Case 1:16-cv-00455-RGA Document 222-2 Filed 08/07/17 Page 1 of 9 PageID #: 18004
`Case 1:16-cv-00455-RGA Document 222-2 Filed 08/07/17 Page 1 of 9 PagelD #: 18004
`
`
`
`
`
`
`
`
`
`EXHIBIT B
`EXHIBIT B
`
`

`

`Case 1:16-cv-00455-RGA Document 222-2 Filed 08/07/17 Page 2 of 9 PageID #: 18005
`1
`
` UNITED STATES DISTRICT COURT
` FOR THE DISTRICT OF DELAWARE
`
` CA NO. 16-453-RGA,
`16-454-RGA, 16-455-RGA
`
`
` February 17, 2017
`
` 11:06 o'clock a.m.
`
`: : : : : : : : : : :
`
`ACCELERATION BAY LLC,
`
` Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD INC., et
`al.,
`
` Defendants,
`.............................
`
`TRANSCRIPT OF SCHEDULING CONFERENCE
`BEFORE THE HONORABLE RICHARD G. ANDREWS
`UNITED STATES DISTRICT JUDGE
`
`APPEARANCES:
`
`For Plaintiff: POTTER, ANDERSON & CORROON
` BY: PHILLIP A. ROVNER, ESQ
`
` -and-
`
` KRAMER LEVIN NAFTALIS & FRANKEL
`
` BY: PAUL J. ANDRE, ESQ
`
` BY: AARON M. FRANKEL, ESQ
`
`1 2 3 4 5 6 7 8 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`1
`2
`3
`
`456
`
`For Defendants: MORRIS, NICHOLS, ARSHT & TUNNELL
`
` BY: JACK B. BLUMENFELD, ESQ
`
` -and-
`
` WINSTON & STRAWN
`
` BY: DAVID P. ENZMINGER, ESQ
`
` BY: MICHAEL A. TOMASULO, ESQ
`
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
` Official Court Reporter
`1 of 13 sheets
`
`Court Reporter: LEONARD A. DIBBS
`
`3
`
` P R O C E E D I N G S
`
`12
`
`3
`4
`11:06:51 5
`6
`7
`8
`9
`11:07:13 10
`11
`12
`13
`14
`11:07:22 15
`16
`17
`18
`19
`11:07:32 20
`21
`22
`23
`24
`11:07:48 25
`
`2
`
`1
`2
`3
`4
`11:08:09 5
`6
`7
`8
`9
`11:08:36 10
`11
`12
`13
`14
`11:08:48 15
`16
`17
`18
`19
`11:08:58 20
`21
`22
`23
`24
`11:09:14 25
`Page 1 to 4 of 29
`
`(The proceedings occurred at 11:06 o'clock a.m. as
`
`follows:)
`
`THE COURT: All right.
`
`Good morning. Please be seated.
`
`So this is Acceleration Bay v. Activision, Civil Action
`
`No. 16-453, and also Electronics Arts, No. 15-454, and also
`
`Take-Two Interactive Software, No. 16-455.
`
`Mr. Rovner, good morning.
`
`MR. ROVNER: Good morning, your Honor.
`
`With me for plaintiff is Paul Andre and Aaron Frankel
`
`from Kramer Levin.
`
`MR. ANDRE: Good morning, your Honor.
`
`THE COURT: Good morning to you all.
`
`Mr. Blumenfeld?
`
`MR. BLUMENFELD: Good morning, your Honor.
`
`Jack Blumenfeld for all defendants along with David
`
`Enzminger and Mike Tomasulo from Winston & Strawn.
`
`THE COURT: All right.
`
`So, you know, Mr. Blumenfeld and Mr. Rovner have heard
`
`me many times start off by thanking counsel for their efforts to
`
`reach agreement and how much I appreciate it. I'm not going to
`
`say that today.
`
`But before we got to the Scheduling Order, I was just
`
`4
`
`wondering why, not withstanding the fact that I referred
`
`everything to the Special Master here, I couldn't actually just
`
`resolve this, because it didn't seem like it was very difficult,
`
`so it might fall within my area of competence.
`
`What plaintiff proposed, as I understand it, is that
`
`simply because somebody worked on the IPR, which now it is
`
`represented you cannot change the claims on, does not in any way
`
`impede them from working on a going forward basis, is that
`
`right?
`
`MR. FRANKEL: Your Honor, the issue is that the -- we
`
`think the people who have been working on the IPRs should now be
`
`able to access source code because --
`
`THE COURT: Right, I get that, but, I mean, it's
`
`because the IPR is over.
`
`MR. ANDRE: It's not over, your Honor, but the point
`
`where you can amend is over.
`
`THE COURT: Right.
`
`MR. ANDRE: Yes.
