Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 1 of 23 PageID #: 45520
`Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 1 of 23 PagelD #: 45520
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`JURY TRIAL DEMANDED
`
` NeeNeeNeeNeeeeeeee”eeee”ee” C.A. No. 16-453 (RGA)
`
`ACTIVISION BLIZZARD,INC.,
`
`PUBLIC VERSION
`
`Defendant.
`
`JOINT PROPOSED PRETRIAL ORDER
`
`[VOLUME1 OF2]
`
`Exhibits A — G2
`
`POTTER ANDERSON & CORROON LLP
`Philip A. Rovner (#3215)
`Jonathan A. Choa (#5319)
`Hercules Plaza
`P.O. Box 951
`Wilmington, DE 19899
`(302) 984-6000
`provner@potteranderson.com
`jchoa@potteranderson.com
`
`OF COUNSEL:
`Paul J. Andre
`Lisa Kobialka
`James R. Hannah
`KRAMERLEVIN NAFTALIS
`& FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`(650) 752-1700
`pandre@kramerlevin.com
`Ikobialka@kramerlevin.com
`jhannah@kramerlevin.com
`
`MORRIS, NICHOLS, ARSHT &
`TUNNELL LLP
`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
`
`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
`
`David P. Enzminger
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
`PUBLIC VERSION
`
`

`

`Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 2 of 23 PageID #: 45521
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`Public version dated: April 24, 2018
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`

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`Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 3 of 23 PageID #: 45522
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`TABLE OF SCHEDULES
`
`Item
`
`Joint Statement of Undisputed Facts
`Acceleration Bay’s Statement of Issues of Fact that Remain to be Litigated
`Activision’s Statement of Issues of Fact that Remain to be Litigated
`Acceleration Bay’s Statement of Issues of Law that Remain to be Litigated
`Activision’s Statement of Issues of Law that Remain to be Litigated
`Acceleration Bay’s Trial Witness List
`Activision’s Trial Witness List
`Acceleration Bay’s Deposition Designations
`Activision’s Deposition Designations
`Acceleration Bay’s Trial Exhibit List
`Activision’s Trial Exhibit List
`Acceleration Bay’s Brief Statement of Intended Proofs
`Activision’s Brief Statement of Intended Proofs
`Acceleration Bay’s Motions in Limine; Activision's Oppositions Thereto
`Activision's Motions in Limine; Acceleration Bay’s Oppositions Thereto
`Joint Trial Exhibit List
`
`Schedule
`A
`B1
`B2
`C1
`C2
`D1
`D2
`E1
`E2
`F1
`F2
`G1
`G2
`H1
`H2
`F3
`
`

