Case 1:16-cv-00454-RGA Document 459 Filed 04/05/18 Page 1 of 70 PageID #: 37234
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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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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`)
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`C.A. No. 16-454 (RGA)
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`REDACTED - PUBLIC VERSION
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`DECLARATION OF KATHLEEN B. BARRY
`IN SUPPORT OF ELECTRONIC ART INC.’S OPENING BRIEF
`IN SUPPORT OF ITS MOTIONS FOR SUMMARY JUDGMENT AND
`TO EXCLUDE EXPERT OPINIONS UNDER FRE 702
`VOLUME 5 OF 8
`MORRIS, NICHOLS, ARSHT & TUNNELL LLP
`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
`
`OF COUNSEL:
`
`Michael A. Tomasulo
`Gino Cheng
`David K. Lin
`Joe S. Netikosol
`WINSTON & STRAWN LLP
`333 South Grand Avenue, 38th Floor
`Los Angeles, CA 90071
`(213) 615-1700
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`Attorneys for Defendant
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`David P. Enzminger
`Louis L. Campbell
`WINSTON & STRAWN LLP
`275 Middlefield Road, Suite 205
`Menlo Park, CA 94025
`(650) 858-6500
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`Dan K. Webb
`Kathleen B. Barry
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
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`Case 1:16-cv-00454-RGA Document 459 Filed 04/05/18 Page 2 of 70 PageID #: 37235
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`Krista M. Enns
`WINSTON & STRAWN LLP
`101 California Street, 35th Floor
`San Francisco, CA 94111
`(415) 591-1000
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`Michael M. Murray
`Anup K. Misra
`WINSTON & STRAWN LLP
`200 Park Avenue,
`New York, NY 10166
`(212) 294-6700
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`Andrew R. Sommer
`Thomas M. Dunham
`Michael Woods
`Paul N. Harold
`Joseph C. Masullo
`WINSTON & STRAWN LLP
`1700 K Street, N.W.
`Washington, DC 20006
`(202) 282-5000
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`Original Filing Date: March 23, 2018
`Redacted Filing Date: April 5, 2018
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`Case 1:16-cv-00454-RGA Document 459 Filed 04/05/18 Page 14 of 70 PageID #: 37247
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 15-282 (RGA)
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`)))))))))
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`ACCELERATION BAY LLC,
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`ELECTRONIC ARTS INC.,
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`Plaintiff,
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`
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`v.
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`
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`Defendant.
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`
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`DEFENDANT(S)’ RESPONSES TO PLAINTIFF ACCELERATION BAY LLC’S FIRST
`SET OF COMMON INTERROGATORIES (NOS. 1-4)
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`Pursuant to Fed. R. Civ. P. 26 and 33, and L.R. 5.4, Defendant Electronic Arts Inc. (“EA”
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`or “Defendant”), by and through its undersigned attorneys, serve(s) these Objections and
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`Responses to Plaintiff Acceleration Bay LLC’s First Set of Common Interrogatories (Nos. 1-4)
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`(the “Interrogatories”).
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`Defendant reserves the right to amend or supplement these Objections and Responses in
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`the event that further information or documents are discovered. In addition, Defendant’s
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`Responses are given without prejudice to its rights to introduce at trial evidence of any
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`subsequently discovered or unintentionally omitted facts or documents.
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`Defendant’s Objections and Responses shall not constitute an admission by Defendant
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`that any Interrogatory, or the answer thereto, is admissible as evidence in any trial or other
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`proceeding. Defendant specifically reserves the right to object on any grounds at any time to the
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`admission of any Interrogatory, or any response or document produced in connection therewith,
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`in any trial or other proceeding.
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`Defendant’s Responses are made for the purpose of this pending action only.
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`1
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`Case 1:16-cv-00454-RGA Document 459 Filed 04/05/18 Page 15 of 70 PageID #: 37248
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`GENERAL OBJECTIONS
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`The following general objections apply to the Interrogatories as a whole as well as to
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`each and every individual Interrogatory propounded by Plaintiff, and they are incorporated by
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`reference into each response by Defendant as if set forth fully therein:
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`1.
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`Defendant objects to each Interrogatory, definition, and instruction, to the extent
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`that it is vague, ambiguous, overbroad, unduly burdensome, harassing, incomprehensible, and
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`seeks information that is neither relevant nor reasonably calculated to lead to the discovery of
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`admissible evidence.
