Case 1:16-cv-00455-RGA Document 420 Filed 05/10/18 Page 1 of 2 PageID #: 31398
`
`1313 North Market Street
`P.O. Box 951
`Wilmington, DE 19899-0951
`302 984 6000
`www.potteranderson.com
`
`Philip A. Rovner
`Partner
`provner@potteranderson.com
`(302) 984-6140 Direct Phone
`(302) 658-1192 Fax
`
`May 10, 2018
`
`BY CM/ECF & HAND DELIVERY
`
`The Honorable Richard G. Andrews
`U.S. District Court for the District of Delaware
`U.S. Courthouse
`844 North King Street
`Wilmington, DE 19801
`
`Re:
`
`Acceleration Bay LLC v. Take-Two. et al.
`D. Del., C.A. No. 16-455-RGA
`
`Dear Judge Andrews:
`
`Acceleration Bay respectfully requests that the Court modify the case schedule in the
`Take Two action to defer expert discovery and summary judgment and Daubert motion practice
`until after the conclusion of trial in the related case of Acceleration Bay LLC v. Electronic Arts,
`Inc. (D. Del.) (Civ. A. No. 16-454-RGA) (“Electronic Arts”), which Acceleration Bay expects
`will occur in early-2019.
`
`Specifically, assuming the Electronic Arts trial is set for January 14, 2019, and trial in the
`Take Two case is set for April 15, 2019, which Acceleration Bay proposes, the following
`modifications to the current Take Two schedule would provide sufficient time for the parties to
`handle the remaining discovery and pretrial items prior to trial:
`
`Deadline
`Reply Expert Reports
`Close of Expert Depositions
`Opening Summary
`Judgment/Daubert Briefs
`Opposition Summary
`Judgment/Daubert Briefs
`Reply Summary
`Judgment/Daubert Briefs
`
`Current
`6/1/18
`6/15/18
`6/29/18
`
`Proposed
`January 25, 2019
`February 18, 2019
`February 22, 2019
`
`7/20/18 March 8, 2019
`
`8/3/18 March 15, 2019
`
`

`

`Case 1:16-cv-00455-RGA Document 420 Filed 05/10/18 Page 2 of 2 PageID #: 31399
`
`The Honorable Richard G. Andrews
`May 10, 2018
`Page 2
`
`The current schedule was premised on the dates for the trials in the Electronic Arts and
`Take Two cases that have now been postponed. Modifying the schedule will conserve the
`resources of the Court and the parties by avoiding the need for one or more rounds of
`supplemental expert reports to address the results of the Activision and Electronic Arts summary
`judgment and Daubert motions and trials.
`
`For example, adjudication in the Activision case of the pending summary judgment and
`Daubert motions—which cover a wide range of issues including validity, infringement and
`damages and for which the Court will hold a hearing on May 17, 2018— and the trials in
`Activision and Electronic Arts will likely resolve many issues that will impact the Take Two
`case. Activision, D.I. 537. In particular, various arguments that would otherwise be raised in the
`parties’ summary judgment and Daubert motions may be rendered moot by the Court’s rulings.
`Also, the parties may need to supplement their expert reports in the Take Two case. It would be
`far more efficient for the parties to submit their expert reports after the conclusion of those trials
`and then proceed to a single round of expert depositions rather than serve expert reports, have
`depositions, supplement in view of developments in the Activision case, possibly have a second
`round of expert depositions, supplement yet again in view of developments in the EA case, and
`have a possible third round of expert depositions.
`
`The circumstances of Acceleration Bay’s requested modification of the Take Two
`schedule is unlike any previous request because there is now a hearing set in the Activision case
`on pending summary judgment and Daubert motions, the parties completed such briefing in the
`Electronic Arts case, and it is likely that the parties will benefit from definitive rulings from the
`Court that will avoid potentially duplicative motion practice and multiple rounds of expert
`reports and depositions. Moreover, now that the Activision and Electronic Arts trials have been
`postponed, there is almost a year before the expected Take Two trial date, unlike the previous
`trial schedule where the timeline between trials was more compressed and fast-approaching.
`
`Take Two indicated a willingness to postpone the Take Two deadlines to later in 2018, but
`does not agree to move them to after the conclusion of the Electronic Arts trial, even though this
`would be the most efficient way to proceed and the best use of the Court’s judicial resources.
`
`Thus, in the interest of judicial economy, Acceleration Bay respectfully requests that the
`Court modify the case schedule in the Take Two action to defer expert discovery, including the
`conclusion of expert reports and expert depositions, and summary judgment and Daubert motion
`practice until after the conclusion of the Electronic Arts trial.
`
`Respectfully,
`
`/s/ Philip A. Rovner
`
`Philip A. Rovner (#3215)
`
`All Counsel of Record (Via ECF Filing, Electronic Mail)
`cc:
`5806636
`
`