`

`Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 4 of 23 PageID #: 45523
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`On April 20, 2018 at 9:00 a.m., counsel for Plaintiff Acceleration Bay LLC (“Acceleration
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`Bay”) and Defendant Activision Blizzard, Inc. (“Activision”) will participate in a pretrial conference
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`before this Court pursuant to Rule 16 of the Federal Rules of Civil Procedure and Local Rule 16.3.
`
`Pursuant to this Court’s Amended Scheduling Order (D.I. 62), a jury trial will take place
`
`beginning on April 30, 2018. This jury trial will address Acceleration Bay’s claims that (i)
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`Activision directly infringes, literally and/or under the doctrine of equivalents, certain asserted
`
`claims of U.S. Patent Nos. 6,701,344 (“‘344 Patent”), 6,714,966 (“‘966 Patent”), 6,920,497 (“‘497
`
`Patent”), 6,829,634 (“‘634 Patent”),1 6,732,147 (“‘147 Patent”), and 6,910,069 (“‘069 Patent”),
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`(collectively, the “Asserted Patents”), (ii) Activision’s infringement is willful, and (iii) Acceleration
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`Bay is entitled to damages in the amount of no less than a reasonable royalty for Activision’s
`
`infringement. Acceleration Bay seeks from the Court findings that (iv) this case is exceptional and
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`Acceleration Bay is entitled to its costs and reasonable attorneys’ fees as provided by 35 U.S.C. §§
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`284 and 285; (v) it is entitled to injunctive relief; and (vi) it is entitled to an accounting of all of
`
`Activision’s infringing sales and revenues, together with post-judgment interest and pre-judgment
`
`interest from the first date of Activision’s infringement. This jury trial will also address Activision’s
`
`defenses to the claims, including that the asserted claims are invalid. There are no counterclaims to
`
`be addressed at trial.
`
`[ACCELERATION BAY: Acceleration Bay respectfully submits that this case is ready to
`
`proceed to trial on April 30, 2018, as scheduled. The parties have aggressively pursued fact and
`
`1 [[ACTIVISION: The asserted claims of the ‘643 Patent were found indefinite under 35 U.S.C. §
`112 and, as such, are invalid. D.I. 370 at 14-17 (“‘A non-routing table based computer readable
`medium ...’ is indefinite.”). Activision thus objects to Acceleration Bay’s stated intention to try its
`allegations of infringement of these invalid claims, as those allegations have been rendered moot.
`See Shelcore, Inc. v. Durham Industries, Inc., 745 F.2d 621, 628 (Fed. Cir. 1984) (“[T]he issue of
`infringement is now moot. [Defendant] can incur no liability for ‘infringement’ of invalid claims.”);
`Richdel, Inc. v. Sunspool Corp., 714 F.2d 1573, 1580 (Fed. Cir. 1983) (“The claim being invalid
`there is nothing to be infringed”).]]
`
`1
`
`

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`Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 5 of 23 PageID #: 45524
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`expert discovery, engaged in extensive discovery motion practice and filed their respective motions
`
`for summary judgment and on Daubert issues and are filing herewith their respective motions in
`
`limine. Along with its predecessor case, this litigation has been pending for over three years. The
`
`schedules of the nearly two dozen expert and fact witnesses from around the United States, as well
`
`as counsel, have been arranged for a trial to proceed as scheduled. Acceleration Bay is prepared to
`
`address the patents and the validity issues that Activision has raised. Like Activision, like
`
`Acceleration Bay, has not yet limited the evidence as of yet as to what will be presented at trial, but
`
`anticipates that both parties will do so after the Pretrial Conference.]
`
`[ACTIVISION: Activision respectfully submits that this case is not ready to proceed to a five
`
`day trial on April 30, 2018. Plaintiff is seeking to supplement its infringement and damage reports,
`
`and if permitted, Plaintiff’s supplementation will of course require additional discovery and likely
`
`motion practice. There are six Asserted Patents, 16 Asserted Claims and 3 completely distinct
`
`accused product lines. The parties’ summary judgment and Daubert Motions are still pending and a
`
`hearing date on those motions has not been set. Aside from the Daubert and non-infringement
`
`issues, there are palpable validity issues that would make a trial unnecessary. For example, the
`
`Court’s claim construction ruling that the term “computer readable medium” includes carrier waves
`
`requires invalidation of those claims.In addition, the Court found that the ‘634 patent was indefinite,
`
`but the Plaintiff filed a motion to “correct” a claim term to avoid the Court’s indefiniteness
`
`ruling. One of Defendants’ written description arguments covers 5 of 6 currently Asserted Patents.
`
`If this case proceeds to trial, Plaintiff should be limited to no more than two Asserted Patents and no
`
`more than four Asserted Claims. Plaintiff should identify the maximum four Asserted Claims from
`
`two Asserted Patents no later than a week before the start of trial.]
`
`The following matters as to the conduct of the trial have been stipulated by the parties and
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`are hereby ordered by the Court:
`
`2
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`

