Case 1:16-cv-00455-RGA Document 57 Filed 02/27/17 Page 1 of 11 PageID #: 2455
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`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.
`
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`) C.A. No. 16-453 (RGA)
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`) C.A. No. 16-454 (RGA)
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`) C.A. No. 16-455 (RGA)
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`RULE 16 SCHEDULING ORDER
`
`The Court having conducted an initial Rule l 6(b) scheduling conference pursuant to Local
`
`Rule 16.l (b) on February 17, 2017 and the parties having further met and conferred and having
`
`determined after discussion that the matter cannot be resolved at this juncture by settlement,
`
`voluntary mediation, or binding arbitration;
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`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.
`
`)
`)
`)
`)
`) C.A. No. 16-453 (RGA)
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`)
`)
`)
`)
`)
`)
`)
`)
`) C.A. No. 16-454 (RGA)
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`)
`)
`)
`)
`)
`)
`)
`) C.A. No. 16-455 (RGA)
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`)
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`)
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`RULE 16 SCHEDULING ORDER
`
`The Court having conducted an initial Rule l 6(b) scheduling conference pursuant to Local
`
`Rule 16.l (b) on February 17, 2017 and the parties having further met and conferred and having
`
`determined after discussion that the matter cannot be resolved at this juncture by settlement,
`
`voluntary mediation, or binding arbitration;
`
`
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`Case 1:16-cv-00455-RGA Document 57 Filed 02/27/17 Page 2 of 11 PageID #: 2456
`
`IT IS ORDERED that:
`
`1.
`
`a.
`
`Initial Disclosures & Discovery.
`
`Rule 26(a)(l) Initial Disclosures. The initial disclosures pursuant to Federal Rule
`
`of Civil Procedure 26(a)(l) served in the 2015 Cases 1 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.
`
`c.
`
`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. ActivisionlBlizzard, Inc., Electronic Arts Inc., and Take-Two Interactive Software,
`
`Inc., et al., C.A. Nos. 15-228, 15-282, and 15-311, 1110/17 Transcript 21:22-23:19).
`
`2.
`
`Joinder of Other Parties and Amendment of Pleadings.
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`All motions to join other parties, and to amend or supplement the pleadings, shall be filed
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`on or before April 21, 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 57 Filed 02/27/17 Page 3 of 11 PageID #: 2457
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`a.
`
`Discovery Cut Off.
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`• All fact discovery in these cases sha.ll be initiated so that it will be completed on or
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`before July 31, 2017.
`
`• All expert discovery in this case shall be initiated so that it will be completed on or
`
`before January 10
`
`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: May 15, 2017.
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`3
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`Case 1:16-cv-00455-RGA Document 57 Filed 02/27/17 Page 4 of 11 PageID #: 2458
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`c.
`
`Requests for Admission.
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`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
`
`for each inventor shall not exceed two days.
`
`Joining in a deposition does not count against the 10 deposition limit set forth in Federal
`
`Rule of Civil Procedure 30. Thus, if one Defendant Group notices a deposition, other Defendant
`
`Groups may join in the deposition without having the deposition count against the limit in their
`
`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.
`
`4
`
`~
`
`I
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`
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`Case 1:16-cv-00455-RGA Document 57 Filed 02/27/17 Page 5 of 11 PageID #: 2459
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`case. Similarly, if Plaintiff takes a deposition in one case that is relevant to other cases (e.g., on
`
`alleged prior art), it may use that deposition in the other cases without it counting against the
`
`deposition limits in those other cases.
`
`The foregoing limitations do not apply to depositions of experts, which are addressed
`
`below in Section 1 Oa.
`
`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,
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`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 requested entry of an agreed upon order. The Parties have agreed that all
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`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.
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`5
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`1 I
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`I
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`I
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`I
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`Case 1:16-cv-00455-RGA Document 57 Filed 02/27/17 Page 6 of 11 PageID #: 2460
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`5.
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`Courtesy Copies. The parties shall provide to the Court two courtesy copies of all
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`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.
