Case 1:16-cv-00455-RGA Document 194 Filed 07/17/17 Page 1 of 10 PageID #: 17504
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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. 6 AS TO VARIOUS PENDING MOTIONS
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`Pending Motions
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`On July 5, 2017, Plaintiff Acceleration Bay LLC filed its motion to compel source code
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`access with a supporting brief and exhibits 1-25.
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`On July 5, 2017, Plaintiff also filed its motion to compel as follows:
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`Case 1:16-cv-00455-RGA Document 194 Filed 07/17/17 Page 2 of 10 PageID #: 17505
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`1.
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`2.
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`3.
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`4.
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`5.
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`Compelling Activision Blizzard Inc. to produce documents responsive to
`nearly 50 requests for production;
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`Compelling Electronic Arts. Inc. to produce documents responsive to a
`similar number of requests for production;
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`Compelling Take-Two Interactive Software, Inc., Rockstar Games, Inc.
`and 2K Sports, Inc. to produce documents responsive to a similar number
`of requests for production;
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`Production of non-source code documents; and
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`Compelling Take-Two to make available for inspection source code for
`GTA and NBA2K.
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`On July 5 2017, all Defendants filed Motions as follows:
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`1.
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`2.
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`3.
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`4.
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`5.
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`6.
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`Motion to Compel Compliance with Special Master Order No. 2 and
`Sanctions;
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`Motion to Preclude Regarding Party Specific Interrogatory No. 1;
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`Motion to Preclude Regarding Party Specific Interrogatory No. 2;
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`Motion to Compel Production of Documents responsive to Defendants’
`Request for Productions Nos. 139, 145, 150, 163, 165, 167 and 174;
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`Motion for Production of an Unredacted Copy of All Agreements Between
`Plaintiff and Hamilton Capital;
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`Motion for a protective order Against Further Technical Fact Witness
`Depositions Including Those Noticed to Date.
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`Each of the Defendants’ above identified motions were supported by at least 10 or more
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`exhibits.
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`On July 5, 2017, Defendants filed a motion to compel production of communications
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`between Boeing and Global IP with a supporting brief and exhibits.
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`Also on July 5, 2017, Defendant Electronic Arts filed a motion to compel a deposition of
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`Boeing, with supporting brief and exhibits.
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`On July 12, 2017, Plaintiff filed responsive briefs and exhibits as to all of the Defendants’
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`above identified motions.
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`Case 1:16-cv-00455-RGA Document 194 Filed 07/17/17 Page 3 of 10 PageID #: 17506
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`Also on July 12, 2017, Defendants filed their responsive briefs and exhibits to Plaintiff’s
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`above identified motions.
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`On July 14, 2017, a hearing on all of the above identified motions occurred before the
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`Special Master.
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`Plaintiff’s Motions
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`1.
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`Motion to Compel Source Code Access.
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`Central to many of the motions heard before the Special Master on July 14th is Plaintiff’s
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`treatment of Defendants’ source codes. Most of the source code review took place in 2016 and
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`was cited in Plaintiff’s infringement charts and interrogatory responses. Defendants have
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`repeatedly moved to compel more complete interrogatory responses describing with particularity
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`Plaintiff’s infringement contentions. All of the pending motions have been filed within the
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`month that fact discovery is scheduled to close.
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`Plaintiff argues that it is entitled to source code review up until the close of fact
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`discovery. It further argues that recent technical depositions in the case, relating to the
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`functionality of the accused products, causes Plaintiff to need further source code inspection.
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`The crux of Defendants’ response is that Plaintiff has had plenty of time to inspect the
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`source code and it still refuses to supplement its interrogatory responses with adequate
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`infringement contentions.
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` Defendants contend that Plaintiff should properly state its
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`infringement contentions before any further discovery is granted to it. In Defendants’ view,
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`Plaintiff is engaged in a strategy of hiding its infringement contentions until fact discovery
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`closes, and that thereafter it will expose its contentions for the first time in its experts’ reports.
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`Plaintiff requests until August 18, 2017 to review Defendants source code, and allowing
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`it until September 29, 2017 to serve its opening expert reports.