`
`THE COURT: So is there something wrong with the theory
`
`that what you -- why you sometimes restrict people, because they
`
`have decision-making capabilities that could somehow, you know,
`
`impact the case, aren't we past that point?
`
`MR. ENZMINGER: We're not past that point. That's the
`
`problem, your Honor.
`
`The Motions to Amend the claims are still pending, so
`02/23/2017 10:34:05 AM
`
`

`

`7
`
`there's no certainty as to how the Patent Office is going as to
`
`to tell me about?
`
`handle it.
`
`MR. ANDRE: Your Honor, I would just say this.
`
`THE COURT: Are the Motions to Amend still pending?
`
`If we get the trial date, then everything else kind of
`
`MR. ANDRE: We filed the motions. All the oral
`
`stems backwards from that. I think that's the biggest dispute.
`
`argument is done. We can't do anything else. There's nothing
`
`Once we have the trial date, frankly, the rest of the dates fall
`
`else we can affect the decision. The amendment have already
`
`in line. I think we can reach agreement at that point.
`
`and we can't change those.
`
`That's the biggest issue. Some of these other
`
`positions we have not reached agreement on. For example, the
`
`been made. The proposed amendments have been made to the claims
`
`Case 1:16-cv-00455-RGA Document 222-2 Filed 08/07/17 Page 3 of 9 PageID #: 18006
`5
`1
`2
`3
`4
`11:12:15 5
`6
`7
`8
`9
`11:12:28 10
`11
`12
`13
`14
`11:12:39 15
`16
`17
`18
`19
`11:12:56 20
`21
`22
`23
`24
`11:13:10 25
`
`THE COURT: So is there a timetable for when somebody
`
`very first one here about the damages.
`
`in the PTO, or I guess in the PTAB, or somewhere is going to
`
`rule on these?
`
`THE COURT: Okay. So I appreciate what you say.
`
`So do you agree if I pick the end date, you can pick
`
`MR. ANDRE: March 2nd, I believe. Less than two weeks.
`
`the intermediate dates?
`
`The PTAB is statutorily required to come up with a
`
`decision on the IPRs by, I think, March 2nd or 3rd. You guys
`
`correct me if I'm wrong, but I think it's those dates.
`
`MR. ENZMINGER: Yes.
`
`THE COURT: Okay. All right.
`
`Well, we'll get to that.
`
`MR. TOMASULO: Mid-March. There are two sets of
`
`So let's go through the other things. There's this
`
`decisions.
`
`paragraph on Page 2 about what defendant's position is. And I
`
`THE COURT: And, so, when the PTAB actually rules, what
`
`thought that there were three different things in this one
`
`would your position be then?
`
`paragraph.
`
`MR. ENZMINGER: It depends on how the PTAB rules.
`
`One is, plaintiff shall not be entitled to seek damages
`
`THE COURT: Let's say they -- why does their ruling
`
`for infringement prior to the date the Complaints were served in
`
`make a difference?
`
`2015 cases.
`
`MR. ENZMINGER: Suppose they ask for additional
`
`I take it that part you don't have a disagreement with?
`
`briefing or something?
`
`MR. ANDRE: I don't, your Honor. I made a
`
`MR. TOMASULO: Or they appeal?
`
`representation to the Court and I'm fine with that.
`
`1
`2
`3
`4
`11:09:27 5
`6
`7
`8
`9
`11:09:46 10
`11
`12
`13
`14
`11:10:05 15
`16
`17
`18
`19
`11:10:17 20
`21
`22
`23
`24
`11:10:30 25
`
`1
`1
`2
`2
`3
`3
`4
`4
`11:13:23 5
`11:10:50 5
`6
`6
`7
`7
`8
`8
`9
`9
`11:13:45 10
`11:11:14 10
`11
`11
`12
`12
`13
`13
`14
`14
`11:14:03 15
`11:11:22 15
`16
`16
`17
`17
`18
`18
`19
`19
`11:14:17 20
`11:11:40 20
`21
`21
`22
`22
`23
`23
`24
`24
`11:14:33 25
`11:12:03 25
`has anything happened since you submitted this that you do want
`02/23/2017 10:34:05 AM
`Page 5 to 8 of 29
`
`Well, so, if you submit the Protective Order without
`
`the little thing underlined, I will sign it.
`
`MR. ANDRE: Thank you, your Honor.
`
`THE COURT: All right.
`
`So on the Scheduling Order, where to begin?
`
`So I did look through it, and because there is so much
`
`disagreement, I didn't think it was actually necessarily
`
`particularly a good idea for me just to say, here's the final
`
`date. You all work it out. I don't have confidence you can.
`
`So let me just start going through the things that I
`
`noticed, or made some kind of -- well, actually, before I start,
`
`THE COURT: All right.
