Case 1:16-cv-00455-RGA Document 254 Filed 09/05/17 Page 1 of 3 PageID #: 19372
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELA WARE
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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., et al.,
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`Defendants.
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`Civil Action No. 16-453-RGA
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`Civil Action No. 16-454-RGA
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`Civil Action No. 16-455-RGA
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`MEMORANDUM ORDER
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`Plaintiff has filed objections to Special Master Order #6. (No. 16-453, DJ. 254).
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`While I understand the basis for the Special Master's Order, it seems to me that
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`there is another way to handle the disputes.
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`Case 1:16-cv-00455-RGA Document 254 Filed 09/05/17 Page 2 of 3 PageID #: 19373
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`As to RFP Nos. 150 & 165, I do not think Defendants need the documents to
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`contest Plaintiffs assertion in the Complaint that it is an operating company, as, if it does
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`not produce the requested documents, I will bar it at trial (and at the injunction stage, if
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`we get there) from offering evidence that it is an operating (including incubating,
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`whatever that means) company (which in any event, it does not appear in any substantial
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`sense to be). (I do not expect, either, to allow Defendants to refer pejoratively to
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`Plaintiff. I would expect the testimony to be, from Ward, I'm the President and CEO of
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`this one-person company (or two persons, if it also employs a patent valuation expert)).
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`Thus, Plaintiff can either accept my anticipatory ruling, or Plaintiff can respond to the
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`two RFPs. Plaintiff should within two days advise Defendants which choice it makes.
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`As to RFP No. 139, I am unclear what the documents between Plaintiff and its
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`lender are supposed to contain. If they are simply accounting, that is, this is how Plaintiff
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`spent the lender's money, they are irrelevant. If they contain something more, then they
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`might be relevant, to the same extent as the documents that are called for by RFP Nos.
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`150 & 165. Based on the submissions, I do not think Plaintiff has done anything more
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`than boldly assert Mr. Ward's communications with his lender are work product. (See
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`D.I. 255-1, Exh. B, depo. p. 151; D.I. 255-1, at 277).
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`As I understand it, Plaintiffs litigation financing is publicly available. Thus, with
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`that understanding, I am not convinced that Defendants need the unredacted agreement
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`(although I agree with Defendants and the Special Master that my earlier ruling was in a
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`different context and does not foreclose Defendants' request at this time). I do not think
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`the unredacted agreement, or any other documents, are likely relevant to the determining
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`the purchase price, which appears to be $250,000 with the possibility of substantial
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`Case 1:16-cv-00455-RGA Document 254 Filed 09/05/17 Page 3 of 3 PageID #: 19374
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`additional payments of up to $22,000,000. (D.I. 254, p.5 n.4). In any event, the purchase
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`price is determined by the agreement between Plaintiff and Boeing. Thus, I do not
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`require production of an unredacted copy of the agreement.
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`The source of the $250,000 payment is a different matter. The circumstances are
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`mysterious as to how it could have been made before Plaintiff had any financing. There
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`is enough smoke there to make it relevant to impeachment. Thus, Plaintiff must respond
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`to RFP No. 167.
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`Thus, as stated above, I adopt the Special Master's Order as to RFP No. 167, and
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`as to the balance, Plaintiff need not produce any of the requested documents, as they are
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`not relevant to the issues that will remain in the case. If, however, Plaintiff wants to be
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`able to argue that it should be allowed to present evidence at trial that it is an "operating
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`company," then it must comply with the Special Master's Order as to the other three
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`RFPs.
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`IT IS SO ORDERED this -5:.._ day of September 2017.
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