Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 1 of 203 PageID #: 52646
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` IN THE UNITED STATES DISTRICT COURT
`
` FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY, LLC :
` :
` Plaintiff, : No. 16-453-RGA
` :
` v. :
` :
`ACTIVISION BLIZZARD, INC. :
` :
` Defendant. :
`ACCELERATION BAY, LLC :
` : No. 16-454-RGA
` Plaintiff, :
` v. :
` :
`ELECTRONIC ARTS, INC., :
` :
` Defendant. :
`ACCELERATION BAY, LLC :
` : No. 16-455-RGA
` Plaintiff, :
` v. :
` :
`TAKE-TWO INTERACTIVE :
`SOFTWARE, INC., ROCKSTAR :
`GAMES, INC. and 2K SPORTS,:
`INC., :
` Defendants. :
`
`
` Friday, April 14, 2017
` 9:00 a.m., Discovery Dispute Hearing
`
` Richards, Layton & Finger, P.A.
` 920 North King Street, Suite 2
` Wilmington, Delaware 19801
`
` BEFORE: SPECIAL MASTER Allen M. Terrell
`
`
` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
` (302) 658-6697 FAX (302) 658-8418
`
`
`1
`
` IN THE UNITED STATES DISTRICT COURT
`
` FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY, LLC :
` :
` Plaintiff, : No. 16-453-RGA
` :
` v. :
` :
`ACTIVISION BLIZZARD, INC. :
` :
` Defendant. :
`ACCELERATION BAY, LLC :
` : No. 16-454-RGA
` Plaintiff, :
` v. :
` :
`ELECTRONIC ARTS, INC., :
` :
` Defendant. :
`ACCELERATION BAY, LLC :
` : No. 16-455-RGA
` Plaintiff, :
` v. :
` :
`TAKE-TWO INTERACTIVE :
`SOFTWARE, INC., ROCKSTAR :
`GAMES, INC. and 2K SPORTS,:
`INC., :
` Defendants. :
`
`
` Friday, April 14, 2017
` 9:00 a.m., Discovery Dispute Hearing
`
` Richards, Layton & Finger, P.A.
` 920 North King Street, Suite 2
` Wilmington, Delaware 19801
`
` BEFORE: SPECIAL MASTER Allen M. Terrell
`
`
` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
` (302) 658-6697 FAX (302) 658-8418
`
`
`
`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 2 of 203 PageID #: 52647
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` APPEARANCES:
`
` POTTER ANDERSON & CORROON LLC
` BY: PHILIP ROVNER, ESQ.
`
` -and-
`
` KRAMER LEVIN NAFTALIS & FRANKEL LLP
` BY: PAUL ANDRE, ESQ.
` BY: AARON FRANKEL, ESQ.
`
` On behalf of Plaintiff
`
` MORRIS, NICHOLS, ARSHT & TUNNELL LLP
` BY: JACK BLUMENFELD, ESQ.
`
` -and-
`
` WINSTON & STRAWN LLP
` BY: KATHLEEN BARRY, ESQ.
`
` On behalf of Defendants
`
` PHILIPS, GOLDMAN, McLAUGHLIN & HILL,
` P.A.
` BY: MEGAN HANEY, ESQ.
`
` On behalf of Boeing
`
`
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
` (302) 658-6697 FAX (302) 658-8418
`
`
`
`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 3 of 203 PageID #: 52648
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`THE SPECIAL MASTER: So we're on
`
`the record. For the record, I'm Allen Terrell,
`
`Special Master, in the case of Acceleration Bay
`
`LLC vs. Activision Blizzard, Inc, Civil Action
`
`No. 16-453 and the related cases 16-454 and
`
`16-455. This is a hearing on Plaintiff's Motion
`
`to Compel and on Defendants' Motion to Compel.
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`We're going to begin by counsel
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`identifying themselves around the table for the
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`sake of the court reporter and this record.
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`MR. ANDRE: Paul Andre for
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`Plaintiff.
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`MR. FRANKEL: Aaron Frankel for
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`Plaintiff and with us is Phil Rovner also for
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`the Plaintiff.
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`MR. BLUMENFELD: Jack Blumenfeld
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`for the Defendants along with Kathleen Barry.
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`MS. HANEY: And Megan Haney also
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`for the Defendants and I'm just here for the
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`Boeing motion.
