Case 1:16-cv-00453-RGA Document 297 Filed 09/08/17 Page 1 of 10 PageID #: 25005
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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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`Plaintiff,
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`v.
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`ACTIVISION BLIZZARD, INC.,
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`Defendant.
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`v.
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`ELECTRONIC ARTS INC.,
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`Defendant.
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`v.
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`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC., and 2K
`SPORTS, INC., Delaware Corporations,
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`Defendants.
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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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`NON-PARTY SONY INTERACTIVE ENTERTAINMENT AMERICA, LLC.’S
`UNOPPOSED MOTION TO INTERVENE
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`Originally filed under seal on August 25, 2017
`Public Redacted Version filed on September 8, 2017
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`Case 1:16-cv-00453-RGA Document 297 Filed 09/08/17 Page 2 of 10 PageID #: 25006
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`Pursuant to Rule 24 of the Federal Rules of Civil Procedure, Sony Interactive
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`Entertainment America LLC (“Sony”) respectfully moves this Court for leave for Sony to
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`intervene in this action for the limited purpose of challenging Plaintiff Acceleration Bay LLC’s
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`(“Acceleration Bay” or “Plaintiff”) request for documents containing highly confidential
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`information of Sony as petitioned in an August 16, 2017 letter brief (“Plaintiff’s Letter Brief”).
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`This Motion should be granted because Acceleration Bay has moved to compel the production
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`from Defendants, Activision Blizzard, Inc. (“Activision”), Electronic Arts Inc. (“EA”), and
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`Take-Two Interactive Software, Inc. (“Take-Two”) (collectively “Defendants”), of unredacted
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`versions of their highly confidential agreements with Sony. Sony has an interest in protecting its
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`confidential information and Defendants cannot adequately represent Sony’s interests.1
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`Sony also respectfully requests that the Special Master extend the deadline for Sony to
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`respond to Plaintiff’s Letter Brief until two business days after the Special Master rules on
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`Sony’s Motion to Intervene and that the Special Master hear argument on Plaintiff’s Motion to
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`Compel on September 6, 2017 rather than August 31, 2017. Acceleration Bay and Defendants
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`are unopposed to Sony’s request to intervene and also are unopposed to the scheduling
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`adjustments requested by Sony.
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`SUMMARY OF ARGUMENT
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`Plaintiff has moved to preclude Defendants from relying upon their agreements with
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`Sony or for the Court to Order that “these agreements should be produced in their entity and
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`without any redactions.” Plaintiff’s Letter Brief at 1, 5. Plaintiff attached to its motion redacted
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`1 Acceleration Bay originally requested that Defendants “be precluded from relying upon their Agreements with
`Sony” and requested only in the “alternative” that Sony’s information be “produced in their entirety and without any
`redactions.” Plaintiff’s Letter Brief at 1, 5. Though Acceleration Bay has since modified its request for information
`with a willingness to now accept some redactions, it nonetheless still seeks Sony’s highly confidential financial
`terms with Defendants.
`1
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`Case 1:16-cv-00453-RGA Document 297 Filed 09/08/17 Page 3 of 10 PageID #: 25007
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`versions of four highly confidential agreements between Sony and Defendants. See id. at Exs. 1,
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`5, 8 and 9. Since Plaintiff filed its brief in support of its motion to compel, Defendants’ motion
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`to dismiss all claims related to games used on Sony platforms was granted. (D.I. 237.)
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`Notwithstanding the material change in scope of the relevant products at issue in the case,
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`Plaintiff continues to seek sensitive financial terms between Sony and Defendants. Sony has an
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`interest in being heard in this proceeding because the information that Plaintiff seeks is highly
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`confidential trade-secret information of Sony and Sony could be irreparably harmed if its highly
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`confidential trade-secret information were to be produced. Defendants cannot adequately
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`represent Sony’s interests. Sony is uniquely positioned to explain why the information at issue is
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`highly confidential and proprietary to Sony and the steps it takes to maintain the confidentiality
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`of this information.
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`FACTS
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`The information redacted in the four highly confidential agreements attached to
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`Plaintiff’s Letter Brief includes “specific financial terms such as royalty rates.” Plaintiff’s Letter
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`Brief at 2. Sony treats this information as highly confidential trade-secrets and considers it
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`extremely important to protect this information from disclosure. One of these agreements is with
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`EA, a second is with Activision and the other two are with Take-Two. All three companies are
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`competitors of each other.