`
`So here's the thing is, I'm perfectly willing to put
`
`this in the Protective Order, what you're asking for, but then
`
`you are stuck if, in fact, there is something down the road
`
`where people want to change.
`
`In other words upon the representation that there is
`
`absolutely nothing that we can do, or will do in the future that
`
`can, you know, risk inadvertent disclosure of the source code,
`
`I'm perfectly happy to let you proceed, but you kind of perhaps
`
`do it at your reason risk.
`
`MR. ANDRE: We're willing to take that risk, your
`
`Honor.
`
`THE COURT: All right.
`
`6
`
`8
`
`THE COURT: Right.
`
`So then there's a second sentence, which is -- does not
`
`necessarily follow from the first sentence -- which is, absent a
`
`showing of good cause, follow-up discovery shall be limited to
`
`the period after these dates.
`
`Now, maybe if you meant follow-up damages discovery,
`
`possibly?
`
`But as I recall from other things, there's possibly,
`
`you know, development work, there may be, you know, things that
`
`occur before then -- probably not sales -- but there are things
`
`that could occur before then that are relevant to infringement
`
`issues, possibly invalidity issues, and possibly damages issues,
`
`right?
`
`MR. ENZMINGER: Right.
`
`THE COURT: So what are you trying to cut off?
`
`MR. ENZMINGER: Damages issues.
`
`And let me be specific.
`
`The very first sentence of this says that they intend
`
`to reinstate a Motion to Compel. That Motion to Compel, which
`
`they've advised us that they intend to reinstate, expressly
`
`seeks damages information 2009 to the present.
`
`THE COURT: That seems to me -- by the way, you are Mr.
`
`Enzminger, right?
`
`MR. ENZMINGER: Enzminger, yes.
`
`THE COURT: Sorry. You know, I'm not going to rule on
`2 of 13 sheets
`
`

`

`1
`2
`3
`4
`11:14:56 5
`6
`7
`8
`9
`11:15:14 10
`11
`12
`13
`14
`11:15:29 15
`16
`17
`18
`19
`11:15:52 20
`21
`22
`23
`24
`11:16:06 25
`
`11
`
`appeals that, you know, among other things I haven't looked
`
`I'm going to set a schedule in the question of whether
`
`at -- or appeals isn't the right word -- objections to what the
`
`new products can be added. That is, again, something for the
`
`Special Master has ordered.
`
`Special Master to figure out.
`
`And, so, it could be just as a hypothetical matter that
`
`I would just say that there comes a point, if you have
`
`because of the passage of time, and changes in positions, or
`
`a trial date, when you have to stop adding new products, so you
`
`whatever, that things the Special Master ordered besides
`
`can get a fixed target to try a case about. I don't know what
`
`whatever objections might still be good, that there are some
`
`that date is, because among other things, we don't have a trial
`
`things that have become moot.
`
`date.
`
`And I take it that's what you're saying is, the damages
`
`And, again, I think the Special Master could probably
`
`cut-off makes the damages information that the Special Master
`
`help you reach a resolution on that.
`
`ordered for 2009 moot and irrelevant. Maybe that's true --
`
`MR. TOMASULO: That's fine, your Honor.
`
`MR. ENZMINGER: Didn't order it. They're seeking it
`
`MR. ANDRE: And just to be clear, it's the same
`
`now.
`
`THE COURT: Okay.
`
`products with the new -- they update them every year. So it's
`
`the same product, just updated each year.
`
`Well, you know, it is -- you know, I'm not going to
`
`THE COURT: So maybe that's all good things to talk to
`
`rule on that right now.
`
`the Special Master about is, there's no burden, nothing really
`
`Is there anything you want to say about that?
`
`to do, change the -- I mean, okay -- so I'm going to cross that
`
`MR. ANDRE: Yes, your Honor. I think that we can bring
`
`out, too.
`
`up the Special Master, not bother you with it, but the position
`
`All right.
`
`Case 1:16-cv-00455-RGA Document 222-2 Filed 08/07/17 Page 4 of 9 PageID #: 18007
`9
`1
`2
`3
`4
`11:17:46 5
`6
`7
`8
`9
`11:18:02 10
`11
`12
`13
`14
`11:18:15 15
`16
`17
`18
`19
`11:18:29 20
`21
`22
`23
`24
`11:18:50 25
`
`obviously is, just because we only seeks damages from the point
`
`where we actually gave notice, the actual sales figures and
`
`So then we'll -- the let me skip to the next thing.
`
`So I think that means that pretty much all the
`
`things that go into growth, and the things that damages experts
`
`disagreement on Page 3, above the discovery cutoff part, isn't
`
`use before that are relevant.
`
`that all stuff for the Special Master to figure out?
