`1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453-RGA
`16-454-RGA
`16-455-RGA
`
`)
`ACCELERATION BAY LLC,
`)
`A Delaware Limited
`Liability Corporation, )
`)
`Plaintiff,
`)
`)
`)
`)
`)
`)
`
`v.
`ACTIVISION BLIZZARD,
`INC., a Delaware
`Corporation,
`Defendant.
`
`))
`
`)
`
`Friday, June 16, 2017
`3:30 p.m.
`
`BEFORE:
`
`SPECIAL MASTER ALLEN M. TERRELL, JR.
`
`APPEARANCES:
`
`POTTER, ANDERSON & CORROON, LLP
`BY:
`PHILLIP A. ROVNER, ESQ.
`-and-
`KRAMER, LEVIN, NAFTALIS & FRANKEL, LLP
`BY:
`AARON FRANKEL, ESQ.
`Counsel for the Plaintiff
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
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`19801
`
`
`
`Case 1:16-cv-00453-RGA Document 715 Filed 04/26/20 Page 2 of 57 PageID #: 52850
`2
`
`APPEARANCES CONTINUED:
`
`WINSTON & STRAWN, LLP
`BY:
`KATHLEEN B. BARRY, ESQ.
`BY:
`MICHAEL A. TOMASULO, ESQ.
`Counsel for the Defendant
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`Hawkins Reporting Service
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`Kathleen Barry with
`MS. BARRY:
`Winston & Strawn for Defendants.
`MR. TOMASULO:
`Also on the line
`and with Kathleen is Mike Tomasulo.
`Good
`afternoon, Special Master.
`Good afternoon.
`SPECIAL MASTER:
`MR. ROVNER:
`Special Master, it's
`Phil Rovner from Potter Anderson.
`And I guess
`who else is on the line for Acceleration Bay?
`MR. FRANKEL:
`Aaron Frankel.
`SPECIAL MASTER:
`Well, good
`I gather that is probably the group
`afternoon.
`for today's hearing.
`Are we waiting for anybody
`else?
`
`Not from our side.
`MR. ROVNER:
`SPECIAL MASTER:
`Thank you for
`accommodating my schedule to start a little
`Why
`later this afternoon.
`I appreciate that.
`don't I, for the record, indicate this is an
`action, civil action number 454, 455 and if I'm
`not mistaken, it's not in civil action 453; is
`that correct?
`
`Well, Acceleration
`MR. ROVNER:
`Bay has a motion to applies to all the
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`Defendants.
`
`Let
`All right.
`SPECIAL MASTER:
`Let me, for the sake of the record
`me do this.
`and when I issue an order, it will be in all
`three actions.
`Civil action numbers 16-453,
`454, 455.
`There have been several motions filed
`on June 7th.
`There have been responsive briefs
`and as I've indicated to the parties, I've read
`them and I'm prepared to proceed.
`I think the
`most efficient way would be to hear from the
`moving party who would particularly focus
`comments on the response made by opposition to
`the motion.
`If there's any Plaintiff, would you
`like to proceed first with the first of your two
`motions?
`
`I'm prepared to do
`
`MR. FRANKEL:
`so, Special Master.
`Go ahead, then.
`SPECIAL MASTER:
`MR. FRANKEL:
`Thank you.
`Aaron
`Frankel on behalf of Acceleration Bay.
`Special
`master, I'll start with the motion to compel
`discovery as to the updated versions of the
`accused products and I won't rehash what's in
`our moving papers other than to say that this is
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`Case 1:16-cv-00453-RGA Document 715 Filed 04/26/20 Page 5 of 57 PageID #: 52853
`5
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`a routine process in patent cases, over the
`passage of time often new versions of the
`accused products are released and it makes sense
`to include them in the case, otherwise the
`parties would need to engage in a series of
`lawsuits to resolve their dispute.
`Now, so I'll turn to the arguments
`that Defendants raised in opposition.
`We've
`been up front since the start of the case that
`it was our understanding that these products
`were in the case.
`We served an identification
`of accused products on February 13th.
`The Court
`did not rule that these products would not be
`the subject of discovery referring any disputes
`instead to the Special Master.
`And the
`suggestion that this is something that we've
`sandbagged or stalled to the detriment of
`Defendants is just not supported by the record.
`If you look at Exhibit 5, which is the
`correspondence on this issue, the first time the
`Defendants definitively say that they're not
`going to provide discovery on these products is
`May 2nd.
