Case 1:16-cv-00455-RGA Document 47 Filed 02/15/17 Page 1 of 13 PageID #: 2269
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453 (RGA)
`
`C.A. No. 16-454 (RGA)
`
`C.A. No. 16-455 (RGA)
`
`))))))))))
`
`)))))))))
`
`))))))))))))
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.
`
`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTS INC.,
`
`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`TAKE-TWO INTERACTIVE
`SOFTWARE, INC., ROCKSTAR
`GAMES, INC. and 2K SPORTS, INC.,
`
`Defendant.
`
`AMENDED RULE 16 SCHEDULING ORDER
`
`This 17th Day of February, the Court having conducted an initial Rule 16(b) scheduling
`
`conference pursuant to Local Rule 16.1(b), and the parties having determined after discussion that
`
`the matter cannot be resolved at this juncture by settlement, voluntary mediation, or binding
`
`arbitration;
`
`IT IS ORDERED that:
`
`

`

`Case 1:16-cv-00455-RGA Document 47 Filed 02/15/17 Page 2 of 13 PageID #: 2270
`
`1.
`
`a.
`
`Initial Disclosures & Discovery.
`
`Rule 26(a)(1) Initial Disclosures. The initial disclosures pursuant to Federal Rule
`
`of Civil Procedure 26(a)(1) served in the 2015 Cases1 shall be deemed served in these cases. The
`
`obligation to supplement those disclosures is unchanged.
`
`b.
`
`Disclosures made in the 2015 Cases according to Rules 3 and 4 of the Delaware
`
`Default Standard shall be deemed made in these cases.
`
`Defendants’ Position: Plaintiff shall not be entitled to seek damages for alleged
`
`infringement prior to the dates the Complaints were served in the 2015 Cases, namely: For
`
`Activision: March 12, 2015; For Electronic Arts: March 31, 2015, and for Take-Two, et al.: April
`
`14, 2015. (Acceleration Bay, LLC v. Activision|Blizzard, Inc., Electronic Arts Inc., and Take-Two
`
`Interactive Software, Inc., et al., C.A. Nos. 15-228, 15-282, and 15-311, 1/10/17 Transcript 21:22-
`
`23:19). Absent a showing of good cause, follow-up discovery shall be limited to the period after
`
`these dates, except that discovery related to asserted prior art or the conception and reduction to
`
`practice of the inventions claimed in any patent-in-suit shall not be so limited. Additional products
`
`may not be added to these cases without leave of Court.
`
`2.
`
`Joinder of Other Parties and Amendment of Pleadings.
`
`All motions to join other parties, and to amend or supplement the pleadings, shall be filed
`
`on or before [Plaintiff: April 7, 2017; Defendants: May 1, 2017].
`
`3.
`
`Discovery.
`
`The Parties request that the Court appoint Allan Terrell as Special Master in these Actions
`
`and deem the Orders appointing Special Master Terrell in the 2015 Cases filed in these actions.
`
`All Orders issued by the Special Master are deemed issued in these Actions.
`
`1 The “2015 Cases” are Acceleration Bay, LLC v. Activision|Blizzard, Inc., Electronic Arts Inc.,
`and Take-Two Interactive Software, Inc., et al., C.A. Nos. 15-228, 15-282, and 15-311.
`2
`
`