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`Plaintiff is seeking approximately 30 days of source code review. As Defendants point
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`out in their reply brief, source code review entails careful planning and protections, because of
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`the extreme sensitive nature of the confidential proprietary source codes. In an effort to resolve
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`Plaintiff’s request and avoid Plaintiff’s motion, the Defendants proposed 6 days for source code
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`inspection. I will accept Defendants’ proposal, but observe that it does not preclude Defendants
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`from arguing hereafter that Plaintiff’s interrogatory responses as to Plaintiff’s infringement
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`contentions are inadequate.
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`IT IS HEREBY ORDERED THAT PLAINTIFF IS TO HAVE 6 DAYS TO INSPECT
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`SOURCE CODE.
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`2.
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`Plaintiff’s Motion to Compel Production of Documents, As Identified Above.
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`The parties have conferred as to Plaintiff’s request for additional document production,
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`but reached no agreement. As to the documents still sought, Defendants resist on the grounds
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`that the information isn’t relevant, some of the documents have been produced and it is
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`burdensome to produce to the full extent Plaintiff is seeking.
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`Some of the documents at issue are technical documents that have been discussed or
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`identified in depositions. In addition, Plaintiff seeks contracts, licenses, manuals and instructions
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`exchanged with Defendants’ customers, developers, vendors and third parties. Plaintiff also
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`seeks Defendants’ communications with Sony.
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`Other requests to produce from Plaintiff seek documents allegedly relevant to damages,
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`including sales forecasts, customer surveys, market reports, usage data and information regarding
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`any alleged non-infringing alternatives. Plaintiff requests revenue, pricing and market share
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`information that it deems relevant to damages. Plaintiff wants sale forecasts for the accused
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`products. Plaintiff seeks marketing materials and customer survey information.
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`Plaintiff demands documents relating to any analysis made by Defendants regarding the patented
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`technology or comparable technology. Plaintiff requests information regarding any purported
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`non-infringing alternatives. This information is also allegedly relevant to the determination of a
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`reasonable royalty for the patents. Finally, Plaintiff seeks information relating to Defendants’
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`foreign sales. Plaintiff recognizes that foreign sales having no connection to the U.S. are not
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`relevant; but if the accused products, that are sold abroad, are operated and controlled from or
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`manufactured in the United States, then allegedly damages benefit from those foreign sales.
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`Frankly, time does not permit the Special Master to fully set forth all of the arguments
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`pro and con by the parties as to each of the categories of documents being sought in Plaintiff’s
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`motion. The Special Master is expediting the submission of this Order to allow the parties to
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`complete fact discovery by the end of the month as required under the Scheduling Order.
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`Defendants have demonstrated in their brief and thorough exhibits that they have already
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`produced a large quantity of documents responsive to each of the requests that are the subject of
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`the Plaintiff’s motion. Defendants are also continuing to produce documents. It is expected that
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`in good faith Defendants will not use this Order to cease such production.
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`Plaintiff’s requests are broad and still cover a variety of topics and categories. The
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`parties have been in communication for some time over Plaintiff’s requests. Plaintiff has
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`proceeded in good faith in presenting its motion, but it is unlikely that Defendants could produce
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`all the documents being sought by Plaintiff before the close of fact discovery.
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`IT
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`IS HEREBY ORDERED THAT PLAINTIFF’S MOTION TO COMPEL
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`DOCUMENTS IS DENIED, BUT SUBJECT TO DEFENDANTS’ GOOD FAITH EFFORT TO
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`PRODUCE REASONABLY RELEVANT DOCUMENTS BY THE END OF JULY, 2017.
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`Case 1:16-cv-00455-RGA Document 194 Filed 07/17/17 Page 6 of 10 PageID #: 17509
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`Defendants’ Motions
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`1.
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`Motion to Compel Regarding Interrogatory Nos. 7 and 9 and Motion for
`Sanctions.
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`This motion was filed by Defendant Activision Blizzard, Inc., but at this stage all
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`Defendants have concerns that they have not received adequate infringement contentions from
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`Plaintiff. These infringement contentions were initially requested in Defendants interrogatories
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`Nos. 7 and 9. Earlier orders of this Special Master have ordered the Plaintiff to supplement their
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`responses to interrogatories 7 and 9, with more specificity as to their infringement contentions.
