Case 1:16-cv-00455-RGA Document 512 Filed 05/27/20 Page 1 of 36 PageID #: 35830
`
`1
`2
`3
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`22
`
`23
`24
`
`Page 1
`
` IN THE UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
` - - -
`ACCELERATION BAY LLC, :
` :
` Plaintiff, :
` :
`v. : C.A. NO.16-453 (RGA)
` :
`ACTIVISION BLIZZARD, INC., :
` :
` Defendant. :
` :
`___________________________________
`ACCELERATION BAY LLC :
` :
` Plaintiff, :
` :
`v. :
` : C.A. No. 16-454(RGA)
`ELECTRONIC ARTS INC., :
` :
` Defendant. :
` :
`___________________________________
`ACCELERATION BAY LLC, :
` :
` Plaintiff, :
` :
`v. : C.A. No. 16-455(RGA)
` :
`TAKE-TWO INTERACTIVE SOFTWARE, :
`INC., ROCKSTAR GAMES, INC. and :
`2K SPORTS, INC., :
` :
` Defendants. :
` Wilmington, Delaware
` Tuesday, March 14, 2017 at 2:00 p.m.
` TELECONFERENCE
`Ellie Corbett Hannum, Registered Merit Reporter
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
`
`

`

`Case 1:16-cv-00455-RGA Document 512 Filed 05/27/20 Page 2 of 36 PageID #: 35831
`
`Page 4
`
`1 would be a fine time to do a roll call.
`2 SPECIAL MASTER TERRELL: Let's do it this
`3 way -- and keep in mind as we proceed with this hearing
`4 when you do want to speak just identify yourself for the
`5 court reporter's sake.
`6 I will start. I am Allen Terrell, Special
`7 Master.
`8 MR. ROVNER: Your Honor, Phil Rovner from
`9 Potter Anderson, and with me on the line is Aaron Frankel
`10 from Kramer Levin in New York.
`11 SPECIAL MASTER TERRELL: Good afternoon.
`12 MR. FRANKEL: Good afternoon.
`13 MR. KRAFTSCHIK: Good afternoon, Your
`14 Honor, this is Stephen Kraftschik with Morris Nichols,
`15 and I have on the line with me Mike Tomasulo and David
`16 Enzminger.
`17 SPECIAL MASTER TERRELL: Very good,
`18 Counsel.
`19 What I am going to do is first for the
`20 record identify the motions that are before me. And
`21 first I will address the first one that came in from
`22 defendants. Let me step aside and let me just for the
`23 record note the caption of the case, Acceleration Bay
`24 LLC, Plaintiff v. Activation Blizzard, Inc., Defendant,
`
`Page 5
`1 Civil Action No. 16-453 (RGA). On February 27th, I was
`2 advised that the parties intended to file motions to
`3 compel, and on March 6th I received the motion to compel
`4 from defendant to compel further responses to its
`5 interrogatories 7 and 8, and specifically all accused
`6 methods, broadcast channels, and networks, including by
`7 identifying each and every participant and connection of
`8 such network or broadcast channel and explaining how each
`9 is alleged to be M-regular and explaining separately for
`10 each accused network and broadcast channel how each
`11 accused network or broadcast channel is alleged to the
`12 limitations of each asserted claim, including with
`13 specific citations to source code.
`14 A separate motion was filed by plaintiff
`15 to compel the Defendant Activision Blizzard to provide
`16 proposed dates for Rule 30(b)(6) depositions of Destiny
`17 and the Blizzard Downloader.
`18 Those are the two motions before me.
`19 Since then I have had by email a letter request related
`20 to these motions, and I think we can deal with them at
`21 the close of the arguments on the pending motions.
`22 One other thing I just want to thank
`23 counsel for very promptly bringing this before me with
`24 very thorough, precise and useful briefs and exhibits,
`2 (Pages 2 - 5)
`
`Page 2
`1 BEFORE: SPECIAL MASTER ALLEN M. TERRELL
`2 - - -
`APPEARANCES:
`
`34
`
` POTTER ANDERSON & CORROON
` BY: PHILIP ROVNER, ESQ.