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`2.
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`Defendant objects to each Interrogatory, definition, and instruction, to the extent
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`that it is not reasonably limited in time or scope. Subject to and without waiving its objections,
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`Defendant will provide information for the period of March 30, 2009 to present unless otherwise
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`noted.
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`3.
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`Defendant objects to each Interrogatory, definition, and instruction to the extent
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`that it seeks information protected from disclosure by the attorney-client privilege, the work-
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`product doctrine, the common interest privilege, Fed. R. Civ. P. 26(b)(4)(A), or any other
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`privilege or immunity. The inadvertent production of any privileged document or information
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`shall not constitute a waiver of any applicable objection or privilege. For the purposes of
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`responding to these Interrogatories, Defendant will interpret such Interrogatory, definition, and
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`instruction as excluding information subject to privilege.
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`4.
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`Defendant objects to each Interrogatory, definition, and instruction to the extent
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`that it seeks to elicit confidential and/or proprietary information of third parties and/or
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`information that is subject to or precluded by restrictions of confidentiality imposed by, or
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`2
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`pursuant to, agreements between Defendant and third parties in the absence of permission by
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`those third parties to reveal such information to Plaintiff.
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`5.
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`Defendant objects to each Interrogatory, definition, and instruction to the extent
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`that it seeks information that is not relevant to the claim or defense of any party.
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`6.
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`Defendant objects to each Interrogatory, definition, and instruction to the extent
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`that it contains multiple subparts or renders an Interrogatory compound. Such Interrogatories
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`constitute separate Interrogatories that count toward the limit on Interrogatories that Plaintiff is
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`permitted to propound. Defendant objects to each and every Interrogatory that would exceed
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`such limit.
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`7.
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`Defendant objects to each Interrogatory, definition, and instruction to the extent
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`that it calls for a legal conclusion. Any response by Defendant shall not be construed as
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`providing a legal conclusion regarding the meaning or application of any terms or phrases used
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`in Plaintiff’s Interrogatories, definitions, or instructions.
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`8.
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`Defendant objects to each Interrogatory, definition, and instruction to the extent
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`that the information requested therein is not within the possession, custody, or control of the
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`Defendant.
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`9.
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` Defendant objects to each Interrogatory, definition, and instruction to the extent
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`that it purports to impose obligations on Defendant(s) that exceed the obligations imposed upon a
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`responding party under the Federal Rules of Civil Procedure or other applicable law.
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`10.
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`Defendant objects to each Interrogatory, definition, and instruction to the extent
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`that it purports to require Defendant to do anything beyond that which is required by the Federal
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`Rules of Civil Procedure, Court’s Scheduling Order, Protective Order, or the Local Rules.
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`3
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`11.
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`Defendant objects to each Interrogatory, definition, and instruction to the extent
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`that it is cumulative and duplicative of other forms of discovery that are more convenient and
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`less burdensome. Defendant further objects to each Interrogatory, definition, and instruction to
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`the extent that it seeks to require Defendant to do more than conduct an examination of those
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`files or sources that reasonably may be expected to yield responsive information, or an inquiry of
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`those persons who may be reasonably expected to possess responsive information.
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`12.
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`Defendant objects to each Interrogatory, definition, and instruction to the extent
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`that it improperly and prematurely seeks discovery of expert opinions. Such information will be
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`disclosed within the timeframe outlined by the Court’s Scheduling Order.
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`13.
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`Defendant objects to each Interrogatory, definition, and instruction to the extent
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`that it prematurely requests discovery of materials and information in advance of their respective
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`deadlines under the Court’s Scheduling Order. Defendant objects to each Interrogatory as
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`unfairly prejudicial and premature to the extent that it would require Defendant to formulate its
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`full contentions on various topics in order to answer at this stage in the litigation.
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`14.
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`Defendant objects to each Interrogatory, definition, and instruction to the extent
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`that it purports to place an obligation on Defendant to obtain or provide information that is as
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`readily available to Defendant as it is to Plaintiff.
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`15.
