Case 1:16-cv-00453-RGA Document 330 Filed 10/20/17 Page 1 of 6 PageID #: 26741
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`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’S RENEWED MOTION FOR SANCTIONS AND MOTION TO STRIKE
`ACCELERATION BAY’S INFRINGEMENT REPORTS
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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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`In Order No. 3, the Special Master ordered Acceleration Bay to provide as “full, clear and
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`complete responses as possible” to Activision’s interrogatories and to identify infringing
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`elements “individually and with specificity.” D.I. 155 (SM Order No. 3) at 6–7 (emphasis
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`added). In adopting Order No. 3, Judge Andrews made clear that the Master is “authorize[d]” to
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`rule on requested sanctions and that the Master’s ruling on any sanctions issue “would be of
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`significant assistance” to the Court. D.I. 193 at 2–3. After Acceleration Bay failed to provide
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`those “full, clear and complete responses,” Activision moved for sanctions, which the Special
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`Master denied without prejudice, noting: [I]t is realistic to await Plaintiff’s expert reports in
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`September before considering possible sanctions. If those expert reports are consistent with
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`Plaintiff’s interrogatory responses as to its infringement claims, there would appear to be no
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`basis to impose sanctions. By contrast, if Plaintiff’s expert reports set forth infringement
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`contentions that had not been previously disclosed, it may be appropriate to reconsider
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`Plaintiff,
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`
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`
`
`
`
`v.
`
`
`
`
`
`C.A. No. 16-453 (RGA)
`
`)
`)
`)
`)
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`)
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`ACCELERATION BAY LLC,
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`ACTIVISION BLIZZARD, INC.,
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`
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`Defendant.
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`ACTIVISION’S RENEWED MOTION FOR SANCTIONS AND MOTION TO STRIKE
`ACCELERATION BAY’S INFRINGEMENT REPORTS
`
`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.
`
`In Order No. 3, the Special Master ordered Acceleration Bay to provide as “full, clear and
`
`complete responses as possible” to Activision’s interrogatories and to identify infringing
`
`elements “individually and with specificity.” D.I. 155 (SM Order No. 3) at 6–7 (emphasis
`
`added). In adopting Order No. 3, Judge Andrews made clear that the Master is “authorize[d]” to
`
`rule on requested sanctions and that the Master’s ruling on any sanctions issue “would be of
`
`significant assistance” to the Court. D.I. 193 at 2–3. After Acceleration Bay failed to provide
`
`those “full, clear and complete responses,” Activision moved for sanctions, which the Special
`
`Master denied without prejudice, noting: [I]t is realistic to await Plaintiff’s expert reports in
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`September before considering possible sanctions. If those expert reports are consistent with
`
`Plaintiff’s interrogatory responses as to its infringement claims, there would appear to be no
`
`basis to impose sanctions. By contrast, if Plaintiff’s expert reports set forth infringement
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`contentions that had not been previously disclosed, it may be appropriate to reconsider
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`Case 1:16-cv-00453-RGA Document 330 Filed 10/20/17 Page 2 of 6 PageID #: 26742
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`Defendants’ motion for sanctions and appropriate relief.” D.I. 227 (SM Order No. 6) at 7.
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`Because Plaintiff’s reports set forth infringement contentions that have not been previously
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`disclosed, Activision renews its request for sanctions and brings this Motion to Strike.
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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, Defendants state that they have made reasonable effort to
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`reach agreement with Plaintiff on the matters set forth in this motion and the parties could not
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`reach agreement.
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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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`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
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`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
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`
`/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 330 Filed 10/20/17 Page 3 of 6 PageID #: 26743
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`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
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`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 330 Filed 10/20/17 Page 4 of 6 PageID #: 26744
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`
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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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`Plaintiff,
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`v.
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`Defendant.
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`[PROPOSED] ORDER
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`WHEREAS, the Special Master, having consider Activision Blizzard, Inc.’s Renewed
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`Motion for Sanctions and Motion to Strike Acceleration Bay’s Infringement Reports;
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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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`1) Acceleration Bay shall be precluded from relying on information or arguments not
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`disclosed in its discovery responses, specifically Plaintiff’s June 19, 2017 Responses
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`to Activision Common Interrogatories 7 and 9;
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`2) Acceleration Bay shall be precluded from relying on source code not disclosed in its
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`discovery responses, including the code identified in Activision’s Exhibits 3 and 4;
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`3) Acceleration Bay shall be precluded from making infringement arguments not
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`disclosed in its infringement contentions, including those described in Activision’s
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`brief and Exhibits CoD-1A, CoD-2A, CoD-4A, CoD-5A, CoD-6A, CoD-7A, WoW-
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`1A, WoW-2A, WoW-3A, WoW-4A, WoW-5A, WoW-6A, WoW-7A, Destiny-1A,
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`Destiny-2A, Destiny-3A, Destiny-4A, Destiny-5A, and Destiny-6A.
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`4) Acceleration Bay shall be precluded from relying on unexplained source code block
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`citations in the infringement reports of Dr. Medvidovic and Dr. Mitzenmacher as
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`Case 1:16-cv-00453-RGA Document 330 Filed 10/20/17 Page 5 of 6 PageID #: 26745
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`identified in Activision’s Exhibits 1 and 2, and those citations shall be stricken from
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`the reports;
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`5) Acceleration Bay shall be precluded from relying on source code citations without
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`pincites in the infringement reports of Dr. Medvidovic and Dr. Mitzenmacher as
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`identified in Activision’s Exhibits 5, and 6, and those citations shall be stricken from
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`the reports;
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`6) Acceleration Bay shall be precluded from relying on portions of the report that
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`purport to incorporate more than one other portion of the report through cross-
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`referencing (including embedded cross-references) and those cross-references shall be
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`stricken from the reports. Cross-references to a single portion of the report are not
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`objected to or stricken. Thus, for example, Paragraph 624 of the Medvidovic report is
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`stricken, because it incorporates multiple other portions of the report.1 In contrast,
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`Paragraph 489 is not stricken, in that it incorporates only one other portion of the
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`report, and that portion of the report does not contain any further “incorporation by
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`reference” citations.
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`__________________________________
`Special Master Allen M. Terrell, Jr.
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`1 That paragraph states: “624. I incorporate the discussion of Elements 069:1(e), 344:12(a),
`344:12(b), 147:1(a), 147:1(b), and Claim 19 of the ‘634 Patent which describe how CoD
`connects participants to the seeking participant.”
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`2
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`Case 1:16-cv-00453-RGA Document 330 Filed 10/20/17 Page 6 of 6 PageID #: 26746
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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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`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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