Case 1:16-cv-00455-RGA Document 274 Filed 09/14/17 Page 1 of 9 PagelD #: 19980
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`ACCELERATION BAY LLC,
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`Plaintiff,
`
`V.
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`ACTIVISION BLIZZARD, INC.,
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`Defendant.
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`V.
`
`ELECTRONIC ARTSINC.,
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`Defendant.
`
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`Vv.
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`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC., and 2K
`SPORTS, INC.,
`
`Defendants.
`
`NeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeSeeeee”
`
`C.A. No. 16-453 (RGA)
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`PUBLIC VERSION
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`C.A. No. 16-454 (RGA)
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`C.A. No. 16-455 (RGA)
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`PLAINTIFF ACCELERATION BAY LLC’S
`OBJECTIONS TO SPECIAL MASTER ORDER NO.9
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`

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`Case 1:16-cv-00455-RGA Document 274 Filed 09/14/17 Page 2 of 9 PagelD #: 19981
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`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`POTTER ANDERSON & CORROON LLP
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff
`Acceleration Bay LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M.Frankel
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: September 6, 2017
`Public Version Dated: September 14, 2017
`
`

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`Case 1:16-cv-00455-RGA Document 274 Filed 09/14/17 Page 3 of 9 PagelD #: 19982
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`Pursuant to Rule 53(f)(2) of the Federal Rules of Civil Procedure, Plaintiff Acceleration
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`Bay respectfully requests that the Court overrule the Special Master’s September 1, 2017 Order
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`No.9 (Ex. A, D.L 283, the “Order”).!
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`I.
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`NATURE AND STAGE OF THE PROCEEDINGS
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`Acceleration Bay objects to the Order because it imposes an unprecedented, arbitrary and
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`highly prejudicial page limit on expert reports in these actions. Rather than further any bonafide
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`disclosure concerns, Defendants’ pursuit of page limits is a transparent attempt to first limit
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`Acceleration Bay’s expert disclosures and then seek to preclude expert testimony and opinion by
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`arguing that it has not been sufficiently disclosed. Accordingly, the Court should overrule the
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`Order, and the parties should proceed with expert discovery under the requirements of the
`Scheduling Order and the Federal Rules of Civil Procedure.
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`Opening expert reports are due September 22, 2017.
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`Il.
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`OBJECTIONS
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`The Court reviews the Special Master’s Order de novo. Fed. R. Civ.P. 53(f).
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`Acceleration Bay respectfully objects to the Order on the following grounds:
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`(1) the Order imposes an unwarranted and arbitrary page limit on expert discovery that is
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`unsupported by precedent, the Scheduling Order, the Local Rules or the Federal Rules of Civil
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`Procedure; and
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`' All docket citations are to C.A. No. 16-453-RGA,andare representativeoffilings in the related
`cases.
`* Acceleration Bay submits these objections pursuant to the Order Appointing Special Master.
`C.A. No. 15-228-RGA,D.I. 94 at 76.
`In accordance with that Order, Acceleration Bay submits
`herewith an Appendix containing the transcript from the hearing before the Special Master (Ex.
`B) and the materials submitted by the parties in connection with the hearing.
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`

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`Case 1:16-cv-00455-RGA Document 274 Filed 09/14/17 Page 4 of 9 PagelD #: 19983
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`(2) the Order is highly prejudicial to Acceleration Bay given the complex nature of the
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`case, the number of issues upon whichthe experts will opine and the asymmetrical nature of the
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`parties’ respective burdens ofproof.°
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`Tt.
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`ARGUMENT
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`A.
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`Page Limits For Expert Reports Are Unprecedented and Unwarranted
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`The Court should overrule the Order’s grant of Defendants’ unprecedented requestto set
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`a highly prejudicial page limit for the expert reports in this case. Defendants’ motion was
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`premised upon speculation about what might happen in the future — that Acceleration Bay’s
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`experts might serve voluminous reports that did not disclose their opinions. Beyond bald
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`speculation, Defendants offer no evidence that Acceleration Bay’s experts will
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`submit
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`unnecessarily voluminous expert reports.
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`There are hundreds of patent cases filed every year that proceed without expert report
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`page limits, and such page limits are not part of the practice in this District (or any other District
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`knownto Plaintiff's counsel).
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`Indeed, Defendants did not come forward with a single example
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`of a Delaware(or other) court imposinga prior restraint on the length of expert reports. Nor did
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`Defendants identify any reason that this case in particular compels a drastic departure from the
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`approach to expert reports under the Scheduling Order, Local Rules and Federal Rules of Civil
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`Procedure (“FRCP”).
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`Rather than offer any evidence particular to the needs of this case, Defendants pointed to
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`three orders in completely unrelated cases from the Northern District of California, involving
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`some of the experts Acceleration Bay has retained here, where portions of their reports were
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`excluded. Those orders have no bearing on this case and provide no support for a page limit.
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`> Acceleration Bay does not object to the portion of the Order requiring each expert report to
`include a summary of the opinions presented therein.
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`