`5 provner@potteranderson.com
`6 and
`7 KRAMER LEVIN
` BY: AARON FRANKEL, ESQ.
`8 afrankel@kramerlevin.com
`9 (New York, New York)
`10 Counsel for Plaint ff
`11
`12 MORRIS, NICHOLS, ARSHT & TUNNELL LLP
` BY: STEPHEN J. KRAFTSCHIK, ESQ.
`13 skraftschik#mnat.com
`14 and
`15 WINSTON & STRAWN LLP
` BY: DAVID P. ENZMINGER, ESQ.
`16 denzminger@winston.com
`17 (Menlo Park, California)
`18 BY: MICHAEL A. TOMASULO, ESQ.
` mtomasulo@winston.com
`
`19
`
` (Los Angeles, California)
`
`20
`21 Counsel for Defendants
`22
`23
`24
`
`Page 3
`
`1 - oOo -
`2 P R O C E E D I N G S
`3 - oOo -
`4 SPECIAL MASTER TERRELL: Hello, Counsel.
`5 MR. FRANKEL: Hello, Mr. Terrell, how are
`6 you?
`7 SPECIAL MASTER TERRELL: I am fine. How
`8 are things up in Delaware with the storm?
`9 MR. ROVNER: This is Phil Rovner, not as
`10 bad as it could have been. It's mostly just slush right
`11 now.
`12 SPECIAL MASTER TERRELL: That's what I
`13 heard.
`14 MR. FRANKEL: It's bad enough to have
`15 taken out Jack Blumenfeld, though. He is not going to be
`16 on the call.
`17 SPECIAL MASTER TERRELL: When everyone is
`18 assembled, we will have a roll call, but we first need to
`19 know that there's a court reporter on the line.
`20 THE COURT REPORTER: Special Master, this
`21 is Ellie Corbett Hannum.
`22 MR. KRAFTSCHIK: Special Master, Stephen
`23 Kraftschik at Morris Nichols. It's my understanding, and
`24 I believe we have everyone on the line, so I think now
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
`
`

`

`Case 1:16-cv-00455-RGA Document 512 Filed 05/27/20 Page 3 of 36 PageID #: 35832
`
`Page 6
`
`Page 8
`
`1 and I do appreciate that.
`2 So with that in mind I guess, Defendant,
`3 you filed the first motion. Do you want to begin?
`4 MR. ENZMINGER: Yes, Special Master, my
`5 name is David Enzminger. I will be addressing the
`6 defendants' motion, although I cannot promise my
`7 colleague, Mr. Tomasulo, won't jump in as he has been
`8 somewhat closer to the technology issues than I have.
`9 But we have filed this motion and,
`10 frankly, I believe this hearing today will be resolved
`11 with respect to the first motion because the same issue
`12 permeates the other two issues that you have described.
`13 And the issue basically is whether in this
`14 case discovery goes both ways or whether it is only the
`15 defendants that have to give discovery. The Special
`16 Master may recall a year ago we had an argument before
`17 you about contentions and whether the contentions that
`18 they have provided were sufficient for us to know how to
`19 prepare witnesses for deposition.
`20 That order or that issue was resolved with
`21 the Special Order No. 2, which did two things. One, it
`22 confirmed agreement with our side that the responses that
`23 we had received to date were inadequate to state a claim
`24 for infringement, although it did give notice so that we
`
`Page 7
`
`1 could put up witnesses. Thereafter the parties agreed
`2 that we would provide the 30(b)(6) notices, and then
`3 within three weeks the plaintiffs would give the
`4 information and supplement their interrogatory responses
`5 to provide actual information about the accused networks,
`6 not computer jargon thrown together accusing all games,
`7 all pieces of hardware in the system, but what is exactly
`8 accused by the plaintiff in this case.
`9 These patents relate to a very, very
`10 specific network structure where the network can only be
`11 identified by knowing who are the participants in the
`12 network. How are they connected? How is the information
`13 transferred back and forth? And then there are other
`14 limitations depending on the patents.