`That's the e-mail at the top of the
`chain.
`But if you flip back through the
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`6
`
`exhibit, you'll see that the discussion about
`the production of financial discovery goes all
`the way back into March.
`And suffice it to say
`that those discussions were dragged out.
`When
`we got the definitive position from Defendants
`that they weren't going to provide this
`discovery, we very quickly responded and asked
`for a meet and confer and proceeded to file a
`motion to compel.
`And at that point there were
`just a few days short of three months left in
`discovery.
`So there was plenty of time to get
`everything done then.
`There's still time for
`that discovery now.
`Again, that communication
`was May 2nd and by May 22nd we had exhausted the
`meet and confers, took some time to schedule a
`meet and confer with Defendants and that's the
`date, that May 22nd is when we requested a
`hearing with the Special Master to seek relief
`on this issue.
`And at that point there were
`still two and a half months left of discovery.
`So it's really not fair for Defendants, having
`dragged it out this long, to say there's only 45
`days left in discovery and it's not enough time
`to complete the discovery.
`We tried to get this
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`7
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`discovery going back much further than that.
`And to say that this is some
`tactic that's to the detriment of Defendants, it
`just doesn't make any sense.
`It's our burden to
`prove infringement and to prove damages.
`And
`the shorter period of time for discovery, the
`more prejudicial it is to Plaintiff.
`I don't
`understand how there's any prejudice to
`Defendants here.
`They're obviously very well
`familiar with how their products work and their
`own financial evidence.
`And in any event,
`they're providing responsive expert reports on
`these issues which aren't going to be due for
`months.
`
`Finally, the suggestion that
`there's some extreme burden here because of
`changes in the products seems greatly
`exaggerated.
`In their briefing they don't
`address the NBA 2K product at all.
`They seem to
`admit to the functionality in the Blizzard
`downloader is the same.
`As far as the Call of
`Duty games, their contention is that these new
`versions have updated graphics and sound, but
`that's not an issue in this case.
`This case is
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`And they're
`about the networking functionality.
`not saying that there's anything different about
`that networking functionality.
`To the contrary,
`I have deposition testimony for Call of Duty and
`most of these other games that the networking
`functionality is the same or substantially the
`same.
`
`The same thing for the NHL game.
`The exhibits they submitted just talk about
`changes in the graphical presentation.
`For FIFA
`they have some -- their exhibits show some
`improvements in the graphics, you know, that the
`stadiums look better and the players faces look
`better.
`Again, that's not really relevant to
`the functionality that's at issue here.
`So in short we think it's a
`routine practice to provide discovery on updated
`products.
`We've asked -- we timely sought this
`discovery.
`We don't see any special burden here
`and so we think the discovery should proceed on
`those products.
`Are there any questions that I
`can answer?
`
`So your position
`SPECIAL MASTER:
`is that, that their argument said these updated
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`versions are significantly different from the
`versions that are subject to your initial
`lawsuit.
`You say it's just simply not true and
`is not a basis to deny discovery.
`Is that
`right?
`
`That's correct.
`MR. FRANKEL:
`It's not true in relevant part.
`So in other
`words, the fact that the slightest depiction of
`the players has a higher resolution for the
`soccer game, that's not relevant to this case.
`And they only mention one technical feature for
`one game, which is the soccer game, to say that
`there's a new Frostbite engine that's being
`used.
`And there's nothing relevant for any of
`the other games at issue.
`And the other
`SPECIAL MASTER:
`thing is going back to your Exhibit 5 and the
`first, I guess, e-mail that you point to is
`March 6th and you say that shows a chain related
`to your request for these updated versions.
`When I read that e-mail, it wasn't clear to me
`that it did relate to updated versions.
`It
`refers to discovery issues on damages.
`Can you
`import how this covers updated versions?
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`Hawkins Reporting Service
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`
`Well, this is a
`MR. FRANKEL:
`discussion among many damages issues, including
`updated financials to cover the sales from May
`2016 when some of these products were released
`and into 2017.
`So you know, we've been asking
`the witnesses at depositions about these
`products.
`We've been asking for the updated
`financial information, which includes the 2017
`versions, going back to March, and we didn't get
`a definitive answer on it until May 2nd.
`SPECIAL MASTER:
`Yeah, but now --
`you certainly in these e-mails don't seem to be
`referring to things like the source code for the
`updated versions, do you?