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`6.
`
`a.
`
`Claim Construction Issue Identification.
`
`On or before March 25, 2017 the parties shall exchange a list of those claim
`
`term(s)/phrase(s) that they believe need construction.
`
`b.
`
`On or before April 3, 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
`
`April 10, 2017, to prepare a Joint Claim Construction Chart to be filed no later than April 14, 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
`
`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.
`
`28, 2017.
`
`Claim Construction Briefing.
`
`Plaintiff shall serve, but not file, its opening brief, not to exceed 20 pages, on April
`
`6
`
`
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`Case 1:16-cv-00455-RGA Document 57 Filed 02/27/17 Page 7 of 11 PageID #: 2461
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`b.
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`Defendants shall serve, but not file, their answering brief, not to exceed 30 pages,
`
`on May 19, 2017.
`
`c.
`
`Plaintiff shall serve, but not file its reply brief, not to exceed 20 pages, on June 2,
`
`2017.
`
`d.
`
`Defendants shall serve, but not file, their sur-reply brief, not to exceed 10 pages,
`
`on June 16, 2017.
`
`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 June 21, 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.
`
`A.
`
`Agreed-upon Constructions
`
`Disputed Constructions
`
`[TERM 1]
`
`1.
`2.
`3.
`4.
`
`Plaintiffs Opening Position
`Defendants' Answering Position
`Plaintiffs Reply Position
`Defendants' Sur-Reply Position
`
`B.
`
`[TERM 2]
`
`I.
`2.
`3.
`4.
`
`Plaintiffs Opening Position
`Defendants' Answering Position
`Plaintiffs Reply Position
`Defendants' Sur-Reply Position
`
`7
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`I
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`I
`t
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`I I I t
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`f
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`t I j
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`Case 1:16-cv-00455-RGA Document 57 Filed 02/27/17 Page 8 of 11 PageID #: 2462
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`Etc. The parties need not include any general summaries of the law relating to claim construction.
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`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 July 10, 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 September 11, 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.
`
`d.
`
`On September 15, 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
`
`8
`
`
`
`Case 1:16-cv-00455-RGA Document 57 Filed 02/27/17 Page 9 of 11 PageID #: 2463
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`September 22, 2017. The supplemental disclosure to contradict or rebut evidence on the same
`
`matter identified by another party is due on or before November 3, 2017. Reply expert reports
`
`from the party with the initial burden of proof are due on or before December l, 2017. 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 January 10, 2018.
`
`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 February 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.
`
`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
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`9
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`Case 1:16-cv-00455-RGA Document 57 Filed 02/27/17 Page 10 of 11 PageID #: 2464
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`in compliance with Local Rule 16.3(c) no later than 5:00 p.m. on the third business day before the
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`date of the final pretrial conference. Unless otherwise ordered by the Court, the parties shall
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`comply with the timeframes set forth in Local Rule 16.3( d) the preparation of the proposed joint
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`final pretrial order.
`
`• Activision Blizzard: April 20, 2018.
`
`• Electronic Arts: June 29, 2018.
`
`• Take-Two: August 17, 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, Vair Dire, and Special Verdict Forms. Pursuant to Local Rules
`
`47.l(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
`
`filing each of the
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`foregoing
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`four documents
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`in Word or WordPerfect
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`format
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`to
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`rga _ civil@ded.uscourts.gov.
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`10
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`Case 1:16-cv-00455-RGA Document 57 Filed 02/27/17 Page 11 of 11 PageID #: 2465
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`16.
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`Trial.
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`This matter is scheduled for a 5-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
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`will be allocated a total number of hours in which to present their respective cases.
`
`• Activision Blizzard: April 30, 2018.
`
`• Electronic Arts: July 9, 2018.
`
`• Take-Two: August 27, 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
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`withheld documents must be logged in full compliance with Fed. R. Civ. P. 26(b)(5)(A).
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`DATED:
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`HARD G. ANDREWS
`DISTRICT JUDGE
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`11
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