Case 1:16-cv-00455-RGA Document 260 Filed 09/07/17 Page 1 of 8 PageID #: 19527
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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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`Plaintiff,
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`v.
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`Defendant.
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`ACCELERATION BAY LLC,
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`ELECTRONIC ARTS INC.,
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`Plaintiff,
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`Defendant.
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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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`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
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`Plaintiff,
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`v.
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`Defendants.
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`DEFENDANTS’ RESPONSE TO PLAINTIFF’S
`OBJECTIONS TO SPECIAL MASTER ORDER NO. 9
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`Again objecting to an Order of the Special Master, Acceleration Bay makes the
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`remarkable claim that its experts need more than 2,500 pages, for each of the three cases, to
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`provide a “complete statement of all opinions the witness will express and the basis and reasons
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`for them” and “facts or data considered.” But each case is set for a five-day trial, thus limiting
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`the amount of expert testimony that can be offered, and Acceleration Bay provides no reason
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`Case 1:16-cv-00455-RGA Document 260 Filed 09/07/17 Page 2 of 8 PageID #: 19528
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`why that testimony cannot be disclosed in 2,500 pages (or far less) per case. Acceleration Bay
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`argues that the Order “imposes an unprecedented, arbitrary and highly prejudicial page limit on
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`expert reports in these actions” (Objs. at 1), but makes no effort to explain why it needs more
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`than 2,500 pages to present expert testimony that will last only a few hours. It pretends that
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`2,500 pages of reports per case is a meager amount but does not explain why it needs more.
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`Acceleration Bay also ignores the prejudice to Defendants from receiving thousands of
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`pages on the same day (currently September 22) and having to respond in six weeks (currently
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`November 3).1 Plaintiff states that it will serve “at least” six expert reports, but the facts suggest
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`that there may be more. For each of the three cases, Plaintiff has identified nine experts: seven
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`technical experts, a damages expert and a survey expert. Acceleration Bay identified four of the
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`seven technical experts under the Protective Order within the last few days, meaning that they
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`will have only a few days to prepare reports based on Defendants’ confidential information.
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`Even with a 2,500 page per case limit, the burden to Defendants from having to analyze and
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`respond to six or more reports for each case will be enormous, and perhaps not even doable.
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`Acceleration Bay’s principal objections are that the Special Master’s Order is
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`“unprecedented” and that somehow it will hamper “disclosure.” There is, however, nothing
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`“unprecedented” about Courts imposing limitations in order to make cases manageable –
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`whether that is by limiting discovery, pages for briefs, duplicative expert discovery, or time for
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`trial. Limiting the length of expert reports serves the same interest in ensuring that litigation is
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`manageable.
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`Defendants agree that the Federal Rules favor full disclosure. And that is what
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`Defendants seek: disclosure, before trial, of Acceleration Bay’s theories and evidence. That is
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`1 Acceleration has disclosed nine experts, including four just this week.
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`2
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`Case 1:16-cv-00455-RGA Document 260 Filed 09/07/17 Page 3 of 8 PageID #: 19529
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`what Defendants have been seeking from Acceleration Bay, in motions before the Special
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`Master, from the very outset of the cases. And this Court has recognized that voluminous
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`disclosures are not disclosures at all, as they are “useless in terms of giving Defendant[s] any
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`information about what theories [Plaintiff] w[ill] actually pursue.” St. Jude Med. v. Volcano
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`Corp., 2012 WL 1999865, at *1 (D. Del. June 5, 2012).
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`Acceleration Bay’s experts have a history in other cases of submitting voluminous expert
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`reports that obscured, rather than disclosed, the substance of the experts’ anticipated testimony.
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`See, e.g., Finjan, Inc. v. Sophos, Inc., No. 14-CV-01197-WHO, 2016 WL 2988834, at *15 (N.D.
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`Cal. May 24, 2016).2 The apparent purpose of these voluminous reports was to provide “nearly
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`limitless combinations of source code” that the experts could “pick and choose from to develop
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`their infringement theories during trial.” Id. at *15 (quoting Defendant’s reply brief). Without a
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`page limit, Defendants are concerned that Acceleration Bay will submit thousands of pages of
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`expert reports, and somewhere “buried amidst” these thousands of pages may be the arguments it
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`will “actually pursue” during the five-day trial. Id. For that reason, Defendants proposed a
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`bilateral framework for expert reports.3 Defendants requested a 1,500 page per case limit and a
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`2 See also id. at *15 (striking parts of the reports of Drs. Cole and Mitzenmacher); Finjan, Inc.
`v. Proofpoint, Inc., No. 13-cv-05808-HSG, 2016 WL 612907, at *1-2 (N.D. Cal. Feb. 16,
`2016) (striking parts of the reports of Drs. Cole and Mitzenmacher); Finjan, Inc. v. Blue Coat
`Systems, LLC, No. 15-cv-03295-BLF, D.I. 278 (July 28, 2017) (order granting in part
`motions to strike expert repots by Drs. Cole and Mitzenmacher). In each of these cases,
`these experts had been retained by Plaintiff’s counsel.
`3 Defendants asked that expert discovery be governed by the following framework:
` Page limits for expert reports;
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` Each report must have “a clear and concise summary of all opinions to be provided at
`trial and the basis and reasons for them at the beginning of the report;”
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` Each report must identify materials relied on with specificity and “explain clearly how
`those materials provide support for the expert’s opinions.”