`
`We can bring that up with the Special Master and let
`
`him decide it.
`
`MR. ANDRE: That's correct, your Honor.
`
`MR. ENZMINGER: That's fine, your Honor.
`
`12
`
`THE COURT: Well, and, so, you know, that's what I'm
`
`10
`
`inclined to do is, I turn this over to the Special Master for
`
`multiple reasons, some of them even good reasons.
`
`I think that these are the -- these are discovery
`
`issues, not really scheduling issues, so my inclination is to
`
`just cross out the second sentence of defendant's position and,
`
`you know, leave the question of what discovery is relevant given
`
`what the damages time period is, and whatever else up for the
`
`MR. TOMASULO: They are adding more -- they have added
`
`2017 versions of products, and proposed a schedule that ends in
`
`no time at all. We don't have infringement contentions for
`
`those new products.
`
`MR. ENZMINGER: We actually don't have infringement
`
`contentions for the old products.
`
`THE COURT: Why don't we do this?
`
`1
`2
`3
`4
`11:16:24 5
`6
`7
`8
`9
`11:16:50 10
`11
`12
`13
`14
`11:17:01 15
`16
`17
`18
`19
`11:17:17 20
`21
`22
`23
`24
`11:17:33 25
`3 of 13 sheets
`
`Special Master to figure out, okay?
`
`MR. ENZMINGER: Okay.
`
`MR. TOMASULO: That's fine, your Honor.
`
`MR. ANDRE: That's fine, your Honor.
`
`THE COURT: And then there is the third sentence, which
`
`is, additional products may not be added in these cases without
`
`leave of the Court.
`
`Is that a hypothetical sentence or is that something
`
`where you are expecting right now that there is more products
`
`being added?
`
`1
`2
`3
`4
`11:18:57 5
`6
`7
`8
`9
`11:19:23 10
`11
`12
`13
`14
`11:19:36 15
`16
`17
`18
`19
`11:19:51 20
`21
`22
`23
`24
`11:20:12 25
`Page 9 to 12 of 29
`
`THE COURT: Okay.
`
`MR. ENZMINGER: So we're X'ing out everything above
`
`discovery cutoff, is that correct?
`
`THE COURT: I think so, yes.
`
`All right.
`
`So on Page 4 near the bottom there's talk about --
`
`practically begs to be crossed out, you know, e-mail custodians,
`
`search terms.
`
`Do you agree that I can just cross out that paragraph
`
`plus the defendants' paragraph at the top of the next page,
`
`okay?
`
`person.
`
`MR. ENZMINGER: Yes, your Honor.
`
`THE COURT: You're surprisingly more reasonable in
`
`All right.
`
`Let's move on.
`
`Oh, so have you all had disputes with the Special
`
`Master before about the length of time of depositions or is that
`
`--
`
`MR. ENZMINGER: No, your Honor.
`
`THE COURT: You haven't quite gotten that far yet.
`
`MR. ENZMINGER: We have not gotten that far.
`
`THE COURT: If you both want me to resolve the
`
`deposition issue right now, I'm happy to do that if you -- one
`
`or the other of you wants to bring it up with the Special
`02/23/2017 10:34:05 AM
`
`

`

`Master, I would do that.
`
`Do you want me to resolve the issue is now?
`
`MR. ANDRE: I think so, your Honor.
`
`And here did this come up before?
`
`MR. TOMASULO: This is anticipatory. We learned that
`
`there's a lot of third-party discovery that will need be to
`
`15
`
`Case 1:16-cv-00455-RGA Document 222-2 Filed 08/07/17 Page 5 of 9 PageID #: 18008
`13
`1
`2
`3
`4
`11:23:21 5
`6
`7
`8
`9
`11:23:36 10
`11
`12
`13
`14
`11:23:53 15
`16
`17
`18
`19
`11:24:13 20
`21
`22
`23
`24
`11:24:25 25
`
`thing that you all, because, you know, maybe some inventor wants
`
`MR. ENZMINGER: That's fine. It would be one less
`
`taken because the patents are 20 years old, and there were, you
`
`issue.
`
`MR. TOMASULO: I think so, your Honor.
`
`THE COURT: Okay. All right.
`
`know, efforts to commercialize them.
`
`There's just a lot of probably small depositions that
`
`need to be taken. And ten depositions isn't going to do it.
`
`So the first thing is, plaintiff says the two days of
`
`So it's just a question of -- we thought this would be
`
`deposition will be scheduled within a reasonable amount of time
`
`uncontroversial. We're not trying to game the system. We don't
`
`for each other to alleviate an undue burden on the inventors.
