, Acceleration buries the Special Master’s denial of reconsideration in a footnote rather
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`than disclose it in the section on procedural history. Id. In considering this purportedly new
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`evidence, the Special Master observed that Defendants had “thoroughly addresse[d]” the
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`argument with “extensive exhibits, including citations to other depositions regarding the use of
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`the Frostbite engine.” D.I. 217, Ex. L at 2. Even if the evidence were new and showed what
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`Acceleration claimed, that would not change the fundamental point that the new products are
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`substantially different in many ways and that “full discovery” into them would be unduly
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`6
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`Case 1:16-cv-00455-RGA Document 202 Filed 07/21/17 Page 9 of 11 PageID #: 17655
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`burdensome. The Special Master’s decision was correct and Acceleration does not even attempt
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`to argue that it was an abuse of discretion.
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`Acceleration claims that granting its motion could “avoid[] a further series of trials” (D.I.
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`216 at 4), but that proves too much: if avoiding future potential trials justified adding new
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`products at any time, then the parties could always add new products and would never get “a
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`fixed target to try a case,” D.I. 217, Ex. M at 11:3–6. In any event, Acceleration’s claim is
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`speculative. There is no guarantee that Acceleration will not pursue a new trial against
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`Defendants’ future games regardless of the inclusion of these seven products in this case. Given
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`that Acceleration has accused all forms of online gaming of infringement, regardless of structure
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`or topology, this is a real possibility. Further, future litigation may not be necessary if the
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`patents are found invalid or the claims are properly construed.
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`The burden of Acceleration’s demands is exacerbated by the disruption to expert
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`discovery. By forcing Defendants to produce fact discovery and conduct expert discovery at the
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`same time, Acceleration’s demands defeat the purpose of having staged discovery. The extensive
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`fact discovery will distract Defendants from expert discovery—a crucial and busy time in the
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`case in part because it will be the first time Defendants will have any explanation of
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`Acceleration’s infringement theories. And the additional fact discovery will multiply the work
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`required for expert discovery: to name but a few examples, the infringement reports may have to
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`be rewritten or revised to address new theories, the damages reports will have to be revised to
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`account for new products and sales, and it may even be necessary to do multiple depositions of
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`certain experts.
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`IV. Conclusion
`Because Acceleration unreasonably delayed in seeking to add these seven new products
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`to the case, and because adding seven new products now would unfairly burden Defendants,
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`7
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`Case 1:16-cv-00455-RGA Document 202 Filed 07/21/17 Page 10 of 11 PageID #: 17656
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`Defendants request that Acceleration’s objections be overruled.
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`OF COUNSEL:
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`David P. Enzminger
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
`
`Michael M. Murray
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
`
`Andrew R. Sommer
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
`
`July 21, 2017
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`
`/s/ Stephen J. Kraftschik
`__________________________________
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`
`Attorneys for Defendants
`
`8
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`Case 1:16-cv-00455-RGA Document 202 Filed 07/21/17 Page 11 of 11 PageID #: 17657
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`CERTIFICATE OF SERVICE
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`I hereby certify that on July 21, 2017, I caused the foregoing to be electronically
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`filed with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
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`registered participants.
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`I further certify that I caused copies of the foregoing document to be served on
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`July 21, 2017, upon the following in the manner indicated:
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`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
`
`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
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`Aaron M. Frankel, Esquire
`Marcus A. Colucci, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Attorneys for Plaintiff
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`
`
`/s/ Stephen J. Kraftschik
`Stephen J. Kraftschik (#5623)
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