`
`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
`
`
`October 24, 2018
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`
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`VIA ELECTRONIC FILING
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`
`
`Re:
`
`
`Acceleration Bay LLC v. Activision Blizzard Inc.
`C.A. No. 16-453 (RGA)
`
`Dear Judge Andrews:
`
`The Court should continue the trial while it considers the issues before it. Trial begins in
`four days, and the impact of bifurcating the trial on case presentation would be dramatic and highly
`prejudicial to Activision. Plaintiff in this case seeks enormous damages and the stakes are high.
`Pivoting to a liability trial at this late date would invariably impact Activision’s preparation for trial
`and its ability to present its best defense.
`
`Activision has not had time to consider all of the effects, but a trial focused solely on liability
`would affect the witnesses to be called, the testimony to be elicited, witness examinations, and the
`overall strategy for defending this case. Preparing for a case on liability only is not a mere matter of
`subtracting a few witnesses and documents. It substantially changes the way the case would be
`presented to a jury, and it would be unfairly prejudicial to Activision to rework its trial plan three
`days before trial. In addition, nearly all of the pretrial materials would need to be revised, including
`exhibits lists, deposition designations, demonstratives, jury instructions, and more. This is simply
`not feasible in four days. Further, bifurcating damages from liability subjects Activision to the
`possibility of two trials.
`
`These potential trials would require substantial overlap in evidence, witnesses and case
`presentations. As Activision has explained, any damages theory must be apportioned and
`“sufficiently tie[d] … to the facts of the case.” Exmark Mfg. Co. Inc. v. Briggs & Stratton Power
`Prod. Grp., LLC, 879 F.3d 1332, 1351 (Fed. Cir. 2018). Issues related to non-infringing
`alternatives, state of the art, and the role of the allegedly infringing functionality in the accused
`products would be presented in both trials. A second jury would be required to be empaneled to hear
`
`
`
`Case 1:16-cv-00453-RGA Document 611 Filed 10/24/18 Page 2 of 2 PageID #: 49477
`The Honorable Richard G. Andrews
`October 24, 2018
`Page 2
`
`from many of the same witnesses and see much of the same evidence as the jury would hear and see
`next week. Moreover, many of the same witnesses would have to testify in both trials, taking them
`away from their jobs and families. The resulting inefficiency and waste can be avoided by simply
`continuing trial until clarity can be provided as to how to proceed. Under these circumstances,
`Acceleration cannot show that bifurcation will “avoid prejudice, conserve judicial resources,
`enhance juror comprehension” or be more likely to “result in a just final disposition of the
`litigation.” Fed. R. Civ. P. 42(b).
`
`Moreover, there remains a serious question as to whether Plaintiff is entitled to a jury trial, or
`any trial at all, based on the pending motion. In re Tech. Licensing Corp., 423 F.3d 1286, 1290–91
`(Fed. Cir. 2005). The Court’s decision on the motion could moot the issue of a jury trial or
`otherwise dispose of the case. The Court should be afforded sufficient time to evaluate these issues
`before a potentially unnecessary or improper jury trial commences. For this additional reason, a
`continuance is merited.
`
`Finally, we note that the issue is entirely of Acceleration Bay’s making, and Activision
`should not be prejudiced by it.
`
`
`Respectfully,
`
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`JBB/bac
`
`cc:
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`/s/ Jack B. Blumenfeld
`
`Jack B. Blumenfeld (#1014)
`
`Clerk of the Court (via hand delivery)
`All Counsel of Record (via electronic mail)
`
`
`
`
`
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