Case 1:16-cv-00453-RGA Document 407 Filed 01/04/18 Page 1 of 3 PageID #: 29615
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`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
`1201 NORTH MARKET STREET
`P.O. BOX 1347
`WILMINGTON, DELAWARE 19899-1347
`
`(302) 658-9200
`(302) 658-3989 FAX
`
`JACK B. BLUMENFELD
`(302) 351-9291
`(302) 425-3012 FAX
`jblumenfeld@mnat.com
`
`
`
`The Honorable Richard G. Andrews
`United States District Court
` for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
`
`January 4, 2018
`
`VIA ELECTRONIC FILING
`
`Re:
`
`Acceleration Bay LLC v. Activision Blizzard Inc.
`C.A. No. 16-453 (RGA)
`
`
`
`
`
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`Dear Judge Andrews:
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`We write on behalf of Defendant Activision concerning Plaintiff Acceleration Bay’s
`service of a “supplemental reply expert report” after the close of business on Tuesday. By
`serving such a report, Acceleration is flouting two of Your Honor’s Orders concerning the case
`schedule and expert discovery. Acceleration Bay has also advised us that it will serve another
`supplemental expert report tomorrow. Activision respectfully requests that the untimely and
`unauthorized expert reports submitted by Acceleration Bay be stricken and that it be directed not
`to submit any additional expert reports. Alternatively, the summary judgment and trial schedule
`should be adjusted to allow Activision to respond to rebuttal reports in a reasonable manner. We
`have discussed this matter with Acceleration Bay’s counsel but have not reached any resolution.
`
`On February 27, 2017, the Court issued its Scheduling Order in this case (D.I. 62).
`Paragraph 10(a) provided for three rounds of expert reports in September, November and
`December of last year, and expressly stated that “No other expert reports will be permitted
`without either the consent of all parties or leave of the Court.” The dates were thereafter
`adjusted slightly (D.I. 334), but the “no other expert reports” provision never changed.
`
`On July 5, 2017, the Court ordered four additional sets of claim construction briefs, to be
`followed by hearings. (D.I. 206). Thereafter, on August 7, 2017, Activision requested that the
`Court modify the schedule so that expert reports (and other events) would follow the claim
`construction process. (D.I. 253) Activision argued that having expert reports after claim
`construction was “particularly appropriate” in these cases, given the number of patents, claims,
`and accused products. On August 14, 2017, Acceleration Bay opposed that request, arguing that
`there was no need to delay expert reports:
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`

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`Case 1:16-cv-00453-RGA Document 407 Filed 01/04/18 Page 2 of 3 PageID #: 29616
`
`The Honorable Richard G. Andrews
`January 4, 2018
`Page 2
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`
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`[T]here is very little difference between the parties’ constructions for the
`remaining terms, such that even if the Court does not issue supplemental claim
`construction orders prior to expert discovery or summary judgment motions, the
`parties can address their positions with the alternative constructions before the
`Court.
`
`On September 8, 2017, the Court denied Activision’s request. (D.I. 294)
`
`The parties then went forward with expert reports from September through December,
`and expert depositions are now proceeding. Acceleration Bay’s reports included lengthy
`opening and reply reports from Dr. Michael Mitzenmacher dated September 25 and December
`14, 2017. Dr. Mitzenmacher’s deposition was then scheduled for tomorrow, January 5, 2018.
`
`On December 20, 2017, the Court issued two claim construction opinions (D.I. 386 and
`387). Notwithstanding the Court’s Orders that “[n]o other expert reports will be permitted
`without either the consent of all parties or leave of the Court” and that expert reports would be
`completed before the Court’s claim constructions, on January 2, 2018, at 9:38 p.m., Acceleration
`Bay served a 34-page supplemental infringement report of Dr. Mitzenmacher to take into
`account the Court’s December 20 claim construction opinions. It did so without seeking leave of
`Court or Activision’s consent.
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`The supplemental Mitzenmacher report includes new opinions and analysis to account for
`the Court’s December 20 claim construction rulings. For example, Dr. Mitzenmacher provides
`new analysis for the “portal computer” and “edge connection request” limitations of the ’069
`patent to address the Court’s claim construction. In addition, he presents an entirely new DOE
`theory for the flooding limitations of the ‘344 patent, where he now opines that broadcast
`messages need only be received by “some but not all participants,” as opposed to “all”
`participants. These issues could have been addressed in the previous expert reports, as the Court
`adopted constructions of these terms largely similar to those proposed by Defendants. Instead,
`Acceleration Bay waited until after the Court’s claim construction rulings to provide new
`opinions and analysis after the date for providing expert reports and only two days before
`Dr. Mitzenmacher’s deposition, without Activision’s consent or seeking leave of Court.
`
`Even though Dr. Mitzenmacher’s deposition was two days away, Acceleration Bay did
`not give Activision any advance notice that it would serve the supplemental report. It did not
`discuss with Activision how that report might affect preparation for his deposition, how and
`when Activision’s experts might respond, what effect additional expert reports would have on
`expert depositions, summary judgment and Daubert motions, and trial. Acceleration Bay simply
`decided to flout the Court’s orders and to reverse field on its earlier position that expert reports
`need not await claim construction. And Acceleration Bay advised us today that it will serve a
`supplement report for another expert, Dr. Medvidovic, tomorrow, again without consent or leave
`of Court. Activision requests that the supplemental Mitzenmacher report be stricken and that
`Acceleration Bay be directed not to submit any additional expert reports without leave of Court
`or Activision’s consent.
`
`

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`Case 1:16-cv-00453-RGA Document 407 Filed 01/04/18 Page 3 of 3 PageID #: 29617
`
`The Honorable Richard G. Andrews
`January 4, 2018
`Page 3
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`If Acceleration Bay’s new expert reports are not stricken, then Activision would like to
`discuss the timing of responsive reports, as well as summary judgment and Daubert motions, and
`trial. Acceleration Bay has advised us that it does not oppose Activision’s submission of
`responsive expert reports, but Activision’s infringement expert’s deposition is scheduled for next
`Monday, January 8, and it is not feasible to respond to Acceleration Bay’s reports without
`extending the schedule. Having created this problem, Acceleration Bay has advised us that it
`will not agree to any extension of the April 30 trial date. It is manifestly unreasonable for
`Acceleration Bay, having opposed an extension to the schedule to allow for expert reports to
`follow Markman, to now, just before its experts’ depositions, serve new expert reports ostensibly
`accounting for the Court’s Markman Orders, and to oppose any adjustments to the schedule.
`
`Respectfully,
`
`/s/ Jack B. Blumenfeld
`
`Jack B. Blumenfeld (#1014)
`
`
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`JBB/dlw
`cc:
`Clerk of Court (Via Hand Delivery)
`
`All Counsel of Record (Via Electronic Mail)
`
`
`