Case 1:16-cv-00453-RGA Document 686 Filed 05/01/19 Page 1 of 15 PageID #: 52261
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`ACCELERATION BAY LLC,
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`Plaintiff,
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`v.
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`ACTIVISION BLIZZARD, INC.,
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`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`C.A. No. 16-453 (RGA)
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`REDACTED -
`PUBLIC VERSION
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`DEFENDANT ACTIVISION BLIZZARD INC.’S REPLY BRIEF IN SUPPORT OF
`MOTION TO STRIKE EXPERT REPORT OF RUSSELL PARR
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`
`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
`
`Attorneys for Defendants
`
`OF COUNSEL:
`B. Trent Webb
`Aaron E. Hankel
`John Garretson
`Jordan T. Bergsten
`Maxwell C. McGraw
`SHOOK HARDY & BACON LLP
`2555 Grand Boulevard
`Kansas City, MO 64108
`(816) 474-6550
`
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`David P. Enzminger
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
`
`Original Filing Date: April 19, 2019
`Redacted Filing Date: May 1, 2019
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`

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`Case 1:16-cv-00453-RGA Document 686 Filed 05/01/19 Page 2 of 15 PageID #: 52262
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`TABLE OF CONTENTS
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`I.
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`II.
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`INTRODUCTION .............................................................................................................. 1 
`
`ARGUMENT ...................................................................................................................... 1 
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`A. The Court’s Order Did Not Contemplate a Brand New Damages Report .......................... 1 
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`B. Acceleration Admits That the Boeing-Panthesis License Was Not
`Previously Disclosed as an Input to its Damages Case....................................................... 5 
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`C. Mr. Parr’s Report Should Be Stricken Under Pennypack ................................................... 6 
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`D. The Boeing-Panthsis License Is Inadmissible .................................................................... 9 
`
`III.
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`CONCLUSION ................................................................................................................. 10 
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`

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`Case 1:16-cv-00453-RGA Document 686 Filed 05/01/19 Page 3 of 15 PageID #: 52263
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`TABLE OF AUTHORITIES
`
`Cases ..................................................................................................................................... Page(s)
`
`Beller ex rel. Beller v. U.S.,
`221 F.R.D. 696 (D.N.M. 2003) ..................................................................................................3
`
`Bio-Rad Labs., Inc. v. 10X Genomics, Inc.,
`No. 15-152-RGA, 2018 WL 5729732 (D. Del. Nov. 2, 2018) ..................................................9
`
`Bridgestone Sports Co. Ltd. v. Acushnet Co.,
`No. CIVA 05-132 JJF, 2007 WL 521894 (D. Del. Feb. 15, 2007) ........................................6, 7
`
`Gallagher v. Southern Source Packaging, LLC,
`568 F. Supp. 2d 624 (E.D.N.C. 2008)....................................................................................2, 3
`
`Inline Connection Corp. v. AOL Time Warner Inc.,
`470 F. Supp. 2d 435 (D. Del. 2007) .........................................................................................10
`
`Intellectual Ventures I LLC v. AT&T Mobility LLC,
`No. 12-193-LPS, 2017 WL 478565 (D. Del. Jan. 31, 2017) .................................................2, 3
`
`Meyers v. Pennypack Woods Home Ownership Ass’n,
` 559 F.2d 894 (3d Cir. 1977)..................................................................................................6, 9
`
`MicroStrategy, Inc. v. Business Objects, S.A.,
`429 F.3d 1344 (Fed. Cir. 2005)..................................................................................................3
`
`Remington Arms Co. v. Liberty Mut. Ins. Co.,
`810 F. Supp. 1420 (D. Del. 1992) ..............................................................................................9
`
`Robocast, Inc. v. Apple Inc.,
`No. 11-235-RGA, 2014 WL 334199 (D. Del. Jan. 28, 2014) ................................................2, 3
`
`Rules
`
`Fed. R. Civ. P. 26 .............................................................................................................................3
`
`Fed. R. Civ. P. 37 .............................................................................................................................6
`
`Fed. R. Evid. 1004(a) .......................................................................................................................9
`
`ii
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`I.