`

`Case 1:16-cv-00455-RGA Document 47 Filed 02/15/17 Page 3 of 13 PageID #: 2271
`
`Plaintiff’s Position: Upon reappointment of the Special Master, Plaintiff will reinstate its
`
`May 27, 2016 motion to compel damages discovery, which is unrelated to the issue of the
`
`timeframe for which Plaintiff seeks damages.
`
`Defendants’ proposal for supplementation of Plaintiff’s interrogatory responses goes well
`
`beyond the scope of the Special Master’s Order No. 2 and the parties’ subsequent agreements
`
`related thereto in the 2015 Cases.
`
`Defendants’ Position: In accordance with Special Master Order No. 2 dated April 19,
`
`2016 entered in the 2015 Cases, Plaintiff shall supplement its responses to Defendants Common
`
`Interrogatories Nos. 5 and 9 on the schedule set forth below. Each individual accused method,
`
`network or broadcast channel shall be identified and charted separately.
`
`• With respect to Activision’s Call of Duty and World of Warcraft Accused Games:
`
`February 21, 2017.
`
`• With respect to each of the Accused Games of Take Two and Electronic Arts: within 2
`
`weeks of the taking of the contemplated Rule 30(b)(6) deposition on that Accused
`
`Game.
`
`Regarding damages discovery and Plaintiff’s May 27, 2016 Motion to compel damages
`
`discovery: Plaintiff shall limit its discovery in accordance with its representation that it is not
`
`seeking damages from before the filing of the complaints in the 2015 cases and shall meet and
`
`confer with Defendants before bringing additional motions seeking discovery related to damages.
`
`a.
`
`Discovery Cut Off.
`
`• All fact discovery in these cases shall be initiated so that it will be completed on or
`
`before [Plaintiff: June 30, 2017; Defendants: July 31, 2017].
`
`• All expert discovery in this case shall be initiated so that it will be completed on or
`
`before [Plaintiff: October 20, 2017; Defendants: February 16, 2018].
`
`3
`
`

`

`Case 1:16-cv-00455-RGA Document 47 Filed 02/15/17 Page 4 of 13 PageID #: 2272
`
`b.
`
`Document Production.
`
`• All document requests served in the 2015 Cases and all responses and documents
`
`including source code produced thereto shall be deemed served in the corresponding
`
`current actions designated under the Protective Order in these Cases in the same manner
`
`they were previously designated in the 2015 Cases.
`
`• All pleadings, hearing transcripts and deposition transcripts from the 2015 Cases shall
`
`be deemed produced in the corresponding current action designated under the
`
`Protective Order in these Cases in the same manner they were previously designated in
`
`the 2015 Cases.
`
`• All pleadings, hearing transcripts and deposition transcripts from the IPR Proceedings
`
`regarding the Patents in Suit filed to date shall be deemed produced in these cases
`
`designated under the Protective Order in these Cases in the same manner they were
`
`previously designated in the IPR Proceedings.
`
`• Third Party Discovery: All documents produced by the following Third Parties in the
`
`2015 Cases shall be deemed produced in these cases: Virgil Bourassa, Fred Holt and
`
`The Boeing Company.
`
`• Document production shall be substantially complete by: [Plaintiff: March 1, 2017;
`
`Defendants: June 1, 2017].
`
`• Plaintiff’s Position: The parties exchanged lists of email custodians and proposed
`
`search terms in the 2015 Cases, which shall be deemed served in the corresponding
`
`current actions. The parties shall meet and confer regarding proposed search terms,
`
`and present any disputes regarding search terms to the Special Master by [Plaintiff:
`
`March 1, 2017]. The parties shall produce documents responsive to agreed-upon
`
`search terms by [Plaintiff: March 22, 2017].
`
`4
`
`

`

`Case 1:16-cv-00455-RGA Document 47 Filed 02/15/17 Page 5 of 13 PageID #: 2273
`
`• Defendants’ Position: The Parties shall meet and confer on or before March 1, 2017
`
`and shall promptly submit any disputes to the Special Master, including regarding the
`
`timing, volume and cost sharing (if any) regarding the production of ESI. Setting a
`
`deadline for completion of ESI production until the volume of ESI to be produced is
`
`known is impractical.
`
`c.
`
`Requests for Admission.
`
`A maximum of 35 requests for admission are permitted for each side in each of the three
`
`cases. Any requests and responses to those requests served in the 2015 Actions shall be deemed
`
`served in these Actions and shall count against the total. Requests for admission regarding the
`
`authenticity of a document do not count against this total.
`
`d.
`
`Interrogatories.
`
`Plaintiff may serve 15 common2 interrogatories and 10 additional interrogatories to each
`
`Defendant Group. Defendants may serve 15 common interrogatories and 10 additional
`
`interrogatories per Defendant Group. Any interrogatory requests and responses to those requests
`
`served in the 2015 Actions shall be deemed served in these Actions and shall count against the
`
`total.
`
`e.
`
`Depositions.
`
`i.
`
`Limitation on Hours for Deposition Discovery.
`
`The total number of depositions and time limits will be subject to the Federal Rules of Civil
`
`Procedure, and 30(b)(6) depositions will be considered independent of personal depositions for
`
`purposes of the time limits. Defendants may depose each named inventor for a maximum of 14
`
`hours per inventor, not to exceed 7 hours of deposition time per day. The 14 hours of deposition
`
`2 For the purposes of this order "common" discovery requests mean that the Plaintiff propounds
`the same request to all Defendant Groups, who answer the request individually, and that
`Defendants propound one request to the Plaintiff who answers the request to all Defendants.
`5
`
`