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`Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 6 of 23 PageID #: 45525
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`I.
`
`NATURE OF ACTION & PLEADINGS
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`Pleadings, Motions, & Orders Related
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`to Acceleration’s Claims
`
`1.
`
`On June 17, 2016, Acceleration Bay filed its Complaint for Patent Infringement.
`
`In its Complaint, Acceleration Bay accused Activision of directly infringing the Asserted Patents.
`
`Acceleration Bay sought a judgment of infringement (literally and/or under the doctrine of
`
`equivalents), a judgment of willful infringement, damages in the amount of no less than a reasonable
`
`royalty, injunctive relief, an award of treble damages, costs (including reasonable attorney fees), an
`
`accounting of all infringing sales and revenues, pre- and post-judgment interest, and any other relief
`
`as the Court may deem just and proper. Id. Acceleration Bay demanded a jury trial. Id.
`
`2.
`
`The Court entered a scheduling order on February 27, 2017, which stated
`
`“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 ….” D.I. 62.
`
`3.
`
`The following table shows the list of claims that are being asserted from each
`
`Asserted Patent (the “Asserted Claims”) as well as the current list of Accused Products for each
`
`Asserted Patent:
`
`Patent
`‘344 Patent
`
`Asserted Claims
`12, 13, 14, 15
`
`‘966 Patent
`
`12, 13
`
`‘147 Patent
`
`1, 11, 15, 16
`
`‘634 Patent2
`
`19, 22
`
`‘069 Patent
`
`‘497 Patent
`
`1, 11
`
`9, 16
`
`Accused Product
`Call of Duty: Black Ops III; Call of Duty:
`Advanced Warfare; World of Warcraft; Destiny
`Call of Duty: Black Ops III; Call of Duty:
`Advanced Warfare; World of Warcraft; Destiny
`Call of Duty: Black Ops III; Call of Duty:
`Advanced Warfare; Destiny
`Call of Duty: Black Ops III; Call of Duty:
`Advanced Warfare; World of Warcraft; Destiny
`
`Call of Duty: Black Ops III; Call of Duty:
`Advanced Warfare; Destiny
`Call of Duty: Black Ops III; Call of Duty:
`Advanced Warfare; World of Warcraft; Destiny
`
`2 [[ACTIVISION: See fn. Error! Bookmark not defined..]]
`
`3
`
`

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`Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 7 of 23 PageID #: 45526
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`Pleadings, Motions, & Orders Related to Activision’s Defenses
`
`4.
`
`On September 12, 2017, Activision filed its Answer (D.I. 301) to Acceleration
`
`Bay’s Complaint, in which it denied infringement of the Asserted Patents and asserted defenses of
`
`invalidity under 35 U.S.C. §§ 101, 102, 103, and/or 112, failure to state a claim for relief, failure to
`
`provide notice and/or failure to mark, no injunctive relief, waiver, estoppel, and limited damages.
`
`5.
`
`On October 3, 2017, Activision filed its Amended Answer (D.I. 323), in which
`
`Activision provided more detailed allegations regarding its estoppel defense, including file history
`
`estoppel and ensnarement.
`
`6.
`
`7.
`
`Activision demanded a jury trial on all issues triable by a jury.
`
`Claim Construction
`
`The parties filed an initial claim construction brief on June 21, 2017. D.I. 186, as
`
`well as supplemental letters related thereto. D.I. 220, 222, 225, 237, 240.
`
`8.
`
`Thereafter, following motion practice, letter briefing by the parties, the Court held
`
`five claim construction hearings on July 10, 2017, November 21, 2017, December 4, December 18,
`
`2017 and January 29, 2018. The Court issued the following memoranda and orders regarding claim
`
`construction:
`
`(a)
`
`(b)
`
`(c)
`
`Memorandum Opinion, issued on August 29, 2017 (D.I. 275) and
`Claim Construction Order, issued September 6, 2017 (D.I. 287);
`
`Memorandum Opinions, issued on December 20, 2017 (D.I. 386 and
`387) and Supplemental Claim Construction Order, issued December
`28, 2017 (D.I. 398); and
`
`Memorandum Opinion, issued January 17, 2018 (D.I. 423) and
`Second Supplemental Claim Construction Order, issued January 24,
`2018 (D.I. 432).
`
`9.
`
`On February 2, 2018, Acceleration Bay filed a motion to correct Claim 19 of the
`
`‘634 Patent. D.I. 438. The motion is fully briefed. The Court has not yet ruled on this motion.
`
`4
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`