`
`INTRODUCTION
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`Acceleration’s opposition fails to cure the glaring deficiencies in Mr. Parr’s damages report,
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`specifically that (1) it is not a supplemental report as contemplated by this Court’s order, and (2) a
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`large portion of the report relies upon an unproduced, unexecuted technology transfer agreement that
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`was never identified by Acceleration during fact or expert discovery as an basis for its damages
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`theories despite multiple orders compelling Acceleration to disclose all facts supporting its damages
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`theories. Because Acceleration’s new report exceeds the bounds of this Court’s order, as well as
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`case law that defines the scope and purpose of supplemental reports, the entirety of the report should
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`be stricken.
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`Acceleration has repeatedly failed to present an admissible damages case, and now seeks to
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`offer a brand new damages case under the guise of a “supplemental” report based on a purported
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`agreement, the final version of which has never been produced, and that was not identified by
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`Acceleration in over three years of litigation as being the basis for its damages theories. Activision
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`respectfully requests that this Court reject Accelerations impermissibly broad interpretation of its
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`order, and strike Mr. Parr’s expert report.
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`II.
`
`ARGUMENT
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`A. The Court’s Order Did Not Contemplate a Brand New Damages Report
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`Acceleration asserts that it understood that the Court “intended to permit Acceleration [] to
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`assert appropriate damages claims for Activision’s infringement without merely rehashing the same
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`claims the Court already excluded.” D.I. 667, at 4. Activision objects to Mr. Parr’s wholesale
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`reworking of Acceleration’s damages case in direct contradiction to Dr. Meyer’s report.
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`The Court permitted Acceleration to “supplement its expert reports” as a “final opportunity
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`to present [the Court] with an admissible damages case.” D.I. 619, at 2 (emphasis added). And,
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`while it allowed Acceleration “to submit a damages report from a new damages expert, [it]
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` 
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`Case 1:16-cv-00453-RGA Document 686 Filed 05/01/19 Page 5 of 15 PageID #: 52265
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`reserve[d] the right to strike or limit it depending on its contents.” D.I. 630, at 3 n.1. The Court’s
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`order was clear—it permitted Acceleration to supplement Dr. Meyer’s expert damages report and
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`would exercise discretion to strike if warranted. Instead of supplementing, Acceleration employed a
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`new expert whose report is completely divorced from Dr. Meyer’s damages case record.1
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`Acceleration attempts to distinguish Robocast and Intellectual Ventures by focusing on
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`irrelevant aspects of the procedural posture of those cases. See D.I. 667, at 4. Regardless of whether
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`the supplemental reports in those cases were authorized or not, the guidance regarding the definition
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`and bounds of a supplemental report still applies. In Robocast, the Special Master and the Court
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`found “that the supplemental report added new theories that could have been contained in the
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`original report” and guidance was offered regarding the role of supplementation—a supplemental
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`report is to “correct inadvertent errors or omissions” not to advance opinions that “should have been
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`included in the [original] expert witness’ report.” Robocast, Inc. v. Apple Inc., No. 11-235-RGA,
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`2014 WL 334199, at *1 (D. Del. Jan. 28, 2014) (quoting Gallagher v. Southern Source Packaging,
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`LLC, 568 F. Supp. 2d 624, 630–31 (E.D.N.C. 2008)). The procedural posture in Robocast does not
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`minimize the guidance regarding the proper bounds of a supplemental report.
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`Similarly, in Intellectual Ventures, defendants challenged plaintiff’s expert report because it
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`“offer[ed] a new theory and improperly relie[d] on evidence that was not produced or relied upon in”
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`the opening report. Intellectual Ventures I LLC v. AT&T Mobility LLC, No. 12-193-LPS, 2017 WL
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`478565, at *3 (D. Del. Jan. 31, 2017). The court struck that portion of plaintiff’s report because the
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`1 Acceleration argues that the Court should not strike Mr. Parr’s report in its entirety because
`Activision does not challenge all of the substantive damages opinions offered in Mr. Parr’s report.
