Case 1:16-cv-00453-WCB Document 775 Filed 04/12/23 Page 1 of 2 PageID #: 54986
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`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
`1201 NORTH MARKET STREET
`P.O. BOX 1347
`WILMINGTON, DELAWARE 19899-1347
`
`(302) 658-9200
`(302) 658-3989 FAX
`
`JACK B. BLUMENFELD
`(302) 351-9291
`(302) 425-3012 FAX
`jblumenfeld@morrisnichols.com
`
`
`
`
`
`The Honorable William C. Bryson
`United States District Court for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
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`
`
`
`Re:
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`Acceleration Bay LLC v. Activision Blizzard Inc., C.A. No. 16-453 (WCB)
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`Dear Judge Bryson:
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`Activision writes in response to the Court’s request that the parties inquire as to the
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`availability of their witnesses for an October 30, 2023 trial setting. (D.I. 767 at 17–18.)
`Acceleration Bay has already confirmed that its witnesses are available for the October 30 trial
`date. (See D.I. 765 at 1.)
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`Party and Third Party Fact Witnesses. Pursuant to the Court’s March 28 Order, Activision
`inquired as to the availability of fact and expert witnesses for trial beginning on October 30. To
`date, Activision has confirmed the availability for one of its fact witnesses (Pat Griffith), with one
`additional witness (Patrick Dawson) being tentatively available pending his commitments to an
`annual industry conference. Activision has not, however, been able to confirm the availability of
`Kurtis McCathern, who is no longer employed by Activision, or third-party witness Roger
`Wolfson, who is no longer employed by third party Bungie. For Mr. Wolfson, Activision has
`conferred with Bungie’s outside counsel but they have not been able to confirm his availability,
`and have indicated that a substitute witness is very likely. Bungie counsel stated that they should
`have a confirmation regarding Mr. Wolfson’s availability, or a substitute witness, in three to four
`weeks. Finally, although Activision has inquired into other third-party fact witness availability, it
`has not yet successfully been able to contact them (e.g., Joseph Rumsey). Activision continues to
`diligently coordinate with the fact witnesses’ schedules and availability. However, as of the date
`of this letter Activision cannot confirm the availability of each of its fact witnesses for an
`October 30 trial date.
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`Technical Experts. Activision has also been in contact with its technical expert witnesses,
`Dr. Macedonia and Dr. Kelly, regarding their availability. Both experts have indicated that they
`have retired since this case was last set for trial in 2018. In addition, Dr. Macedonia has indicated
`, and Dr. Kelly has explained that his
`staff members who assisted him in this case have since moved on to different opportunities in the
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`Originally Filed: April 5, 2023
`Redacted Version Filed: April 12, 2023
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`REDACTED - PUBLIC VERSION
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`Case 1:16-cv-00453-WCB Document 775 Filed 04/12/23 Page 2 of 2 PageID #: 54987
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`The Honorable William C. Bryson
`April 5, 2023
`Page 2
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`wake of his retirement. Activision continues to evaluate its technical expert witness availability
`and options, and will apprise the Court and Acceleration Bay of any updates as quickly as possible.
`For this additional reason, Activision is unable to confirm the October 30 trial date.1
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`If necessary, Activision will work diligently to identify a substitute expert witness(es) for
`trial. If any substitute expert witnesses are necessary, Activision intends that the substitute witness
`testimony will not differ substantively from Dr. Macedonia’s and Dr. Kelly’s disclosed opinions
`such that the need for any additional expert discovery will be limited or unnecessary. Activision
`will promptly notify the Court and Acceleration Bay once it determines whether an expert
`substitution will be required for trial.
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`Alternative Trial Date(s). Given that Activision has not been able to confirm the
`availability of five of its anticipated eight trial witnesses, Activision requested a meet and confer
`with Acceleration Bay to explore alternative trial settings in Q1, 2024. Those initial discussions
`are scheduled to begin on April 6, 2023 at 1:30pm ET. Once counsel have conferred over
`alternative trial settings in Q1, 2024, Activision will continue to work diligently in clearing those
`dates with its anticipated witnesses. Activision respectfully requests leave to file a joint status
`report in two weeks to offer potential trial dates in the first quarter of 2024.
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`Activision respectfully submits that a potential three to four month delay in trial setting
`will result in little to no prejudice to Acceleration Bay, and will actually give the parties more time
`to address any issues stemming from any witness substitution(s), including any necessary
`deposition(s). Indeed, the remaining asserted patents at issue have expired, and thus potential
`damages are no longer accumulating. Any conceivable harm to Acceleration Bay from a small
`delay in trial can be remedied through prejudgment interest, and is substantially outweighed by
`the prejudice to Activision if it is unable to fully and fairly present its defense at an expedited trial
`setting.
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`JBB/bac
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`Respectfully,
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`/s/ Jack B. Blumenfeld
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`Jack B. Blumenfeld (#1014)
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`1 Activision has confirmed the availability of its damages expert, Ms. Cathy Lawton, for the
`October 30 trial setting.
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