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`Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 8 of 23 PageID #: 45527
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` Summary Judgment and Daubert Motions
`
`10.
`
`On February 2, 2018, Acceleration Bay filed a motion for summary judgment of
`
`infringement and validity and to exclude the testimony of Activision’s damages expert, Catharine
`
`M. Lawton. D.I. 439. The motion is fully briefed. The Court has not yet ruled on this motion.
`
`11.
`
`On February 2, 2018, Activision moved for summary judgment of non-
`
`infringement of the Asserted Patents (both literally and under the doctrine of equivalents), for
`
`summary judgment of no willful infringement and for summary judgment that activity related to the
`
`Accused Products outside the United States does not infringe the Asserted Patents. See, e.g., D.I.
`
`440, 442. Activision also moved for summary judgment of invalidity of the ’344, ’966, ’634, ’069,
`
`and ’147 patents. Id. Activision further moved to exclude certain opinions of Acceleration Bay’s
`
`technical experts (Drs. Medvidovic and Mitzenmacher) and damages experts (Dr. Valerdi, Dr. Bims,
`
`and Ms. Meyer). Id. The motion is fully briefed. The Court has not yet ruled on this motion.
`
`[Acceleration Bay: Activision’s following purported summary of “other relevant orders” is
`
`a gratuitous, misleading and one-sided summary of various discovery disputes that are no longer at
`
`issue. Over the pendency of this case, the Special Master heard many discovery disputes, and both
`
`granted and denied many motions filed by each side. Activision lists some discovery orders relating
`
`to Acceleration Bay’s discovery responses, but fails to inform the Court that the Special Master
`
`found that Acceleration Bay’s expert reports are fully supported by the discovery provided in this
`
`case and denied Activision’s motion to strike portions of those reports based on the same purported
`
`deficiencies that Activision raises in its summary below. D.I. 347. Therefore, these prior discovery
`
`disputes have no relevance to the issues to be resolved in this case at trial.]
`
`[Activision: Other Relevant Orders
`
`12.
`
`On August 24, 2017, the Court granted Activision’s motion to dismiss games used
`
`on Sony platforms for lack of subject matter jurisdiction. D.I. 268.
`
`5
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`

`

`Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 9 of 23 PageID #: 45528
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`13.
`
`Four orders requiring Plaintiff to disclose its infringement theories were entered on
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`April 19, 2016, March 15, 2017, May 19, 2017, and June 23, 2017. D.I. 155 at 7 (“Plaintiff shall
`
`provide as full, clear and complete responses as possible …. that: 1. Identify, individually and with
`
`specificity, all accused methods, broadcast channels and networks, including by separately
`
`identifying each and every participant and connection for each network or broadcast channel and
`
`explaining how each is alleged to be m-regular and incomplete.”); see also D.I. 77, 193; see also
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`C.A. No. 15-228, D.I. 129.]
`
`14.
`
`At least four orders regarding Activision’s Interrogatories 1 and 2 directed to
`
`Plaintiff’s damages theories were entered. An order requiring Plaintiff to disclose its damages theory
`
`and the date of the hypothetical negotiation was entered on May 19, 2017. D.I. 155. That Order
`
`was adopted by the Court over Plaintiff’s objections. D.I. 193. On July 17, 2017, the Special Master
`
`Order denied Activision’s Motion for preclusion as premature, noting that “the test of whether
`
`Plaintiff is withholding information that should have been disclosed in interrogatory No. 1 will
`
`better be known when Plaintiff submits its expert reports.” D.I. 227, p.7. Regarding the hypothetical
`
`negotiation date, the Special Master found “On June 2, 2017, in discovery responses, Plaintiff stated
`
`that the date of hypothetical negotiation was the date of service of the complaints in the 2015 filed
`
`cases. Plaintiff is bound by that statement and further relief to Defendants does not seem appropriate
`
`at this time.” D.I. 227, p. 8. Special Master Order No. 12 also addresses these interrogatories. D.I.
`
`347, pp. 6-9.
`
`II.
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`FEDERAL JURISDICTION
`
`15.
`
`This is a civil action for patent infringement arising under the patent laws of the
`
`United States, Title 35, United States Code, and this Court has subject matter jurisdiction over this
`
`action pursuant to 35 U.S.C. §§ 271, et seq., and 28 U.S.C. §§ 1331 and 1338. No party contests
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`personal or subject matter jurisdiction.
`
`6
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`

