Case 1:16-cv-00455-RGA Document 354 Filed 12/28/17 Page 1 of 5 PageID #: 24303
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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. 14
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`On December 18, 2017, Defendants sought from the Special Master “clarification of
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`Special Master Order No. 13”. This request seeks to compel Plaintiff, Acceleration Bay, to
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`RD 10439352v.1
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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.
`
`v.
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`TAKE-TWO INTERACTIVE
`SOFTWARE, INC., ROCKSTAR GAMES,
`INC. and 2K SPORTS, INC.,
`
` Defendants.
`
`
`
`SPECIAL MASTER ORDER NO. 14
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`
`On December 18, 2017, Defendants sought from the Special Master “clarification of
`
`Special Master Order No. 13”. This request seeks to compel Plaintiff, Acceleration Bay, to
`
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`RD 10439352v.1
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`Case 1:16-cv-00455-RGA Document 354 Filed 12/28/17 Page 2 of 5 PageID #: 24304
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`produce the pre-filing analysis conducted by its infringement expert, Dr. Medvidovic.
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`Defendants point out that Dr. Medvidovic’s declaration stated that he had been retained by
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`Accleration Bay to conduct a pre-filing expert analysis of its infringement claims. Defendants
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`believe that Dr. Medvidovic’s analysis was shared with Reed Smith. If so, according to
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`Defendants, Dr. Medvidovic’s analysis should be produced in accordance with Special Master
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`Order No. 13.
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`Even if Dr. Medvidovic’s analysis was not shared with Reed Smith, Defendants argue
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`that it should be produced because “Dr. Medvidovic is now a testifying expert in this case”.
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`According to Defendants such a pre-filing analysis is not protected work product under Fed. R.
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`Civ. P. 26(b)(4), as it is not a “draft of a report ultimately submitted in the litigation”, and work
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`product protection under this Rule does not extend to materials prepared by or for a testifying
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`expert.
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`Defendants’ request on December 18, 2017 also argues that a recent decision, subsequent
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`to Special Master Order No. 13, supports Defendants’ argument that Dr. Medvidovic’s analysis
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`RD 10439352v.1
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`Case 1:16-cv-00455-RGA Document 354 Filed 12/28/17 Page 3 of 5 PageID #: 24305
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`should be produced. Defendants cite to Ansell Healthcare Products LLC v. Reckitt Benckiser
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`LLC, C.A. No. 15-cv 915-RGA (Dec. 11/2017).
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`Acceleration Bay’s response to Defendants request of December 18, 2017 argues that Dr.
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`Medvidovic’s analysis is work product and need not be produced under the above cited Rule 26.
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`Plaintiff distinguished the Ansell case from the situation involving Dr. Medvidovic’s analysis in
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`this litigation.
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`Plaintiff submits that Special Master Order No. 13 doesn’t require clarification because it
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`only required producing to Defendants what Plaintiff provided in writing to Hamilton Capital or
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`its counsel at the time of Hamilton Capital’s due diligence. Plaintiff emphatically states that it
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`did not provide any written materials prepared by Dr. Medvidovic to Hamilton Capital or its
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`counsel.
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`Plaintiff explains that Dr. Medvidovic’s pre-filing analysis is work product, in that it was
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`prepared for Plaintiff and its counsel in connection with its decision to file this lawsuit. Thus,
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`according to Plaintiff, Dr. Medvidovic’s pre-filing analysis is covered by the Protective Order in
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`this case which precludes from discovery any conversation or communication between counsel
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`RD 10439352v.1
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`Case 1:16-cv-00455-RGA Document 354 Filed 12/28/17 Page 4 of 5 PageID #: 24306
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`and any testifying expert or consultant, except to the extent that such conversation or
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`communication is relied upon by the expert.
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`As to the Ansell case, upon which Defendants have relied in part in seeking
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`reconsideration or clarification of Special Master Order No. 13, Plaintiff contends that Ansell did
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`not change controlling law and that the facts in that case are distinguishable from the situation
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`involving Dr. Medvidovic. According to Plaintiff, Ansell involved a plaintiff who provided
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`materials to an expert who was both a consultant and an expert, with the result that those
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`materials did not constitute work product. By contrast, Defendants here do not seek production
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`of anything that Plaintiff provided to Dr. Medvidovic. Rather they seek production of Dr.
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`Medvidovic’s pre-filing analysis for Plaintiff and its attorneys which is protected work product.
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`The Ansell case concerns a situation where a “dual hat” expert is initially hired as a
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`consulting expert and then is subsequently retained as a testifying expert in the same case. The
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`Court’s opinion in the Ansell case finds that documents exchanged with the expert that concern
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`the subject matter of the opinions in the expert report should be produced. There has been no
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`evidence of documents provided to Dr. Medvidovic that have not already been produced to
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`RD 10439352v.1
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`Case 1:16-cv-00455-RGA Document 354 Filed 12/28/17 Page 5 of 5 PageID #: 24307
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`Defendants. Dr. Medvidovic’s expert report disclosed the documents he is relying upon. Thus,
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`there is no reason to treat Dr. Medvidovic’s pre-filing analysis as anything other than work
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`product shared between Plaintiff and its counsel.
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`In their reply, Defendants take issue with much that is argued by Plaintiff. However,
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`Defendants have not persuaded me that Dr. Medvidovic’s pre-filing analysis was provided to
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`Hamilton Capital or its counsel. Furthermore, I am not persuaded that Dr. Medvidovic’s pre-
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`filing analysis should be produced under the ruling in the Ansell case. It may be, however, that
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`Dr. Medvidovic’s deposition, currently scheduled for January 12, 2018, will elicit facts contrary
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`to Plaintiff’s representations, as to Dr. Medvidovic. In that hypothetical situation, Defendants
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`can pursue appropriate discovery recourses.
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`IT IS ORDERED that Defendants’ request for reconsideration or clarification of Special
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`Master Order No. 13 is DENIED.
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`Dated: December 27, 2017
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`/s/ Allen M. Terrell, Jr.
`Allen M. Terrell, Jr., Special Master
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`RD 10439352v.1
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