Case 1:16-cv-00455-RGA Document 427 Filed 06/22/18 Page 1 of 3 PageID #: 31797
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`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
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`June 22, 2018
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`VIA ELECTRONIC FILING
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`Re:
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`Acceleration Bay LLC v. Take-Two Interactive Software, Inc., et al.
`C.A. No. 16-455 (RGA)
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`Dear Judge Andrews:
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`Take-Two Interactive Software, Inc., Rockstar Games, Inc., and 2K Sports, Inc.
`(collectively “Take-Two”) write to request that the Court set a schedule to conclude expert
`discovery and for summary judgment and Daubert motions, leaving sufficient time for the Court
`to resolve those motions well before trial. Take-Two’s proposed schedule meets all the criteria
`identified by the Court during the summary judgment hearing in the Activision case. Plaintiff’s
`proposed schedule does not meet these criteria. Specifically, Take-Two’s proposed schedule
`provides time for the parties to focus their briefing based on the Court’s rulings in the Activision
`case but also leaves the Court time to consider those motions before the scheduled Take-Two
`trial. In contrast, Plaintiff would delay completion of expert discovery, providing itself nine
`months to serve its rebuttal expert reports, would compress the time for Take-Two to respond to
`its motions, and would reduce the Court’s time to rule on the motions before trial. Finally,
`Plaintiff asks the Court to reconsider its Order on page limits for summary judgment briefing.
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`Take-Two’s proposal, outlined below, meets the criteria that the Court indicated were
`important. First, Take-Two’s schedule delays summary judgment and Daubert briefing until late
`August when the parties will likely have the benefit of the Court’s rulings in the Activision case.
`Second, Take-Two’s schedule provides seven months between the completion of summary
`judgment/Daubert briefing and the start of the Take-Two trial (with the Activision and Electronic
`Arts trials in between). This seven-month time frame is important to provide the Court with time
`to consider and decide the summary judgment and Daubert motions, and the parties with
`adequate time to consider those rulings before beginning trial preparations.
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`Case 1:16-cv-00455-RGA Document 427 Filed 06/22/18 Page 2 of 3 PageID #: 31798
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`The Honorable Richard G. Andrews
`June 22, 2018
`Page 2
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`Event
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`Acceleration’s Proposal
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`Take-Two’s Proposal
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`Acceleration to serve reply expert
`reports
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`December 14, 2018
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`July 18, 2018
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`Close of expert discovery
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`January 16, 2019
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`August 10, 2018
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`Opening SJ/Daubert motions
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`January 23, 2019
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`August 29, 2018
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`Oppositions to SJ/Daubert
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`February 13, 2019
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`September 21, 2018
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`Replies re SJ/Daubert
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`February 20, 2019
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`October 5, 2018
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`Days between completion of
`SJ/Daubert briefing and trial
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`75 days
`(2 months, 16 days)
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`213 days
`(7 months, 1 day)
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`May 6, 2019
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`May 6, 2019
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`Take-Two Trial Date
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`Plaintiff’s schedule would unreasonably delay completion of expert discovery and
`briefing of summary judgment and Daubert motions, as well as the amount of time for various
`activities. Plaintiff’s schedule would provide it with nine months to respond to Take-Two’s
`rebuttal expert reports that were served in March. Then, Plaintiff would provide a short window
`for all expert depositions over the winter holidays between mid-December and mid-January
`(Plaintiff has designated six experts in this case). Next, Plaintiff would provide one week
`between the close of expert discovery, and opening briefs for summary judgment and Daubert
`motions. Fact discovery closed about a year ago, and Plaintiff’s opening expert reports were
`served on October 10, 2017. Plaintiff offers no justification for delaying either its reply expert
`reports or its experts’ depositions by nine months. Plaintiff’s schedule is also contrary to the
`Court’s scheduling order, leaving only one week for reply briefs, when the Order leaves two.
`2/27/2017 Rule 16 Scheduling Order D.I. 62 at para. 11, and would lead to a completion of
`briefing only two weeks before the proposed Electronic Arts trial. Further, Plaintiff’s schedule
`would severely shorten the time for the Court to consider summary judgment and Daubert
`motions before trial. Specifically, Plaintiff’s proposal includes only two and one-half months
`between the completion of summary judgment/Daubert briefing and trial, with the Electronic
`Arts trial in between. That simply is not enough time to resolve these motions in order to avoid
`or reduce the substantial expense of trial preparation.
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`Finally, Plaintiff asks the Court to reconsider its earlier ruling regarding page limits for
`summary judgment and Daubert motions. Plaintiff proposed 40 pages for opening and
`opposition briefs and 20 pages for reply briefs. On January 18, 2018, the Court ordered that
`“page limits for summary judgment and Daubert briefing in each of the three cases is 50/50/25.”
`Plaintiff has not offered any basis for reconsidering the Court’s ruling, which was largely in its
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`Case 1:16-cv-00455-RGA Document 427 Filed 06/22/18 Page 3 of 3 PageID #: 31799
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`The Honorable Richard G. Andrews
`June 22, 2018
`Page 3
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`favor, regarding page limits. Given that the complexity of the case has not changed since the
`Court’s order on the page limits, there is no basis to reduce these limits.
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`Accordingly, Take-Two respectfully requests that its proposed schedule to complete
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`expert discovery and to brief summary judgment and Daubert motions be entered and the page
`limits previously ordered by the Court be reaffirmed.
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`JBB/dlw
`cc:
`All Counsel of Record (Via Electronic Mail)
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`Respectfully,
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`/s/ Jack B. Blumenfeld
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`Jack B. Blumenfeld (#1014)
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