`D.I. 667, at 2, 5, 9. Activision’s motion to strike is based on procedural and evidentiary deficiencies
`in Mr. Parr’s report. Activision’s substantive challenges to Mr. Parr’s report are addressed in its
`proffer challenge briefing. D.I. 650.
`
`2
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`Case 1:16-cv-00453-RGA Document 686 Filed 05/01/19 Page 6 of 15 PageID #: 52266
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`opinions were available when the expert served the opening report, and the omission was intentional.
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`Id. at *4. Mr. Parr’s “supplemental” report suffers from the same fatal flaws.
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`Even though this Court authorized the filing of Mr. Parr’s report, Acceleration still had a duty
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`to operate within the bounds of that order and the Federal Rules.2 “‘Rule 26 imposes a duty on
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`Plaintiffs; it grants them no right to produce information in a belated fashion.’” Robocast, Inc., 2014
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`WL 334199, at *1 (quoting Gallagher, 568 F. Supp. 2d at 631) (emphasis in original). These
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`commonsense boundaries for supplemental reports prevent gamesmanship by parties who would
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`“supplement” its expert reports late in the case for tactical advantages, and promotes judicial
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`efficiency. See Gallagher, 568 F. Supp. 2d at 631; see also MicroStrategy, Inc. v. Business Objects,
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`S.A., 429 F.3d 1344, 1353 (Fed. Cir. 2005) (striking plaintiff’s damages expert’s supplemental
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`damages report for violating the “court’s scheduling order and not being a true supplement to the
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`initial report”); see also Beller ex rel. Beller v. U.S., 221 F.R.D. 696, 701–02 (D.N.M. 2003)
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`(striking an expert’s supplemental report for, in part, including different opinions than the opinions
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`in the original report and noting that allowing the report would “circumvent the full disclosure
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`requirement implicit in Rule 26”). To the extent Acceleration argues that Mr. Parr’s opinions were
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`somehow disclosed by Acceleration’s discovery responses, the fact remains that Dr. Meyer’s report
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`did not rely on those purported disclosures. To do so now is not supplementation.
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`While Acceleration argues that the Court permitted it to submit new damages claims, it
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`simultaneously asserts that the “same general theories and underlying information [in Dr Meyer’s
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`report] are the basis for Mr. Parr’s opinions.”3 D.I. 619, at 7, 8. In support, Acceleration identifies
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`                                                            
`2 Rule 26(e) defines supplementing disclosures, and includes supplementations “as ordered by
`the court.” FED. R. CIV. P. 26(e)(1)(B).
`3 Acceleration, without citation, cites to the Special Master’s ruling in previous motion to strike as
`support for adequate disclosure for Mr. Parr’s expert reports. D.I. 667, at 7. But the Special
`Master’s ruling simply recognized that “Plaintiff’s expert reports could have been more clearly
`
`3
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`

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`Case 1:16-cv-00453-RGA Document 686 Filed 05/01/19 Page 7 of 15 PageID #: 52267
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`three portions of Mr. Parr’s report that are purportedly “consistent” with Dr. Meyer’s report: (1) Mr.
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`Parr’s apportionment approach; (2) Mr. Parr’s use of Dr. Valerdi’s cost-savings estimate; and (3) Mr.
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`Parr’s discussion of facts informing his Georgia-Pacific analysis. D.I. 667, at 8. But a plain
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`comparison between the reports demonstrates that is incorrect.
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`On apportionment, Dr. Meyer apportioned, in part, based on the number of patents asserted
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`against each accused product. In contrast, Mr. Parr does not apportion at all based on the number of
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`asserted patents, ignoring the fact that multiple patents have been found invalid or non-infringed.
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`Compare Ex. 1, Parr Report, at ¶¶ 205–07, 227–28 with Ex. 2, Meyer Opening Report, at ¶¶ 169–
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`170. Mr. Parr also rejects Dr. Meyer’s estimate of alleged “Apportioned Infringing Units” and
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`“Apportioned Infringing Unique Users” and introduces his own novel estimates of purported
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`“unique users.” Compare Ex. 1, Parr Report, at ¶¶ 227–28 with Ex. 2, Meyer Opening Report, Ex.