`

`Case 1:16-cv-00455-RGA Document 47 Filed 02/15/17 Page 6 of 13 PageID #: 2274
`
`for each inventor shall not exceed two days [Plaintiff’s Position: and those two days of deposition
`
`will be scheduled within a reasonable amount of time to each other to alleviate any undue burden
`
`on the inventors.]
`
`Plaintiff’s Position: If a Defendant joins in a deposition, the deposition counts against the
`
`Defendant’s 10-deposition limit, set forth in Federal Rule of Civil Procedure 30.
`
`Defendants’ Position: Joining in a deposition does not count against the 10 deposition
`
`limit set forth in Federal Rule of Civil Procedure 30.
`
`The foregoing limitations do not apply to depositions of experts, which are addressed
`
`below in Section 10a.
`
`Plaintiff’s Position: Upon service of a notice of deposition, within two weeks the
`
`receiving party must provide dates that the witness(es) are available for deposition. The parties
`
`may request additional hours from the Court for good cause.
`
`ii.
`
`Location of Depositions. Unless otherwise agreed to by the parties,
`
`depositions shall take place within fifty (50) miles of the place of employment of the deponent.
`
`F.
`
`Discovery Matters and Disputes Relating to Protective Orders.
`
`If a discovery-related motion is filed without leave of the Court, it will be denied without
`
`prejudice to the moving party's right to bring the dispute to the Court through the discovery matters
`
`procedures set forth in this Order.
`
`G.
`
`Application to Court for Protective Order.
`
`The Parties have agreed on all but one term of a proposed Protective Order, if the
`
`prosecution bar should exclude previously filed inter partes review proceedings in which the
`
`deadline has already passed to amend claim, and have requested entry of an agreed upon order.
`
`Plaintiff’s Position: Plaintiff proposes that the parties address this limited issue to the
`
`Court during the Case Management Conference.
`
`6
`
`

`

`Case 1:16-cv-00455-RGA Document 47 Filed 02/15/17 Page 7 of 13 PageID #: 2275
`
`Defendants’ Position: Defendants propose to submit this dispute regarding the Protective
`
`Order to the Special Master for resolution on or before February 27.
`
`The Parties have agreed that all materials,
`
`including documents, source code,
`
`correspondence, discovery responses and pleadings from the 2015 Cases that are deemed produced
`
`or served in these Cases shall be deemed designated under the Protective Order in these Cases in
`
`the same manner they were previously designated in the 2015 Cases.
`
`4.
`
`Papers Filed Under Seal. When filing papers under seal, counsel shall deliver to the
`
`Clerk an original and one copy of the papers. A redacted version of any sealed document shall be
`
`filed electronically within seven days of the filing of the sealed document.
`
`5.
`
`Courtesy Copies. The parties shall provide to the Court two courtesy copies of all
`
`briefs and one courtesy copy of any other document filed in support of any briefs (i.e., appendices,
`
`exhibits, declarations, affidavits etc.). This provision also applies to papers filed under seal.
`
`6.
`
`a.
`
`Claim Construction Issue Identification.
`
`On or before [Plaintiff: the parties have already exchanged this list; Defendants:
`
`April 5, 2017] the parties shall exchange a list of those claim term(s)/phrase(s) that they believe
`
`need construction.
`
`b.
`
`On or before [Plaintiff: March 1, 2017; Defendants: April 12, 2017], the parties
`
`shall exchange their proposed claim constructions of each term/phrases disclosed by any party.
`
`c.
`
`d.
`
`These documents will not be filed with the Court.
`
`Subsequent to exchanging those lists, the parties will meet and confer on or before
`
`[Plaintiff: March 8, 2017; Defendants: April 19, 2017], to prepare a Joint Claim Construction
`
`Chart to be filed no later than [Plaintiff: March 15, 2017; Defendants: April 26, 2017].
`
`e.
`
`The Joint Claim Construction Chart, in Word or WordPerfect format, shall be e-
`
`mailed simultaneously with filing to rga_civil@ded.uscourts.gov. The parties' Joint Claim
`
`7
`
`