`
`want to take -- it's just a question of how -- you know, if we
`
`You know, my main objection to that is, I'm not
`
`take a third-party deposition of Boeing, or someone that Boeing
`
`actually sure that that's enforceable. You know, I take it what
`
`offered their licensed patents to, we would like to be able to
`
`you're saying is, you don't want inventor -- we're talking about
`
`use that transcript in all three cases.
`
`inventors here, right?
`
`THE COURT: Is there a time limit on how many hours, or
`
`MR. ANDRE: Two inventors, yeah.
`
`was this always just ten depositions maximum?
`
`THE COURT: Yeah, you don't want an inventor to be
`
`MR. TOMASULO: It was never -- it was -- what we said
`
`deposed for seven hours a few weeks from now and then seven
`
`originally was that your original Order was that the -- Federal
`
`hours again in early 2018?
`
`Rules of Civil Procedure would apply to all three cases, so it
`
`MR. ANDRE: Or conversely, seven hours on Tuesday and
`
`was never given more specificity than that.
`
`seven hours on Wednesday, because it's a bit exhausting for a
`
`THE COURT: Okay.
`
`layperson to go through two consecutive.
`
`MR. FRANKEL: Your Honor, if we can make this provision
`
`THE COURT: I'm sure it is, but isn't this the kind of
`
`go both ways?
`
`to do two days in a row? Isn't this the kind of thing that you
`
`about prior art, that it wouldn't count as three depositions,
`
`all sort of worked out based on individual circumstances as you
`
`because there's three different cases. If we can make it both
`
`For example, if Acceleration Bay takes a deposition
`
`1
`2
`3
`4
`11:20:22 5
`6
`7
`8
`9
`11:20:35 10
`11
`12
`13
`14
`11:21:00 15
`16
`17
`18
`19
`11:21:15 20
`21
`22
`23
`24
`11:21:30 25
`
`1
`2
`3
`4
`11:21:44 5
`6
`7
`8
`9
`11:21:58 10
`11
`12
`13
`14
`11:22:30 15
`16
`17
`18
`19
`11:22:40 20
`21
`22
`23
`24
`11:23:01 25
`are participating in the deposition.
`02/23/2017 10:34:05 AM
`
`THE COURT: Well, see, the thing is, I would like you
`
`all to take a reasonable approach, but I'm not sure -- you know,
`
`I would expect that if you said inventor A does not want to be
`
`deposed for seven hours on Tuesday and seven hours on Wednesday
`
`because it will exhaust him, her, or it, that that would be the
`
`kinds of things that the defendants would agree to?
`
`MR. TOMASULO: That's correct, your Honor.
`
`MR. ANDRE: You can take that sentence out. I mean, I
`
`get what you're saying.
`
`I think this is something that was a vestige from a
`
`previous order, and we just -- they wanted to take it out, and
`
`we wanted to leave it in for more guidance than enforceability.
`
`THE COURT: All right. All right.
`
`So the next thing was the business about counting
`
`depositions against multiple defendants, if multiple defendants
`
`14
`
`16
`
`go down the road?
`
`MR. FRANKEL: That's correct, your Honor.
`
`And this provision was in the first Scheduling Order in
`
`the previous cases. I just don't see the reasons to take it out
`
`here and I would also note that the inventors have already been
`
`deposed in the IPR proceedings, and we've incorporated those
`
`transcripts in this case.
`
`So it just seems strange to not take a reasonable
`
`approach here to minimize burden.
`
`ways, I think we can agree that if we need some additional
`
`depositions given the third party issues, then we'd be fine.
`
`MR. TOMASULO: Of course we didn't intend it to be
`
`unilateral.
`
`THE COURT: Okay. So you all understand what you just
`
`said to each other?
`
`I think I barely do.
`
`But, basically, you've just resolved this one.
`
`MR. TOMASULO: I think that's correct. I think what --
`
`we would just leave in defendants' position with the
`
`understanding that it's bilateral.
`
`THE COURT: Okay. I can understand that, if you want
`
`to add in --
`
`MR. TOMASULO: We can modify it.
`
`THE COURT: Why don't you add a word or two to make it
`
`clear that that's the case?
`
`MR. TOMASULO: Okay.
`
`THE COURT: Okay. So, thank you for that suggestion,
`
`Mr. Frankel.
`
`All right.
`
`Then there was one more thing here, which I have to say
`
`seemed kind of reasonable to me, in terms of providing dates.
`
`MR. TOMASULO: That's fine with us, your Honor.
`
`MR. ENZMINGER: Yes, the issue there is that that is
`
`connected to an another similar provision that they rejected on
`4 of 13 sheets
`
`1
`2
`3
`4
`11:24:44 5
`6
`7
`8
`9
`11:24:58 10
`11
`12
`13
`14
`11:25:10 15
`16
`17
`18
`19
`11:25:20 20
`21
`22
`23
`24
`11:25:36 25
`Page 13 to 16 of 29
`
`

`

`1
`2
`3
`4
`11:25:49 5
`6
`7
`8
`9
`11:26:03 10
`11
`12
`13
`14
`11:26:16 15
`16
`17
`18
`19
`11:26:30 20
`21
`22
`23
`24
`11:26:59 25
`
`Page 8.