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`13, R3. On the use of Dr. Valerdi’s cost-savings estimates, Dr. Meyer explicitly rejected using Dr.
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`Valerdi’s estimates as an input into a royalty calculation, whereas Mr. Parr uses Dr. Valerdi’s
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`estimates as a direct input into five of his royalty calculations. Compare Ex. 1, Parr Report, at ¶¶
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`149–203 with Ex. 2, Meyer Opening Report, at ¶ 57. Finally, Mr. Parr utilized the standard
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`Georgia-Pacific factors, but he only adopted limited aspects of Dr. Meyer’s analysis while altering
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`conclusions and assumptions throughout. See Ex. 3, Lawton Report, Table 3.7 (highlighting the key
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`differences between Mr. Parr’s and Dr. Meyer’s Georgia-Pacific analyses).
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`Most notably, Mr. Parr admitted that he constructed all of his royalty approaches by himself,
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`adopted none of Dr. Meyers approaches, did not focus on what Dr. Meyer did in her report, and
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`                                                                                                                                                                                                
`written” and that the forthcoming expert discovery would clarify any excludable opinions from Dr.
`Meyer’s report. See D.I. 347 at 5–6. Following that discovery, Activision successfully struck Dr.
`Meyer’s damages opinions on two separate occasions. D.I. 578, 600.
`
`4
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`

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`Case 1:16-cv-00453-RGA Document 686 Filed 05/01/19 Page 8 of 15 PageID #: 52268
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`ultimately “didn’t care what she did.” D.I. 653, at Ex. 3, Parr Dep. Tr. at 78:13-79:3. Mr. Parr’s
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`report is a complete do-over of Acceleration’s damages case in violation of this Court’s order.
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`B. Acceleration Admits That the Boeing-Panthesis License Was Not Previously
`Disclosed as an Input to its Damages Case
`
`Notably absent from Acceleration’s opposition is any citation supporting the disclosure of the
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`Boeing-Panthesis technology license as an input to its damages case during prior fact or expert
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`discovery. See D.I. 667, at 4–8.4
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`Acceleration takes the unsupportable position that it was not required to identify any
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`agreements in response to Activision’s interrogatory seeking all facts supporting Acceleration’s
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`damages theories. D.I. 667, at 14 n.6. The interrogatory plainly seeks the factual support for any of
`
`Acceleration’s damages theories, and agreements plainly fall within that scope. See D.I. 651, Ex. 24,
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`Pl.’s Suppl. Resp. to Interrog. No. 1, at 1–2. Notably, after being compelled to do so by the Special
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`Master, Acceleration supplemented its response to Interrogatory No. 1 to reference “license
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`agreements” generally but failed to identify the Boeing-Panthesis license. Further, Acceleration
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`incorporated the forthcoming “expert report it [would] serve on damages.” Id. at 4–10. Yet Dr.
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`Meyer’s report did not include any mention of the Boeing-Panthesis license, while discussing several
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`other license agreements. Clearly, Acceleration believed identification of relevant agreements was
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`called for in responding to this interrogatory, yet Acceleration made the tactical decision not to
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`identify the Boeing-Panthesis license in its damages case.
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`                                                            
`4 Acceleration does state that Mr. Parr identifies a maximum rate of
`(derived from the Boeing-
`Panthesis license), which is less than the
` royalty rate identified in its supplemental
`interrogatory response. D.I. 667, at 6. All the interrogatory response discloses is that “Plaintiff
`estimates that the royalty rate will be
`of total revenues.” D.I. 667, Ex. 1 (8/18/17 Resp.
`Interrog. No. 1) at 8–10 (emphasis added). This does not suggest that Acceleration was considering
`lower or higher royalty rates as well, nor does it disclose that it was considering using the Boeing-
`Panthesis license as support for a
`royalty.
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`5
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`Case 1:16-cv-00453-RGA Document 686 Filed 05/01/19 Page 9 of 15 PageID #: 52269
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`Because Acceleration fails to show any evidence of prior disclosure of the Boeing-Panthesis
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`license as an input to its damages case, the appropriate analysis centers on the extreme prejudice
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`experienced by Activision due to Acceleration’s non-disclosure.