`15 But connections, for example, have to be,
`16 there have to be at least three connections between every
`17 participant. And every participant has to be connected
`18 to exactly the same number of other participants. So
`19 this is not a peer-to-peer network of when you get a
`20 bunch of computers together and they all go over the
`21 Internet and they are all connected somehow in some
`22 amorphous way. These nets are specific to a network
`23 structure. And there is nowhere in their interrogatory
`24 responses, nowhere where they identify the networks, how
`
`1 they are structured.
`2 Their own experts were deposed in a recent
`3 IPR proceeding, and they acknowledged that the charts do
`4 not describe any of this information.
`5 Now, we provided for Call of Duty, we
`6 provided the 30(b)(6) deposition and we provided over 90
`7 hours of source code review to them in connection with
`8 the prior case. On May 17th, 2016, we gave them the
`9 deposition that they had requested. By agreement of the
`10 parties, that made their real contentions, their real
`11 interrogatory responses due at the beginning of June.
`12 What happened was, because there was a
`13 motion to dismiss because the plaintiff, in our view,
`14 didn't own the patents, which the District Court
`15 ultimately agreed with, that case was dismissed.
`16 They went out and acquired new rights and
`17 filed a new case. And we agreed, because it's the same
`18 accused products and the same patents, that we would just
`19 continue the discovery that we had started, and it would
`20 proceed on an expedited schedule. However, here we sit
`21 nine months later without a response to those
`22 interrogatories. The only substantive response that the
`23 plaintiffs provided in their opposition -- well, they
`24 provided two responses. The first response was that our
`
`Page 9
`1 request was moot because they supplemented it 30 minutes
`2 before our deadline. But, interestingly, they did not
`3 provide the Special Master with the document that they
`4 claimed to be a supplement. And there's a good reason
`5 for it, because that supplement is as much garbage as the
`6 700 pages of claim charts that preceded it. It has no
`7 identification of a network. It has no identification of
`8 how the network is M-regular. It has no identification
`9 of what M is. It has no description of how the network
`10 is connected. It has no description of who the
`11 participants are.
`12 It's just more computer jargon that says
`13 we are accusing additional hardware that makes
`14 connections, without specifying how those connections are
`15 made, and is a grand total of three pages. So they have
`16 essentially taken interrogatory responses that were more
`17 than 800 pages long, 700 and some pages of infringement
`18 contentions that were deemed to be inadequate, and they
`19 give us a three-page update without providing any of the
`20 information we've requested.
`21 And on this product we already provided
`22 the deposition. We have already provided a hundred hours
`23 of source code review, and we are still not getting an
`24 answer to the question that they were ordered to provide.
`3 (Pages 6 - 9)
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
`
`

`

`Case 1:16-cv-00455-RGA Document 512 Filed 05/27/20 Page 4 of 36 PageID #: 35833
`
`Page 10
`
`1 So that's what we brought the motion on,
`2 with respect to all odds (sic) there, because what we
`3 need is discovery from the plaintiff. We are being asked
`4 to give wide-ranging discovery, and we don't have
`5 contentions that actually describe what it is they are
`6 accusing.
`7 Let me use an analogy. Our clients
`8 develop video games. And, for example, a car, if we were
`9 auto manufacturers and we sold cars, somebody could come
`10 in with a brake patent and say, This kind of braking
`11 structure infringes our patent. Not all brakes do, but
`12 this kind of brake. You sell cars, therefore you
`13 infringe because your car has brakes.
`14 That's the level of contention we have
`15 got. They say you sell video games that can be played
`16 over the Internet, therefore there must be some
`17 connections, and we contend those connections infringe
`18 our patents. And they give us 700 pages of contentions
`19 that show screen shots of the games being played, none of
`20 which talk about the network structure. Well, they now
`21 have had nearly a hundred hours of source code review,
`22 they have the 30(b)(6) deposition, and it's time they
`23 give us the information they were ordered to give us
`24 slightly under a year ago.
`
`Page 12
`1 they take the position that they didn't need enough to
`2 meet that notice requirement, you disagree, what happens
`3 next?
`4 MR. ENZMINGER: Well, we are talking about
`5 two different issues, because we already had the argument
`6 with respect to the Call of Duty game, which is the only
`7 game we are moving on in our motion. We already had,
`8 last April, the argument that they should be entitled to
`9 take discovery, deposition discovery on this product.
