Case 1:16-cv-00455-RGA Document 150 Filed 06/20/17 Page 1 of 6 PageID #: 14113
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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` C.A. No. 16-453 (RGA)
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` C.A. No. 16-454 (RGA)
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` C.A. No. 16-455 (RGA)
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`ACCELERATION BAY LLC.
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` Plaintiff,
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`V,
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`ACTIVISION BLIZZARD, INC.,
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` Defendant.
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`ACCELERATION BAY LLC,
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` Plaintiff,
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`v.
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`ELECTRONIC ARTS INC.,
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` Defendant.
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`ACCELERATION BAY LLC,
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` Plaintiff.
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`v.
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`TAKE-TWO INTERACTIVE
`SOFTWARE, INC., ROCKSTAR GAMES,
`INC. and 2K SPORTS, INC.,
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` Defendants.
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`SPECIAL MASTER ORDER NO. 4 AS TO THE PARTIES' MOTIONS TO COMPEL
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`MOTIONS
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`On June 7, 2017, the plaintiff filed a motion to compel and brief seeking two separate orders:
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`RD 10439271v.1
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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` C.A. No. 16-453 (RGA)
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` C.A. No. 16-454 (RGA)
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` C.A. No. 16-455 (RGA)
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`ACCELERATION BAY LLC.
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` Plaintiff,
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`V,
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`ACTIVISION BLIZZARD, INC.,
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` Defendant.
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`ACCELERATION BAY LLC,
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` Plaintiff,
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`v.
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`ELECTRONIC ARTS INC.,
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` Defendant.
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`ACCELERATION BAY LLC,
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` Plaintiff.
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`v.
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`TAKE-TWO INTERACTIVE
`SOFTWARE, INC., ROCKSTAR GAMES,
`INC. and 2K SPORTS, INC.,
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` Defendants.
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`SPECIAL MASTER ORDER NO. 4 AS TO THE PARTIES' MOTIONS TO COMPEL
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`MOTIONS
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`On June 7, 2017, the plaintiff filed a motion to compel and brief seeking two separate orders:
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`RD 10439271v.1
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`Case 1:16-cv-00455-RGA Document 150 Filed 06/20/17 Page 2 of 6 PageID #: 14114
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`1.
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`To compel defendants to provide discovery on the updated versions of the
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`accused products identified in Acceleration Bay's February 13, 2017 updated identification of
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`accused products ("Motion to Compel Discovery on the Updated Versions"); and
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`2.
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`To compel the deposition of John Hynd, a senior programmer at Take-Two for the
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`accused Grand Theft Auto product (the "Motion to Compel the Deposition of Hynd").
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`On June 7, 2017, the defendants filed their motion and opening brief in support of their motion to
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`compel responses to interrogatories No. 7 and 9 in compliance with Special Master Order No. 3
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`("Motion to Compel Responses to Interrogatories No. 7 and 9").
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`On June 14, 2017, the parties filed their responsive briefs regarding the above motions.
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`On June 16, 2017, a Hearing was held before the Special Master ("Hearing").
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`This is the Special Master's Order No. 4 as to the parties' motions to compel identified above:
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`A.
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`Plaintiff's Motion to Compel
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`1. Motion to Compel Discovery on the Updated Versions.
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`The issue is whether plaintiff Acceleration Bay can obtain discovery with regard to
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`alleged updated versions of the accused product that have been released since the date the suit
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`was filed in 2015. After discovery reopened in the current actions in early 2017, plaintiff served
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`Updated Identifications of Accused Products on defendants, accusing these new versions of
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`infringement. The plaintiff seeks access to the source code, core technical discovery and
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`discovery into the sales of these products and other financial data for the alleged updated
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`versions.
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`RD 10439271v.1
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`Case 1:16-cv-00455-RGA Document 150 Filed 06/20/17 Page 3 of 6 PageID #: 14115
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`Plaintiff contends that it is permitted to obtain this discovery because defendants
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`requested in the Scheduling Order a provision that would preclude the plaintiff from adding
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`additional products. Defendants did not succeed in obtaining such a provision.
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`Plaintiff also argues that it is entitled to the core technical discovery before it needs to
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`provide its infringement contentions as to these updated versions. Plaintiff points to the October
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`29, 2015 Scheduling Order to demonstrate its view as to the proper sequencing: first, the plaintiff
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`identifies accused products; then defendants provide core technical discovery; and only
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`thereafter does plaintiff provide infringement contentions. Since defendants have not provided
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`source code or other technical documents, plaintiff submits that it is premature for it to provide
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`infringement contentions as to the updated versions.
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`Finally, plaintiff points out that in depositions of defendants' witnesses, there has been
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`confirmation of the relevant functionality in the new versions. Thus, plaintiff contends that the
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`new versions are functionally related to the accused products. According to plaintiff, the updated
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`versions would use the same multiplayer networking functionality as do the versions already
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`accused of infringement.
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`Plaintiffs proposed an alternative to its motion to compel full discovery on the new
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`versions. That alternative is that the defendants could stipulate that the prior versions of the
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`games accused of infringement are representative of the new versions for purposes of finding
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`infringement. Under that alternative, plaintiff contents that defendants should provide financial
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`and marketing discovery for the new versions.