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`C. Mr. Parr’s Report Should Be Stricken Under Pennypack
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`Acceleration warns the Court that “[e]xclusion under Rule 37 is an ‘extreme sanction’ that
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`should be avoided if the untimely disclosure was ‘substantially justified or harmless.’” D.I. 667, at
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`9–10. Even so, courts have been more willing to strike opinions “in the case of sophisticated,
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`complex litigation involving parties represented by competent counsel.” Bridgestone Sports Co. Ltd.
`
`v. Acushnet Co., No. CIVA 05-132 JJF, 2007 WL 521894, at *4 (D. Del. Feb. 15, 2007) (internal
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`citations omitted). In these cases, courts have struck expert reports even though there has not been
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`“a strict showing that each of the Pennypack factors has been satisfied.” Id. Acceleration ignores
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`this case law in Activision’s opening brief, D.I. 652, at 9, and complains that Activision only focused
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`on the first Pennypack factor—prejudice. D.I. 667, at 9–10. Because it is not required to satisfy
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`every Pennypack factor, the extreme prejudice to Activision warrants exclusion of Mr. Parr’s report,
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`at least with respect to the Boeing-Panthesis license.5
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`To rebut Activision’s prejudice, Acceleration first states that it produced documents and
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`witnesses related to the Boeing-Panthesis license. D.I. 667, at 10. However, because the original
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`agreement was never produced, Acceleration’s damages disclosures gave Activision no reason to
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`develop a record surrounding the license. The produced documents simply show that a purported
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`technology agreement was negotiated for approximately 18 months and allegedly finalized sometime
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`in 2002. And as explained in Activision’s opening brief, none of the documents corroborate the final
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`terms used by Mr. Parr in his report. D.I. 652, at 10–12. In fact, Mr. Parr only arrived at the “final”
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`terms of the agreement by conducting an off-the-record conversation Dr. Holt. Ex. 1, Parr Report, at
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`5 Activision concedes that Factor 4 (bad faith) is not at issue.
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`6
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`

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`Case 1:16-cv-00453-RGA Document 686 Filed 05/01/19 Page 10 of 15 PageID #: 52270
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`¶¶ 64–65. Mr. Parr did not speak with the other members of Panthesis or Boeing’s Natasha
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`Radovsky who could have provided corroborating or contradictory information. Further, Activision
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`identified information in contemporaneous documents that directly contradict the information Mr.
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`Parr received from Dr. Holt. D.I. 652, at 10–12. The only way to fully vet Mr. Holt’s memory of
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`the Boeing-Panthesis license terms is through substantial additional discovery, which would result in
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`even more delay and expense and still may not yield sufficient information to confirm any fact at
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`issue.6 See Bridgestone Sports , 2017 WL 521894, at *5 (granting motion to strike untimely
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`supplementation noting that if defendant was “permitted to rely on [] untimely identified references,
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`[Plaintiff] would be required to conduct additional fact and expert discovery in order to formulate a
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`proper response”).
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`Next, Acceleration cites to over 150 paragraphs in Ms. Lawton’s 2017 rebuttal report to show
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`she purportedly “dedicate[d] a good portion” of the report to topics regarding the Boeing-Panthesis
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`license. D.I. 667, at 10. Not so. In fact, of the cited paragraphs, only five actually mention the
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`Boeing-Panthesis license. Ex. 4, 2017 Lawton Report, at ¶ 255, 277–280. Ms. Lawton noted that
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`the final executed agreement was never produced, and did not opine on any potential royalty rate
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`from this license. See Id. The only term mentioned by Ms. Lawton was that “[Panthesis] [was]
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`required to give Boeing
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`at signing,” a term conspicuously absent from Mr. Parr’s report that
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`directly contradicts the information he acquired from Dr. Holt. Id. at ¶ 277. Nothing in the cited
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`sections of Ms. Lawton’s 2017 report minimizes the prejudice to Activision resulting from
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`Acceleration’s sudden and unexpected reliance on the Boeing-Panthesis license. See Bridgestone
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`                                                            
`6 In addition to the discrepancies surrounding the Boeing-Panthesis license, Mr. Parr relied upon
`new interviews with fact witnesses and technical experts—to which he cited over 30 times—to
`complete his report. Because Mr. Parr’s royalty approaches are all novel and admittedly distinct
`from Dr. Meyer’s, all of these experts would need to be deposed as well.