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`Defendant objects to the definitions of the terms “Defendants,” “You,” “Your,”
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`and “Activision,” “EA,” and “Take-Two,” as vague and ambiguous as the scope of the terms
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`“present and former,” “directors,” “officers,” “employees,” “parent organization(s),” “subsidiary
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`organization(s),” “predecessors in interest,” “successors in interest,” “divisions,” “servants,”
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`“agents,” “attorneys,” “consultants,” “partners,” “associates,” “investigators,” “representatives,”
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`“accountants,” “financial advisors,” “distributors,” and “any other person acting on their behalf,
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`4
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`Case 1:16-cv-00454-RGA Document 459 Filed 04/05/18 Page 18 of 70 PageID #: 37251
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`pursuant to its authority or subject to its control,” is unclear. Defendant further objects to the
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`definitions of the terms “Defendants,” “You,” and “Your” as overly broad and unduly
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`burdensome to the extent that the definitions (in combination with the individual Interrogatories):
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`(i) seek to encompass information that is neither relevant nor reasonably calculated to lead to the
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`discovery of admissible evidence; (ii) are not reasonably limited in time or scope; (iii) seek to
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`encompass information not within Defendant’s possession, custody, or control; and/or (iv) seek
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`to encompass information protected from disclosure by the attorney-client privilege, the work
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`product doctrine, the common interest privilege, Fed. R. Civ. P. 26(b)(4)(A), or any other
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`applicable privilege or immunity. Defendant also objects to these definitions to the extent that
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`they presume that Defendant has knowledge of each of the persons or entities within the scope of
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`these definitions. Any request that purports to require Defendant to ascertain the knowledge of
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`all of the individuals contained in the definitions of “Defendants,” “You,” and “Your” is
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`overbroad, harassing, and unduly burdensome.
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`16.
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`Defendant objects to the definition of the terms “Plaintiff” and “Acceleration
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`Bay” as vague and ambiguous as the scope of the terms “present and former,” “directors,”
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`“officers,” “employees,” “parent organization(s),” “subsidiary organization(s),” “predecessors in
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`interest,” “successors in interest,” “divisions,” “servants,” “agents,” “attorneys,” “consultants,”
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`“partners,” “associates,” “investigators,” “representatives,” “accountants,” “financial advisors,”
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`“distributors,” and “any other person acting on their behalf, pursuant to its authority or subject to
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`its control,” is unclear. Defendant further objects to these definitions as overly broad and unduly
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`burdensome to the extent that the definitions (in combination with the individual Interrogatories):
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`(i) seek to encompass information that is neither relevant nor reasonably calculated to lead to the
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`discovery of admissible evidence; (ii) are not reasonably limited in time or scope; (iii) seek to
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`5
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`encompass information not within Defendant’s possession, custody, or control; and/or (iv) seek
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`to encompass information protected from disclosure by the attorney-client privilege, the work
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`product doctrine, the common interest privilege, Fed. R. Civ. P. 26(b)(4)(A), or any other
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`applicable privilege or immunity. Defendant also objects to these definitions to the extent that
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`they presume that Defendant has knowledge of each of the persons or entities within the scope of
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`these definitions. Any request that purports to require Defendant to ascertain the knowledge of
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`all of the individuals contained in the definitions of “Plaintiff” and/or “Acceleration Bay” is
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`overbroad, harassing, and unduly burdensome.
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`17.
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`Defendant objects to the definition of the terms “Patents-in-Suit,” “’344 Patent,”
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`“’966 Patent,” “’147 Patent,” “’634 Patent,” “’069 Patent,” and “’497 Patent,” as overly broad
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`and unduly burdensome to the extent that the definitions include patents and/or patent claims that
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`are not asserted against Defendant in this action.
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`18.
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`Defendant objects to the definition of the term “Accused Products” as: (i) vague
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`and ambiguous as the terms “associated expansions,” “updates,” “patches,” and “continuations”
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`are undefined; (ii) overly broad and unduly burdensome to the extent that the definition (in
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`combination with the individual Interrogatories) seeks to encompass information that is neither
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`relevant nor reasonably calculated to lead to the discovery of admissible evidence; (iii) overly
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`broad and unduly burdensome to the extent that the definition (in combination with the
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`individual Interrogatories) seeks to encompass products that have not specifically been accused
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`of infringement by Plaintiff; (iv) inconsistent with Plaintiff’s Complaint, and (v) inconsistent
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`with Plaintiff’s Identification of Accused Products and Patents served to Defendant on
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`November 2, 2015, pursuant to the Scheduling Order in this action.