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`Defendants resist discovery with regard to the updated versions on the grounds that the
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`plaintiff has not provided "any notice of the purported theory of infringement". The plaintiff
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`RD 10439271v.1
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`Case 1:16-cv-00455-RGA Document 150 Filed 06/20/17 Page 4 of 6 PageID #: 14116
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`responds that its updated identifications incorporate, by reference, plaintiff's prior disclosures of
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`its infringement theories for earlier versions of the products. Since the functionality of the games
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`is the same in relevant part for both products, according to the plaintiff, there is no need for
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`plaintiff to add more to its infringement contentions.
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`Defendants submit that plaintiff has delayed in bringing this motion. As early as January,
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`2017, defendants informed plaintiff that defendants object to adding new products to the case. In
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`response, plaintiff points to Exhibit 5 in its opening brief in support of this motion to argue that
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`the parties have been trying to amicably resolve this issue. Exhibit 5, according to plaintiff,
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`shows that the parties have been in email and oral communication concerning the plaintiff's
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`attempt to add new products. It was only when those discussions broke down that the plaintiff
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`brought this motion. However, a careful review of Exhibit 5 does not persuade me that the
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`parties were negotiating with regard to updated versions of any product. At the Hearing,
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`defendants' counsel represented that plaintiff was advised on February 17th that defendants would
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`not produce any new versions of the games. In view of the upcoming date for closure of fact
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`discovery, plaintiff appears to have delayed in bringing this motion.
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`Defendants strongly dispute that any new games are merely updated versions of the
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`accused games. Defendants explain that the new games involve major changes, software
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`modifications and often take years to produce. Defendants persuade me that these alleged
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`updated versions are probably different products, with their own code base and technical
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`features.
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`Finally, defendants argue that it is extremely time consuming and burdensome to respond
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`to plaintiff's discovery with regard to these alleged updated versions. The discovery includes not
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`Case 1:16-cv-00455-RGA Document 150 Filed 06/20/17 Page 5 of 6 PageID #: 14117
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`just the technical aspects of the games, source code and functionality of the games; but also
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`marketing plans, and financial data.
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`THE PLAINTIFF'S MOTION TO COMPEL DISCOVERY ON UPDATED VERSIONS
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`IS DENIED.
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`2.
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`Motion to Compel the Deposition of Hynd.
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`Plaintiff contends that it needs to take the deposition of John Hynd, a senior programmer
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`for the accused Grand Theft Auto game ("GTA"). Take-Two has identified Hynd in its
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`disclosures as knowledgeable as to the operation of GTA. Take-Two's only technical witness to
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`date in the litigation has already confirmed that Hynd was involved in the network programming
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`for GTA and for issues dealing with the peer-to-peer network.
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`Take-Two's response is that it does not intend to call Hynd as a witness and that Mr.
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`Baca's deposition covered areas of Hynd's knowledge of the game. Take-Two next argues that
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`the plaintiff should take only one more technical deposition regarding GTA and submits Mr.
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`Yelland as that witness. Finally, Take-Two argues that it is both burdensome and not
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`proportional to the needs of this case to depose Hynd.
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`Hynd clearly is a busy programmer and important depositions do take time for the
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`preparation of the witness. However, the parties are going to depose Yelland in Scotland next
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`month. Hynd is also located in Scotland. Yelland will be deposed first and presumably plaintiff
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`would be deposing Hynd on topics that Yelland could not answer or gives incomplete answers.
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`PLAINTIFF'S MOTION TO DEPOSE HYND IS GRANTED.
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`Case 1:16-cv-00455-RGA Document 150 Filed 06/20/17 Page 6 of 6 PageID #: 14118
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`B.
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`Defendants' Motion to Compel Responses to Interrogatories No. 7 and 9
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`The defendants in this motion to compel are the defendants in C.A. Nos. 16-454 and 16-
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`455. Defendants seek an order that parallels the Special Master Order No. 3 relating to
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`Defendant Activision Blizzard, Inc., the defendant in C.A. No. 16-453.
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`It appears that defendants attempted to avoid bringing this motion before the Special
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`Master. They proposed a stipulation that Special Master Order No. 3 would apply to all
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`defendants, subject to any objections that plaintiff might file or motions that it might bring before
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`the Court. This was not accepted.
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`Plaintiff's responsive brief evidences the communications the parties have had on this
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`topic. Those email communications convince me that plaintiff intends to provide supplemental
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`interrogatory responses to these defendants, to the same extent that it will do so for defendant
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`Activision pursuant to Special Master Order No. 3, subject to any objections that plaintiff may
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`file with the Court as to Special Master Order No. 3. Plaintiff represents that it will supplement
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`its responses by the agreed upon date of July 7, 2017. There is merit to respecting the efforts of
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`the parties to resolve disputes without bringing motions before the Court. At this time, this
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`motion appears to be premature.
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`DEFENDANT'S MOTION TO COMPEL RESPONSES TO INTERROGATORIES
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`NOS. 7 AND 9 WITH REGARD TO THESE DEFENDANTS IS DENIED.
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` Dated: June 20, 2017
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`/s/ Allen M. Terrell, Jr.
`Allen M. Terrell, Jr., Special Master
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`RD 10439271v.1
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