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`7
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`

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`Sports, 2007 WL 521894, at *5 (noting that “Bridgestone’s prior knowledge of [the untimely
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`disclosed] references does not excuse Acushnet’s failure to timely disclose them”).7
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`Acceleration also takes the position that Activision is not prejudiced by Acceleration’s late
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`disclosure because Ms. Lawton rebutted Mr. Parr’s report. D.I. 667, at 11. Even with Ms. Lawton’s
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`rebuttal, Activision has still not had the opportunity to vet the off-the-record conversation Mr. Parr
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`had with Dr. Holt and the other technical experts and fact witnesses. Without this discovery,
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`Activision’s rebuttal is limited to relying on the undeveloped case record on the license.
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`Acceleration faults Activision for failing to ask for more discovery into this topic. D.I. 667,
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`at 11. But Activision should not be punished for operating within the bounds of this Court’s order,
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`which clearly only contemplated “depositions on supplemental expert reports.” D.I. 630, at 2.
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`Despite repeated requests for clarification regarding Acceleration’s damages case, Acceleration
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`withheld its reliance on the Boeing-Panthesis license until the eleventh hour. This can only be cured
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`by forcing Activision to incur even more expense and delay resolution of this case even further.8
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`Acceleration should be held to their tactical decisions in developing its damages case.
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`Acceleration argues that, because their damages case is important to the ability of the case to
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`advance towards trial, this factor weighs in its favor. D.I. 667, at 13. But if the late-disclosed
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`information and new opinions presented by Mr. Parr were important, Acceleration should have
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`advanced them at the outset of their damages case. All of the new arguments were available, but
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`                                                            
`7 Acceleration’s citation to Ms. Lawton’s January 2018 also fails to minimize the prejudice to
`Activision. D.I. 667, at 11. Ms. Lawton merely recognized that the Boeing-Panthesis relationship
`would be relevant to the hypothetical negotiation. She does not opine on the unavailable Boeing-
`Panthesis license because that was not a data point that was available or asserted by Acceleration in
`its damages case at that time.
`8 Even though there is no current trial date, additional discovery would only further disrupt the
`setting of a trial date. If Acceleration would have operated within the bounds of the scheduling
`order, a trial date would be able to be set shortly after the completion of the briefing schedule in the
`Scheduling Order.
`
`8
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`

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`Acceleration’s counsel made the tactical decision to advance the assumptions, opinions, and
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`methodologies disclosed in Dr. Meyer’s reports.
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`Finally, Acceleration’s reliance on Bio-Rad is misplaced. See D.I. 677, at 13. While the
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`court did consider a similar procedural circumstance, the court’s analysis was focused on
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`defendant’s Daubert challenge to plaintiff’s supplemental expert opinions. See Bio-Rad Labs., Inc.
`
`v. 10X Genomics, Inc., No. 15-152-RGA, 2018 WL 5729732, at *2–3 (D. Del. Nov. 2, 2018).
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`Ultimately, the Court’s Pennypack analysis simply found that defendant’s expert was able to rebut
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`plaintiff’s opinions in a responsive supplemental report. Id. at *4. Here, however, no matter how
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`many pages Ms. Lawton had to respond to Acceleration’s novel report, Mr. Parr still relied on an
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`off-the-record conversation with Dr. Holt to arrive at the final terms of the Boeing-Panthesis license
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`purportedly executed 17 years ago. Due to lack of discovery, this could not be corroborated, which
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`prevented Ms. Lawton from fully responding to Mr. Parr’s opinions.