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`THE SPECIAL MASTER: We will begin
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`by agreement among the parties to consider the
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`first item being the Motion of Defendant to
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`Compel compliance with the Rule 45 subpoena to
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
` (302) 658-6697 FAX (302) 658-8418
`
`
`
`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 4 of 203 PageID #: 52649
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`the Boeing company. On behalf of Defendants is
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`Ms. Haney. You can go ahead.
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`MS. HANEY: Actually, I believe
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`that Ms. Barry will do the arguments for
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`Defendants.
`
`right?
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`THE SPECIAL MASTER: Is that
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`MS. BARRY: Yes.
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`THE SPECIAL MASTER: Let me also
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`tell counsel that I've read all of your briefs
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`and exhibits and I have suggested that we have
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`some reasonable limitations on time as we
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`proceed. But do your best and if you need more
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`time, I assure you can have it.
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`MS. BARRY: Thank you, Your Honor,
`
`and counsel for the Plaintiff for the courtesy
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`of doing the Boeing motion first since Ms. Haney
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`is co-counsel with us with regards to the Boeing
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`motion. As an initial matter on the Boeing
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`motion, Boeing has agreed to have this motion
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`heard before the Special Master in the
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`procedures that are set up here for the Special
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`Master.
`
`So we have two issues that we are
`
` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
` (302) 658-6697 FAX (302) 658-8418
`
`
`
`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 5 of 203 PageID #: 52650
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`moving to compel Boeing on at this point. The
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`first issue is we are seeking an order requiring
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`Boeing to provide a privilege log for any
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`documents that have been withheld on the basis
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`of privilege. And in response to that, Boeing
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`has made a couple of arguments.
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`First of all, Boeing has said that
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`they are not required to by reason of the
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`protective order. We don't believe that is
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`correct. As an initial matter, the scheduling
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`order, which was issued after the protective
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`order, provides a requirement that -- and
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`supersedes the protective order and provides
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`that all withheld documents with some limited
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`exceptions must be logged in full compliance
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`with Rule 26(b)(5)(a). I would direct the
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`Special Master to Paragraph 19 of the scheduling
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`order.
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`Second, even if the scheduling
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`order, which was signed by Judge Andrews several
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`days after the protective order, is not the
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`governing provision, the provision of the
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`protective order with regard to third parties as
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`the third parties may designate documents as
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
` (302) 658-6697 FAX (302) 658-8418
`
`
`
`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 6 of 203 PageID #: 52651
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`confidential under the protective order, it does
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`not provide that third parties do not have to
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`log documents under the protective order. And
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`that makes sense because with regard to the
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`provision of the protective order that Boeing is
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`pointing to, it talks about litigation counsel
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`of record.
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`Boeing continuously says in this
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`litigation that it is a third party, and we take
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`issue with that. It is not a third party, but
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`it doesn't have litigation counsel of record.
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`And I say it's not a third party because Boeing
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`was the original assignee of these patents.
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`Boeing was the party who employed the inventors
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`at the time of the invention. Boeing was the
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`party who owned these patents for almost 20
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`years.
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`Boeing then sold these patents.
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`When it sold these patents, it retained a
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`significant right in interest in the proceeds of
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`this litigation so Boeing has had more
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`documentation about these patents than any other
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`party to this litigation, but yet it doesn't
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`have, as the protective order provides,
`
` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
` (302) 658-6697 FAX (302) 658-8418
`
`
`
`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 7 of 203 PageID #: 52652
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`litigation counsel.
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`Even if those provisions of the
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`protective order would mean that Boeing wasn't
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`required to provide it with a privilege log,
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`there's a provision in the protective order that
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`says that if there's good cause, we can request
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`a protective order. And I would submit that
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`there is more than good cause here.
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`In particular, we have had very,
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`very minimal production of documents from Boeing
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`despite the fact that, as I mentioned, Boeing
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`was the original assignee of these patents,
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`Boeing was the employer of the inventors of
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`these patents and Boeing itself made effort to
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`sell these patents for quite a few years.
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`We have, for instance, no
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`documents regarding the actual negotiation and
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`discussion of the sale of these patents from
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`Boeing to Acceleration Bay. Those documents
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`would be from the 2014, 2015 time frame and
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`those documents certainly would not be
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`privileged. It would be between parties that
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`had adverse positions because they were trying
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`to negotiate an agreement, but we have none of
`
` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
` (302) 658-6697 FAX (302) 658-8418
`
`
`
`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 8 of 203 PageID #: 52653
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`those documents.
