Case 1:16-cv-00455-RGA Document 272 Filed 09/13/17 Page 1 of 8 PageID #: 19969
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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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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` 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.,
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` Defendants.
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`SPECIAL MASTER ORDER NO. 11 AS TO CERTAIN
`AUGUST 16, 2017 MOTIONS FILED BY THE PARTIES
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`On August 16, 2017, the parties filed various motions. Plaintiff’s Motion was identified
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`as Discovery Motions, as to which Special Master Order No. 10 was entered September 7, 2017,
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`except for one of Plaintiff’s discovery motions. Defendants, on August 16, 2017, filed what they
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`described as Motions A-F (“Defendants’ Motions”). Defendants’ Motion C Regarding Expert
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`Case 1:16-cv-00455-RGA Document 272 Filed 09/13/17 Page 2 of 8 PageID #: 19970
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`Report Framework was briefed and argued, and resulted in Special Master Order No. 9. On
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`September 6, 2017, Defendants’ Motions A, B, D-F were heard, following extensive briefing
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`among the parties. Also heard on September 6, 2017, was Plaintiff’s Discovery Motion to
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`preclude Defendants from relying on any agreements with Sony, Microsoft and Bungie, or, at the
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`very least, compelling them to produce unredacted copies of these agreements. This motion was
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`deferred until September 6, 2017, in order to allow Sony, which had successfully moved to
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`intervene, to participate in the September 6, 2017 argument.
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`Below are the Motions heard on September 6, 2017 and my rulings thereto:
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`Plaintiff’s Motion heard September 6, 2017 seeks to preclude Defendants from relying
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`upon any agreements with Sony, Microsoft and Bungie, or at the very least compelling them to
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`produce unredacted copies of these agreements (“Plaintiff’s Motion”). Defendants produced to
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`Plaintiff redacted agreements with Sony, Microsoft and Bungie as well as other documents
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`regarding possible damages claims. The redacted portions of these agreements sought by
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`Plaintiff relate to the financial terms in the agreements and possible royalty rates. Plaintiff states
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`that these redacted portions of the agreements are relevant to Plaintiff’s calculation of its
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`damages claim. Defendants’ principal argument is that these agreements are not comparable to
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`patent license agreements. However, Plaintiff contends that the comparability or not of these
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`agreements can be addressed by the parties’ competing expert reports.
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`Defendants and Sony both argue that the agreements are not relevant because they are not
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`comparable to patent license agreements. Rather, the agreements concern extensive business
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`relationships among the Defendants and the independent companies Sony, Microsoft and
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`Bungie. These agreements cover their complex business relationships, including manufacturing
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`and marketing terms.
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`Case 1:16-cv-00455-RGA Document 272 Filed 09/13/17 Page 3 of 8 PageID #: 19971
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`The Defendants and Sony contend that these agreements are extremely confidential and
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`sensitive, such that the redacted financial terms should not be disclosed even under the Protective
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`Order. They observe that if the redacted financial terms were made available to the Plaintiff’s
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`expert and used in court testimony, there is a risk of the loss of their confidentiality. Sony in
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`particular explains the irreparable harm to it if the financial terms in its agreement were
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`disclosed.
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`I am persuaded that the Sony, Microsoft and Bungie redacted portions of their
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`agreements with Defendants are extremely confidential and not likely to be relevant to Plaintiff’s
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`damages, because of the lack of comparability of these agreements with standard patent license
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`agreements. IT IS ORDERED that Plaintiff’s Motion is DENIED.
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`* * * * *
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`Defendants’ Motion A seeks to compel compliance with Special Master Order No. 2 and
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`sanctions. This Motion deals with Defendants’ interrogatories Nos. 7 and 9 regarding Plaintiff’s
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`infringement allegations. Special Master Order No. 2 on April 19, 2016, required Plaintiff to
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`provide further responses to Interrogatories Nos. 7 and 9 as soon as reasonably possible.
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`Thereafter, these cases were dismissed and refiled. After Activision moved for compliance with
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`the Special Master’s Order, on May 19, 2017 Special Master Order No. 3 granted Activision’s
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`Motion. In Special Master Order No. 3, I ordered Plaintiff to be “as specific as possible” as to
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`the infringement claims in its supplemental interrogatory responses.” On July 5, 2017,
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`Activision filed a motion to compel compliance with Special Master Order No. 3. On July 17,
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`2017, Special Master Order No. 6 was entered, indicating that after receipt of Plaintiff’s expert
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`reports, it may be appropriate to reconsider the Defendants’ Motion for sanctions and appropriate
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`relief. Two of the Defendants, Electronic Arts and Take-Two sought to have Special Master
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`Case 1:16-cv-00455-RGA Document 272 Filed 09/13/17 Page 4 of 8 PageID #: 19972
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`Order No. 6 apply to them as well. Plaintiff agreed to supplement its interrogatories to those
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`Defendants.