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`Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 10 of 23 PageID #: 45529
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`16.
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`Venue is proper in this Court under 28 U.S.C. §§ 1391(b) and (c) and 28 U.S.C. §
`
`1400(b). No party contests venue.
`
`III.
`
`STATEMENT OF ADMITTED FACTS
`
`17.
`
`The parties’ Joint Statement of Undisputed Facts is attached as Schedule A.
`
`IV.
`
`STATEMENT OF ISSUES OF FACT THAT REMAIN TO BE LITIGATED
`
`18.
`
`Acceleration Bay’s Statement of Issues of Fact that Remain to be Litigated is
`
`attached as Schedule B1.3
`
`19.
`
`Activision’s Statement of Issues of Fact that Remain to be Litigated is attached as
`
`Schedule B2.4
`
`20.
`
`If the Court determines that any issue identified in a party’s statement of issues of
`
`fact that remain to be litigated is more properly considered an issue of law, it should be so
`
`considered.
`
`21.
`
`The parties reserve the right to modify or supplement their statements of facts that
`
`remain to be litigated to the extent necessary to fairly reflect the Court’s rulings on any motions or
`
`subsequent orders of the Court or by agreement of the parties.
`
`V.
`
`STATEMENT OF ISSUES OF LAW THAT REMAIN TO BE LITIGATED
`
`22.
`
`Acceleration Bay’s Statement of Issues of Law that Remain to be Litigated is
`
`attached as Schedule C1.
`
`3 Acceleration Bay: Activision did not disclose during discovery any opinion of counsel that it is
`relying upon. Activision: Acceleration Bay did not identify any alleged pre-suit willfulness. See
`3/30/2107 Acceleration Bay’s Response to Activision’s Party Specific Interrogatory No. 3 at 10.
`4 Activision: If Acceleration Bay attempts to present any doctrine of equivalents arguments, then
`Activision will challenge whether Acceleration Bay has a right to do so because Plaintiff never
`properly presented its doctrine of equivalents positions. Acceleration Bay: The Special Master
`already found that Acceleration Bay sufficiently disclosed its theories of infringement under the
`doctrine of equivalents. D.I. 227 (denying Activision’s motion to preclude Acceleration Bay from
`asserting infringement under the doctrine of equivalents for alleged failure to disclose its theories).
`
`7
`
`

`

`Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 11 of 23 PageID #: 45530
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`23.
`
`Activision’s Statement of Issues of Law that Remain to be Litigated is attached as
`
`Schedule C2.5
`
`24.
`
`If the Court determines that any issue identified in a party’s statement of issues of
`
`law that remain to be litigated is more properly considered an issue of fact, it should be so
`
`considered.
`
`25.
`
`The parties reserve the right to modify or supplement their statements of issues of
`
`law that remain to be litigated to the extent necessary to fairly reflect the Court’s rulings on any
`
`motions or subsequent orders of the Court or by agreement of the parties.
`
`VI.
`
`LIST OF WITNESSES
`
`26.
`
`Acceleration Bay’s list of witnesses that it may call to testify at trial either in
`
`person or by deposition is attached as Schedule D1, and Acceleration Bay’s list of deposition
`
`designations is attached as Schedule E1. Also included in Schedule E1 are Activision’s objections
`
`and counter-designations to the offered testimony and Acceleration Bay’s objections to Activision’s
`
`counter-designations.
`
`27.
`
`Activision’s list of witnesses that it may call at trial to testify either in person or by
`
`deposition is attached as Schedule D2, and Activision’s list of deposition designations is attached as
`
`Schedule E2. Also included in Schedule E2 are Acceleration Bay’s objections and counter-
`
`designations to the offered testimony and Activision’s objections to Acceleration Bay’s counter-
`
`designations.
`
`28.
`
`DISPUTED ISSUE: [Acceleration Bay: Acceleration Bay, in compliance with the
`
`Court’s Standing Order, has identified the witnesses it may call live and by deposition at trial in
`
`Schedule D1. Activision is refusing to provide such a list until April 27th, which is unduly
`
`prejudicial to Acceleration Bay, it should be ordered to provide a witness list in compliance with the
`
`5 See footnote 3 regarding doctrine of equivalents.
`
`8
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`