`

`Case 1:16-cv-00455-RGA Document 47 Filed 02/15/17 Page 8 of 13 PageID #: 2276
`
`Construction Chart should identify for the Court the term(s)/phrase(s) of the claim(s) in issue, and
`
`should include each party's proposed construction of the disputed claim language with citation(s)
`
`only to the intrinsic evidence in support of their respective proposed constructions. A copy of the
`
`patent(s) in issue as well as those portions of the intrinsic record relied upon shall be submitted
`
`with this Joint Claim Construction Chart. In this joint submission, the parties shall not provide
`
`argument.
`
`7.
`
`a.
`
`Claim Construction Briefing.
`
`Plaintiff shall serve, but not file, its opening brief, not to exceed 20 pages, on
`
`[Plaintiff: April 7, 2017; Defendants: May 12, 2017].
`
`b.
`
`Defendants shall serve, but not file, their answering brief, not to exceed 30 pages,
`
`on [Plaintiff: April 28, 2017; Defendants: June 2, 2017].
`
`c.
`
`Plaintiff shall serve, but not file its reply brief, not to exceed 20 pages, on [Plaintiff:
`
`May 12, 2017; Defendants: June 16, 2017].
`
`d.
`
`Defendants shall serve, but not file, their sur-reply brief, not to exceed 10 pages,
`
`on [Plaintiff: May 26, 2017; Defendants: June 30, 2017].
`
`Defendants’ Position: If a Party includes a declaration from an expert in support of its
`
`claim construction briefing, that Party shall along with service of the brief advise of the dates,
`
`times, and locations of their experts' availability for depositions.
`
`e.
`
`No later than [Plaintiff: May 30, 2017; Defendants: July 7, 2017], the parties shall
`
`file a Joint Claim Construction Brief. The parties shall copy and paste their unfiled briefs into one
`
`brief, with their positions on each claim term in sequential order, in substantially the form below.
`
`JOINT CLAIM CONSTRUCTION BRIEF
`
`I.
`
`II.
`
`Agreed-upon Constructions
`
`Disputed Constructions
`
`8
`
`

`

`Case 1:16-cv-00455-RGA Document 47 Filed 02/15/17 Page 9 of 13 PageID #: 2277
`
`A.
`
`[TERM 1]
`
`1.
`2.
`3.
`4.
`
`Plaintiff's Opening Position
`Defendants' Answering Position
`Plaintiff’s Reply Position
`Defendants' Sur-Reply Position
`
`B.
`
`[TERM 2]
`
`1.
`2.
`3.
`4.
`
`Plaintiff's Opening Position
`Defendants' Answering Position
`Plaintiff's Reply Position
`Defendants' Sur-Reply Position
`
`Etc. The parties need not include any general summaries of the law relating to claim construction.
`
`If there are any materials that would be submitted in an appendix, the parties shall submit them in
`
`a Joint Appendix.
`
`8.
`
`Hearing on Claim Construction. Beginning at 9:00 a.m. on [Plaintiff: June 22,
`
`2017; Defendants: July ___, 2017], the Court will hear argument on claim construction. Absent
`
`prior approval of the Court (which, if it is sought, must be done so by joint letter submission no
`
`later than the date on which answering claim construction briefs are due), the parties shall not
`
`present testimony at the argument, and the argument shall not exceed a total of three hours.
`
`9.
`
`a.
`
`Election of Asserted Claims and Asserted Prior Art.
`
`Plaintiff’s Initial Claim Charts and Preliminary Election of Asserted Claims served
`
`in the 2015 Actions are deemed served in these Actions.
`
`b.
`
`Defendants' invalidity contentions and Preliminary Election of Prior Art served in
`
`the 2015 Actions are deemed served in these Actions.
`
`c.
`
`No later than [Plaintiff: July 14, 2017; Defendants: October 2, 2017], Plaintiff
`
`shall serve a Final Election of Asserted Claims, of no more than five asserted claims per patent
`
`from among the ten previously identified claims and no more than a total of 16 claims.
`
`9
`
`

