Case 1:16-cv-00455-RGA Document 259 Filed 09/07/17 Page 1 of 5 PageID #: 19522
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`CA. No. 16-453 (RGA)
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`CA. No. 16-454 (RGA)
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`CA. No. 16—455 (RGA)
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`ACCELERATION BAY LLC.
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`Plaintiff,
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`V.
`ACTIVISION BLIZZARD, INC.,
`Defendant.
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`V.
`ELECTRONIC ARTS INC,
`Defendant.
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`ACCELERATION BAY LLC,
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`Plaintiff.
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`V.
`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. 10 AS TO PLAINTIFF’S
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`AUGUST 16, 2017 DISCOVERY MOTIONS
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`On August 16, 2017, plaintiff filed Discovery Motions, with a brief, affidavit and exhibits
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`(“Plaintiff s Motions”). Following briefing on the Plaintiffs Motions, argument was held on
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`August 31, 2017. Below are the Plaintiffs Motions and my rulings as to each:
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`CA. No. 16-453 (RGA)
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`CA. No. 16-454 (RGA)
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`CA. No. 16—455 (RGA)
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`ACCELERATION BAY LLC.
`
`Plaintiff,
`
`V.
`ACTIVISION BLIZZARD, INC.,
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`V.
`ELECTRONIC ARTS INC,
`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff.
`
`V.
`TAKE—TWO INTERACTIVE
`SOFTWARE, INC., ROCKSTAR GAMES,
`INC. and 2K SPORTS, INC.,
`
`Defendants.
`
`SPECIAL MASTER ORDER NO. 10 AS TO PLAINTIFF’S
`
`AUGUST 16, 2017 DISCOVERY MOTIONS
`
`On August 16, 2017, plaintiff filed Discovery Motions, with a brief, affidavit and exhibits
`
`(“Plaintiff s Motions”). Following briefing on the Plaintiffs Motions, argument was held on
`
`August 31, 2017. Below are the Plaintiffs Motions and my rulings as to each:
`
`
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`Case 1:16-cv-00455-RGA Document 259 Filed 09/07/17 Page 2 of 5 PageID #: 19523
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`Plaintiff’s first motion seeks to preclude Defendants from relying upon any agreements
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`with Sony, Microsoft and Bungie, or, at the very least, compelling them to produce unredacted
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`copies of these agreements. The parties agreed to defer hearing this motion until September 6,
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`2017, after Sony was granted leave to intervene with respect to this motion.
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`*****
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`Plaintiff’s second motion seeks to compel Activision to produce withheld source code
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`printouts for Call of Duty. The central issue for this motion is whether or not there was a
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`misunderstanding with regard to the printing of source code for Call of Duty. The Protective
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`Order provides that Plaintiff is permitted to print 250 pages of source code for each accused
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`game. There are two accused Call of Duty games. Defendant Activision produced a combined
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`500 pages, covering both Call of Duty games. Plaintiff found that it printed too many pages for
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`one of the games and not enough for the other game. Activision claims that the Plaintiff can
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`only have 250 pages per game and is refusing to produce 71 pages of source code for the game
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`as to which Plaintiff has less than 250 pages. Plaintiff submitted an affidavit that explained the
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`circumstances under which it printed the 500 pages from Activision. The affidavit indicates that
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`Plaintiff relied upon communications with Activision. But for those communications, Plaintiff
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`states that it would have evenly split the 500 page limit between the two games.
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`Activision argues that
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`the Protective Order is clear and there is no basis for a
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`misunderstanding with regard to the printing. Even if there had been communications between
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`the parties, Activision states that its representative was not authorized to modify the Protective
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`Order with regard to the number of pages to be printed.
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`Case 1:16-cv-00455-RGA Document 259 Filed 09/07/17 Page 3 of 5 PageID #: 19524
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`I find that there is a colorable basis for Plaintiffs right to the pages in questions, that
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`there was likely some misunderstanding between the parties, and that there is little or no
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`prejudice to Activision in producing the 71 withheld pages.
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`It is Ordered that Activision produce the 71 withheld_pag§ of source code for the
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`particular Call of Duty game.
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`*
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`*
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`*
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`*
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`*
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`Plaintiffs third motion is to compel Defendants to supplement
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`their responses to
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`Plaintiffs Interrogatories Nos. 2, 4 and 7 through 10, or to preclude Defendants from presenting
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`additional argument or evidence at trial on these issues. This motion is best considered by
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`separately addressing the interrogatories.