`

`Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 12 of 23 PageID #: 45531
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`Court’s Standing Order immediately.] [Activision: Activision timely provided its witness list on
`
`April 3, in accordance with the rules. Activision has been for several weeks asking Plaintiff to
`
`provide a will call/may call list so that the parties have an accurate understanding as to which
`
`witnesses will be called live. Plaintiff has refused. Activision askes that the Court to enter an order
`
`as follows: Plaintiff shall provide its will call/may call list of witnesses to Activision on April 23,
`
`and Activision will provide its will call/may call list April 27. The lists will specifically indicate
`
`which witnesses a party will call, which it may call, and specify whether the witness will appear live
`
`or by deposition. The lists may be modified only for good cause based on future rulings.]
`
`29.
`
`Acceleration Bay objects to use by Activision or its witnesses of testimony from,
`
`conversations with or information provided by Pat Griffith, Saralyn Smith or Bill Chinn, as set forth
`
`in Acceleration Bay’s motion in limine #1.
`
`30.
`
`Activision objects to use by Plaintiff of the depositions of Virgil Bourassa and
`
`Fred Holt. Mr. Bourassa and Dr. Holt are Plaintiff’s consultants and are not unavailable to Plaintiff
`
`as witnesses. See Fed. R. Civ. P. 32(a)(4)(B).
`
`31.
`
`Activision further objects to the inclusion of John Yaney in Acceleration Bay’s list
`
`of witnesses and deposition designations. Mr. Yaney relates to a product that is no longer accused
`
`in this case.
`
`32.
`
`Any witness not listed in Schedules D1 or D2 will be precluded from testifying,
`
`absent good cause shown.
`
`33.
`
`The listing of a witness on a party’s witness list does not require that party to call
`
`that witness to testify, either in person or by deposition.
`
`9
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`

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`Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 13 of 23 PageID #: 45532
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`34.
`
`Acceleration Bay requests that Fed. R. Evid. 615 be invoked for all applicable fact
`
`witnesses.6
`
`35.
`
`With respect to those witnesses who are expected to testify by deposition rather
`
`than in person, each party has designated the specific pages and lines of deposition testimony that it
`
`may read or play during trial. No deposition testimony not previously designated pursuant to this
`
`Order may be later added for these witnesses, absent good cause shown.
`
`36.
`
`If a party designates deposition testimony, and the other party counter-designates,
`
`then the designations and counter-designations will be read or played by video in chronological
`
`order. Regardless of whether deposition testimony is read or played by video, the time available for
`
`each party’s trial presentation shall be reduced by the length of its designations and counter-
`
`designations.
`
`37.
`
`All irrelevant and redundant material such as objections, colloquy between counsel
`
`and long pauses will be eliminated when the deposition is read or viewed at trial.
`
`38.
`
`Any party may use testimony that is designated or counter-designated by either
`
`party, to the same effect as if it had initially designated the testimony as its own, subject to all
`
`objections.
`
`39.
`
`The parties may offer some or all of the deposition testimony set forth herein at
`
`trial. A party’s decision not to introduce some or all of the testimony of a witness designated herein
`
`shall not be commented upon at trial.
`
`40.
`
`Any deposition testimony may be used at trial for the purpose of impeachment,
`
`regardless of whether a party identified that testimony on its list of deposition designations, if the
`
`testimony is otherwise competent for such purpose.
`
`6 Activision: Activision contends that at least Pat Griffith and Kurtis McCathern are not applicable
`witnesses under Fed. R. Evid. 615.
`
`10
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`

