Case 1:16-cv-00453-RGA Document 329 Filed 10/20/17 Page 1 of 6 PageID #: 26735
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`Plaintiff,
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`v.
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`C.A. No. 16-453 (RGA)
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD, INC.,
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`Defendant.
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`ACTIVISION BLIZZARD, INC.’S RENEWED MOTION FOR SANCTIONS AND
`MOTION TO STRIKE THE DAMAGES OPINION OF CHRISTINE S. MEYER, PH.D.
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`Pursuant to the Court’s Order Appointing Special Master (D.I. 94 in C.A. No. 15-228-
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`RGA, incorporated into this action by D.I. 62), Activision Blizzard, Inc. moves for relief under
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`prior orders of the Special Master and Federal Rule of Civil Procedure 37.
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`Plaintiff served its expert damages report on September 25, 2017, and disclosed for the
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`first time an entirely new damages theory based on facts and documents never disclosed during
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`discovery. Because Plaintiff’s report sets forth new damages theories and facts that were not
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`previously disclosed, Activision renews its motion for sanctions and seeks to strike the report of
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`Plaintiff’s damages expert, Dr. Meyer. Activision seeks the following:
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`1)
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`an order precluding Plaintiff from relying on information or arguments not
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`disclosed in its discovery responses, specifically Plaintiff’s June 2, 2017 Responses to Activision
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`Party Specific Interrogatory Nos. 1 and 2 and Plaintiff’s June 24, 2017 Responses to Activision
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`Party Specific Interrogatory No. 8;
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`2)
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`an order binding Plaintiff to the statement that the date of the hypothetical
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`negotiation was the date of service of the complaints in the 2015 filed cases;
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`Plaintiff,
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`C.A. No. 16-453 (RGA)
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`ACTIVISION BLIZZARD, INC.,
`
`
`
`
`
`
`
`Defendant.
`
`
`ACTIVISION BLIZZARD, INC.’S RENEWED MOTION FOR SANCTIONS AND
`MOTION TO STRIKE THE DAMAGES OPINION OF CHRISTINE S. MEYER, PH.D.
`
`Pursuant to the Court’s Order Appointing Special Master (D.I. 94 in C.A. No. 15-228-
`
`RGA, incorporated into this action by D.I. 62), Activision Blizzard, Inc. moves for relief under
`
`prior orders of the Special Master and Federal Rule of Civil Procedure 37.
`
`Plaintiff served its expert damages report on September 25, 2017, and disclosed for the
`
`first time an entirely new damages theory based on facts and documents never disclosed during
`
`discovery. Because Plaintiff’s report sets forth new damages theories and facts that were not
`
`previously disclosed, Activision renews its motion for sanctions and seeks to strike the report of
`
`Plaintiff’s damages expert, Dr. Meyer. Activision seeks the following:
`
`1)
`
`an order precluding Plaintiff from relying on information or arguments not
`
`disclosed in its discovery responses, specifically Plaintiff’s June 2, 2017 Responses to Activision
`
`Party Specific Interrogatory Nos. 1 and 2 and Plaintiff’s June 24, 2017 Responses to Activision
`
`Party Specific Interrogatory No. 8;
`
`2)
`
`an order binding Plaintiff to the statement that the date of the hypothetical
`
`negotiation was the date of service of the complaints in the 2015 filed cases;
`
`
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`Case 1:16-cv-00453-RGA Document 329 Filed 10/20/17 Page 2 of 6 PageID #: 26736
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`3)
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`an order precluding Plaintiff from relying on any opinions in the Expert Report of
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`Christine S. Meyer, Ph.D.
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`4)
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`5)
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`an order striking the Expert Report of Christine S. Meyer, Ph.D. in its entirety;
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`an order precluding Plaintiff from relying on any opinions in the Expert Report of
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`Christine S. Meyer, Ph.D;
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`6)
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`7)
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`an order striking the Expert Report of Ricardo Valerdi, Ph.D. in its entirety; and
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`an order precluding Plaintiff from relying on any opinions in the Expert Report of
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`Ricardo Valerdi, Ph.D.