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`Plaintiffs lnterrogatory No. 2 seeks Defendants’ position and evidence with regard to
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`non—infringing alternatives. Defendants’ response to lnterrogatory No. 2 has set forth certain
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`alleged non-infringing alternatives. Plaintiff contends that their responses are insufficient or
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`incomplete. Defendants respond that additional supplements are not justified, due to the
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`vagueness of Plaintiffs infringement contentions and because Plaintiff has the burden of proving
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`the lack of non-infringing alternatives.
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`I find Defendants” position reasonable.
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`Plaintiffs motion to compel supplemental response to its lnterrogatory No. 2 is denied.
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`Plaintiffs motion seeks to compel a supplemental response to lnterrogatory No. 4,
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`regarding Defendants’ damages theories and the facts upon which they will rely. Here again,
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`Plaintiff argues that Defendants’ responses are incomplete and not specific enough.
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`Defendants state that they have provided responses to lnterrogatory No. 4 and that a
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`further response is not reasonable since Plaintiffs damage claim is conclusory. Plaintiff claims a
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`Case 1:16-cv-00455-RGA Document 259 Filed 09/07/17 Page 4 of 5 PageID #: 19525
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`royalty of 15.5% with no explanation for that rate and calculates a $200 million damage claim
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`for each Defendant Without specificity.
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`In light of Plaintiff s conclusory damages claim, there is little justification for requiring
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`Defendants to supplement their responses to Interrogatory No. 4.
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`Plaintiff s motion to compel supplemental responses to Interroga_tory No. 4 is denied.
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`Plaintiffs next motion is to compel supplemental responses to its Interrogatory Nos. 7, 8
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`and 10, all of which relate to infringement.
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`Interrogatory No. 7 concerns non-infringement
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`theories; Interrogatory No. 8 inquires as to source code supporting non-infringement; and
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`Interrogatory No. 10 covers source code modules not used in the accused products.
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`Defendants’ support of their existing responses regarding this motion is that Plaintiff’s
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`own deficient responses to infringement contentions make it difficult for Defendants to provide
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`more than it already has in response to these interrogatories. Defendants’ position is persuasive.
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`Plaintiff’s motion to compel supplemental responses to lnterrqgatories Nos. 7, 8 and 10 is
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`denied.
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`Plaintiff s motion to compel supplemental responses to Interrogatory No. 9 concerns
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`foreign downloads and foreign users connected to U.S.~based servers. This interrogatory relates
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`to Plaintiffs damages claim. Defendants respond that this type of foreign information is neither
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`relevant nor reasonable as a matter of law. Furthermore, Defendants have produced a significant
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`amount of information on foreign sales. Defendants’ brief explains the legal limitations for
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`damages from foreign activities.
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`Plaintiff’ s motion to compel supplemental responses to Interrogatory No. 9 is denied.
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`*****
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`Case 1:16-cv-00455-RGA Document 259 Filed 09/07/17 Page 5 of 5 PageID #: 19526
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`Plaintiffs fourth motion is described as precluding Defendants from relying on belatedly
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`disclosed invalidity materials and witnesses, and quashing Defendants’ untimely subpoena to
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`Microsoft. As the title of the motion suggests, this motion has a number of parts or categories.
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`What they do have in common is that Plaintiff seeks to preclude evidence, as to which it has the
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`burden of proof. There has been no finding that any of the categories for which Plaintiff seeks
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`preclusion have been the subject of prior rulings in favor of Plaintiff. Although Plaintiff
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`characterizes this motion as addressing Defendants’ late, or on the eve of the fact discovery cut-
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`off date, Defendants strongly argue that the materials and witnesses in question either have been
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`known to Plaintiff for some time or arose due to Plaintiffs alleges mid—July modified
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`infringement contention regarding the m—regular network configuration.
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`The subpoena to Microsoft was served three days after Plaintiff disclosed its alleged new
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`infringement theory and prior to the fact discovery cut-off. The documents that Plaintiff seeks to
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`exclude were identified by Defendants after Plaintiffs new alleged infringement theory. Case
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`law supports Defendants’ argument that allows Defendants to rely on materials sought before the
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`end of fact discovery.
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`Similarly, as to Plaintiffs motion to preclude testimony from Messrs. Terrano and Kegel,
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`there is evidence that they were identified long before the fact discovery cut-off. Furthermore,
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`their testimony may be needed to respond to Plaintiffs alleged new infringement theory.
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`It is Ordered that Plaintiffs motion to preclude Defendants from relying on belatedly
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`disclosed invalidity materials and witnesses and quashing Defendants” subpoena to Microsoft is
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`denied.
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`Dated: September 7, 2017
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`/s/ Allen M Terrell,_Jr., §gecial Master
`Allen M. Terrell, Jr., Special Master
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