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`6
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`Case 1:16-cv-00454-RGA Document 459 Filed 04/05/18 Page 20 of 70 PageID #: 37253
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`The following Responses are based on information reasonably available to Defendant as
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`of the date of these Responses. Defendant’s investigation is continuing and ongoing and
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`Defendant expressly reserves the right to revise and/or supplement its responses based on
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`information discovered after the date of these Responses and to use such information in
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`defending Plaintiff's claims at trial or for any other purpose in this litigation. Defendant's
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`Responses to these Interrogatories shall not constitute a waiver of any objection to: (1) the use of
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`any information provided by Defendant in its Responses by Plaintiff, for any purpose; or (2) the
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`admissibility, materiality, or relevance of such information to this case.
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`These General Objections shall be deemed to be incorporated in full into each one of the
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`individual Responses set forth below.
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`7
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`Case 1:16-cv-00454-RGA Document 459 Filed 04/05/18 Page 21 of 70 PageID #: 37254
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`SPECIFIC OBJECTIONS AND RESPONSES
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`COMMON INTERROGATORY NO. 1:
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`For each of the Accused Products, identify all releases, versions, expansions, patches and
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`continuations (collectively “Versions”) that are or have been made, used, offered for sale, sold in
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`the United States, or imported into the United States by You or on Your behalf from the year
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`2014 to the present, including the title or identifier of each Version and the date when it was first
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`made, used, offered for sale, sold or imported in the United States.
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`RESPONSE TO COMMON INTERROGATORY NO. 1:
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`EA hereby incorporates by reference its General Objections as and for its objections to
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`Common Interrogatory No. 1. EA further objects to this Interrogatory on the grounds that it is:
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`(i) compound, in that it seeks disparate and unrelated information; (ii) vague and ambiguous, as
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`the scope of the term “Versions” includes undefined terms, such as “releases,” “versions,”
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`“expansions,” “patches,” and “continuations,” and is therefore unclear; (iii) overly broad and
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`unduly burdensome as it seeks information that is not in the possession, custody, or control of
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`EA; (iv) overly broad and unduly burdensome in that it is not limited to “Accused Products” that
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`have been specifically accused of infringement by Plaintiff; and (v) overbroad, unduly
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`burdensome, and oppressive to the extent it seeks information not relevant to any claim or
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`defense of any party and/or not reasonably calculated to lead to the discovery of admissible
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`evidence.
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`Subject to and without waiving its foregoing objections, and to the extent EA can
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`understand this Interrogatory, EA provides the release dates for the accused products below.
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`Also, pursuant to Fed. R. Civ. P. 33(d), EA has produced or will soon produce non-privileged
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`documents within its possession, custody, or control identified as a result of reasonable inquiry
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`and investigation from which some of the information requested by Plaintiff may be derived or
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`ascertained, the burden being substantially the same for either party, including particularly EA’s
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`source code. Further, the information sought is publicly available, such as, e.g., game release
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`notes for the Accused Products.
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`8
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`Windows
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`9/23/2014
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`9/22/2015
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`Accused Product
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`FIFA 15
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`FIFA 16
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`NHL 15
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`NHL 16
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`Tiger Woods PGA Tour 14
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`Rory McIlroy PGA Tour
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`Crysis 3
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`Plants v. Zombies: Garden
`Warfare
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`Xbox 360
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`Xbox One
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`Playstation 3 Playstation 4 Wii
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`9/23/2014
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`9/23/2014
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`9/23/2014
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`9/23/2014
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`9/23/2014
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`9/22/2015
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`9/22/2015
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`9/22/2015
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`9/22/2015
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`9/9/2014
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`9/9/2014
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`9/9/2014
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`9/15/2015
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`9/9/2014
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`9/15/2015
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`3/26/2013
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`3/26/2013
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`7/14/2015
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`7/14/2015
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`2/19/2013
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`6/24/2014
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`2/19/2013
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`2/19/2013
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`2/25/2014
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`2/25/2014
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`8/19/2014
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`8/19/2014
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`9
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`Case 1:16-cv-00454-RGA Document 459 Filed 04/05/18 Page 23 of 70 PageID #: 37256
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`COMMON INTERROGATORY NO. 2:
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`Describe in detail when and under what circumstances You first became aware of the
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`existence of the Asserted Patents and what actions You took upon becoming aware of the
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`Asserted Patents, including but not limited to, any efforts by You or any other person or entity to
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`design around or avoid infringement of the Asserted Patents.