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`Despite the years of this litigation and the imminent close of fact discovery, Defendants submit
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`that there has been no meaningful supplement to interrogatories 7 and 9. Defendants argue that
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`Plaintiff’s infringement contentions identify no broadcast channel, no method, no portal
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`computer, and provide no explanation for its allegations concerning m-regular incomplete
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`topologies, broadcasting limitations, connect and disconnect limitations or its doctrine of
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`equivalence theory. At this point in the litigation, Defendants ask that sanctions be imposed on
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`Plaintiff for their failure to set forth proper infringement contentions.
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`On the other hand, Plaintiff states and cites to exhibits in its brief as to how it has fully
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`complied with the Special Master’s Orders. Plaintiff contends it identified the accused networks
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`at issue for each product and identified the participants, how they are connected, why the
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`network is m-regular and why the network is incomplete. Plaintiff points to updated claim charts
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`in its supplemental interrogatory responses filed on June 19, 2017.
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`Defendant Activision Blizzard, Inc.’s motion to compel compliance with Special Master
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`orders and sanctions under Rule 37 is vigorously opposed by Plaintiff, principally on the grounds
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`that its interrogatory responses are satisfactory and meet the applicable legal test for stating
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`infringement contentions. At this stage in the case and with fact discovery being closed within a
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`few weeks, Plaintiff indicates that it may still amend its infringement contentions. Thus, it is
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`realistic to await Plaintiff’s expert reports in September before considering possible sanctions. If
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`those expert reports are consistent with Plaintiff’s interrogatory responses as to its infringement
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`claims, there would appear to be no basis to impose sanctions. By contrast, if Plaintiff’s expert
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`reports set forth infringement contentions that had not been previously disclosed, it may be
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`appropriate to reconsider Defendants’ motion for sanctions and appropriate relief.
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`IT IS HEREBY ORDERED THAT DEFENDANT’S MOTION TO COMPEL
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`COMPLIANCE WITH SPECIAL MASTER ORDERS AND FOR SANCTIONS IS DENIED
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`WITHOUT PREJUDICE.
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`Motion to Compel With Regard To Interrogatory No. 1
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`2.
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`Defendants move to preclude Plaintiff from relying on facts and evidence that it has not
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`yet disclosed in responses to interrogatory No. 1 regarding its damages claims. Defendants point
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`to a variety of theories for damages that Plaintiffs have cited. Defendants fear that Plaintiff is
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`withholding its actual damages claims until it submits its experts’ reports on damages.
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`Similar to the situation with respect to the foregoing motion as to Plaintiff’s infringement
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`contentions, at this stage of the litigation and having already ruled that the additional documents
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`sought by Plaintiff need not be produced, the test of whether Plaintiff is withholding information
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`that should have been disclosed in interrogatory No. 1 will better be known when Plaintiff
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`submits its expert reports.
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`THE DEFENDANTS MOTION TO PRECLUDE REGARDING INTERROGATORY
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`NO. 1 IS DENIED WITHOUT PREJUDICE.
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`3.
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`Motion to Preclude Plaintiff from Arguing a Different Date for the Hypothetical
`Negotiation
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`Another motion by Defendants is to preclude Plaintiff from arguing that the date of the
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`hypothetical negotiation is any date other than the date that the Plaintiff served its complaints on
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`the Defendants. Defendants claim that Plaintiff is withholding the date of the hypothetical
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`negotiation until it submits its experts’ reports.
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`On June 2, 2017, in discovery responses, Plaintiff stated that the date of hypothetical
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`negotiation was the date of service of the complaints in the 2015 filed cases. Plaintiff is bound
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`by that statement and further relief to Defendants does not seem appropriate at this time.
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`THE DEFENDANTS MOTION TO PRECLUDE PLAINTIFF FROM ARGUING A
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`DIFFERENT DATE FOR THE HYPOTHETICAL NEGOTIATION IS DENIED.
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`4.