`That's correct,
`MR. FRANKEL:
`Special Master.
`This is one string of
`communication between the parties that's
`relating to financial discovery.
`SPECIAL MASTER:
`All right.
`Anything further?
`I'll let Ms. Barry address
`your points and then I'll give you time if you
`like to respond to anything she says.
`MR. FRANKEL:
`Thank you.
`SPECIAL MASTER:
`Ms. Barry.
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`Thank you, Special
`MS. BARRY:
`I'll start with the first thing, which
`Master.
`is the damages discussion, which as you can see
`from the e-mails I was personally a part of.
`And my recollection of the original conversation
`with Mr. Frankel's colleague, Hannah Lee, on
`February 23rd, was I told her at the time that
`no, we would not be producing sales information
`on these allegedly new products and that that
`was an issue for us and we were not going to be
`providing discovery on them.
`And then we had
`this long chain of e-mails that you see, Special
`Master, that says that we were providing updated
`information about other issues.
`And as you can
`see from the e-mails, Plaintiff requested very
`detailed and very specific types of financial
`information, which I can tell you was extremely
`burdensome for all of our clients to get and
`took me quite a lot of time to work with the
`clients to actually get in the format that they
`wanted.
`This was not in any way, shape or form
`our clients dragging their feet or anything of
`the sort.
`It was we had very detailed specific
`requests from the Plaintiff that required us to
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`
`get financial information in a format that is
`not as it is kept in the ordinary course of the
`business.
`
`And
`Apologies.
`SPECIAL MASTER:
`for the sake of the court reporter, I guess when
`I'm interrupting counsel, you know it's the
`Special Master.
`Ms. Barry, I was wondering, but
`on these financial data that you're providing or
`not providing, was it your understanding that
`this covered updated versions?
`That's exactly my
`MS. BARRY:
`No.
`point, Special Master.
`When I first spoke to
`Mr. Frankel's colleague on February 23rd, I said
`we are not going to be producing financial
`information on the, quote, newly accused
`identified products, that we are only doing the
`products that were in the complaint that had
`been filed back in June of 2016.
`SPECIAL MASTER:
`Is there any
`document to support your recollection on that?
`MS. BARRY:
`I don't recall.
`I
`don't -- I haven't specifically looked for one,
`because --
`
`SPECIAL MASTER:
`
`Yet, on the other
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`13
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`hand, there isn't a specific document in the
`chain of e-mails referred to in Exhibit 5 that
`expressly relates to or identifies updated
`versions; is that correct?
`I have not -- I
`MS. BARRY:
`Yeah.
`have not studied back through these, so I don't
`believe it -- I'm not sure that there's anything
`specific in here and I'm not sure there's
`anything specific in the extended
`correspondence, so I can't point you to anything
`at this point.
`All right.
`SPECIAL MASTER:
`MS. BARRY:
`But that was my
`recollection and it's entirely consistent with
`what our overall position was at the time, which
`was we were very clear that our position was we
`were not considering those newly identified
`products.
`And you know, we disagree with
`Plaintiff's characterization of them as new
`versions, right.
`But we did not consider them
`part of the case.
`We objected to including them
`as part of the case.
`We did that before Judge
`Andrews earlier.
`So for me to have taken that
`position to say that we were going to provide
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`14
`them would have been a 180 degree change, which
`would have required me to get approval from my
`client.
`So that's not how I recall it
`happening, but --
`Ms. Barry, thank
`SPECIAL MASTER:
`Why don't you turn
`you for covering that point.
`next to Mr. Frankel's argument that there really
`isn't any particular prejudice to you that you
`have this information, can get them well within
`the time period before discovery cut off.
`I
`think that's a summary of his argument.
`You
`want to address that?
`I appreciate
`Yes.
`MS. BARRY:
`that opportunity, Special Master.
`So, as you
`can tell, just on the financials and, you know,
`Plaintiff is asking for more than just updated
`financials here.
`They're asking for updated
`marketing.
`They're asking for updated source
`code.
`They're asking for updated a lot of
`things.
`But literally it did take us the
`extensive amount of time you see reflected in
`these e-mails to get this financial information
`from our clients because -- in part because
`Plaintiff is asking for it in such a detailed
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`15
`I mean, Plaintiff asked for
`and particular way.
`not only gross revenue -- not only net revenue,
`but gross revenue and they asked for a
`particular break out, and a number of different
`things, which are not how the clients
`necessarily ordinarily keep the financials,
`right.