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`The grounds for this motion are set forth in Activision’s accompanying letter brief, which
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`will be provided to the Special Master pursuant to Paragraph 3 of the Order and the Special
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`Master Order Relating to Procedures for Resolving Discovery Motions [D.I. 113 in C.A. No. 15-
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`228- RGA]. The precise relief sought is detailed in a proposed order accompanying this motion.
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`A telephonic hearing on this motion is scheduled for November 2, 2017.
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`Pursuant to D. Del. LR 7.1.1, Activision states that it has made reasonable effort to reach
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`agreement with Plaintiff on the matters set forth in this motion and the parties could not reach
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`agreement.
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`
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`OF COUNSEL:
`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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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`
`/s/ Stephen J. Kraftschik
`__________________________________
`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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`2
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`Case 1:16-cv-00453-RGA Document 329 Filed 10/20/17 Page 3 of 6 PageID #: 26737
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`David P. Enzminger
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
`
`Michael M. Murray
`Anup K. Misra
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
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`Andrew R. Sommer
`Thomas M. Dunham
`Michael Woods
`Paul N. Harold
`Joseph C. Masullo
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
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`October 20, 2017
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`3
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`Case 1:16-cv-00453-RGA Document 329 Filed 10/20/17 Page 4 of 6 PageID #: 26738
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`
`
`
`C.A. No. 16-453 (RGA)
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
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`ACCELERATION BAY LLC,
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`
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`
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`ACTIVISION BLIZZARD, INC.,
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`
`
`Plaintiff,
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`
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`v.
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`
`
`Defendant.
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`
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`[PROPOSED] ORDER
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`
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`WHEREAS, the Special Master, having considered Activision Blizzard, Inc.’s Renewed
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`Motion for Sanctions and Motion to Strike The Damages Opinion Of Christine S. Meyer, Ph.D.;
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`IT IS HEREBY ORDERED this _______ day of _______________, 2017, that
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`Activision’s Motion is GRANTED.
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`8) Acceleration Bay is precluded from relying on information or arguments not
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`disclosed in its discovery responses, specifically Plaintiff’s June 2, 2017 Responses to
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`Activision Party Specific Interrogatory Nos. 1 and 2 and Plaintiff’s June 24, 2017
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`Responses to Activision Party Specific Interrogatory No. 8;
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`9) Acceleration Bay is bound by the statement that the date of the hypothetical
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`negotiation was the date of service of the complaints in the 2015 filed cases.
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`Acceleration Bay is precluded from arguing that the outcome of the hypothetical
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`negotiation would be the same based on any other date.
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`10) The Expert Report of Christine S. Meyer, Ph.D. is stricken in its entirety.
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`11) Acceleration Bay is precluded from relying on any opinions in the Expert Report of
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`Christine S. Meyer, Ph.D. including but not limited to:
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`Case 1:16-cv-00453-RGA Document 329 Filed 10/20/17 Page 5 of 6 PageID #: 26739
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`(a) All opinions and analyses relating to the Uniloc litigation or the $2.10 per unit
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`royalty rate based on the Uniloc litigation;
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`(b) All opinions and analyses relating to projected sales of “future products;”
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`(c) All opinions and analyses that damages would be the same regardless of the date
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`of the hypothetical negotiation;
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`(d) All opinions and analyses relating to licenses that were not disclosed in response
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`to Activision’s Party Specific Interrogatory No. 1 before the close of fact
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`discovery; and
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`(e) All opinions and analyses relating to costs of rewriting source code that were not
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`disclosed in response to Activision’s Party Specific Interrogatory No. 8 before the
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`close of fact discovery.
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`12) The Expert Report of Ricardo Valerdi, Ph.D. is stricken in its entirety.
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`13) Acceleration Bay is precluded from relying on any opinions in the Expert Report of
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`Ricardo Valerdi, Ph.D.
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`__________________________________
`Special Master Allen M. Terrell, Jr.
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`2
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`Case 1:16-cv-00453-RGA Document 329 Filed 10/20/17 Page 6 of 6 PageID #: 26740
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`CERTIFICATE OF SERVICE
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`I hereby certify that on October 20, 2017, I caused the foregoing to be
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`
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`electronically filed with the Clerk of the Court using CM/ECF, which will send notification of
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`such filing to all 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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`October 20, 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/ Stephen J. Kraftschik
`Stephen J. Kraftschik (#5623)
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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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