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`ARGUMENT
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`Fed. R. Civ. P. 24 provides for two types of intervention: (1) intervention as a matter of
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`right and (2) permissive intervention. Fed. R. Civ. P. 24(a)-(b). Sony easily meets the
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`requirements for both types of intervention.
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`2
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`I.
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`Sony Is Permitted to Intervene as a Matter of Right Under Fed. R. Civ. P. 24(a)(2)
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`Rule 24(a)(2) permits intervention as a matter of right when a party “claims an interest
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`relating to the property or transaction that is the subject of the action, and is so situated that
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`disposing of the action may as a practical matter impair or impede the movant’s ability to protect
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`its interest, unless existing parties adequately represent that interest.” Fed. R. Civ. P. 24(a)(2).
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`“Courts construe Rule 24 liberally in favor of intervention.” Merck Sharp & Dohme Corp. v.
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`Teva Pharm. USA, Inc., 2015 WL 5163035, at *2 (D. Del. Sept. 3, 2015).
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`Intervention as of right is appropriate under Rule 24(a)(2) when: (1) the application is
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`timely; (2) the applicant has a significant protectable interest in the litigation; (3) the interest may
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`be affected or impaired, as a practical matter, by the disposition of the action; and (4) the interest
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`is not adequately represented by an existing party in the litigation. See Benjamin ex rel. Yock v.
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`Dep’t of Pub. Welfare of Pa., 701 F.3d 938, 948 (3d Cir. 2012); Mountain Top Condo. Ass’n v.
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`Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995). Although a party seeking
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`intervention must meet all four requirements, “a very strong showing that one of the
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`requirements is met may result in a lesser showing of another requirement.” Harris v. Pernsley,
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`820 F.2d 592, 596 n.6 (3d Cir. 1987). Here, Sony’s application to intervene meets all four
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`requirements.
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`A. Sony’s Motion Is Timely
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`The timeliness of a request to intervene “is determined by the totality of the
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`circumstances.” In re Cmty. Bank of N. Va., 418 F.3d 277, 314 (3d Cir. 2005) (citing and
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`quoting U.S. v. Alcan Aluminum, Inc., 25 F.3d 1174, 1181 (3d Cir.1994)).
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`Plaintiff filed its Letter Brief on August 16, 2017. On August 23, 2017, Sony wrote the
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`Court seeking permission to intervene and requesting guidance regarding whether a formal
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`Case 1:16-cv-00453-RGA Document 297 Filed 09/08/17 Page 5 of 10 PageID #: 25009
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`motion to intervene was necessary. That same day, the Court responded that Sony should file a
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`Motion to Intervene as soon as possible. Sony’s Motion is filed two days after the Court’s
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`guidance and nine days after Plaintiff’s Letter Brief. Sony has, therefore, promptly filed its
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`Motion after the need for it arose.
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`There is no prejudice to the parties from Sony intervening as Sony seeks to intervene
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`only for a limited purpose and any extension of time to allow Sony to respond to Plaintiff’s
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`Letter Brief will be short and will not impact the case schedule. Neither Plaintiff nor Defendants
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`oppose Sony’s requested intervention.
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`B. Sony Has a Significant Protectable Interest in Responding to Plaintiff’s
`Letter Brief
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`To justify intervention as of right, a movant must also show that it has a “significantly
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`protectable” interest in the litigation. Kleissler v. U.S. Forest Serv., 157 F.3d 964, 969 (3d Cir.
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`1998); Mountain Top, 72 F.3d at 366. “That observation, however, has not led to a ‘precise and
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`authoritative definition’ of the interest that satisfies Rule 24(a)(2).” Kleissler, 157 F.3d at 969
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`(quoting Mountain Top, 72 F.3d at 366). “In defining the contours of a ‘significantly protectable’
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`legal interest,” the Third Circuit has held that “the interest must be a legal interest as
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`distinguished from interests of a general and indefinite character.” Mountain Top, 72 F.3d at 366
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`(internal quotes omitted). “Proposed intervenors need not have an interest in every aspect of the
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`litigation. They are entitled to intervene as to specific issues so long as their interest in those
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`issues is significantly protectable.” Id. at 368.