`They asked for billings and, you know,
`we just got 30(b)(6) notices from Plaintiffs
`about billings again yesterday.
`And as we told
`them, we don't have billings, right, but yet we
`had to go and do extensive work to try and
`figure all this stuff out.
`And to go do it
`again and to do it for more products, it's going
`to take time.
`And I just don't see how it
`happens in the short amount of time that we have
`here.
`And to make our clients do that,
`especially when we're talking about the summer
`holidays and I know that there are various
`quarterly deadlines coming up, it's just not --
`it's not fair and it is highly burdensome and
`highly prejudicial.
`But if I can turn to
`another point --
`MR. TOMASULO:
`SPECIAL MASTER:
`
`Special Master --
`Thank you.
`Just
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`Write down
`Let Ms. Barry finish.
`a second.
`Don't forget.
`We'll give you an
`your notes.
`opportunity --
`MR. TOMASULO:
`colleague, Mike Tomasulo.
`Oh, I'm sorry.
`SPECIAL MASTER:
`thought it was the -- I apologize.
`That's the
`only difficulty of doing the telephonic
`hearings.
`
`This is her
`
`I
`
`I know that Mr.
`MR. TOMASULO:
`Frankel, I don't think he's ever interrupted us
`in one hearing.
`But I was just going to add
`something to what Kathleen said with her
`permission.
`
`Please.
`MS. BARRY:
`SPECIAL MASTER:
`Go ahead.
`MR. TOMASULO:
`Just from the
`perspective of you being another viewpoint on
`this, one, there's the issue of timing.
`I was
`at the hearing with the judge and I think we
`made it very clear that we did not believe that
`the case should include the 2017 accused
`products that had been at that time identified
`and we addressed that issue with the judge.
`So
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`17
`
`from a timing standpoint, I don't think there
`was any ambiguity in our position as of
`I wrote
`certainly not later than the hearing.
`the order that I sent over to Mr. Frankel's team
`on around January 27th and we said no more
`products in that order.
`Again, I don't think
`there was any ambiguity in what our position
`was.
`
`But as to the games, the idea that
`they're updated versions is really consistent
`with just how the game is made.
`A game like
`Call of Duty, for instance, there are three
`separate studios.
`These games are like a movie.
`They have probably a bigger budget than most
`movies.
`There are hundreds of people involved
`in them.
`An average budget for a game like Call
`of Duty is about $300 million dollars and it
`The
`involves hundreds of people working on it.
`game -- for Call of Duty there's three separate
`studios, which is akin to a movie studio in the
`sense that there are just -- you know, there are
`different companies, different legal entities
`within Activision.
`There are three of them.
`And they each make one Call of Duty game every
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`Case 1:16-cv-00453-RGA Document 715 Filed 04/26/20 Page 18 of 57 PageID #: 52866
`18
`It takes them three years to make
`three years.
`the game.
`And it's different people that are
`making the games.
`From a code base overlap,
`there is some code base overlap, that's for
`sure, but that code base overlap could go back a
`long time.
`And, you know, in light of the
`thousands of pages of infringement contentions
`it's a bit hard for us to say that, you know,
`these games are just updated versions, because
`clearly they're not.
`They're basically like a
`brand new movie.
`And that includes many
`technical aspects that, you know, Kathleen can
`explain to you.
`To put it in perspective as to
`what it takes to make these games, it's not a
`matter of three to four people tinkering with it
`and putting some new names on it and then
`releasing it.
`This is a brand new movie that
`takes three years to make.
`Or in the case of
`some of the other games, maybe a bit less time,
`some of other games a bit more time.
`I'll turn
`it back over to Kathleen.
`I'm sorry to
`interrupt.
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`Special Master, if I
`MS. BARRY:
`can go back to another point that Mr. Frankel
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`Case 1:16-cv-00453-RGA Document 715 Filed 04/26/20 Page 19 of 57 PageID #: 52867
`19
`
`made, he claimed that the, quote, updated
`versions are not different in relevant part.
`Well, we have a fundamental problem with that,
`because right now we don't have infringement
`contentions.
`We don't know what the relevant
`parts are.
`We don't understand what the
`infringement theory is.
`So I don't know how
`anyone can say that the games are not different
`from year to year in relevant part when we don't
`have that fundamental information.
`And he then
`glosses over what are significant differences in
`the games and, you know, he talks about what the
`customer sees.