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`Motion to Compel Documents Responsive to Defendants Request for Production
`Nos. 139, 145,150, 163, 165, 167 and 174
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`Defendants motion to compel production of documents responsive to requests for
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`production 139, 145, 150, 163, 165, 167 and 174 relate in broad measure to Plaintiff’s
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`relationship to Boeing, and any other organizations involving funding, loans and operations with
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`Plaintiff. Plaintiff strongly resists such production, claiming that Defendants are seeking to
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`determine Plaintiff’s litigation budget and litigation strategy. As to some of the documents,
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`Plaintiff stated that it has produced them or doesn’t have any. However, the Defendants seek
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`documents in these requests for production that will permit Defendants to cross examine any
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`Plaintiff’s witness who might argue that Plaintiff is engaged in businesses that Defendants do not
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`believe to be true. The Court can determine at the appropriate time if any of the documents are
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`admissible.
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`THE DEFENDANTS MOTION TO COMPEL DOCUMENTS RESPONSIVE TO
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`DEFENDANTS REQUESTS FOR PRODUCTIONS NOS. 139, 145, 150, 163, 165, 167 and
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`174 IS GRANTED.
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`5.
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`Motion for an Unredacted Copy of all Agreements Between Plaintiff and
`Hamilton Capital
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`Defendants move for a copy of unredacted agreements between Plaintiff and Hamilton
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`Capital. While the documents relate to Plaintiff’s litigation funding, which is normally
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`privileged, Defendants believe the agreements may demonstrate an inconsistency with the
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`complaint as to the business of the Plaintiff.
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`THE DEFENDANTS MOTION FOR AN UNREDACTED COPY OF ALL
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`AGREEMENTS BETWEEN PLAINTIFF AND HAMILTON CAPITAL IS GRANTED.
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`6.
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`Defendants Motion for a Protective Order Against Further Technical Fact Witness
`Depositions Including Those Noticed to Date
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`Defendants move for a protective order to exclude further technical depositions. The
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`grounds are simply that technical depositions have been taken and additional ones are a burden
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`to Defendants. Plaintiff’s reply brief identifies some of the witnesses it deems it needs. Plaintiff
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`further notes that it only seeks 4 additional depositions. Plaintiff is within its allocated number
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`of depositions and it has already accommodated Defendants with regarding scheduling some
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`depositions in early August. Plaintiff has shown that some of the questions it seeks answers to
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`have not been provided in the depositions it has taken to date.
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`THE DEFENDANTS MOTION FOR A PROTECTIVE ORDER AGAINST FURTHER
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`TECHNICAL FACT WITNESS DEPOSITIONS INCLUDING THOSE NOTICED TO DATE
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`IS DENIED.
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`Case 1:16-cv-00455-RGA Document 194 Filed 07/17/17 Page 10 of 10 PageID #: 17513
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`7.
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`Defendants Motion to Compel Production of Communications Between Boeing
`and Global IP
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`Global IP was involved in the sale of the patents from Boeing to Plaintiff. Whether, it
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`served in a legal capacity or a quasi legal capacity as patent broker raise privilege issues. At this
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`stage of fact discovery, Defendants have not met their burden of showing the need and relevance
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`of such communications in light of the privilege concerns.
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`THE
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`DEFENDANTS MOTION
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`TO
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`COMPEL
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`PRODUCTION
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`OF
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`COMMUNICATIONS BETWEEN BOEING AND GLOBAL IP IS DENIED.
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`Defendants Motion to Compel a Boeing Company Deposition
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`8.
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`Defendant Electronic Arts seeks to depose Boeing. Boeing states that a former Boeing
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`employee has already been deposed and that is sufficient. Boeing’s brief points to the
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`depositions for employees that have been taken to date. Most importantly, Boeing has agreed to
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`have the deposition testimony of Ms. Radovsky binding on Boeing. Finally, there is little time
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`left under the Scheduling Order for a separate Boeing deposition to be taken this month.
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`THE DEFENDANTS MOTION TO COMPEL A DEPOSITION OF THE BOEING
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`COMPANY IS DENIED, BASED UPON BOEING’S AGREEMENT TO BE BOUND BY THE
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`DEPOSITION TESTIMONY OF MS. RADOVSKY.
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`Dated: July 17, 2017
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`/s/ Allen M. Terrell, Jr.
`Allen M. Terrell, Jr., Special Master
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