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`We also have no documents
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`regarding the amendment to the Sale Agreement
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`that was entered into between Boeing and
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`Acceleration Bay to address the standing issue.
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`That would have been another situation in which
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`Acceleration Bay were adverse and had adverse
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`interests, so we have none of those documents
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`either.
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`In fact, this is what we will get
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`to in the second part of the request of the
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`relief on Boeing, which is we're asking for an
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`order requiring Boeing to search and produce
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`responsive emails and electronically stored
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`information because we have a complete dearth of
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`documents from Boeing.
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`Going back to the timeline, this
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`started back in 1996 and Boeing owned these
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`patents until it sold them in 2015. And yet the
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`documents that have been produced in this case
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`are essentially the paper file histories, and we
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`recently this week got a very limited production
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`of emails. The email production that we did get
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`was 900 pages, except of that 900 pages two of
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
` (302) 658-6697 FAX (302) 658-8418
`
`
`
`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 9 of 203 PageID #: 52654
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`the files were Excel files which constitute
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`about 600 pages, so essentially we've got 300
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`pages of documents that Boeing has produced of
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`about 110 documents.
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`Tellingly, there are no
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`communications between Boeing and Acceleration
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`Bay. There are no communications between Boeing
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`and Joe Ward. In fact, there doesn't appear to
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`be any communication between Boeing and anybody
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`who was involved in the sale of these patents to
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`Acceleration Bay. There also does not appear to
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`be and hasn't been produced any of the source
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`code that Boeing had back in the 1990s regarding
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`their implementation of the invention.
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`We know from documents that would
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`have been produced by the inventors that there
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`was a whole collection of source code files that
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`the inventors asked for from Boeing when they
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`left Boeing. None of those have been produced.
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`There were also other documents associated with
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`the invention at the time and the implementation
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`in Boeing systems. We haven't gotten any of
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`that from Boeing.
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`So we're seeking here both an
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
` (302) 658-6697 FAX (302) 658-8418
`
`
`
`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 10 of 203 PageID #: 52655
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`order requiring Boeing to give us a privilege
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`log and an order requiring Boeing to do a search
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`for its responsive documents, both paper and
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`electronically email and explaining to us what
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`that search was.
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`If as Boeing contends there are no
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`other responsive documents, we would like an
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`order from you requiring them to explain to us
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`what their reasonable search was, what the
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`custodians they searched were, what electronic
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`sources they searched, what efforts they did to
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`identify and collect and produce responsive
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`documents, because for something that was with
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`Boeing for 20 years would have generated and we
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`know generated a large volume of documents, and
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`we just don't have those documents.
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`THE SPECIAL MASTER: Thank you.
`
`Mr. Andre?
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`MR. ANDRE: Yes. So let me kind
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`of take in the order that Ms. Barry discussed
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`asking for a protective order. She makes a
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`representation that Boeing is not a third party.
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`They are not a party to this litigation. They
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`have divested all of their interests in the
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
` (302) 658-6697 FAX (302) 658-8418
`
`
`
`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 11 of 203 PageID #: 52656
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`patents to Acceleration Bay and retained no
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`rights to the patents.
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`THE SPECIAL MASTER: Can I just
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`interrupt you? I think she says they retain a
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`financial interest in this litigation; is that
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`true?
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`MR. ANDRE: That's not correct.
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`They have sold the patents to Acceleration Bay
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`and Acceleration Bay has a payment plan in place
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`to pay that over time.
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`THE SPECIAL MASTER: And it's not
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`contingent in any way on the outcome of the
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`case?
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`MR. ANDRE: No. It's contingent
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`upon Acceleration Bay obtaining revenues through
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`sales and products, either licensing revenues or
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`anything else, but it's revenue that
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`Acceleration Bay gets or obtains. Then they
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`have to pay off that payment. They've already
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`paid some of it, but they haven't paid all of
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`it. And Judge Andrews has addressed this, that
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`this is not a relevant issue in the case. And
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`the rights that Boeing divested were clearly
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`stated in the Patent Purchase Agreement and
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
` (302) 658-6697 FAX (302) 658-8418
`
`
`
`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 12 of 203 PageID #: 52657
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`revised Patent Purchase Agreement.