`And as we put in our belief, we
`quoted from their brief where they say, look,
`the publicly discernable functionality is not
`different.
`Well, that's true, possibly.
`And
`the inventor acknowledged that that could be
`true, but that you would not know whether under
`the hood, so to speak, there were actual
`differences in the game.
`And the one really
`good example here is that FIFA 17 has a new game
`engine, a brand new game engine.
`It's the
`Frostbite engine.
`It's very different.
`It
`handles a lot of functionality.
`To say that
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`Case 1:16-cv-00453-RGA Document 715 Filed 04/26/20 Page 20 of 57 PageID #: 52868
`20
`
`that new game engine doesn't make a difference
`at all, particularly when we don't know what the
`theory of infringement is and what the
`infringement contentions are, there's no way you
`can say that.
`
`And so, Mr.
`MR. TOMASULO:
`Frankel -- this is Mike Tomasulo again.
`SPECIAL MASTER:
`Again, you should
`identify yourself.
`I'm sorry, yes.
`MR. TOMASULO:
`This is Mike Tomasulo.
`If I may just say one
`more thing.
`With respect to the -- one of the
`products that was discussed was the Blizzard
`downloader.
`There are three, at least three
`different versions of the Blizzard downloader
`and none of them are really similar at all.
`There's the version that the World of Warcraft
`game started using in February of 2015, before
`the complaint was filed.
`I don't think that
`that's even accused.
`There's the version of the
`Blizzard downloader that was in use before the
`World of Warcraft, before February 2015.
`And
`that can't be accused because it was not -- it
`was not continuing to be used after the date the
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`Case 1:16-cv-00453-RGA Document 715 Filed 04/26/20 Page 21 of 57 PageID #: 52869
`21
`And then there's another
`complaints were filed.
`version, it's not a version, it's a different
`product altogether, which is used for the
`classic games.
`Classic games could be implied
`from the title.
`These are very old games,
`there's very minimal financial activity on these
`games and that's a separate third downloader
`that are used for those games.
`They are not
`just different versions.
`And the testimony, and
`the Activision witness testified about this, was
`that the teams that were working on the
`downloader that was in use for World of Warcraft
`before 2015, those teams separated and diverged
`I believe in 2010 or 2012 from the team that
`worked on the classic downloader and at that
`point they become different products altogether.
`There's -- the snippets that relate to
`commonality between products from year over
`year, they don't tell even close to the whole
`story of the differences in these games.
`And --
`SPECIAL MASTER:
`I do think --
`pardon me, counsel.
`I do think I have your
`point with respect to a response to Plaintiff's
`theory that these are, quote, yearly updated
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`Case 1:16-cv-00453-RGA Document 715 Filed 04/26/20 Page 22 of 57 PageID #: 52870
`22
`So let me -- unless either
`versions, end quote.
`of you have something new to add, let me just
`ask Mr. Frankel, please don't repeat things that
`you've already told me, but if you feel that you
`need to respond to some new point, go right
`ahead.
`
`Special Master, this
`MS. BARRY:
`is Kathleen Barry.
`I apologize, but I do have
`one other point that I think is important.
`SPECIAL MASTER:
`Go ahead.
`MS. BARRY:
`So the other highly
`prejudicial part about this, Special Master, is
`that Plaintiff has taken inconsistent positions
`with regard to analyzing whether products
`infringe.
`And the fact of the matter is when it
`does not favor Plaintiff's case, Plaintiff
`refuses to do an analysis in determination of
`whether a product infringes and instead claims
`that such an analysis would be burdensome and is
`purportedly not necessary.
`When it favors their
`case to say that a product infringes with
`regard, for instance, to these newer products,
`Plaintiff is happy to say that all we have to do
`is no analysis, we can just say that there are
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`Case 1:16-cv-00453-RGA Document 715 Filed 04/26/20 Page 23 of 57 PageID #: 52871
`23
`
`And I want to give the
`updated versions.
`Special Master a really concrete example of
`this.
`We asked Plaintiff and you, the Special
`Master, ordered Plaintiffs to give us the date
`of the hypothetical negotiation.
`And that is
`the date on which each of the Defendants
`And
`supposedly first infringed the patent.
`after your order Plaintiff responded and said
`the date of the hypothetical negotiation is the
`date of service of the original complaint.
`Okay.
`Now, what does that mean?
`Okay.