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`Case 1:16-cv-00455-RGA Document 274 Filed 09/14/17 Page 5 of 9 PagelD #: 19984
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`Those cases involved different parties, different technology and different issues. None of the
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`decisions cited by Defendants struck portions of the expert reports on grounds that they had too
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`many pages — let alone suggested that page limits were necessary or appropriate, and that
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`District has not imposed page limits in those cases or any related actions. See, e.g., Finjan, Inc.
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`v. Proofpoint, Inc., No. 13-cv-05808-HSG, 2016 WL 612907, at *2 (N.D. Cal. Feb. 16, 2016)
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`(striking limited portions of expert reports concerning accused products that had not been
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`previously identified); Ex. D at Ex. 3, Finjan, Inc. v. Blue Coat Systems, LLC, No. 15-cv-03295-
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`BLF, Dkt. No. 277 at 13 (N.D. Cal. July 28, 2017) (same).
`Finally, limitations on expert reports cannot be equated to other limits on discovery,e.g.
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`number of interrogatories and length of depositions, as Defendants argued.
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`In instances where
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`the FRCP placeslimits on discovery, the restrictions are meant to prevent unnecessary burden on
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`the responding party. With expert reports, Acceleration Bay is responding to the disclosure
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`requirements in FRCP 26(a)(2). To place a limit on the size of expert reports is, therefore, akin
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`to placing a page limit on an interrogatory response or the number of documents a responding
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`party can produce. Courts and the FRCP do not impose such limits because doing so would
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`unfairly hinder a party from proving its case. Here, the scope of an expert witness’s opinion is
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`defined by the report. Therefore, limiting the length of an expert report, severely prejudices
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`Acceleration Bay’s ability to present its case fully.’
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`Thus, there was no basis for the Order to impose a page limit in these actions, let alone a
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`compelling basis to depart from the universal practice in this District and elsewhere of not
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`imposing page limits on expert reports.
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`“ Defendants’ other argument, that the length of trial has some impact on the length of expert
`reports,
`is also unsupported by the practice in this District and others.
`In any event,
`the
`presentation of Plaintiff's case at trial should not be decided now through an arbitrary page limit
`on expert reports.
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`

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`Case 1:16-cv-00455-RGA Document 274 Filed 09/14/17 Page 6 of 9 PagelD #: 19985
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`B.
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`The Page Limits Will Prejudice Acceleration Bay’s Ability to Present its
`Case and Disproportionately Impact the Parties
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`The order sets an arbitrary limit of 2,500 pages, but that is unlikely to be sufficient for the
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`needs of these actions. Acceleration Bay anticipates serving at least the following six expert
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`reports in each case, which will be addressing 16 claims, across six different patents and
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`numerous accused products:
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`e Tutorial of the technology
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`e Opening Damages Report
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`e Reply Damages Report
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`e Opening Infringement Report (on 2-3 accused products)
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`e Reply Infringement Report (on 2-3 accused products)
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`e Rebuttal Validity Report
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`Without some arbitrary page restriction, Acceleration Bay’s experts are permitted
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`pursuant to the FRCP and Local Rules to disclose their background, provide an overview of the
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`technology at issue and backgroundofthe patents, disclose their opinions and the foundation for
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`their opinions, which often also includes specific citations to the evidence, charts summarizing
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`testimony (such as calculations for a damages expert), and identify the materials they reviewed
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`in connection with preparing their report.
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`FRCP 26 requires experts to include in their report extensive disclosures, including “(i) a
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`complete statement of all opinions the witness will express and the basis and reasons for them;
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`(ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be
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`used to summarize or support them; (iv) the witness's qualifications,
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`including a list of all
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`publications authored in the previous 10 years; (v) a list of all other cases in which, during the
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`