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` Precluding an expert from testifying “on matters not clearly disclosed in the expert’s
`(Continued . . .)
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`3
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`requirement that the experts summarize their opinions in a clear and fulsome manner at the
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`beginning of each report. The proposed framework was designed to focus the cases and require
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`Acceleration Bay to articulate, clearly and concisely, the theories it will actually pursue at trial,
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`and to avoid the prejudice resulting from surprise at trial.
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`The Special Master was in a unique position to decide the appropriate length of expert
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`reports and the requirement that the reports include an “informative summary” of all of the
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`expert’s opinions. The motion that led to Special Master Order No. 9 was part of Defendants’
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`effort to require Acceleration Bay to provide basic discovery regarding the core issues of
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`infringement and damages. From the outset of this case, Defendants have been trying to require
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`Acceleration Bay to identify the basis for its infringement case and its damages claim. The
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`Special Master has worked closely with the parties on dozens of discovery issues, hearing
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`numerous motions by which Defendants’ have sought Acceleration Bay’s infringement
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`contentions. The Special Master has held at least eleven discovery hearings, many of which
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`were lengthy, and has heard the parties for many hours. He has issued ten Orders so far, with
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`more coming. In short, Defendants have done everything they can to require the Plaintiff to state
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`the basis for its cases so as to avoid surprise at trial, and the Special Master is in a unique
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`position to assess both the conduct of the parties and the needs of the case. “[B]alanc[ing] the
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`needs of the parties,” the Special Master set the limit for expert reports at 2,500 pages for each
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`case. Defendants believe that the Special Master would have been justified in limiting the pages
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`even more and in accepting the entire expert framework requested by the Defendants.
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`(. . . continued.)
`report”; offering “opinions or bases for opinions not clearly stated in the expert report”;
`and using “evidence not disclosed and clearly explained in the expert’s report”; and
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` Providing for depositions commensurate with the length of the expert’s report.
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`4
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`Case 1:16-cv-00455-RGA Document 260 Filed 09/07/17 Page 5 of 8 PageID #: 19531
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`Acceleration Bay complains that the 2,500 page limit is “arbitrary and draconian.” But
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`expert reports are “intended to set forth the substance of the direct examination.” Fed. R. Civ. P.
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`26(b)(2)(B), 1993 Adv. Comm. N. These cases are set for five-day trials, and 2,500 pages far
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`exceeds what could be presented in the time each side will have for direct examination of its
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`experts. See D.I. 62 at 11 (setting five days for each trial and stating that “[t]he trial will be
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`timed”). The Special Master selected the 2,500 page limit fully aware of the history of the case,
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`the issues involved, the scope of discovery, and the case schedule. There is nothing arbitrary
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`about it, and 2,500-page limit is hardly draconian. To the contrary, it is far more than what the
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`parties need.
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`The page limit applies equally to both sides. Acceleration Bay asserts that “2,500 pages
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`is insufficient” (id.), but it provides no explanation why it cannot package its infringement,
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`damages and validity positions for a 5-day trial into 2,500 pages of expert reports. Defendants
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`face an equivalent burden and do not anticipate being short-changed: Defendants intend to
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`submit five expert reports (a technology tutorial, non-infringement, damages, and two invalidity
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`reports). And Defendants will contest infringement fully, not merely address “a single element
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`of [each] claim” (Objs. at 5), and will demonstrate invalidity, which must be proven by clear and
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`convincing evidence.
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`Finally, there is no basis for Acceleration Bay’s claim that expert reports “frequently run
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`to 1,000 pages or more,” and no reason they should. As the Special Master recognized, setting a
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`reasonable page limit for expert reports will benefit the Court, the jury, and the parties by forcing
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`each side to articulate its positions clearly and concisely. Such limits are not “unprecedented”
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`(Objs. at 2); courts have imposed page limits on expert reports in patent cases. See, e.g., Ebay
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`Inc. v. IDT Corp., et al., Case No. 08-cv-4015, D.I. 210 (W.D. Ark. April 15, 2010) (enforcing a
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`5
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`Case 1:16-cv-00455-RGA Document 260 Filed 09/07/17 Page 6 of 8 PageID #: 19532
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`100-page-limit per expert report). Courts frequently impose limits to make litigation
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`manageable: such as limiting the amount of time for trial and precluding duplicative expert
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`testimony. The same purpose – encouraging effective case management – will be furthered by
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`limiting the pages of expert reports that are permitted.
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`Acceleration’s objections should be overruled.
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`OF COUNSEL:
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`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
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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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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
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`/s/ Jack B. Blumenfeld
`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
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`Attorneys for Defendants
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`6
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`Case 1:16-cv-00455-RGA Document 260 Filed 09/07/17 Page 7 of 8 PageID #: 19533
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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
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`Andrew R. Sommer
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
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`September 7, 2017
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`7
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`Case 1:16-cv-00455-RGA Document 260 Filed 09/07/17 Page 8 of 8 PageID #: 19534
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`CERTIFICATE OF SERVICE
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`I hereby certify that on September 7, 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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`September 7, 2017, upon the following in the manner indicated:
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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/ Jack B. Blumenfeld
`Jack B. Blumenfeld (#1014)
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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
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`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`Greg Proctor, 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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