`

`Case 1:16-cv-00455-RGA Document 47 Filed 02/15/17 Page 10 of 13 PageID #: 2278
`
`d.
`
`On [Plaintiff: July 28, 2017; Defendants: October 16, 2017], the Defendants shall
`
`serve a Final Election of Asserted Prior Art, which shall identify no more than six asserted prior
`
`art references per patent from among the twelve prior art references previously identified for that
`
`particular patent and no more than a total of 20 references.
`
`10.
`
`Disclosure of Expert Testimony.
`
`a.
`
`Expert Reports. For the party who has the initial burden of proof on the
`
`subject matter, the initial Federal Rule 26(a)(2) disclosure of expert testimony is due on or before
`
`[Plaintiff: August 1, 2017; Defendants: November 1, 2017]. The supplemental disclosure to
`
`contradict or rebut evidence on the same matter identified by another party is due on or before
`
`[Plaintiff: August 31, 2017; Defendants: December 15, 2017]. Reply expert reports from the
`
`party with the initial burden of proof are due on or before [Plaintiff: September 22, 2017;
`
`Defendants: January 15, 2018]. No other expert reports will be permitted without either the
`
`consent of all parties or leave of the Court. Along with the submissions of the expert reports, the
`
`parties shall advise of the dates, times, and locations of their experts' availability for depositions.
`
`Depositions of experts shall be completed on or before [Plaintiff: October 20, 2017; Defendants:
`
`March 2, 2018].
`
`Plaintiff’s Position: Expert depositions will be limited to a maximum of 7 hours per expert
`
`report. For example, if an expert submits two expert reports on infringement and an expert report
`
`on validity, that expert will be subject to a total of 21 hours of deposition (7 hours for each of the
`
`expert reports on infringement and 7 hours for the expert report on validity).
`
`Defendants’ Position:
`
`i. The parties shall meet and confer at 60 days before opening expert reports are due
`
`regarding reasonable page limits for all expert reports. Any dispute on this matter
`
`shall be resolved by the Special Master.
`
`10
`
`

`

`Case 1:16-cv-00455-RGA Document 47 Filed 02/15/17 Page 11 of 13 PageID #: 2279
`
`ii. Expert reports shall have clear and concise summary of all opinions to be provided
`
`at trial and the basis and reasons for them at the beginning of the report. An expert
`
`shall not testify on matters not disclosed in the expert’s report, shall not offer
`
`opinions not clearly stated in the expert report, and shall not use or refer to evidence
`
`not disclosed in the expert’s report, unless the party receives leave in advance from
`
`the Court.
`
`iii. The length of a deposition shall be commensurate with the length of the report, with
`
`a minimum of 7 hours per 100 pages of report, including substantive attachments
`
`such as a claim charts.
`
`b.
`
`Objections to Expert Testimony. To the extent any objection to expert
`
`testimony is made pursuant to the principles announced in Daubert v. Merrell Dow Pharm., Inc.,
`
`509 U.S. 579 (1993), as incorporated in Federal Rule of Evidence 702, it shall be made by motion
`
`no later than the deadline for dispositive motions set forth herein, unless otherwise ordered by the
`
`Court.
`
`11.
`
`Case Dispositive Motions. All case dispositive motions, an opening brief,
`
`and affidavits, if any, in support of the motion shall be served and filed on or before [Plaintiff:
`
`November 1, 2017; Defendants: March 2, 2018]. Any opposition brief is due on or before 21 days
`
`after the filing of the opening brief. Any reply brief is due on or before 14 days after the filing of
`
`the opposition brief. No case dispositive motion under Rule 56 may be filed more than ten days
`
`before the above date without leave of the Court.
`
`12.
`
`Applications by Motion. Except as otherwise specified herein, any application to
`
`the Court shall be by written motion. Any non-dispositive motion should contain the statement
`
`required by Local Rule 7.1.1.
`
`11
`
`