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`Boeing is a true third party and
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`Boeing has agreed to subject itself or submit
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`itself to the jurisdiction of the Delaware
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`court. It didn't have to do so and even in this
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`proceeding with the Special Master. And under
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`that circumstance, Boeing should at least get
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`the same consideration that the parties have,
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`meaning that there's an agreement between the
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`parties as stated in the protective order that
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`no privilege log needs to be provided for any
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`documents created after the litigation began,
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`and then only under special showing would be a
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`privilege log, and I think there's been no such
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`showing.
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`Ms. Barry complains that there are
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`no documents that she would like to receive such
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`as drafts of the Patent Purchase Agreement,
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`which they do have a draft of the first Patent
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`Purchase Agreement. There's the first draft,
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`the final revision and then when there was an
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`Amended Patent Purchase Agreement, they got the
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`only draft that exists, the signed version.
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`There were no drafts going back and forth.
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
` (302) 658-6697 FAX (302) 658-8418
`
`
`
`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 13 of 203 PageID #: 52658
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`Boeing has made a representation
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`that they have produced all documents relating
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`to the acquisition between Acceleration Bay and
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`Boeing. It's not living up to Ms. Barry's
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`expectations. That's not Boeing's problem.
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`Boeing has produced those documents and those
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`documents are not being withheld on a privilege
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`ground so they just don't exist and they never
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`did exist.
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`THE SPECIAL MASTER: What about
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`the point that she makes that Boeing has not
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`produced its source code or any communications
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`between Plaintiff and Ward presumably other than
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`the acquisition document?
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`MR. ANDRE: There are no
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`communications between Mr. Ward and Boeing. All
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`communications were done verbally so it's kind
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`of impossible to have documents when you are on
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`a phone call. As to the source code, to the
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`extent source code existed Boeing searched and
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`there's no source code available for Boeing.
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`Source code has been provided because what
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`Boeing did is they gave the source code to the
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`inventors Mr. Bourassa and Holt.
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
` (302) 658-6697 FAX (302) 658-8418
`
`
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`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 14 of 203 PageID #: 52659
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`Mr. Bourassa and Mr. Holt did a
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`spin-off company from Boeing. Boeing sponsored
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`that spin-off company, Panthesis. They
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`transferred all of the document about the
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`invention, all of the source code to Panthesis
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`and there were various colleagues in our office
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`two weeks ago for an entire day looking at that
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`source code so the source code is there, what
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`Panthesis has of that source code and how it
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`modified it over time. Panthesis has retained a
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`copy of the source code.
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`So Boeing sitting here today with
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`the first request for a protective order --
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`Defendants are asking us to treat Boeing more
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`exceptional than the parties in not giving them
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`the same courtesy and the same considerations,
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`so I see no basis for the protective order. As
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`for the documents, they are asking us to produce
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`documents that don't exist. As we stated in our
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`opposition brief, we've already produced emails.
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`To the extent emails exist, they have them.
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`Mr. Bourassa and Mr. Holt have not
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`worked at Boeing for years and years. I don't
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`think you can expect a company of Boeing's size
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` Hawkins Reporting Service
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`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 15 of 203 PageID #: 52660
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`to maintain emails of employees for over 10
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`years. The complaint about there are not enough
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`documents, Boeing has produced over 5,000 pages
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`of documents, more recently another production
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`close to 1,000 pages.
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`And when we look at that, as a
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`third party who hasn't had this information for
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`a long time and compared to what has been
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`produced by the Defendant, it is comparable. In
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`fact, if you look at the Defendant individually,
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`for example, Take-Two it's more. So the volume
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`of documents is immaterial and to say they
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`haven't got enough and expect more, we can't
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`make this stuff up.
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`Now, the most outlandish request
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`is asking Boeing to now reveal the work product
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`of the Boeing legal team as to how they did the
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`search and what they searched. And what we can
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`represent is that Boeing, the entire legal team,
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`did a diligent search for documents based on the
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`subpoena that was issued to them. They have
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`made representations and I will make a
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`representation on their behalf that all
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`documents located based on that subpoena have
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`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 16 of 203 PageID #: 52661
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`been produced. Nothing is being withheld.