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`RESPONSE TO COMMON INTERROGATORY NO. 2:
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`EA hereby incorporates by reference its General Objections as and for its objections to
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`Common Interrogatory No. 2. EA further objects to this Interrogatory on the grounds that it is:
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`(i) compound, in that it seeks disparate and unrelated information; (ii) vague and ambiguous as
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`the phrase “first became aware” is undefined and the scope and meaning of this phrase is
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`unclear; (iii) unduly burdensome and harassing as it is impossible for EA to verify whether any
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`one person was the “first” to become aware of anything; and (iv) potentially seeking information
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`relating to communications protected from disclosure by the attorney-client privilege, the work-
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`product doctrine, the common interest privilege, Fed. R. Civ. P. 26(b)(4)(A), or any other
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`applicable privilege or immunity.
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`Subject to and without waiving its foregoing objections, and to the extent EA can
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`understand this Interrogatory, EA responds as follows:
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`EA’s first notice of the Patents-in-Suit was the Complaint.
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`COMMON INTERROGATORY NO. 3:
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`On a monthly, quarterly, annual or other periodic basis, identify the total U.S. and foreign
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`revenues, sales, costs, and profits generated by the Accused Products by a type and model of
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`console.
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`RESPONSE TO COMMON INTERROGATORY NO. 3:
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`EA incorporates by reference its General Objections as and for its objections to Common
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`Interrogatory No. 3. EA further objects to this Interrogatory on the grounds that it is: (i)
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`compound, in that it seeks disparate information; (ii) vague and ambiguous, as the terms
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`10
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`Case 1:16-cv-00454-RGA Document 459 Filed 04/05/18 Page 24 of 70 PageID #: 37257
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`“revenues,” “sales,” “costs,” “profits,” and “generated” are undefined and therefore unclear, (iii)
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`overly broad and unduly burdensome as it seeks information in a form other than is kept by EA
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`in its normal course of business; (iv) overly broad and unduly burdensome as it seeks
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`information that is not in the possession, custody, or control of EA; and (v) overly broad, unduly
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`burdensome, and not reasonably calculated to lead to the discovery of admissible evidence to the
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`extent that it seeks financial information related to “Accused Products” that were not made, used,
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`offered for sale, or sold by EA within the United States or imported into the United States by EA.
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`See 35 U.S.C. § 271.
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`Subject to and without waiving its foregoing objections, and to the extent EA can
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`understand this Interrogatory, EA responds as follows:
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`Pursuant to Fed. R. Civ. P. 33(d), EA has produced or will soon produce non-privileged
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`documents within its possession, custody, or control identified as a result of reasonable inquiry
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`and investigation from which some of the information requested by Plaintiff may be derived or
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`ascertained, the burden being substantially the same for either party.
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`EA is continuing to search for information responsive to this Interrogatory and will
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`supplement this Interrogatory accordingly as additional responsive information is identified.
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`COMMON INTERROGATORY NO. 4:
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`Describe in detail the basis for Your asserted defense of laches, waiver and estoppel.
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`RESPONSE TO COMMON INTERROGATORY NO. 4:
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`EA hereby incorporates by reference its General Objections as and for its objections to
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`Common Interrogatory No. 4. EA further objects to this Interrogatory on the ground that it is:
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`premature, as EA has not yet filed an Answer asserting the aforementioned defenses.
