Case 1:16-cv-00453-RGA Document 416 Filed 01/12/18 Page 1 of 4 PageID #: 29691
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 15-228 (RGA)
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`)))))))))
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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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`LETTER TO THE HONORABLE RICHARD G. ANDREWS
`FROM PHILIP A. ROVNER, ESQ.
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`PUBLIC VERSION
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`December 12, 2017
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`Case 1:16-cv-00453-RGA Document 416 Filed 01/12/18 Page 2 of 4 PageID #: 29692
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`1313 North Market Street
`P.O. Box 951
`Wilmington, DE 19899-0951
`302 984 6000
`www.potteranderson.com
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`Philip A. Rovner
`Partner
`provner@potteranderson.com
`(302) 984-6140 Direct Phone
`(302) 658-1192 Fax
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`January 5, 2018
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`BY CM/ECF & HAND DELIVERY
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`The Honorable Richard G. Andrews
`U.S. District Court for the District of Delaware
`U.S. Courthouse
`844 North King Street
`Wilmington, DE 19801
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`Re:
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`Acceleration Bay LLC v. Activision Blizzard, Inc.
`D. Del., C.A. No. 16-453-RGA
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`Dear Judge Andrews:
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`Acceleration Bay writes in response to Defendant Activision’s letter, dated January 4,
`2017. Activision’s request to strike Acceleration Bay’s supplemental expert reports or delay the
`trial should be denied. “[E]vidence should be excluded sparingly and only in circumstances
`involving litigation conduct that is clearly unprofessional or inappropriate, and in circumstances
`creating prejudice to the party against whom the evidence is offered.” EON Corp. IP Holdings
`LLC v. FLO TV Incorporated, 2013 WL 6504689, at *5 (D. Del. Dec. 12, 2013) (quoting
`Bridgestone Sports Co, Ltd. v. Acushnet Co., 2007 WL 521894 (D. Del. Feb. 15, 2007).
`Moreover, “the exclusion of ‘critical evidence’ such as conclusions on infringement or invalidity,
`should be considered ‘an extreme sanction not normally to be imposed absent a showing of
`willful deception or flagrant disregard of a court order by the proponent of the evidence.’” Id.
`(quoting In re. Paoli R.R. Yard PCB Litig., 35 F.3d 717, 791–92 (3d Cir.1994)).
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`Here, Acceleration Bay’s infringement experts promptly provided brief supplemental
`reports that address the impact of the Court’s recent Supplemental Claim Construction Orders,
`which construed fifteen groups of terms. D.I. 386, 387.1 This supplementation is warranted
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`1 Citations to “D.I.__” refer to C.A. No. 16-453-RGA.
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`PUBLIC VERSION
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`Case 1:16-cv-00453-RGA Document 416 Filed 01/12/18 Page 3 of 4 PageID #: 29693
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`The Honorable Richard G. Andrews
`January 5, 2018
`Page 3
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`because, for various terms, the Court formulated its own constructions that were not originally
`proposed by either party and, therefore, were not included in the original infringement reports.
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`In its letter, Activision completely ignores the Pennypack factors, likely because it knows
`it cannot meet them.2 There is no prejudice to Activision from the service of these supplemental
`reports. Acceleration Bay’s experts worked over the holidays to provide these supplements in
`advance of their depositions. Indeed, in its letter to the Court, Activision reveals that it has
`already thoroughly analyzed Dr. Mitzenmacher’s report and provides no reason why it would be
`unprepared to depose him today. The supplemental reports are brief. Dr. Mitzenmacher’s report
`is 34 pages, and Dr. Medvidović’s report, which will be served today (one week in advance of
`his deposition), will be about 50 pages. The bulk of the supplemental reports consists of
`repeating the text of the various claim elements and the Court’s new constructions, and there are
`only a handful of pages of substantive content in each report. See Ex. 1 (Mitzenmacher
`Supplemental Report). Moreover, for the majority of the terms, the experts simply confirm that
`the Court’s Supplemental Claim Construction Orders do not change their opinions because the
`constructions were generally consistent with the parties’ proposed constructions that were
`addressed in the previous reports. Id.
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`Nor can Activision claim any surprise regarding the supplemental reports. Acceleration
`Bay’s experts disclosed to Activision long ago that they would provide such supplementation.
`Specifically, Drs. Mitzenmacher and Medvidović stated in their opening reports that “if the
`Court adopts a different construction for a term from that proposed by the parties, I reserve the
`right to revisit my opinion and supplement this report to address those modifications.” Not
`surprisingly, Activision’s experts similarly announced their intention to do the same. For
`example, Activision’s non-infringement expert, Dr. Kelly, stated in his report that “I reserve the
`right to modify or supplement my opinions if the Court adopts a new construction, modifies any
`of the present constructions, or further construes the meanings of terms that occur in the asserted
`claims.” Activision’s other experts offered similar statements. Defendants previously argued to
`the Court that the subsequent rounds of claim construction orders (necessitated by Defendants’
`insistence on construing over fifty terms) would likely require supplemental reports. D.I. 253 at
`p. 2. As such, Activision’s new contention that the experts should not be permitted to submit
`short supplemental reports rings hollow. Indeed, to cure any prejudice Activision might suffer,
`Acceleration Bay already informed Activision that it consents to their experts providing
`responsive supplemental reports, even if they are served after those experts’ upcoming
`depositions.
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`Activision completely fails to show any incurable prejudice or bad faith on behalf of
`Acceleration Bay. The Court, therefore, should not strike the supplemental expert reports, which
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`2 The Pennypack factors are “(1) prejudice to or surprise in fact of Defendant; (2) the ability of
`[Defendant] to cure the prejudice; (3) the extent to which allowing such witnesses or evidence
`would disrupt the orderly and efficient trial of the case or of other cases in the court; (4) any bad
`faith or willfulness in failing to comply with the court's order; and (5) the importance of the
`excluded evidence.” Insight Equity v. Transitions Optical, Inc., 2016 WL 7031281, at *1 (D.
`Del. Nov. 30, 2016) (internal quotations omitted).
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`Case 1:16-cv-00453-RGA Document 416 Filed 01/12/18 Page 4 of 4 PageID #: 29694
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`The Honorable Richard G. Andrews
`January 5, 2018
`Page 4
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`go to the key issue of infringement. Nor should the Court modify the trial date or case schedule.
`Trial is nearly four months away and Acceleration Bay is serving these brief reports several days
`in advance of the experts’ depositions. In Insight Equity, this Court declined to strike Plaintiff’s
`new alternative damages theory when trial was seven months away. Insight Equity, 2016 WL
`7031281, at *1 (“This is not a case where Plaintiff seeks a second bite at the apple on the eve of
`trial. Instead trial is not scheduled for seven months. That is ample time to allow Plaintiff to
`prepare an alternative damages theory and for Defendant to test it.”) (internal citation omitted).
`Here, Acceleration Bay is not presenting new infringement theories. Instead, its experts are
`merely conforming their opinions to the Court’s claim construction order.
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`Respectfully,
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`/s/ Philip A. Rovner
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`Philip A. Rovner (#3215)
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`cc:
`5598363
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`All Counsel of Record (Via ECF Filing, Electronic Mail)
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