Case 1:16-cv-00455-RGA Document 421 Filed 05/11/18 Page 1 of 2 PageID #: 31400
`
`M O R R I S , N I C H O L S , A R S H T & T U N N E L L L L P
`1201 NORTH MARKET STREET
`P.O. BOX 1347
`WILMINGTON, DELAWARE 19899-1347
`
`(302) 658-9200
`(302) 658-3989 FAX
`
`JACK B. BLUMENFELD
`(302) 351-9291
`(302) 425-3012 FAX
`jblumenfeld@mnat.com
`
`
`
`The Honorable Richard G. Andrews
`United States District Court
` for the District of Delaware
`844 North King Street
`Wilmington, DE 19801
`
`May 11, 2018
`
`VIA ELECTRONIC FILING
`
`Re:
`
`Acceleration Bay LLC v. Take-Two Interactive Software, Inc., et al.
`C.A. No. 16-455 (RGA)
`
`Dear Judge Andrews:
`
`Take Two submits that the Court should deny Acceleration Bay’s request to stay the
`schedule in this case for the next eight months until after the expected trial in the Electronic Arts
`case early next year. (D.I. 420.) There is a five-month window in all three Acceleration Bay
`cases now, making it an appropriate time to finish up the remaining activities in this case. Given
`that Acceleration Bay filed these three cases close in time and pursued them on the same
`schedule through fact discovery, it should not be permitted to stay the Take Two case to see how
`Acceleration Bay’s arguments and expert testimony play out in the Activision and Electronic
`Arts cases and then adjust its arguments and presentation in the Take Two case.
`
`First, Acceleration Bay’s proposed schedule is simply an attempt to avoid an orderly
`
`consideration of Take Two’s forthcoming summary judgment motions. The delay Acceleration
`Bay seeks is purely for its own tactical advantage and not for any convenience to the parties or
`the Court. In fact, moving the scheduled expert discovery, summary judgment motions and
`Daubert motions into a two to three month window between the EA and Take Two trials is
`inconvenient for everyone. The proposed schedule would force Take Two’s lawyers and experts
`to “double track” by preparing for expert discovery in this case at the same time that those same
`lawyers and experts are at the EA trial; and Take Two would be prejudiced by not receiving
`summary judgment and Daubert rulings until just before trial. The proposed schedule would also
`burden the Court by providing only a very short time for evaluation of the parties’ summary
`judgment and Daubert motions.
`
`Second, Acceleration Bay claims there will be a simplification of issues and conservation
`
`of the Court’s resources by avoiding supplemental expert reports. But Acceleration Bay does not
`identify any specific issues that will be simplified, nor has Acceleration sought leave to provide
`any supplemental expert reports. In fact, because of the Special Master’s discovery rulings on
`
`

`

`Case 1:16-cv-00455-RGA Document 421 Filed 05/11/18 Page 2 of 2 PageID #: 31401
`
`The Honorable Richard G. Andrews
`May 11, 2018
`Page 2
`
`
`both infringement and damages issues, it would be very difficult for Acceleration Bay to
`establish grounds for leave to file supplemental expert reports. Acceleration Bay filed three
`cases against three unrelated companies. The rulings or outcomes of the Activision and EA trials
`would not constitute grounds for Acceleration Bay to advance new theories or submit new expert
`reports.1
`
`Fact discovery is complete, and the parties are discussing a trial sometime in April 2019.
`
`Expert discovery should be completed promptly so that the parties can file their summary
`judgment and Daubert motions and the Court will have sufficient time to consider those motions.
`Delaying those motions would only serve to put additional pressure on the parties and the Court.
`
`Accordingly, Acceleration Bay’s request for an eight-month stay should be denied.
`
`Respectfully,
`
`/s/ Jack B. Blumenfeld
`
`
`
`
`
`Jack B. Blumenfeld (#1014)
`
`
`JBB/dlw
`cc:
`Clerk of Court (Via Hand Delivery)
`
`All Counsel of Record (Via Electronic Mail)
`
`
`
`
`1
`Moreover, the hearing on the parties’ joint invalidity summary judgment motion (as well
`as on Activision’s summary judgment and Daubert motions) is set for May 17, 2018.
`The hearing next week is certainly not grounds to continue dates until 2019. We also
`note that Acceleration Bay refused Take Two’s offer to extend dates for briefing of the
`Take Two summary judgment and Daubert motions as long as they would be completed
`by October 1, so as not to interfere with Activision trial preparation. Acceleration Bay’s
`refusal of Take Two’s offer confirms that itsimply wants to forestall summary judgment
`as opposed to streamlining issues or making the case more convenient for the Court or
`the parties.
`
`