`
`THE COURT: Okay. All right.
`
`THE COURT: Is that the Markman thing?
`
`And, so, I guess that actually makes sense to me,
`
`MR. ENZMINGER: Yes, the experts. Providing the dates
`
`because presumably whatever it is Activision makes is a
`
`availability for expert witnesses.
`
`completely different infringement question than whatever it is
`
`THE COURT: Okay. You know, I wrote there, "good
`
`Electronic Arts makes.
`
`idea," too.
`
`Wait a second.
`
`All right.
`
`So, in any event, I guess what plaintiff had, they have
`
`Yeah, so there any reason why that shouldn't be
`
`their paragraph there. It seemed like defendants generally
`
`bilateral also?
`
`wanted to, at least in terms of the man hours for doing this,
`
`MR. ANDRE: That's bilateral. That's fine, your Honor.
`
`let that be decided later, and if necessary resolved by the
`
`19
`
`THE COURT: Okay.
`
`Good work there.
`
`All right.
`
`Special Master.
`
`MR. ENZMINGER: Essentially, yes. Our concern is the
`
`volume of non-essential material in the expert reports.
`
`So moving along at the bottom -- so I just resolved the
`
`THE COURT: Well, that has to do with the seven hours
`
`Protective Order matter, so you can cross that out of the
`
`per hundred pages of report?
`
`Scheduling Order.
`
`Okay. Claim construction.
`
`MR. ENZMINGER: Yes.
`
`THE COURT: So, you know, I guess what I'm thinking is
`
`I have a note in the -- oh, okay, that's just a date
`
`this is, you know, I think maybe it make sense to put this off,
`
`thing.
`
`because you really don't know what you're going to get from
`
`Then the dispute on Page 8 that's labeled "Defendants'
`
`either side, and maybe you'll be able come to some agreement.
`
`Position," we just resolved that with the bilateral thing.
`
`I think the word "bilateral" is a useful word to keep
`
`So we have a hearing on claim -- so I just made the
`
`in mind for these things.
`
`note for Paragraph 8. I don't think June 22nd, 2017, is a good
`
`But, in any event, you can come to some agreement, and
`
`Case 1:16-cv-00455-RGA Document 222-2 Filed 08/07/17 Page 6 of 9 PageID #: 18009
`17
`1
`2
`3
`4
`11:28:57 5
`6
`7
`8
`9
`11:29:17 10
`11
`12
`13
`14
`11:29:37 15
`16
`17
`18
`19
`11:29:56 20
`21
`22
`23
`24
`11:30:17 25
`
`idea, because I think I'm going to be in trial on something else
`
`then, but that's -- but, in any event, let's not talk about
`
`if it doesn't work out, you can't work it out between
`
`yourselves, you can work it out with the Special Master, is that
`20
`
`18
`
`dates anymore.
`
`Okay. We have expert depositions and the length.
`
`I have to tell you that looking at that, my initial
`
`reaction was that seemed like an awful lot of deposition hours.
`
`I guess this is plaintiffs's position.
`
`If the expert filed an opening report on infringement,
`
`and a reply report on infringement, that would mean the expert
`
`gets to be deposed for 14 hours?
`
`MR. FRANKEL: Your Honor, that would be infringement in
`
`one case, would be seven hours of deposition. Since we're doing
`
`reply reports, that wasn't meant that there would be 14 hours
`
`just on infringement.
`
`So, if an expert does infringement and validity, then
`
`1
`2
`3
`4
`11:27:31 5
`6
`7
`8
`9
`11:27:54 10
`11
`12
`13
`14
`11:28:08 15
`16
`17
`18
`19
`11:28:24 20
`21
`22
`23
`24
`11:28:40 25
`5 of 13 sheets
`
`1
`2
`3
`4
`11:30:26 5
`6
`7
`8
`9
`11:30:46 10
`11
`12
`13
`14
`11:30:59 15
`16
`17
`18
`19
`11:31:15 20
`21
`22
`23
`24
`11:31:35 25
`Page 17 to 20 of 29
`
`that would be 14 hours.
`
`THE COURT: Oh, okay.
`
`So reply reports don't count?
`
`MR. FRANKEL: Correct.
`
`THE COURT: Well, except that -- you know, I guess
`
`actually -- I just realized -- your math is not so hot, because
`
`it says a total of 21 hours of deposition and then helpfully it
`
`says -- well, actually, it does, it says seven hours for each of
`
`the reports on infringement.
