Case 1:16-cv-00453-RGA Document 619 Filed 10/30/18 Page 1 of 3 PageID #: 49865
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`IN THE UNITED STATES DISTRJCT COURT
`FOR THE DISTRJCT OF DELA WARE
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`V.
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`Civil Action No. 1: 16-cv-00453-RGA
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`ACTIVISION BLIZZARD INC.,
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`Defendant.
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`CASE MANAGEMENT ORDER
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`On August 29, 2018, two months before the scheduled trial, I issued an Order striking the
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`portion of Plaintiff's primary damages expert' s reasonable royalty opinion which relied on a jury
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`verdict in Uniloc USA, Inc. v. EA , No. 6:13-cv-00259-RWA (E.D. Tex. Dec. 15, 2014). (D.I.
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`578 at 27-28). The Parties failed to highlight in their briefing on the issue, and I did not
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`appreciate when I issued the Order, the significance of the Uniloc verdict to Plaintiff's ability to
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`put on an acceptable damages case. (See D.I. 442, 475, 505). Because I did not recognize a
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`problem, I did not suggest that the Parties provide me with a status update or ask Plaintiff to
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`specifically address the issue. Defendant revealed the magnitude of the implications of my
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`ruling in its Motion to Preclude on September 28, 2018, one month before trial. (D.I. 581). I
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`reviewed Plaintiffs revised damages case and precluded certain inadmissible pieces of evidence
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`in an order issued on October 17, 2018, twelve days before trial. Plaintiff advocated during the
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`pre-trial conference that it still had admissible damages theories. I requested that the Parties
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`brief the theories. The Parties completed that briefing on October 24, 2018, five days before the
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`scheduled trial. (See D.I. 601 , 603 , 609). Defendant argued that Plaintiff did not properly
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`Case 1:16-cv-00453-RGA Document 619 Filed 10/30/18 Page 2 of 3 PageID #: 49866
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`disclose its theories and that the theories failed to meet the standards set by the Federal Circuit.
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`(D.I. 601 , 603). Based on the briefing, I determined that it would not be possible for me to reach
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`a decision on Plaintiffs damages case prior to the scheduled start of trial. Accordingly, I
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`suggested that the trial could go forward without damages or the trial could be continued pending
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`the resolution of issues with Plaintiffs damages case. The Parties were unable to reach an
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`agreement on the proper course of action. (See D.I. 611 , 612). I heard the Parties ' various
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`concerns during a teleconference on October 25, 2018, four days before the scheduled trial.
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`Considering the last-minute scramble going to trial would have caused, I determined that
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`it was appropriate to continue the trial indefinitely, pending resolution on the admissibility of
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`Plaintiffs damages case. It may be that Defendant would have presented an acceptable
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`infringement defense, but it would probably have been prejudicial to require a significant
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`alteration in what was being tried on the eve of trial. Defendant is not to blame for the present
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`state of affairs and it would have been unfair to force it to proceed with a last-minute bifurcation
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`of the trial. However, neither party should interpret my decision to continue the trial as an
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`indication of my disposition toward the proper resolution of issues surrounding Plaintiffs
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`damages case.
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`Now that the trial has been continued, I will permit Plaintiff a final opportunity to present
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`me with an admissible damages case. Plaintiff may supplement its expert reports if it wishes to
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`do so. If Plaintiff supplements, Defendant may do so also. Once any supplementation has
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`occurred, and any further expert depositions have been conducted, Plaintiff shall provide me
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`with a proffer of the case it intends to submit to the jury on damages. The proffer shall contain a
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`fulsome explanation of all of Plaintiffs damages theories, all the evidence it plans to put on in
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`support of those theories, and citations to Federal Circuit precedent supporting its admissibility
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`Case 1:16-cv-00453-RGA Document 619 Filed 10/30/18 Page 3 of 3 PageID #: 49867
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`and sufficiency. Plaintiff may use as many pages as it requires to make the proffer. If Defendant
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`objects to Plaintiffs proposed damages case as outlined in the proffer, or Plaintiffs
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`supplemented expert reports, Defendant shall file an appropriate motion. The parties should
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`confer regarding a schedule for the above items and submit an agreed schedule to the Court
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`within 14 days.
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`IT IS SO ORDERED this Jo day of October 2018.
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