Case 1:16-cv-00455-RGA Document 261 Filed 09/07/17 Page 1 of 2 PageID #: 19535
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`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
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`1201 NO R TH M AR KE T S TR E ET
`P.O. B O X 1347
`W I L M IN G TO N, DE L AWARE 19899-1347
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`
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`(302) 658-9200
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`(302) 658-3989 FAX
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`JACK B. BLUMENFELD
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`(302) 351-9291
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`(302) 425-3012 FAX
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`jblumenfeld@mnat.com
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`
`
`The Honorable Richard G. Andrews
`United States District Court
` for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
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`September 7, 2017
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`VIA ELECTRONIC FILING
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`Re:
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`Acceleration Bay LLC; C.A. Nos. 16-453 (RGA); 16-454 (RGA); and 16-455 (RGA)
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`Dear Judge Andrews:
`On September 1, 2017, Special Master Terrell issued his Order No. 9 (D.I. 2831), limiting
`each side to 2,500 pages of expert reports in each of these three cases, for a total of 7,500 pages
`across the three cases. On September 6, 2017, Acceleration Bay objected to that Order (D.I.
`288) and Defendants have responded to those objections today. That Order, and Acceleration
`Bay’s objections, have some urgency because opening expert reports in all three cases are
`currently due in two weeks, on September 22, 2017.
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`This issue is related to another issue pending before the Court – Defendants’ request that
`the schedule for expert reports (and summary judgment and Daubert motions) be extended until
`after the ongoing claim construction proceedings have been completed, and claim construction
`has been resolved by the Court. That issue is the subject of the parties’ August 7 and 14, 2017
`letter briefs (D.I. 253 and 260). The Defendants do not believe that expert reports should go
`forward in the absence of the Court’s claim construction rulings. The same issue, of course, also
`affects the length of expert reports because, without claim construction, the experts will have to
`address infringement and validity under competing claim construction proposals that have not
`been decided by the Court (both of which may be different than the Court’s actual constructions).
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`Defendants respectfully submit that a modification of the schedule such as that requested
`in their August 7, 2017 letter is appropriate. In any event, Defendants submit that the length of
`expert reports should be determined well in advance of the date for opening reports.
`Acceleration says that it will submit “at least” six expert reports in each case. The facts suggest
`that there may be more. For each of the three cases, Plaintiff has identified nine experts.
`Acceleration Bay identified four of the seven technical witnesses under the Protective Order
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`1
`All D.I. references are to C.A. No. 16-453.
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`Case 1:16-cv-00455-RGA Document 261 Filed 09/07/17 Page 2 of 2 PageID #: 19536
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`The Honorable Richard G. Andrews
`September 7, 2017
`Page 2
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`within the last few days, meaning that they will have only a few days to prepare reports based on
`Defendants’ confidential information. As things stand now, Defendants will have to respond to
`thousands of pages of expert reports simultaneously, and to do so without the benefit of most of
`the Court’s claim constructions.
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`It would be enormously difficult to respond to a large number of expert reports across
`three cases in six weeks, as set forth in the scheduling order, Thus, alternatively, a modification
`that would (1) extend the schedules by at least a month or two and/or (2) stagger the expert
`discovery dates for the second and third scheduled trials would be helpful, so that Defendants do
`not have to respond to thousands of pages of expert reports in three cases at the same time, in the
`absence of claim construction rulings
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`We are available for a telephone conference to discuss these issues if that would be
`helpful to the Court.
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`Respectfully,
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`/s/ Jack B. Blumenfeld
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`Jack B. Blumenfeld (#1014)
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`JBB/dlw
`cc:
`Clerk of Court (Via Hand Delivery)
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`All Counsel of Record (Via Electronic Mail)
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