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`It appears that Plaintiff has supplemented its interrogatory responses with respect to its
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`infringement contentions, purportedly in response to the Special Master’s Orders. Plaintiff has
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`provided supplemental contentions following depositions of witnesses connected with the
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`particular games at issue in this litigation. These updated responses have occurred on May 18,
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`July 11 and August 25, 2017.
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`Defendants contend that they still have not received complete and adequate infringement
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`contentions from Plaintiff. In their brief and at oral argument on September 6, 2017, Defendants
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`have thoroughly argued why Plaintiff’s contentions are incomplete. Plaintiff, on the other hand,
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`described at the Hearing and in its brief with particularity its contentions and how it has provided
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`updated infringement charts with respect to each game following the depositions. Plaintiff points
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`out that there are 22 claims at issue in this litigation and each is treated as a different invention.
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`Not all claims involve the same elements or issues, such as whether they require m-regular. In
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`short, the complexity of the many claims and their various technologies makes it difficult for me
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`to decide that the infringement claims are incomplete at this stage of the cases.
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`Defendants have at this Hearing and at prior hearings complained that they are at risk of
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`being “ambushed” by Plaintiff with respect to what exactly Plaintiff’s infringement contentions
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`are. Defendants argue that Plaintiff’s strategy is to be as vague and general as possible in its
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`infringement contentions; and then to provide its contentions for the first time in Plaintiff’s
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`expert reports. Plaintiff denies that it has any such strategy; asserts that its infringement
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`contentions comply with the Delaware “notice” standard for infringement contention disclosures
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`by interrogatories; and that its infringement contentions are far more complete than are
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`Case 1:16-cv-00455-RGA Document 272 Filed 09/13/17 Page 5 of 8 PageID #: 19973
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`Defendants’ invalidity contentions. Plaintiff represented at the Hearing that it doesn’t expect its
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`expert reports to be inconsistent with its contentions.
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`Since fact discovery has concluded in these cases and with Plaintiff’s expert reports due
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`within about a week, it seems appropriate to deny without prejudice Defendants’ Motion A and
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`await Plaintiff’s expert reports. IT IS ORDERED that Defendants’ Motion A is DENIED
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`without prejudice.
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`* * * * *
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`Defendants’ Motion B is to preclude or strike and for an order to show cause regarding
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`Dr. Abarbanel.
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`Dr. Abarbanel was a Boeing employee who apparently had some involvement years ago
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`with the patent involved in this litigation. Dr. Abarbanel signed a declaration filed by Plaintiff in
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`the IPR proceedings. He was deposed briefly in those proceedings. In this litigation, Defendants
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`sought Dr. Abarbanel’s deposition, which was opposed. Following Defendants’ motion to
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`compel the deposition, I ordered the deposition to be taken. It is this deposition that is the basis
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`of Defendants’ Motion B.
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`Defendants argue that there was not an attorney-client relationship between Dr.
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`Abarbanel and Plaintiff’s law firm, Kramer, Levin, Naftalis & Frankel LLP (“Kramer Levin”).
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`At his deposition, Dr. Abarbanel did not recall much that is in his declaration detailing the
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`alleged inventions, and he explained that the declaration had been drafted by Kramer Levin; and
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`he could not confirm his attorney client relationship with Kramer Levin. According to
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`Defendants, Dr. Abarbanel stated at his deposition that he had no knowledge that a deposition
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`had been requested or that it had been objected to by Kramer Levin on his behalf. At the
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`deposition, Defendants sought, and by this Motion B still seek, the documents that Kramer Levin
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`Case 1:16-cv-00455-RGA Document 272 Filed 09/13/17 Page 6 of 8 PageID #: 19974
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`used with Dr. Abarbanel concerning his deposition. Citing Rule 612, Defendants move for
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`Kramer Levin documents used to refresh Dr. Abarbanel both for his deposition and in creating
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`his errata sheet. Since Plaintiff now reserves its right to use Dr. Abarbanel’s deposition at trial,
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`Defendants move to preclude or strike it, or in the alternative, for a new deposition of Dr.
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`Abarbanel.