`
`I take it two expert reports on infringement, that
`
`meant one for Activision and one for Electronic Arts?
`
`MR. FRANKEL: Correct, your Honor.
`
`all right?
`
`MR. ANDRE: Yes, your Honor.
`
`MR. TOMASULO: Yes, your Honor. We'll take out the
`
`entirety of -- from the plaintiff's position down to objections
`
`of the expert testimony?
`
`THE COURT: Yes.
`
`All right.
`
`I think that's -- oh, yeah.
`
`So Paragraph 16, I see the words "eight day jury trial"
`
`in there. I'm kind of imagining the last time I did this I
`
`probably said five day jury trial.
`
`MR. TOMASULO: Well, actually, I did say eight day, but
`
`we were going to raise that with you with the understanding that
`
`that's not the normal length for a trial, but the last Order did
`
`say eight days, but, you know --
`
`THE COURT: I must have not been paying attention.
`
`All right.
`
`Well, is there any reason why we can't be aiming for a
`
`five-day jury trial here?
`
`MR. ANDRE: That's fine with us, your Honor.
`
`I've not tried a case in front of your Honor,
`
`unfortunately. As long as it doesn't include like the jury
`
`selection process and all that, I mean, five actual days of --
`
`THE COURT: Generally, Monday to Friday would be ideal,
`
`because jury selection and the start of the case usually takes
`02/23/2017 10:34:05 AM
`
`

`

`23
`
`1
`2
`3
`4
`11:31:53 5
`6
`7
`8
`9
`11:32:12 10
`11
`12
`13
`14
`11:32:33 15
`16
`17
`18
`19
`11:33:07 20
`21
`22
`23
`24
`11:33:23 25
`
`two hours or less.
`
`other?
`
`So, basically, you can try the case all week. And if
`
`MR. ANDRE: Your Honor, the date from your point of
`
`we need to have closing arguments on the Monday, we can have
`
`view to some degree, because we filed the original case in March
`
`closing arguments on the Monday.
`
`of 2015, we wanted to get it in the before the three-year
`
`MR. TOMASULO: May I make one observation about the
`
`anniversary.
`
`first trial, which is Activision?
`
`THE COURT: I don't care whether it shows up on the
`
`The three sets of accused products are really three
`
`list.
`
`disparate business units, including a third party.
`
`MR. ANDRE: Okay, okay. But from our perspective, we
`
`So it may be that we do -- depending on the scope of
`
`think it's sufficient time. I wouldn't mind splitting the baby
`
`the case at that time -- do need to request more trial time
`
`here and finding someplace in between, but it really depends on
`
`because there could be as many as six patents and three
`
`your Honor's calendar and what looks like --
`
`non-overlapping sets of infringement contentions.
`
`THE COURT: All right.
`
`THE COURT: Well, so, here's -- this is what I'd like
`
`So we have an offer of split the baby.
`
`to do is, I would like to write in five days. That's without
`
`MR. ENZMINGER: Yeah, we would actually resist that,
`
`prejudice to the kinds of issues you're talking about.
`
`your Honor, for a couple of reasons.
`
`And I know -- I mean, I have -- there's not going to be
`
`First, our schedule largely tracks what the original
`
`six patents when we try this case. You're going to have to get
`
`schedule would have been had there be no -- had that case
`
`rid of some of them. We'll figure out how many later on.
`
`proceeded.
`
`We're not going to do six at once. That's, in my
`
`THE COURT: When you say "largely tracks," had I
`
`opinion, ridiculous, but that may actually have not much to do
`
`scheduled the trial for June of 2 --
`
`with the time in the case anyhow.
`
`MR. ENZMINGER: No. I mean, the dates that we had
`
`MR. ANDRE: It's our burden of prove and we understand
`
`agreed to based on the time of events from --
`
`that. We try a lot of cases. And if we're on the clock, we've
`
`THE COURT: In other words, from -- I think I
`
`got to get our case in.
`
`So --
`
`understand what you're saying.
`
`MR. ENZMINGER: So, for example, on the plaintiff's
`
`Case 1:16-cv-00455-RGA Document 222-2 Filed 08/07/17 Page 7 of 9 PageID #: 18010
`21
`1
`2
`3
`4
`11:35:08 5
`6
`7
`8
`9
`11:35:18 10
`11
`12
`13
`14
`11:35:30 15
`16
`17
`18
`19
`11:35:41 20
`21
`22
`23
`24
`11:35:54 25
`
`22
`
`24
`
`THE COURT: All right.
`
`MR. ANDRE: -- the pure logistics of trying a case in
`
`five days will force us to be very streamlined.
`
`THE COURT: All right.