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`Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 14 of 23 PageID #: 45533
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`VII. LIST OF EXHIBITS
`
`41.
`
`Acceleration Bay’s trial exhibit list is attached as Schedule F1. Acceleration Bay
`
`identified its exhibits with PTX numbers, starting with PTX1.
`
`42.
`
`Activision’s trial exhibit list is attached as Schedule F2. Activision identified its
`
`exhibits with DTX numbers, starting with DTX1.
`
`43.
`
`Joint trial exhibits will be identified with JTX numbers, starting with JTX1. The
`
`joint trial exhibit list is attached as Schedule F3.
`
`44.
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`Each party may use a subset of an exhibit as a standalone exhibit, subject to
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`evidentiary objections (e.g., FED. R. EV. 106). Each such Subset Exhibit shall marked with the
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`entire exhibit’s number followed by a letter (e.g., PTX1-A, DTX12-A).
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`45.
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`A party’s failure to introduce any exhibit appearing on its list shall not be
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`commented on during trial.
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`46.
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`Each party may use an exhibit that is listed on the other party’s exhibit list, to the
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`same effect as though it were listed on its own exhibit list, subject to objections. Any exhibit, once
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`admitted, may be used equally by each party. The listing of an exhibit by a party on its exhibit list
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`does not waive any objections to that exhibit by the listing party should the opposing party attempt
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`to offer it into evidence. In other words, a party does not waive its objections to an exhibit by
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`including that exhibit on its own exhibit list.
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`47.
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`The parties agree that any date listed on an exhibit list is provided for convenience
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`only and is neither evidence nor an admission of the date of the document, and that failing to list a
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`date on an exhibit list is neither evidence nor an admission of whether the document is dated.
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`48.
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`The parties agree that any description of a document listed on an exhibit list is
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`provided for convenience only and shall not be used as an admission or otherwise as evidence
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`regarding that document.
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`49.
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`Legible photocopies of United States patents may be offered and received into
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`evidence in lieu of certified copies thereof, subject to all other objections which might be made to
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`the admissibility of certified copies. Likewise, legible photocopies of United States patent
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`applications may be offered and received into evidence in lieu of certified copies thereof, subject to
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`all other objections which might be made to the admissibility of certified copies.
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`50.
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`Legible photocopies of documents may be offered and received in evidence in lieu
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`of originals thereof, subject to all foundational requirements and other objections that might be made
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`to the admissibility of originals, and subject to the right of the party against whom it is offered to
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`inspect an original upon request reasonably in advance of any proposed use of the photocopy.
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`51.
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`The parties have agreed that the demonstrative exhibits the parties intend to use at
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`trial need not be included on their respective lists of trial exhibits to be filed with the Court.
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`52.
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`Four days before the first day of trial, the parties shall make available for
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`inspection physical exhibits to be used at trial, labeled with an exhibit number. Physical exhibits
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`include non-document trial exhibits [Acceleration Bay: and demonstrative physical exhibits, such
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`as computer games, books and devices]. For purposes of clarity, this does not include [Activision:
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`demonstrative physical exhibits,] boards, blow-ups, and graphical demonstratives, which will be
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`disclosed pursuant to the Trial Disclosure Schedule.
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`53.
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`The parties agree that they will not pre-exchange or identify exhibits or
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`demonstratives to be used with any witness on cross-examination.
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`54.
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`Subject to other provisions of this Order, once the pretrial conference has been
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`held, no party shall be permitted to offer as evidence any exhibit not present on its exhibit list absent
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`good cause shown or by agreement of the parties, except that documents, deposition transcripts, or
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`portion thereof, or other items, not specifically identified herein or offered into evidence, may still
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`be used at trial for purposes of cross-examination, impeachment or rehabilitation, if otherwise
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`Case 1:16-cv-00453-RGA Document 542 Filed 04/24/18 Page 16 of 23 PageID #: 45535