`

`Case 1:16-cv-00455-RGA Document 47 Filed 02/15/17 Page 12 of 13 PageID #: 2280
`
`13.
`
`Pretrial Conference.
`
`On the dates set forth below, the Court will hold a Rule 16(e) final pretrial conference in
`
`Court with counsel beginning at 9:00 a.m. The parties shall file a joint proposed final pretrial order
`
`in compliance with Local Rule 16.3(c) no later than 5:00 p.m. on the third business day before the
`
`date of the final pretrial conference. Unless otherwise ordered by the Court, the parties shall
`
`comply with the timeframes set forth in Local Rule 16.3(d) the preparation of the proposed joint
`
`final pretrial order.
`
`• Activision Blizzard: [Plaintiff: February 6, 2018; Defendants: June 8, 2018].
`
`• Electronic Arts: [Plaintiff: March 26, 2018; Defendants: July 13, 2018].
`
`• Take-Two: [Plaintiff: June 14, 2018; Defendants: September 14, 2018].
`
`14. Motions in Limine. Motions in limine shall not be separately filed. All in limine
`
`requests and responses thereto shall be set forth in the proposed pretrial order. Each party shall be
`
`limited to three in limine requests, unless otherwise permitted by the Court. The in limine request
`
`and any response shall contain the authorities relied upon; each in limine request may be supported
`
`by a maximum of three pages of argument and may be opposed by a maximum of three pages of
`
`argument, and the party making the in limine request may add a maximum of one additional page
`
`in reply in support of its request. If more than one party is supporting or opposing an in limine
`
`request, such support or opposition shall be combined in a single three page submission (and, if
`
`the moving party, a single one page reply). No separate briefing shall be submitted on in limine
`
`requests, unless otherwise permitted by the Court.
`
`15.
`
`Jury Instructions, Voir Dire, and Special Verdict Forms. Pursuant to Local Rules
`
`47.1(a)(2) and 51.1, the parties shall file (i) proposed voir dire, (ii) preliminary jury instructions,
`
`(iii) final jury instructions, and (iv) special verdict forms no later than 5 p.m. on the third business
`
`day before the date of the final pretrial conference. The parties shall submit simultaneously with
`
`12
`
`

`

`Case 1:16-cv-00455-RGA Document 47 Filed 02/15/17 Page 13 of 13 PageID #: 2281
`
`filing each of
`
`the foregoing four documents
`
`in Word or WordPerfect
`
`format
`
`to
`
`rga_civil@ded.uscourts.gov.
`
`16.
`
`Trial.
`
`This matter is scheduled for an 8-day jury trial beginning at 9:30 a.m. on the dates specified
`
`below with the subsequent trial days beginning at 9:30 a.m. Until the case is submitted -to the jury
`
`for deliberations, the jury will be excused each day at 4:30 p.m. The trial will be timed, as counsel
`
`will be allocated a total number of hours in which to present their respective cases.
`
`• Activision Blizzard: [Plaintiff: February 19, 2018; Defendants: June 18, 2018].
`
`• Electronic Arts: [Plaintiff: April 19, 2018; Defendants: July 23, 2018].
`
`• Take-Two: [Plaintiff: June 18, 2018; Defendants: September 24, 2018].
`
`17.
`
`ADR Process. This matter is referred to a magistrate judge to explore the possibility
`
`of alternative dispute resolution.
`
`18.
`
`Email Service. The parties have consented to service by email, in accordance with
`
`Rule 5(b)(2)(E) of the Federal Rules of Civil Procedure. The parties agree that service on any party
`
`by email shall be made on both local and national counsel of that party.
`
`19.
`
`Privilege. The parties are not required to prepare privilege logs or otherwise
`
`schedule documents withheld from production to the extent they (1) relate to activities undertaken
`
`in compliance with the duty to preserve information under Fed. R. Civ. P. 26(b)(3)(A) and (B), or
`
`(2) are withheld from production on the basis of privilege and/or other exemption or immunity
`
`from production and are generated after the filing of the complaints in the 2015 Cases. All other
`
`withheld documents must be logged in full compliance with Fed. R. Civ. P. 26(b)(5)(A).
`
`DATED: ______________
`
`__________________________________________
`HONORABLE RICHARD G. ANDREWS
`UNITED STATES DISTRICT JUDGE
`13
`
`