`10 MR. KRAFTSCHIK: This is Steve Kraftschik.
`11 I am not hearing anything. (Pause.) Now I can hear you.
`12 MR. ENZMINGER: Okay.
`13 With respect to the Call of Duty product,
`14 which is the only one we have moved on with this motion,
`15 we have already given them the depositions that they said
`16 that they needed for this product. We have already given
`17 them the source code review they claimed that they needed
`18 for this product. So this is not a situation where we
`19 are refusing to give them discovery because they haven't
`20 given us notice of what their contentions are. This is a
`21 situation where we have given them the discovery and they
`22 still won't tell us what their contentions are.
`23 SPECIAL MASTER TERRELL: Well, I --
`24 MR. TOMASULO: May I -- I didn't mean to
`
`Page 11
`
`1 So that's our motion to compel.
`2 SPECIAL MASTER TERRELL: Okay. Let me ask
`3 you this question. Suppose I rule in your favor and then
`4 the plaintiff says, Well, without further depositions I
`5 can't give you anything more, and suppose I also denied
`6 the plaintiff's motion to compel these two depositions,
`7 what happens next? Where do you go then? Do you have
`8 the basis for a summary judgment? Do you file something
`9 new? I just would like an understanding of the practical
`10 consequences if the plaintiff says they can't give you
`11 anything more.
`12 MR. ENZMINGER: I would think there's
`13 certainly a basis for a summary judgment motion. We have
`14 already filed a Rule 11 motion on this issue because the
`15 network structure can be determined without regard to
`16 discovery. And in addition to that, they have had as
`17 much source code review on the Call of Duty product as
`18 they have wanted, and they still aren't giving us a basic
`19 contention of how it is that the product infringes these
`20 patents.
`21 SPECIAL MASTER TERRELL: And then related
`22 to that, as we know, the standard for an infringement
`23 chart isn't the most definitive evidence that you go to
`24 the jury with, but it's more than notice requirement. If
`
`Page 13
`1 cut you off, Special Master. This is Mike Tomasulo.
`2 SPECIAL MASTER TERRELL: Go ahead, Mike.
`3 MR. TOMASULO: Two points. One, the issue
`4 of whether their contention has met the local rule
`5 requirement I think is not the grounds of our motion.
`6 The grounds of our motion is to compel compliance with
`7 Special Master Order No. 2 requiring them to supplement
`8 the interrogatories that we propounded, and those
`9 interrogatories are essential to the case. They are the
`10 traditional types of interrogatories that people propound
`11 in a patent case that tell us why we infringe. And there
`12 isn't some restriction on the type of information that
`13 the claim is required to provide.
`14 (Speaker joining on the line.)
`15 MR. KRAFTSCHIK: This is Stephen
`16 Kraftschik. I think I got kicked off.
`17 SPECIAL MASTER TERRELL: Let me just make
`18 sure that the court reporter is still on the line.
`19 THE COURT REPORTER: I am, Special Master.
`20 SPECIAL MASTER TERRELL: Just for the sake
`21 of the court reporter, I know it's sort of frustrating
`22 when you think you may have been kicked off and get back
`23 on, just please give her your name.
`24 So, Mr. Tomasulo, I was hearing you. Let
`4 (Pages 10 - 13)
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
`
`

`

`Case 1:16-cv-00455-RGA Document 512 Filed 05/27/20 Page 5 of 36 PageID #: 35834
`
`Page 14
`1 me just clarify. I understand the point that your motion
`2 is really in furtherance of my Special Order 2 entered in
`3 the earlier case. My question to your colleague, and I
`4 think he answered it, was, okay, if the plaintiff comes
`5 back and says we at this point in time can't tell you
`6 anything more, you have all we know to support our
`7 infringement claims, but then the plaintiff goes on and
`8 says, but we are entitled to continue the case and take
`9 more discovery, and we may, after a lot more discovery,
`10 be able to supplement the infringement chart, do you have
`11 any redress if they take that position?