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`11
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`Case 1:16-cv-00454-RGA Document 459 Filed 04/05/18 Page 25 of 70 PageID #: 37258
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`Dated: January 10, 2016
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`/s/ Michael A. Tomasulo
`By:
` _________________________
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`Michael A. Tomasulo
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`David P. Enzminger
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`David K. Lin
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`WINSTON & STRAWN LLP
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`333 South Grand Avenue, 38th Floor
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`Los Angeles, CA 90071
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`(213) 615-1700
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`Daniel K. Webb
`WINSTON & STRAWN LLP
`35 West Wacker Drive
`Chicago, IL 60601
`(312) 558-5600
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`Jack B. Blumenfeld (#1014)
`Stephen J. Kraftschik (#5623)
`1201 North Market Street
`P.O. Box 1347
`Wilmington, DE 19899
`(302) 658-9200
`jblumenfeld@mnat.com
`skraftschik@mnat.com
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` Attorneys for Defendant
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`Case 1:16-cv-00454-RGA Document 459 Filed 04/05/18 Page 26 of 70 PageID #: 37259
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`CERTIFICATE OF SERVICE
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`I hereby certify that on January 10, 2016, copies of the foregoing were caused to be
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`served upon the following in the manner indicated:
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`Philip A. Rovner, Esquire
`Jonathan A. Choa, Esquire
`POTTER ANDERSON & CORROON LLP
`1313 North Market Street, 6th Floor
`Wilmington, DE 19801
`Attorneys for Plaintiff
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`Paul J. Andre, Esquire
`Lisa Kobialka, Esquire
`James R. Hannah, Esquire
`Hannah Lee, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Attorneys for Plaintiff
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`Aaron M. Frankel, Esquire
`KRAMER LEVIN NAFTALIS & FRANKEL LLP
`1177 Avenue of the Americas
`New York, NY 10036
`(212) 715-9100
`Attorney for Plaintiff
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`VIA ELECTRONIC MAIL
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`/s/ David K. Lin
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` _________________________
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`David K. Lin
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`13
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`Case 1:16-cv-00454-RGA Document 459 Filed 04/05/18 Page 27 of 70 PageID #: 37260
`Case 1:16-cv-00454-RGA Document 459 Filed 04/05/18 Page 27 of 70 PagelD #: 37260
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`EXHIBIT C-10
`EXHIBIT C-10
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`Case 1:16-cv-00454-RGA Document 459 Filed 04/05/18 Page 28 of 70 PageID #: 37261
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` Friday, June 16, 2017
` 3:30 p.m.
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`BEFORE:
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`SPECIAL MASTER ALLEN M. TERRELL, JR.
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`APPEARANCES:
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` POTTER, ANDERSON & CORROON, LLP
` BY:
`PHILLIP A. ROVNER, ESQ.
`-and-
`KRAMER, LEVIN, NAFTALIS & FRANKEL, LLP
`BY:
`AARON FRANKEL, ESQ.
`
` Counsel for the Plaintiff
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`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware
`(302) 658-6697
`FAX (302) 658-8418
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`19801
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`Hawkins Reporting Service
`
`715 North King Street - Wilmington, Delaware 19801
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`(302) 658-6697 FAX (302) 658-8418
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`2
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`A P P E A R A N C E S C O N T I N U E D :
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` W I N S T O N & S T R A W N , L L P
` B Y : K A T H L E E N B . B A R R Y , E S Q .
` B Y : M I C H A E L A . T O M A S U L O , E S Q .
`
` C o u n s e l f o r t h e D e f e n d a n t
`
`Hawkins Reporting Service
`715 North King Street - Wilmington, Delaware 19801
`(302) 658-6697 FAX (302) 658-8418
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`D e f e n d a n t s .
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`S P E C I A L M A S T E R : A l l r i g h t . L e t
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`m e d o t h i s . L e t m e , f o r t h e s a k e o f t h e r e c o r d
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`a n d w h e n I i s s u e a n o r d e r , i t w i l l b e i n a l l
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`t h r e e a c t i o n s . C i v i l a c t i o n n u m b e r s 1 6 - 4 5 3 ,
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`4 5 4 , 4 5 5 . T h e r e h a v e b e e n s e v e r a l m o t i o n s f i l e d
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`o n J u n e 7 t h . T h e r e h a v e b e e n r e s p o n s i v e b r i e f s
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`a n d a s I ' v e i n d i c a t e d t o t h e p a r t i e s , I ' v e r e a d
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`t h e m a n d I ' m p r e p a r e d t o p r o c e e d . I t h i n k t h e
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`m o s t e f f i c i e n t w a y w o u l d b e t o h e a r f r o m t h e
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`m o v i n g p a r t y w h o w o u l d p a r t i c u l a r l y f o c u s
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`c o m m e n t s o n t h e r e s p o n s e m a d e b y o p p o s i t i o n t o
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`t h e m o t i o n . I f t h e r e ' s a n y P l a i n t i f f , w o u l d y o u
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`l i k e t o p r o c e e d f i r s t w i t h t h e f i r s t o f y o u r t w o
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`m o t i o n s ?