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`Case 1:16-cv-00455-RGA Document 274 Filed 09/14/17 Page 7 of 9 PagelD #: 19986
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`previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement
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`of the compensation to be paid for the study and testimony in the case.” FRCP 26(a)(2).
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`Rather than serve any legitimate goal, Defendants’ requested page limits are an attempt to
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`prejudice Acceleration Bay’s ability to effectively present its case, by limiting the scope of the
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`expert disclosure with an arbitrary page limit. Expert reports in patent cases frequently run to
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`1,000 pages or more, especially when appendices and tables are included, where the subject
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`matter of the case is technical and the accused products are complex as is the case here. See,
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`e.g., Ex. D at Ex. 2, Elbit Sys. Land & C4I Lid. v. Hughes Network Sys., LLC., No. 2:15-CV-
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`00037-RWS, Dkt. No. 467 at 7 (E.D. Tex. July 31, 2017) (referencing 1,405 page expert report).
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`Thus, 2,500 pages is insufficient for six expert reports dealing with a variety of complex issues.
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`The arbitrary and draconian page limits that the Order imposes would make the reports
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`far less informative.
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`It would force the experts to make extensive use of cross-referencing, to
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`simply cite to documents rather than include excerpts and quotations from documents in the
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`reports, and find other ways to reduce pages at the expense of disclosure. Defendants never
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`explained how imposing an arbitrary page limit will make it any easier for the parties “to
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`disclose ‘a complete statement of all opinions the witness will express and the basis and
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`reasons for them.’” Ex. C, Defs. Br. at 6, quoting FRCP 26(a)(2)(B) (underlined emphasis
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`added, other emphasis in original). Thus, pre-determined pagerestrictions serve no legitimate
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`purposehere.
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`Moreover, the impact of the page limit would not be symmetrical on the parties. While
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`Acceleration Bay will provide the six reports listed above, Defendants will only provide four
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`reports (opening and rebuttal invalidity report, and responsive reports on infringement and
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`damages), and thus will need significantly fewer pages than Acceleration Bay.
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`In addition, as
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`

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`Case 1:16-cv-00455-RGA Document 274 Filed 09/14/17 Page 8 of 9 PagelD #: 19987
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`the opening party, Acceleration Bay, not Defendants, will need to provide a tutorial of the
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`technology. Furthermore, for non-infringement, Defendants’ experts only have to address a
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`single element of a claim to assert that it does not infringe, where Acceleration Bay has to
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`address every element to prove infringement. Thus,
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`there is no comparability between an
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`infringement and non-infringementreport.
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`Similarly, for a validity rebuttal report, Acceleration Bay will be required to address
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`much more than just the claim elements. It will also need to address secondary considerations of
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`non-obviousness, such as long felt need, commercial success, praise by others, licensing, failure
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`of others, skepticism by experts,
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`teaching away, and copying.
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`See Transocean Offshore
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`Deepwater Drilling, Inc. v. Maersk Drilling USA, Inc., 699 F.3d 1340, 1349 (Fed. Cir. 2012)
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`(describing secondary considerations of non-obviousness). Disclosure of these elements means
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`once again that there is no comparability in terms of issues to be covered in invalidity expert
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`reports from Defendants as compared to Acceleration Bay’s validity rebuttal reports.
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`Ultimately Defendants seek to hamper Acceleration Bay’s ability to present
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`its
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`infringement and damages cases, even at the expense of their invalidity and rebuttal cases,
`because Acceleration Bay bears the burden of proof, and will disproportionately be impacted by
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`the page limits.
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`Thus, the Court should overrule the Order as prejudicial and unwarranted.
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`IV.
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`CONCLUSION
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`For the foregoing reasons, Acceleration Bay respectfully requests that the Court sustain
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`Acceleration Bay’s objections to the Order.
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`

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`Case 1:16-cv-00455-RGA Document 274 Filed 09/14/17 Page 9 of 9 PagelD #: 19988
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`POTTER ANDERSON & CORROON LLP
`
`By: /s/ Philip A. Rovner
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`Attorneys for Plaintiff
`Acceleration Bay LLC
`
`OF COUNSEL:
`
`Paul J. Andre
`Lisa Kobialka
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`
`Aaron M. Frankel
`KRAMER LEVIN NAFTALIS
`& FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`
`Dated: September 6, 2017
`Public Version Dated: September 14, 2017
`5383060
`
`