Case 1:16-cv-00453-RGA Document 628 Filed 11/20/18 Page 1 of 3 PageID #: 49967
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`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
`
`November 20, 2018
`
`VIA ELECTRONIC FILING
`
`Re:
`
`Acceleration Bay LLC v. Activision Blizzard, Inc.
` C.A. No. 16-453 (RGA)
`
`Dear Judge Andrews:
`
`We write on behalf of Activision regarding the scope and schedule of the Court’s Order
`regarding damages issues in this case. (D.I. 619). The parties dispute whether the Court’s Order
`permitting Acceleration to “supplement its expert reports” permits Acceleration to start over with
`a brand new expert unbounded by Acceleration’s prior disclosures or whether Acceleration is
`limited to supplementing reports for experts disclosed during discovery and within the scope of
`Acceleration’s damages disclosures provided after multiple orders to compel. The parties also
`disagree about the appropriate schedule.
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`Acceleration should not be allowed to add a new expert. The expert disclosure deadline
`in this case was over a year ago. D.I. 62 at 8–9. The Court’s October 30, 2018 Case
`Management Order gave Acceleration a “final opportunity to present … an admissible damages
`case,” and said “Plaintiff may supplement its expert reports if it wishes to do so.” D.I. 619 at 2.
`On November 7, 2018, Acceleration disclosed a new, previously undisclosed damages expert,
`Russell Parr. Acceleration says it intends to submit a damages report from Mr. Parr. During the
`parties’ meet and confer, Acceleration would not agree that Mr. Parr would be bound by
`Acceleration’s prior discovery disclosures or why Acceleration needs a new (eighth) expert at
`this stage.
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`Introducing an entirely new expert and report more than a year after the discovery
`deadline is not supplementation. Although the Court’s Order stated that Acceleration “may
`supplement its expert reports,” it did not open the door for Acceleration to submit a report from a
`new expert. Activision has spent considerable time and resources responding to Dr. Meyer.
`Acceleration should not be allowed to whitewash the record and distance itself from the
`numerous admissions and concessions by Dr. Meyer under the guise of supplementation. If
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`Case 1:16-cv-00453-RGA Document 628 Filed 11/20/18 Page 2 of 3 PageID #: 49968
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`The Honorable Richard G. Andrews
`November 20, 2018
`Page 2
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`Acceleration believes it can modify Dr. Meyer’s existing opinions to correct their many
`deficiencies, the Court’s Order allows it to attempt to do so. But Acceleration should not be
`allowed to erase Dr. Meyer’s record and undo the consequences of four years of litigation.
`Allowing Acceleration a complete restart at this stage is prejudicial.
`
`Acceleration should not be allowed to exceed its prior damages disclosures.
`Acceleration was ordered to provide its damages theories, factual support for them and for the
`hypothetical negotiation date during fact discovery. Special Master Order 3, D.I. 155 at 7–9,
`D.I. 193. Acceleration’s Court-Ordered response promised to provide all of its damages theories
`and evidence in its opening expert reports. Ex. A, 8/18/17 Resp. Interrogatory No. 1 at 6-10. The
`Special Master also ordered that Plaintiff was “bound by” its decision to use the filing date of the
`complaint as the hypothetical negotiation date. Special Master Order 6 (“Plaintiff stated that the
`date of hypothetical negotiation was the date of service of the complaints …. Plaintiff is bound
`by that statement….”). Acceleration has refused to explain the nature or scope of the theories it
`will be advancing, or to agree that that its damages supplementation will be limited to
`Acceleration’s discovery disclosures.
`
`Allowing Acceleration to go beyond its prior damages disclosures would unfairly
`prejudice Activision and vitiate the multiple discovery orders on these issues. Activision has
`built its defense on the damages record and opinions advanced by Acceleration. Activision’s
`experts have already formulated their theories in response to the theories and evidence advanced
`by Dr. Meyer. Allowing Acceleration to expand its damages disclosures could require reopening
`of discovery to explore the evidentiary bases for any new disclosure and could require the
`identification of new witnesses to respond. It is too late to start over to rebut a new expert with a
`different methodology. If Acceleration believes it can supplement its reports based on the
`existing record, including its disclosures, the Court’s Order allows it to do so. But the Order
`does not allow Acceleration to scrap and replace its entire damages case.
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`Activision’s Schedule Is Reasonable. The parties also disagree on the schedule in two
`key respects: (1) the deadline for Activision to provide a responsive report and (2) the amount of
`time for Activision to respond to Acceleration’s proffer. Acceleration proposes that Activision
`provide its response disclosures by January 18, 2019. Activision has proposed that this date be
`extended to January 25, 2019 because its damages expert, Ms. Lawton, has a report in another
`matter due on January 18. Further, given the upcoming holidays, Activision wants to ensure it
`has sufficient time to respond to Acceleration’s supplementation. The other scheduling dispute
`is how much time Activision should have to respond to Acceleration’s proffer. Given the
`unknown nature and length of the proffer or of the supplemental report to be served, Activision
`requests four weeks. Acceleration, however, insists that Activision only needs two weeks to
`respond, even as it gives itself three weeks to reply. Acceleration’s demand would unfairly limit
`Activision’s time to respond properly, and should be rejected.
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`Case 1:16-cv-00453-RGA Document 628 Filed 11/20/18 Page 3 of 3 PageID #: 49969
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`The Honorable Richard G. Andrews
`November 20, 2018
`Page 3
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`Respectfully,
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`/s/ Jack B. Blumenfeld
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`Jack B. Blumenfeld (#1014)
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`JBB/bac
`Attachment
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`cc:
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`Clerk of Court (via hand delivery; w/attachment)
`All Counsel of Record (via electronic mail; w/attachment)
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