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`D. The Boeing-Panthsis License Is Inadmissible
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`This Court’s order required Acceleration to submit a proffer of its damages case including
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`“citations to Federal Circuit precedent supporting [Acceleration’s damages evidence’s] admissibility
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`and sufficiency.” D.I. 619, at 2. Acceleration’s opposition still fails to meet its threshold showing
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`that the exception under Rule 1004(a) applies. Acceleration states that it has been “unable to locate”
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`the final executed agreement, but it fails to explain the extent to which it searched for the license.
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`Nor does Acceleration provide an explanation for why Boeing, a party with an interest in the
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`outcome of this case, was unable to produce the original agreement even though draft versions of the
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`agreement were available. Acceleration’s failure to make a threshold showing of a diligent search
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`for the agreement is fatal and yet another example of Acceleration operating outside the bounds of
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`the Court’s order. See Remington Arms Co. v. Liberty Mut. Ins. Co., 810 F. Supp. 1420, 1426 (D.
`
`9
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`

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`Case 1:16-cv-00453-RGA Document 686 Filed 05/01/19 Page 13 of 15 PageID #: 52273
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`Del. 1992) (stating that the proponent of the secondary evidence must demonstrate “evidence of a
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`diligent but unsuccessful search for the document”). Moreover, Acceleration’s deliberate failure to
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`identify the Boeing-Panthesis license as an input to its damages theories, despite multiple orders
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`compelling supplementation on this issue, is sufficient to infer bad faith on the part of Acceleration
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`to deprive Activision of an opportunity to conduct fulsome discovery.
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`Acceleration also argues that Activision’s hearsay objection is unfounded because license
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`agreements and documentary evidence of license negotiations are routinely relied upon by damages
`
`experts. D.I. 667, at 15. However, Acceleration fails to respond to how Mr. Parr’s reliance on an
`
`unexecuted license agreement based on an individual’s memory of an event almost 17 years in the
`
`past is the type of hearsay evidence that “is reasonably applied or relied upon by experts in the field”
`
`of patent damages. D.I. 658, at 13 (citing Inline Connection Corp. v. AOL Time Warner Inc., 470 F.
`
`Supp. 2d 435, 442 (D. Del. 2007)). Additionally, contemporaneous documents directly contradict
`
`the terms Mr. Parr’s gleaned from Dr. Holt’s hearsay statements. Because of their minimal
`
`probative value, permitting Acceleration to present these opinions would be highly prejudicial to
`
`Activision and should be excluded.
`
`III. CONCLUSION
`
`Activision respectfully requests the Court grant Activision’s motion to strike.
`
`10
`
`

`

`Case 1:16-cv-00453-RGA Document 686 Filed 05/01/19 Page 14 of 15 PageID #: 52274
`
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`
`/s/ Stephen J. Kraftschik
`__________________________________
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`
`Attorneys for Defendants
`
`
`
`
`
`OF COUNSEL:
`B. Trent Webb
`Aaron E. Hankel
`John Garretson
`Jordan T. Bergsten
`Maxwell C. McGraw
`SHOOK HARDY & BACON LLP
`2555 Grand Boulevard
`Kansas City, MO 64108
`(816) 474-6550
`
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
`
`April 19, 2019
`
` 
`
`

`

`Case 1:16-cv-00453-RGA Document 686 Filed 05/01/19 Page 15 of 15 PageID #: 52275
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that on May 1, 2019, I caused the foregoing to be electronically
`
`filed with the Clerk of the Court using CM/ECF, which will send notification of such filing to all
`
`registered participants.
`
`I further certify that I caused copies of the foregoing document to be served on May
`
`1, 2019, upon the following in the manner indicated:
`
`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
`
`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`Yuridia Caire, Esquire
`Greg Proctor, Esquire
`Michael H. Lee, Esquire
`William Hannah, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
`
`Aaron M. Frankel, Esquire
`Marcus A. Colucci, Esquire
`Cristina Martinez, Esquire
`Shannon H. Hedvat, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`Attorneys for Plaintiff
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`VIA ELECTRONIC MAIL
`
`/s/ Stephen J. Kraftschik
`_______________________________
`Stephen J. Kraftschik (#5623)
`
`