`12 MR. TOMASULO: Well, I think that I
`13 wouldn't find that position to be necessarily credible
`14 because they are required to identify the network that
`15 supposedly infringed the patents. And, again, if we use
`16 the brake example, they should at least be able to tell
`17 us what model of brakes they are accusing and why those
`18 specific models meet the claim limitations.
`19 In other words, in this case what the
`20 patents are about is about how these computers allegedly
`21 connect to form the accused M-regular incomplete network,
`22 and then they also have to prove how the other claim
`23 limitations are met, which is, for instance, how data is
`24 propagated through that network.
`
`Page 16
`1 graph, if they want to do that on the record, I would be
`2 pleased to hear it, because we believe they can't do it.
`3 And we filed a Rule 11 motion that says that they can't
`4 do it.
`5 But I think they are not going to make
`6 such a representation. I think what they will say is
`7 they have given us enough, and we need to wait for expert
`8 reports to get any more.
`9 SPECIAL MASTER TERRELL: I wanted to ask
`10 that question at the conclusion of defendants' opening
`11 argument.
`12 Why don't I now hear from the plaintiff's
`13 motion.
`14 MR. TOMASULO: May I make one final point,
`15 Special Master?
`16 SPECIAL MASTER TERRELL: Please.
`17 MR. TOMASULO: You could analogize this
`18 to -- there's no different standard that applies here
`19 than would apply in a car crash case, and if we said we
`20 want to know all of the reasons that you think we caused
`21 the car crash. And, of course, they say that our brakes
`22 are defective, and we caused the car crash, and move
`23 forward. And we can ask: Tell us all the reasons that
`24 you think that the car crash has been caused. And that
`
`Page 15
`
`Page 17
`
`1 If they want to say that they don't
`2 know -- they are unable to do that, if they want to make
`3 a representation that they are unable to identify such a
`4 network, then that would be, you know -- I would be
`5 interested to hear such a representation. But right now
`6 what they have done is to put everything into kind of a
`7 kludge chart where they identify something approaching,
`8 who knows, hundreds of networks, but they don't give the
`9 specific membership or the connections or define any of
`10 those networks.
`11 And so we asked their expert. We said:
`12 Do you agree with this proposition that for us to be able
`13 to analyze whether there's infringement we need to know,
`14 at a minimum, who are the participants, we need to know
`15 all of the participants in any specific network that you
`16 accuse of infringement, and we need to know how those
`17 participants are connected, and how they supposedly form
`18 an M-regular graph? And the expert said: Yes. Yes,
`19 that's correct. You need to know that information.
`20 And so to me, if they want to make the
`21 statement on the record that they are unable to identify
`22 any type of network and identify all of the participants
`23 and all of the connections, and explain how those
`24 connections supposedly form an M-regular incomplete
`
`1 includes all of the facts that supposedly -- you know,
`2 what is it that we did wrong?
`3 There is not a rule that allows someone to
`4 withhold discovery until the end of the case or until
`5 trial or until expert reports. There just isn't such a
`6 rule.
`7 SPECIAL MASTER TERRELL: Very good.
`8 All right. I think it's time to hear from
`9 the plaintiff. I think it's going to be Mr. Frankel; is
`10 that right?
`11 MR. FRANKEL: That's correct.
`12 SPECIAL MASTER TERRELL: And, Mr. Frankel,
`13 I appreciate your forbearance during your adversary's
`14 argument, and I would appreciate them having the same
`15 forbearance as you go forward.
`16 So you may proceed, Mr. Frankel.
`17 MR. FRANKEL: Thank you. Let me start by
`18 saying that the supplemental interrogatory response that
`19 we provided for Call of Duty has identified our
`20 infringement theory as to that game. And I will get into
`21 the specifics, but before I do I just want to talk a
`22 little bit about the big picture here, which is the
`23 fundamental problem with the way that Acquisitions and
`24 the other defendants have been approaching discovery in
`5 (Pages 14 - 17)
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
`
`

`

`Case 1:16-cv-00455-RGA Document 512 Filed 05/27/20 Page 6 of 36 PageID #: 35835
`
`Page 18
`1 this case. And they really have discovery backwards, in
`2 our view.