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`M R . F R A N K E L : I ' m p r e p a r e d t o d o
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`s o , S p e c i a l M a s t e r .
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`S P E C I A L M A S T E R : G o a h e a d , t h e n .
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`M R . F R A N K E L : T h a n k y o u . A a r o n
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`F r a n k e l o n b e h a l f o f A c c e l e r a t i o n B a y . S p e c i a l
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`m a s t e r , I ' l l s t a r t w i t h t h e m o t i o n t o c o m p e l
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`d i s c o v e r y a s t o t h e u p d a t e d v e r s i o n s o f t h e
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`a c c u s e d p r o d u c t s a n d I w o n ' t r e h a s h w h a t ' s i n
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`o u r m o v i n g p a p e r s o t h e r t h a n t o s a y t h a t t h i s i s
`Hawkins Reporting Service
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`715 North King Street - Wilmington, Delaware 19801
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`(302) 658-6697 FAX (302) 658-8418
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`1 of 20 sheets
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`Page 1 to 4 of 50
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`06/27/2017 03:02:07 PM
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`M S . B A R R Y : K a t h l e e n B a r r y w i t h
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`W i n s t o n & S t r a w n f o r D e f e n d a n t s .
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`M R . T O M A S U L O : A l s o o n t h e l i n e
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`a n d w i t h K a t h l e e n i s M i k e T o m a s u l o . G o o d
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`a f t e r n o o n , S p e c i a l M a s t e r .
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`S P E C I A L M A S T E R : G o o d a f t e r n o o n .
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`M R . R O V N E R : S p e c i a l M a s t e r , i t ' s
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`P h i l R o v n e r f r o m P o t t e r A n d e r s o n . A n d I g u e s s
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`w h o e l s e i s o n t h e l i n e f o r A c c e l e r a t i o n B a y ?
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`M R . F R A N K E L : A a r o n F r a n k e l .
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`S P E C I A L M A S T E R : W e l l , g o o d
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`a f t e r n o o n . I g a t h e r t h a t i s p r o b a b l y t h e g r o u p
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`f o r t o d a y ' s h e a r i n g . A r e w e w a i t i n g f o r a n y b o d y
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`e l s e ?
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`M R . R O V N E R : N o t f r o m o u r s i d e .
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`S P E C I A L M A S T E R : T h a n k y o u f o r
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`a c c o m m o d a t i n g m y s c h e d u l e t o s t a r t a l i t t l e
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`l a t e r t h i s a f t e r n o o n . I a p p r e c i a t e t h a t . W h y
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`d o n ' t I , f o r t h e r e c o r d , i n d i c a t e t h i s i s a n
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`a c t i o n , c i v i l a c t i o n n u m b e r 4 5 4 , 4 5 5 a n d i f I ' m
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`n o t m i s t a k e n , i t ' s n o t i n c i v i l a c t i o n 4 5 3 ; i s
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`t h a t c o r r e c t ?
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`M R . R O V N E R : W e l l , A c c e l e r a t i o n
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`B a y h a s a m o t i o n t o a p p l i e s t o a l l t h e
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453-RGA
`16-454-RGA
`16-455-RGA
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`
`)
`ACCELERATION BAY LLC,
`)
`A Delaware Limited
`Liability Corporation, )
` )
`Plaintiff,
`)
`)
`v.
`)
` )
`ACTIVISION BLIZZARD,
`)
`INC., a Delaware
`)
`Corporation,
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`Defendant.
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`))
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`Case 1:16-cv-00454-RGA Document 459 Filed 04/05/18 Page 29 of 70 PageID #: 37262
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`a routine process in patent cases, over the
`discovery going back much further than that.
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`passage of time often new versions of the
`And to say that this is some
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`accused products are released and it makes sense
`tactic that's to the detriment of Defendants, it
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`to include them in the case, otherwise the
`just doesn't make any sense. It's our burden to
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`parties would need to engage in a series of
`prove infringement and to prove damages. And
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`lawsuits to resolve their dispute.
`the shorter period of time for discovery, the
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`Now, so I'll turn to the arguments
`more prejudicial it is to Plaintiff. I don't
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`that Defendants raised in opposition. We've
`understand how there's any prejudice to
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`been up front since the start of the case that
`Defendants here. They're obviously very well
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`it was our understanding that these products
`familiar with how their products work and their
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`were in