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`Sony has such an interest. Sony has a “significantly protectable” interest in protecting
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`the confidentiality of its trade-secret information contained in its agreements with Defendants.
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`See Taro Pharms U.S.A., Inc. v. Perrigo Israel Pharms, Ltd., 2015 WL 7737310, at *2 (Dec. 1,
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`2015) (“Courts generally presume that disclosure [of trade-secrets] to a competitor is more
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`harmful that [sic] disclosure to a noncompetitor.”) (internal quotations omitted); Syngenta,
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`Syngenta Crop Protection, LLC v. Willowood USA, LLC, 2016 WL 4925099, at *2-*3 (D. Del.
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`Sept. 14, 2016) (same and noting that sales and revenue information constitute trade-secrets).
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`C. Sony’s Interest Might Be Impaired Without Intervention
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`To satisfy the third element for Rule 24(a)(2) intervention, a movant need only
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`“demonstrate that [its] interest might become affected or impaired, as a practical matter, by the
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`disposition of the action in [its] absence.” Mountain Top, 72 F.3d at 368 (emphasis in original).
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`“Courts have found that the threat of disclosure of confidential or privileged information
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`constitutes an interest that may be affected and impaired.” Merck Sharp, 2015 WL 5163035, at
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`*2 (citing United States v. AT&T, 642 F.2d 1285, 1292 (D.C. Cir. 1980) (“Without the right to
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`intervene in discovery proceedings, a third party with a claim of privilege in otherwise
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`discoverable materials could suffer the obvious injustice of having his claim erased or impaired
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`by the court's adjudication without ever being heard.”)).
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`Sony’s interest will undoubtedly be impaired if Plaintiff’s Motion to Compel is granted
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`and Sony’s highly confidential trade-secret information is unredacted.
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`Because redacted documents have been produced by Defendants and Sony has not been
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`subpoenaed, a Motion to Intervene for the limited purpose of challenging Plaintiff’s motion to
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`compel is Sony’s sole method of protecting its interest.
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`D. Sony’s Interest Is Not Adequately Represented By the Defendants
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`The fourth and final prong of the Rule 24(a)(2) analysis “is satisfied if the applicant
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`Case 1:16-cv-00453-RGA Document 297 Filed 09/08/17 Page 7 of 10 PageID #: 25011
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`shows that representation of his interest ‘may be’ inadequate.” Trbovich v. United Mine Workers
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`of Am., 404 U.S. 528, 538 n.10 (1972). Further, “the burden of making that showing should be
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`treated as minimal.” Id.; Mountain Top, 72 F.3d at 368.
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`Here, Sony easily satisfies this low threshold. Sony and Defendants’ interests in
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`protecting the information are not perfectly aligned for four reasons. First, Sony has unique
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`knowledge regarding the steps it takes to maintain the confidentiality of its agreements and the
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`reasons why it regards the redacted information in those agreements to be highly confidential
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`trade-secrets. Second, Defendants are competitors with each other. Third,
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` Fourth,
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` See Merck Sharp, 2015 WL 516303, at *2 (“Given that
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`the parties to the above captioned litigation are competitors of [non-party], [Non-party’s] interest
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`in maintaining the confidentiality of its protected information is not adequately represented by
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`such parties.”); Mannington Mills, Inc. v. Armstrong World Indus., Inc., 206 F.R.D. 525, 530–31
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`(D. Del. 2002) (“Despite [plaintiff’s] arguments to the contrary, ‘it would be divorced from
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`reality to believe that either party here would serve as the champion of its competitor ... to
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`maintain the confidentiality designation or to limit public disclosure ... during trial.’”) (quoting
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`Micro Motion, Inc. v. Kane Steel Co., Inc., 894 F.2d 1318, 1325 (Fed.Cir.1990)); see also Brody
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`v. Spang, 957 F.2d 1108, 1123 (3d Cir. 1992) (Even if a movant’s “interests are similar to those
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`of a party,” representation is inadequate if those interests “diverge sufficiently that the existing
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`party cannot devote proper attention to the applicant’s interests.”).
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`II.
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`Sony Should Also Be Permitted to Intervene Under Fed. R. Civ. P. 24(b)(1)(B)
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`Alternatively, the Court should permit Sony to intervene under Rule 24(b)(1)(B).