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`competent for such purposes, and may be admitted into evidence consistent with the requirements of
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`the Federal Rules of Evidence.
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`55.
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`On April 23, 2018, the parties shall exchange copies of all pre-marked trial
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`exhibits with trial exhibit labels.
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`56.
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`Authenticity. The parties agree that documents produced by the parties and by
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`third-parties under subpoena are authentic.
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`57.
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`DISPUTED ISSUE [Acceleration Bay: The parties shall not challenge the
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`business record status of each document that on its face appears to be generated by a party (plaintiff
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`or defendant), including documents generated by its employees during the course of their
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`employment for a party, and produced in this case by that party subject to the caveat that any party
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`may object to the admissibility of a specific statement in a document to the extent it can show that
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`such statement does not fall within FED. R. Evid. 803(6) or should otherwise not be admitted (e.g.,
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`pursuant to Fed. R. Evid. 402, 403, or other grounds). Notwithstanding this stipulation, each party
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`preserves its right to object to the document on any ground other than authenticity and business
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`record status. The parties served requests for admission (RFAs) regarding authenticity and business
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`record status of the documents they produced, and agreed there was no need to respond. To the
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`extent Activision is now refusing to comply with the parties’ stipulation, it should immediately
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`respond to the outstanding RFAs as to the Activision documents on Acceleration Bay’s trial exhibit
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`list. ] [Activision: Activision agreed to stipulate to authenticity, as refelected in the paragraph
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`above. It did not agree to the further provisions Plaintiff seeks. Plaintiff has no documents and,
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`though it took ample discovery, and chose not to attempt to lay foundation or establish business
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`record status for most of the documents on its exhibit list.]
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`VIII. TRIAL DEMONSTRATIVES
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`58.
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`When exchanging trial demonstratives, the party seeking to use a demonstrative
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`exhibit will provide a color representation of the demonstrative exhibit to the other side in PDF
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`form. However, for demonstrative exhibits that cannot be placed in PDF form such as video or
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`animations, the party seeking to use the demonstrative exhibit will provide it to the other side in its
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`native form via a downloadable link. For irregularly sized physical exhibits, the party seeking to use
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`the demonstrative exhibit will provide a color representation as a PDF of 8.5 x 11 copies of the
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`exhibits.
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`59.
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`Acceleration Bay’s demonstrative exhibits will be identified by numbers prefixed
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`with “PDEM.” Activision’s demonstrative exhibits will be identified by numbers prefixed with
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`“DDEM.”
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`60.
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`If a party’s demonstrative exhibit changes after being provided to the opposing
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`party, the party intending to use the demonstrative exhibit must promptly notify the opposing party
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`of the change(s).
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`61.
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`The above provisions regarding the exchange of demonstrative exhibits does not
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`apply to demonstrative exhibits created during testimony or demonstrative exhibits to be used for
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`cross examination, neither of which need to be provided to the other side in advance of their use.
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`62.
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`The parties agree that notice of a party’s intended use of blow-ups (enlargements)
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`of trial exhibits and/or deposition testimony and of ballooning, excerption, highlighting, etc. of such
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`exhibits and/or deposition testimony need not be given (and need not be exchanged as a
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`demonstrative exhibit), as long as the party has complied with the provisions of this Order governing
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`the use of trial exhibits and/or deposition testimony.
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`63.
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`The parties shall confer following trial, and by no later than thirty-days after trial
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`shall submit a report to the Court designating the testimony given live or through deposition that
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`should be redacted from the public transcript filed in this case. Except for these designated
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`redactions, the courtroom shall otherwise remain open through the duration of the trial.
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