`3 They are asking Acceleration Bay to prove
`4 infringement to their satisfaction before they cooperate
`5 in discovery, and that's not how it works. I understand
`6 that the defendants say that they don't infringe. I
`7 think that's true in every patent case, and I don't think
`8 they are going to agree with us on infringement until the
`9 jury comes back with the verdict and the Federal Circuit
`10 affirms it. But that's not a basis for them to
`11 unilaterally stop discovery, which is what they keep
`12 trying to do in this case, and that's why we keep coming
`13 back to the Special Master. This is the third time that
`14 we are moving to compel depositions.
`15 The schedule in this case is not staged,
`16 and defendants keep trying to put up these roadblocks
`17 where they want us to convince them of certain facts
`18 before they are going to allow discovery to proceed.
`19 That's not how it works under the federal rules or the
`20 local rules. And the fact is there's just four months of
`21 fact discovery in this case.
`22 We just negotiated a schedule between the
`23 parties and Judge Andrews, and had the scheduling order
`24 issued. And there's a lot of discovery to get done in
`
`Page 19
`1 the next four months. That's going to involve source
`2 code, which everyone agrees is really relevant, emails,
`3 the documents, and these depositions. And it's going to
`4 be multiple depositions for these products and third-
`5 party discovery as well. And the schedule is not going
`6 to work if defendants keep saying that they are not going
`7 to -- they are just going to withdraw from participating
`8 in discovery because they think that there's some
`9 deficiency on our side.
`10 We agree that discovery goes both ways.
`11 You know, we are providing interrogatory responses that
`12 we believe provide the necessary disclosures. If there's
`13 a dispute about that, the parties can meet and confer.
`14 We can take these issues to the Special Master. We can
`15 get them resolved. But in the meanwhile, discovery has
`16 to continue.
`17 And another issue is that the defendants
`18 keep conflating the infringement contentions with
`19 interrogatory responses, which are two separate issues.
`20 You know, there was a dispute about the infringement
`21 contentions, we had a full-day hearing. The Special
`22 Master issued its order. It was found that they provided
`23 sufficient notice, recognizing the liberal notice
`24 standard, of Acceleration Bay's contention that discovery
`
`Page 20
`
`1 should proceed.
`2 The Special Master also asked that we
`3 should provide updated interrogatory responses and some
`4 additional information after we take depositions, and
`5 Acceleration Bay is doing that. We have never said that
`6 we are not going to do that. We have reached an
`7 agreement with the defendants that we would do that
`8 within three weeks.
`9 In the case of Call of Duty, what we told
`10 defendants when we met and conferred with them -- and
`11 when I say "we," this is what I personally represented to
`12 defendants' counsel, and we've delivered on that
`13 representation. We said that within a week of the
`14 issuance of the scheduling order, which carried over
`15 discovery from the predecessor case, that we would
`16 provide that updated interrogatory response, and we did.
`17 And defendants keep talking about the fact
`18 that we served it late in the day on Monday, as though
`19 there was some nefarious attempt to evade resolution
`20 before the Special Master. And I really do not
`21 appreciate that comment; that's completely untrue. There
`22 was a lot of activity in the case during that period of
`23 time. As the defendants mentioned, we were in the middle
`24 of briefing a Rule 11 motion. The interrogatory
`
`Page 21
`
`1 responses and exhibits to that motion -- that was an
`2 important document, and we wanted to make sure to take
`3 the time to do it as best as we could.
`4 And during that week defendants themselves
`5 asked for an extension of time on some briefing, given
`6 all of the activity in the case, and we agreed to that.
`7 We told them that we would give it to them, and we did.
`8 That's why I think that the motion to compel was
`9 completely premature.
`10 Now, on the issue of substance of the
`11 interrogatory response, what we talked about at the
`12 hearing a year ago before the Special Master is what
`13 defendants said that they needed additional disclosures
`14 from us was tell us who are the participants in the
`15 network, and what are the messages that they are
`16 exchanging, and why do we think that the network is
`17 M-regular? And that's exactly what we did in the Call of
`18 Duty interrogatory response.