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`Permissive intervention is appropriate under Rule 24(b)(1)(B) when the application is timely and
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`the applicant’s claim has a common question of law or fact with the case. See Fed. R. Civ. P.
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`24(b)(1)(B). “Whether to grant permissive intervention under Rule 24(b), as the doctrine’s name
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`suggests, is within the discretion of the district court. . . .” Brody v. Spang, 957 F.2d at 1124;
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`Bell Atlantic-Delaware, Inc. v. Global NAPS South, Inc., 77 F. Supp. 2d 492, 502 (D. Del. 1999)
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`(“The decision to permit intervention is within the court’s discretion”). Moreover, “the Court
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`should relax the requirement of a common question of law or fact when the intervenors are not
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`seeking to become parties to the litigation.” U.S. v. Dentsply Intern., Inc., 187 F.R.D. 152, 157-
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`58 (D. Del. 1999) (“[non-party] will be permitted to intervene for purposes of bringing to the
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`Court’s attention its view with respect to what should be contained in the protective order.”); LG
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`Display Co. v. AU Optronics Corp., 2010 WL 5463305, at *2 (D. Del. Dec. 29, 2010) (“Where
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`intervention is sought for the limited purpose of modifying a protective order, the requirements
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`for permissive intervention are interpreted flexibly. In these circumstances, the intervenor need
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`not show an independent basis for subject matter jurisdiction, and the timeliness and
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`commonality requirements are interpreted broadly.”) (internal quotations omitted). Ultimately,
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`“the central consideration for the exercise of discretion is whether allowing intervention will
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`cause delay or prejudice.” Bell Atlantic-Delaware, 77 F. Supp. 2d at 502.
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`As discussed above, Sony’s motion is timely. The necessity of intervening only arose
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`when Plaintiff filed its Letter Brief on August 16, 2017. Sony has filed this motion nine days
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`later. As Sony seeks to intervene only for the limited purpose of challenging Plaintiff’s motion
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`to compel and protecting its highly confidential trade-secrets, permissive intervention is
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`Case 1:16-cv-00453-RGA Document 297 Filed 09/08/17 Page 9 of 10 PageID #: 25013
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`appropriate. Moreover, because Sony’s intervention is limited, intervention will not “cause
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`delay or prejudice” to Plaintiff or Defendants’ rights. See Fed. R. Civ. P. 24(b)(3). Finally,
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`neither Plaintiff nor Defendants oppose Sony’s requested intervention.
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`III.
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`Sony’s Request for a Limited Extension of Time Should Be Granted
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`Sony’s request to be allowed to respond to Plaintiff’s Letter Brief two business days after
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`the Court rules on its Motion to Intervene and for Plaintiff’s Motion to Compel to be heard on
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`September 6, 2017 rather than August 31, 2017 will not cause delay or prejudice to the parties.
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`Sony understands that this Court has a hearing scheduled on other issues in this matter on
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`September 6, 2017. Sony requests the short extensions of the response deadline and hearing date
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`to permit Sony an opportunity to brief its positions and be heard in argument. As stated above,
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`Acceleration Bay and Defendants are unopposed to the requested relief in this Motion.
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`CONCLUSION
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`For all of the foregoing reasons, Sony respectfully requests that the Court grant its
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`Motion to Intervene, extend Sony’s deadline to respond to Plaintiff’s Letter Brief until two
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`business days after the ruling on this Motion, and that the Special Master hear argument on
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`Plaintiff’s Motion to Compel on September 6, 2017 instead of August 31, 2017.
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`Respectfully Submitted,
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`/s/ Gregory B. Williams
`Gregory B. Williams (ID# 4195)
`Austen C. Endersby (ID# 5161)
`FOX ROTHSCHILD LLP
`919 N. Market Street
`Suite 300
`Wilmington, DE 19899-2323
`(302) 622-4211
`gwilliams@foxrothschild.com
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`Case 1:16-cv-00453-RGA Document 297 Filed 09/08/17 Page 10 of 10 PageID #: 25014
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`aendersby@foxrothschild.com
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`-and-
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`Tara D. Elliott (ID# 4483)
`WILMER CUTLER PICKERING HALE AND
`DORR LLP
`1875 Pennsylvania Avenue, NW
`Washington, DE 20006
`(202) 663-6748
`tara.elliott@wilmerhale.com
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`Date: August 25, 2017
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