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`To the extent there are some
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`privileged emails with Boeing and Boeing's
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`counsel, those are not going to be produced
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`because they are not relevant to what Ms. Barry
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`is talking about, the invention, source code, et
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`cetera. They have four or five sources of
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`getting these documents, Boeing, Panthesis which
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`was the start-up company, two inventors and of
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`course Acceleration Bay. They subpoenaed each
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`inventor separately. They subpoenaed Panthesis
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`the start-up company that Boeing started with
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`the inventors. They subpoenaed Boeing, and of
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`course Acceleration Bay has produced their
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`documents. And there have been thousands and
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`thousands of pages of documents produced
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`relating to this invention.
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`I think their complaints are
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`unfounded and asking Boeing to do more than any
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`party would ever have to do to reveal privileged
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`information and work product I think is
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`egregious.
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`MR. FRANKEL: If I can briefly
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`address two points?
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`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 17 of 203 PageID #: 52662
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`THE SPECIAL MASTER: Yes.
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`MR. FRANKEL: On the issue of the
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`provisions in the protective order, these were
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`regarding providing privilege logs. Those were
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`specifically negotiated by the parties to reduce
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`burden and there was no intention in the
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`scheduling order which includes some default
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`language actually limiting privilege log, would
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`trump these specifically negotiated provisions,
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`that's Section 14 and 17 of the protective
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`order. If counsel is suggesting that the
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`scheduling order has negated the parties'
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`agreement that they don't need to provide
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`privilege logs, then we would expect to receive
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`Defendants' privilege logs for all of their
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`emails and documents that they have withheld on
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`privilege or similar reasons.
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`Section 17 of the protective order
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`says, A third party shall receive the same level
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`of protection under the protective order as any
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`party of this lawsuit. So Boeing is not a
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`party, but it's entitled to the same level of
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`protection and should not have to provide a
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`privilege log. And then Section 17 also
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
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`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 18 of 203 PageID #: 52663
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`requires that any party that receives a subpoena
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`be provided a copy of the protective order and
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`be made aware of their rights.
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`On the issue of requiring the
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`disclosure of work product as to how documents
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`were searched for and collected, we have been to
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`the Special Master and the Court many times for
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`Defendants' document deficiencies which is
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`remarkable to us and they've represented time
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`and time again that they haven't been able to
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`locate these documents. So if we're going to
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`make a third party reveal their work, and we
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`don't think we should, then Defendant should
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`also be held to that same standard and tell us
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`what they have done and who they have searched
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`and where they have searched and all of that
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`same information. Thank you.
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`THE SPECIAL MASTER: Thank you.
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`Ms. Barry?
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`MS. BARRY: So a couple of
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`responses, Your Honor. First of all, Boeing is
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`not appearing here in Delaware by its good
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`graces. Boeing is a Delaware corporation.
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`Boeing can properly be held here into court in
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
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`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 19 of 203 PageID #: 52664
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`Delaware. And second of all, we take strong
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`issue with Mr. Andre's statements regarding what
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`Boeing is entitled to in regards to this
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`litigation. You can look at the Patent Purchase
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`Agreement, specifically Section 3.4(b) which
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`says, In addition to the initial payment to
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`Seller, Purchaser shall pay Seller a fee of 75
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`percent on all amounts from settlement sales or
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`licensing revenues and fees received by
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`Purchaser for its licensing efforts, the
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`provision goes on. But the import of that
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`section is whatever the result is of this
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`litigation, Boeing gets 75 percent of those
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`results. Boeing is a very interested party in
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`this litigation.
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`Now, to Mr. Frankel's point, the
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`scheduling order which was entered after the
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`protective order specifically provides that the
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`parties aren't required to log activities
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`related to the duty to preserve information and
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`they are not required to log activities that are
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`generated after the filing of the 2015 cases
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`but, otherwise, the parties are required to log
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`in full compliance.
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
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`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 20 of 203 PageID #: 52665
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`Regardless of what the parties
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`wanted to suggest in the protective order, Judge
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`Andrews thought that the appropriate provision
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`was that the parties would log in full
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`compliance any activities up to the date of the
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`2015 cases. And the fact of the matter is that
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`Boeing has engaged in a lot of activities
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`related before the 2015 cases and all of that
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`should be either produced or logged.