`That
`means that the day before the date of service,
`say the date of filing or even a month before
`the date of service or six months before the
`date of service, those products were supposedly
`not infringing, even though many of those
`products or some of those products were out in
`the market for months, some years.
`And yet
`Plaintiff will say they don't infringe before
`the date of service of this first complaint,
`even though there's no difference between the
`products two days before we were served with the
`complaint and the day we were served with the
`complaint.
`It makes no sense.
`The Plaintiff
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`Case 1:16-cv-00453-RGA Document 715 Filed 04/26/20 Page 24 of 57 PageID #: 52872
`24
`wants to take the inconsistent position that it
`doesn't have to do an analysis here, it can
`shortchange the analysis because it's in
`response to an interrogatory from Defendants,
`when here Plaintiff wants to add products, it's
`like well, there's nothing to do, it's just the
`product should be in.
`So that is highly
`prejudicial.
`That is highly prejudicial to my
`client and that's a problem that we have here
`and is exacerbated by Plaintiff's attempt at
`this very late date to try to add all these new
`products into the case.
`SPECIAL MASTER:
`Frankel, anything new to add?
`MR. FRANKEL:
`Yes, very briefly,
`Special Master.
`You know, the comment that
`counsel just made relates to the damages window
`and when the timing is for the hypothetical
`negotiation that's relevant to damages.
`And you
`know, the rule in this case is that the date of
`damages is when the case was filed.
`You know,
`that's where that issue is.
`We're not looking
`to shortchange anything on the infringement
`analysis.
`That's why we're asking for discovery
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`All right.
`
`Mr.
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`Case 1:16-cv-00453-RGA Document 715 Filed 04/26/20 Page 25 of 57 PageID #: 52873
`25
`
`including source code review on these products
`so we can confirm our understanding.
`And I'm
`not going to, you know, read into the record all
`of the deposition testimony, but we've cited it
`in our exhibits.
`I think it's very clear that
`there's substantial overlap for the networking
`functionality that's at issue here between these
`updated versions.
`And just finally on the
`timing, I think that the e-mail chain is very
`clear that even in April there were discussions
`going on and this week my colleague was saying
`she was going to move the Special Master to
`compel if we didn't get discovery on these
`products.
`So you know, whether it was in March
`or it was in April that the discussions were
`intensifying on this point, there was still
`plenty of time at that point for the discovery
`to be concluded and there's time for the
`discovery to be made available now.
`SPECIAL MASTER:
`All right.
`Let me ask you next to turn to your
`good.
`second motion to compel.
`And this is a motion
`to depose Mr. Hind and it's directed to
`Take-Two.
`And you have Take-Two's responsive
`
`Very
`
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`Case 1:16-cv-00453-RGA Document 715 Filed 04/26/20 Page 26 of 57 PageID #: 52874
`26
`
`How do you reply to their points, Mr.
`
`brief?
`Frankel?
`
`Well, Special
`MR. FRANKEL:
`Master, the first point is that they say that
`the witness is irrelevant.
`I don't see how that
`can be seriously challenged.
`He's one of the
`three individuals that the company identified as
`knowledgeable about how the networking
`functionality at issue works in the accused
`product.
`He was one of the lead programmers for
`the functionality.
`We've had one deposition so
`far.
`We asked many relevant questions for which
`we did not get sufficient answers, which is why
`we're continuing to seek discovery.
`Mr. Bocca
`referred to Mr. Hind as one of the people he
`would turn to if he had questions about the
`functionality.
`When he was asked questions
`about portions of source code, he said I don't
`know, I'll defer to the author of the source
`code.
`Mr. Hind is one of those authors.
`And
`I'll remind the Special Master that Take-Two has
`not produced any documents, not how their
`products work, they just said you have our
`source code and you can ask witnesses about the
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`Case 1:16-cv-00453-RGA Document 715 Filed 04/26/20 Page 27 of 57 PageID #: 52875
`27
`
`So we're going to be
`source code, that's it.
`going -- you know, in terms of the relevance,
`it's plainly relevant and the only real question
`I think is is it disproportionate to the needs
`of the case to take three depositions on the
`very complicated accused product.
`That
`certainly isn't an unusual amount in a patent
`case.
`You know, I'll note again that on
`Defendant's side they've sought 11 days of
`depositions on the topic of the early
`development work at Boeing with Swan, literally
`11 days.
`And in comparison, the functionality
`of one of these is a much more complicated and
`involved topic and it's not unreasonab