`
`Well, any event, with the sort of understanding that
`
`I've said here, let's cross this out and make it five, but it is
`
`something that -- and this may not be the proper use of the
`
`phrase "at the margins" it's something we can play with.
`
`But it's not going to be, you know, let's have a nine
`
`day trial. That's not going to happen.
`
`All right.
`
`1
`1
`2
`2
`3
`3
`4
`4
`11:36:13 5
`11:33:30 5
`6
`6
`7
`7
`8
`8
`9
`9
`11:36:16 10
`11:33:52 10
`11
`11
`12
`12
`13
`13
`14
`14
`11:36:42 15
`11:34:06 15
`16
`16
`17
`17
`18
`18
`19
`19
`11:37:05 20
`11:34:24 20
`21
`21
`22
`22
`23
`23
`24
`24
`11:37:32 25
`11:34:53 25
`Any suggestions as to why I should pick one side or the
`02/23/2017 10:34:05 AM
`Page 21 to 24 of 29
`
`So that leaves the question, I think, of when these
`
`trials should actually be scheduled, because I think everything
`
`else then is stuff that you said you can work out between
`
`yourselves.
`
`So, first off, I note that you've got these things
`
`scheduled in two months in between each other. And even though
`
`defendants -- that's the plaintiff's schedule -- the defendants'
`
`schedule is slightly different.
`
`But, again, there is sufficient time in between to have
`
`some chance to appreciate what happened in the one that went
`
`before.
`
`And, so, there's basically a four-month difference -- a
`four to three-month difference in the schedule here.
`
`schedule, there would be -- well, we can look at it -- but
`
`there's a very short time between expert discovery and there's
`
`only two weeks, I think, for Dispositive Motions. And then the
`
`Court only has a month over December to decide all the
`
`Dispositive Motions.
`
`THE COURT: All right.
`
`Hold on a minute. Let me --
`
`MR. ENZMINGER: Our --
`
`THE COURT: Hold on, Mr. Enzminger.
`
`MR. ENZMINGER: Yes.
`
`(Pause)
`
`THE COURT: All right.
`
`Well, I think there is a -- of course, actually, Mr.
`
`Andre's split the baby I think takes care of the part that you
`
`just said that caught my attention, which is not allowing me
`
`enough time to decide the Dispositive Motions.
`
`You've also said that the Dispositive Motions are due
`
`ten days after the -- so I think you could give yourself another
`
`20 days for the Dispositive Motions and move -- and still split
`
`the baby and give me enough time for the Dispositive Motions.
`
`MR. ENZMINGER: That's only one crammed date.
`
`The other one is the date for the final assertion of
`
`claims after the Markman Hearing and the opening of expert
`reports.
`
`You know, the reality is, these patents are 15 years
`6 of 13 sheets
`
`

`

`1
`2
`3
`4
`11:37:50 5
`6
`7
`8
`9
`11:38:09 10
`11
`12
`13
`14
`11:38:25 15
`16
`17
`18
`19
`11:38:33 20
`21
`22
`23
`24
`11:39:20 25
`
`old. The plaintiff doesn't make products.
`
`MR. TOMASULO: We think if we have a Markman Hearing on
`
`So, you know, the difference in two months or three
`
`July 10th, I think we can probably move our dates back at least
`
`months doesn't make a bit of difference to the plaintiff. And
`
`two or three weeks, because we weren't sure when in July we
`
`we just think that if we have a date -- we've already provided a
`
`would be able to get a hearing.
`
`very aggressive schedule -- and we think that providing an even
`
`So we can put probably -- our trail dates right now are
`
`for no real reason.
`
`in June. The trial date is --
`
`THE COURT: So here's the thing.
`
`27
`
`more aggressive schedule will unnecessarily compress the parties
`
`Case 1:16-cv-00455-RGA Document 222-2 Filed 08/07/17 Page 8 of 9 PageID #: 18011
`25
`1
`2
`3
`4
`11:42:10 5
`6
`7
`8
`9
`11:42:41 10
`11
`12
`13
`14
`11:43:05 15
`16
`17
`18
`19
`11:43:13 20
`21
`22
`23
`24
`11:43:21 25
`
`MR. ANDRE: Your Honor, I think this is something that
`
`It seems to me reasonable, as Mr. Andre said, to split
`
`doesn't effect the Court, the opening of expert reports. This
`
`the baby. Why don't you pick trial dates that are roughly in
`
`is a compression of their own making.
`
`the middle of the -- where you -- where you both are right now.
`
`We're willing to go forward with it. We have the
`
`You've got a Markman date.
`
`initial reports of non-infringement, which presses us more than
`
`I presume -- and you've got a -- how do I phrase
`
`them, because their invalidity challenge they've already taken
`
`this -- and I do expect that there will be a Markman by the end
`
`their best shot at the IPRs, so I don