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`Now, counsel also made the point
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`that Boeing, the so-called third party that gets
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`75 percent of the proceeds of this litigation,
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`that Boeing's document production is comparable
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`to the document production of my clients.
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`That's not a relevant issue here. The question
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`is what responsive and relevant documents does
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`Boeing have.
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`We would expect that Boeing who
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`has been involved with these patents for about
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`20 years would have a large volume of documents
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`related to these inventions. And yet they have
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`produced, as counsel pointed out, a mere 6,000
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`pages. And of those 6,000 pages, a large
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`portion of those 6,000 pages is the file
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
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`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 21 of 203 PageID #: 52666
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`histories from the patents. So Boeing has
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`essentially produced no documents.
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`And now we hear for the first time
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`that Boeing is taking the position that there
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`were no written communications about the
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`negotiation of an agreement where they sold six
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`of their patents for about $1 million and
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`they're going to get 75 percent of the proceeds
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`of any litigation that comes out of that. That
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`is just not credible, and nobody at Boeing has
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`any internal communication about the negotiation
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`of this agreement.
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`What appears to be the one
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`custodian that they gave us documents from,
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`Natasha Radowski(ph), who has put in a
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`declaration saying that she was involved in the
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`negotiation and knows about them, she apparently
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`made this decision on all on her own without
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`doing any kind of written communications within
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`Boeing to get approval to sell these patents.
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`There are no documents about this. It just
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`doesn't make any sense. A company of the size
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`of Boeing has layers of management where they
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`have to get approval for this and yet we're
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
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`
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`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 22 of 203 PageID #: 52667
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`being told there are no documents.
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`We don't ask for the order
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`directing Boeing to tell us what they have done
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`to conduct a reasonable search. The reason we
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`ask for it is because it just makes no sense
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`that Boeing with layers of management and layers
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`of approval processes, and Ms. Radowski who was
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`personally involved in the negotiation of this
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`agreement but didn't sign it, has no written
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`documents with anybody in the company saying you
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`have approval to negotiate this deal.
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`THE SPECIAL MASTER: All right.
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`Thank you.
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`point?
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`ahead.
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`MR. ANDRE: Can I address this
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`THE SPECIAL MASTER: Yes. Go
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`MR. ANDRE: She was talking
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`earlier the communications between Acceleration
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`Bay and Boeing, and my representation was any
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`communications between Acceleration Bay and
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`Boeing regarding the Patent Purchase Agreement
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`have been produced. She's talking about
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`internal communications within the legal team of
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
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`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 23 of 203 PageID #: 52668
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`Boeing, that's a different argument than what
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`she made earlier. I didn't make the
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`representation -- if there are internal
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`communications within the legal team of Boeing,
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`then those would clearly be privileged
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`communications within Boeing.
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`The people who we're talking about
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`are all in the legal group, the lawyers, so that
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`was not asked in the opening argument. It was
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`communication between Acceleration Bay and
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`Boeing regarding the Patent Purchase Agreement.
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`And that is what my representation is, if there
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`are any communications, they have been produced.
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`MS. BARRY: Your Honor, if I may
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`respond just briefly. Our document requests and
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`subpoena to Boeing certainly includes all Boeing
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`internal communications about the sale of this
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`agreement. And all of those communications
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`would have certainly been before this
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`litigation.
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`So if they are withholding them,
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`they need to be logged. This is all the more
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`reason we need a privilege log from Boeing
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`detailing what all of their communications are,
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` Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
` (302) 658-6697 FAX (302) 658-8418
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`Case 1:16-cv-00453-RGA Document 714 Filed 04/26/20 Page 24 of 203 PageID #: 52669
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`what all of their documents are that they are
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`withholding, because from what Mr. Andre just
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`said here, they are clearly withholding
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`documents that are responsive to our subpoena.
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`THE SPECIAL MASTER: All right.
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`Very good. I have your argument. Ms. Haney,
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`you're excused. I think that completes this
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`particular motion.
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`MS. HANEY: Thank you.
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`THE SPECIAL MASTER: How would the
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`parties want to proceed with respect to the
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`motions for today? I'm happy to go in any order
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`that you want. It seems to me you might want to
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`next consider Defendants' motion, Mr. Holt and
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`Bourassa to comply with the subpoena, only
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`because it seems to be somewhat related to the
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`Boeing matter.
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`MR. ANDRE: Th
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