Case 1:16-cv-00453-RGA Document 632 Filed 12/07/18 Page 1 of 3 PageID #: 50015
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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
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`(302) 658-9200
`(302) 658-3989 FAX
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`JACK B. BLUMENFELD
`(302) 351-9291
`(302) 425-3012 FAX
`jblumenfeld@mnat.com
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`
`
`The Honorable Richard G. Andrews
`United States District Court
` for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
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`December 7, 2018
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`VIA ELECTRONIC FILING
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`Re:
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`Acceleration Bay LLC v. Activision Blizzard Inc., C.A. No. 16-453 (RGA)
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`Dear Judge Andrews:
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`We write in response to Acceleration Bay’s letter brief of yesterday seeking user login
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`data for the World of Warcraft franchise. (D.I. 631.)
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`Activision Has Supplemented Its Financial Data
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`At the October 19 pretrial conference, Activision agreed to supplement its financial data
`for the accused games in this case. (See D.I. 631, Ex. 1 at 123:9 to 124:3.) As promised,
`Activision supplemented its financial data the next business day, including revenue, sales, costs,
`profits and unit data through Q3 of 2018. (D.I. 631, Ex. 3 at 6.) Since then, Activision has
`supplied additional financial data where reasonably requested by Acceleration Bay, including
`details relating to specific platforms and users where possible. (D.I. 631, Ex. 3 at p. 6.)
`Activision has delivered what was promised.
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`Activision Did Not Agree To Provide Updated Account Activity For World of Warcraft
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`The data now being requested by Acceleration Bay is not financial data. Rather,
`Acceleration Bay is seeking information relating to user logins to World of Warcraft. During
`fact discovery, the Special Master denied Acceleration’s motion to compel that included a
`request for “usage data.” (D.I. 227 at 4-5.) 1 Activision nevertheless provided a limited set of
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`1 Although Acceleration Bay objected to other aspects of that order (see D.I. 254),
`Acceleration Bay did not object to the denial of its motion to compel the “usage data” at issue
`here.
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`

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`Case 1:16-cv-00453-RGA Document 632 Filed 12/07/18 Page 2 of 3 PageID #: 50016
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`The Honorable Richard G. Andrews
`December 7, 2018
`Page 2
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`user login data for World of Warcraft for a limited period of time. Acceleration Bay accepted
`this production and did not seek further relief on this issue during fact discovery.
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`Activision never agreed to supplement this data. At the time of the pretrial conference,
`the parties were actively preparing for the October 29 trial. Acceleration Bay wanted
`supplemental sales data so that its damages expert could update her damages computation for
`trial. Dr. Meyer did not provide a damages computation based on the login data for World of
`Warcraft and never sought supplementation of that data before the pretrial conference. The
`Court has stricken Dr. Meyer’s opinions underlying her damages computations and given
`Acceleration Bay one final opportunity to advance an admissible damages case. (D.I. 619.)
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`With this opportunity in hand, Acceleration Bay now seeks to recast Activision’s
`representation at the pretrial conference into some open-ended promise to provide whatever
`discovery Acceleration Bay demands in connection with its forthcoming damages report. The
`Court did not re-open fact discovery. Acceleration Bay’s request should be denied.
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`The Requested Information Is Not Relevant and Its Production is Burdensome
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`Acceleration Bay’s request also should be denied because is seeks irrelevant information.
`Acceleration Bay seeks production of aggregated user account activity for every World of
`Warcraft version, title and expansion pack, whether accused or not accused, as well as titles that
`were excluded from the case by the Special Master. (D.I. 185 at 2-5 (precluding discovery into
`“updated versions of the accused product that have been released since the date the suit was filed
`in 2015.”). The Court later overruled Acceleration Bay’s objections to that order. (D.I. 284 (“It
`is too late to be adding more products to the case.”) Because relevance depends on the
`allegations of infringement, Acceleration Bay’s request is facially improper and should be
`denied. American Standard Inc. v. Pfizer Inc., 828 F.2d 734, 742 (Fed. Cir. 1987) (the party
`“seeking discovery ... must show some relationship between the claimed invention and the
`information sought”); see also Icon-IP Pty Ltd. v. Specialized Bicycle Components, Inc., Case
`No. 12-cv-3844, 2014 WL 4593338, *3-*4 (N.D. Cal. 2014) (denying motion where, as here, the
`patentee “has not articulated a damages theory that would entitle it to broad discovery ... as to
`unaccused [products].”).2
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`2 Unlike Call of Duty and Destiny, user account activity for World of Warcraft cannot be
`segregated by version or expansion pack. (See D.I. 631, Ex. 3 at p. 4.) Even if creating such a
`data were possible, there is no legal basis for Acceleration Bay to require Activision to create
`customized account records that it does not otherwise maintain in the ordinary course. See, e.g.,
`Fadem v. Am. States Preferred Ins. Co., Case No. 13-cv-01213, 2014 WL 202176, at *1-*2
`(D. Nev. 2014) (denying motion because, as here, “parties are not required to create a document
`where none exists”); Rockwell Int’l Corp. v. H. Wolfe Iron and Metal Co., 576 F. Supp. 511, 511
`(W.D. Pa. 1983) (discussing the unremarkable proposition that party is not required “to prepare,
`or cause to be prepared” new documents).
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`

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`Case 1:16-cv-00453-RGA Document 632 Filed 12/07/18 Page 3 of 3 PageID #: 50017
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`The Honorable Richard G. Andrews
`December 7, 2018
`Page 3
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`Acceleration Bay Has Not Adequately Conferred
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`In its letter, Acceleration Bay claims that it repeatedly requested updated World of
`Warcraft account data. (D.I. 631 at 1.) Not so. Acceleration Bay’s first request for this
`information came last Friday, November 30—a full month after Activision’s supplementation of
`its financial data. (D.I. 631, Ex. 3 at p. 6.) In response, Activision diligently investigated
`Acceleration Bay’s request and explained that the requested supplementation was not practicable
`given the way account activity is maintained for World of Warcraft. (Id. at p. 3.) Activision
`counsel also requested an explanation from Acceleration Bay why the requested account activity
`was appropriate or even necessary. (Id. at p. 2, 3.) Acceleration Bay responded with the threat
`of seeking emergency relief—a threat it delivered on yesterday morning.
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`The parties have not sufficiently conferred about how they might resolve the dispute.
`The Court should deny Acceleration Bay’s motion for its refusal to confer with counsel for
`Activision. See In re TQ Delta and Jason H. Vick, No. 17-328, 2018 WL 5033756, at *4
`(D. Del. Oct. 17, 2018) (denying motion where plaintiff failed to “to meet and confer with
`Defendants before filing the motion”); see also UCB, Inc. v. Watson Labs., Inc., No. 14-1083,
`2017 WL 2646110, at *1 (D. Del. May 19, 2017) (the movant’s “failure to meet and confer is an
`independent and sufficient basis on which to deny the relief they seek.”).
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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
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`cc:
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`Clerk of Court (via hand delivery)
`All Counsel of Record (via electronic mail)
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