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`Plaintiff explained the history and circumstances of its relationship with Dr. Abarbanel.
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`The Kramer Levin firm maintains that it acted properly and professionally with respect to
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`representation of Dr. Abarbanel, including in connection with the errata sheet to his deposition.
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`Kramer Levin provided some documentation privately to the Special Master for an in camera
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`review of certain of the communications with Dr. Abarbanel concerning his deposition. I am
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`satisfied that Kramer Levin believed it had an attorney client relationship and that Dr. Abarbanel
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`was informed about the deposition.
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`The events described in Dr. Abarbanel’s declaration in the IPR proceeding occurred
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`many years ago, so his testimony as to his lack of current recollection of the facts in the
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`declaration is not surprising. However, the extent of the changes in the errata sheet do give me
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`some concern. Although there is a dispute as to whether the changes in the errata sheet are
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`substantive, those changes may or may not have any relevance to the issues in this litigation. If
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`Dr. Abarbanel’s deposition is offered by Plaintiff at trial, Defendants will have the opportunity to
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`point out the changes made by the errata sheet. Defendants can argue that the errata sheet
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`suggests the unreliability of his deposition. If Dr. Abarbanel’s deposition is used by Plaintiff’s
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`experts and includes portions of his deposition that have been altered by his errata sheet, I would
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`be inclined to grant Defendants another deposition of Dr. Abarbanel, with particular focus on the
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`circumstances for any errata sheet changes that appear significant to Plaintiff’s case.
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`IT IS ORDERED that Defendants’ Motion B be DENIED, without prejudice to its
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`renewal, depending upon Plaintiff’s expert reports.
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`* * * * *
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`Defendants’ Motions D, E and F all involve Defendants seeking further responses to
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`certain of their interrogatories to Plaintiff. Motion D involves Interrogatory Nos. 5 and 7, which
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`seek the basis for Plaintiff’s claims that it is entitled to a royalty on foreign revenue and on
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`products playable on the Sony Play Station System. Following an earlier ruling by the Court,
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`responses to Interrogatory No. 7 are now moot. As to Interrogatory No. 5, Plaintiff has set forth
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`four theories why foreign revenue should be included in its damages claim. Defendants contend
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`that Plaintiff has not provided facts that support its various theories. In response, Plaintiff
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`identifies certain of the facts. Plaintiff argues that products that were made in the United States
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`and were exported or downloaded abroad could be relevant to its damages claim.
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`Defendants’ Motion E seeks supplemental responses to Interrogatory No. 14 relating to
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`the supposed benefits of the claimed inventions of the asserted patents. Plaintiff states that it has
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`provided the relevant information, but Defendants argue that it is still incomplete.
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`Defendants’ Motion F seeks supplemental responses to Interrogatory Nos. 6 and 8
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`dealing with non-infringing alternatives. Here, also, Plaintiff states that it has provided all that it
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`has. Also, plaintiff contends that Defendants have not met their duty of disclosure to Plaintiff
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`with respect to non-infringing alternatives.
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`I am going to make the same ruling with respect to Motions D, E and F. While these
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`interrogatories involve different topics, the arguments with regard to the motions are similar.
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`Plaintiff has made some responses to all of these interrogatories, but Defendants are not satisfied
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`with these responses. As noted earlier in this Order, one of Defendants’ concern in this litigation
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`Case 1:16-cv-00455-RGA Document 272 Filed 09/13/17 Page 8 of 8 PageID #: 19976
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`is that it will be “ambushed” by Plaintiff in its expert reports. Defendants contend that it is
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`Plaintiff’s strategy to remain vague until its expert reports.
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`Both in its brief on these motions and at the Hearing, Plaintiff represented that its experts
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`reports will be consistent with its interrogatory responses. Defendants worry that Plaintiff’s
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`interpretation of “consistent” is not meaningful and that I should sanction Plaintiff now for
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`intentionally incomplete interrogatory responses.
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`It is premature to speculate what a comparison of Plaintiff’s expert reports and its
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`interrogatory responses will reveal. Defendants may seek relief after examining those reports if
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`they have been prejudiced. As a practical matter, with fact discovery closed and with Plaintiff’s
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`expert reports due within about a week, there can be little utility in requiring Plaintiff to
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`supplement its interrogatory responses that are the subject of Motions D, E and F.
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`Defendants’ Motions D, E and F are DENIED.
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`Dated: September 13, 2017
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`/s/ Allen M. Terrell, Jr.
`Allen M. Terrell, Jr., Special Master
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