`19 And, by the way, in the motion to compel
`20 that the defendants filed, that's also the information
`21 that Activision said that it needed, and that's the
`22 information that was put in the interrogatory response.
`23 Specifically, we identified the participants in the
`24 network as the individuals playing the game and the host
`6 (Pages 18 - 21)
`
`Veritext Legal Solutions
`215-241-1000 ~ 610-434-8588 ~ 302-571-0510 ~ 202-803-8830
`
`

`

`Case 1:16-cv-00455-RGA Document 512 Filed 05/27/20 Page 7 of 36 PageID #: 35836
`
`Page 22
`1 server. And the host server can come in two forms. It
`2 can be an Activision provided host server or it can be
`3 one of the players who is acting as the host server.
`4 Those are the network participants. I don't know how we
`5 could be more clear about our contention than that.
`6 And then as far as the data that's being
`7 exchanged, we identified the specific data messages that
`8 those participants are exchanging in our interrogatory
`9 response. We said it's quality-of-service messages, it's
`10 voice over IP messages, that's voice chat, and it's game
`11 play data. And then we explained why we think these are
`12 M-regular incomplete networks. And that's based on the
`13 discovery taken so far.
`14 And we provided specific citations to the
`15 deposition transcript that we relied upon where the
`16 deposition testimony supports our contentions. And that
`17 deposition testimony that's quoted in there is talking
`18 about functionality in the games that comes from the
`19 source code, and we marked the relevant source code at
`20 the depositions.
`21 That's our obligation at this stage in the
`22 case. It's not to prove infringement to defendants'
`23 satisfaction, which I don't think will ever happen, and
`24 it's not to provide detailed expert reports, which under
`
`Page 23
`1 the scheduling order in this case come in September, and
`2 we are going to provide them at that time. And what
`3 defendants are asking for -- they have asked us to
`4 identify the participants and why we think it's
`5 M-regular, and we are going to do that. But the
`6 additional disclosures they want are effectively to
`7 continuously update and redo the infringement contentions
`8 in the case, which is incredibly burdensome, and that's
`9 not how discovery works in this district or in any
`10 district.
`11 So we think that the interrogatory
`12 responses we provided fully complies with the Special
`13 Master's order. And as we take the other depositions in
`14 the case, we are going to provide similar updated
`15 interrogatory responses within the agreed-upon timeframe.
`16 Are there any questions from the Special
`17 Master that I can address?
`18 SPECIAL MASTER TERRELL: No, I think
`19 that's helpful. I may have further questions as we turn
`20 to your motion, but I will give the defendant a chance to
`21 reply on the motion.
`22 MR. ENZMINGER: Special Master, this is
`23 David Enzminger for the benefit of the court reporter.
`24 Let me respond to several points
`
`Page 24
`1 Mr. Frankel made. First, there was never an unequivocal
`2 representation on when they were going to supplement. It
`3 is true that Mr. Frankel said he would try to get a
`4 response out to us, but we have email correspondence
`5 asking him to provide a date, and none was ever provided.
`6 So the idea that our motion to compel interrogatory
`7 supplement nine months after it was originally due is
`8 hardly premature.
`9 Second, we had advised the Special Master
`10 the week before that we would bring this motion, and the
`11 Special Master set the deadline. So the notion that the
`12 supplement being filed 30 minutes before the deadline
`13 wasn't somehow intentional is a little -- defies
`14 credulity a little bit in my judgment, but I will accept
`15 his representation.
`16 But let me turn to the substance because
`17 what you just heard is part of the obfuscation of their
`18 infringement contentions and their supplement. And
`19 Mr. Frankel said we are conflating the infringement
`20 contention obligation with the interrogatory obligation.
`21 And the reason for that is because their original
`22 interrogatory response merely incorporated their
`23 contention. So we moved for real interrogatory responses
`24 that would actually provide the information we are
`
`Page 25
`1 seeking, which both sides' experts agree are not in those
`2 contentions.
`3 The response from Mr. Frankel just now
`4 that they've told us what their infringement contention
`5 is is simply untrue. What he said -- and if I got it
`6 correct -- Well, we told them who the participants are.
`7 They are the individuals, and the host servers, players
`8 or the