Case 1:16-cv-00455-RGA Document 429 Filed 06/22/18 Page 1 of 2 PageID #: 31803
`
`1313 North Market Street
`P.O. Box 951
`Wilmington, DE 19899-0951
`302 984 6000
`www.potteranderson.com
`
`Philip A. Rovner
`Partner
`Attorney at Law
`provner@potteranderson.com
`302 984-6140 Direct Phone
`302 658-1192 Firm Fax
`
`June 22, 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
`
`As directed by the Court, the parties conferred regarding a schedule for completion of the
`Take Two action, but were unable to reach agreement. Acceleration Bay proposes the following
`schedule to conserve the resources of the parties and the Court and to most efficiently resolve
`Acceleration Bay’s claims against Take Two:
`
`Deadline
`Reply Expert Reports
`Close of Expert Depositions
`Opening Summary
`Judgment/Daubert Briefs
`Opposition Summary
`Judgment/Daubert Briefs
`Reply Summary
`Judgment/Daubert Briefs
`Trial
`
`Proposed
`December 14, 2018
`January 16, 2019
`January 23, 2019 (25 page limit)
`
`February 13, 2019 (25 page limit)
`
`February 20, 2019 (10 page limit)
`
`May 6, 2019 or May 13, 2019 (agreed by
`the parties, subject to the Court’s approval)
`
`The premise of Acceleration Bay’s proposed schedule is that the completion of the Take
`Two case should be guided by the Court’s resolution of summary judgment and Daubert motions
`and the October 29, 2018 trial in in the Activision case. Acceleration Bay’s proposed schedule
`provides for reply expert reports to be served about one month after the conclusion of that trial,
`with summary judgment and Daubert motions to be fully briefed close to three months before
`the proposed start of the Take Two trial.
`
` The Activision motions will likely implicate numerous aspects of the Take Two case
`including validity, infringement, claim construction and damages — and the trial in Activision,
`including the Court’s rulings on the plethora of issues that will come up during the trial, will
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`

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`Case 1:16-cv-00455-RGA Document 429 Filed 06/22/18 Page 2 of 2 PageID #: 31804
`The Honorable Richard G. Andrews
`June 22, 2018
`Page 2
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`likely further resolve or narrow many issues that will impact the Take Two case. In particular,
`various arguments that would otherwise be raised in the parties’ summary judgment and Daubert
`briefs may be rendered moot by the Court’s rulings in the Activision case or, at a minimum, these
`rulings will focus the issues in dispute.
`
`120 pages of total briefing per side should be more than sufficient in the Take Two case
`for summary judgment and Daubert motions. A page limitation to focus the issues being briefed
`makes sense for the Take Two case given (i) Activision’s and EA’s decision to raise nearly every
`issue for trial in their briefing with conclusory arguments, which only led to a further hearing and
`briefing, (ii) the parties to the Activision case having already submitted over 300 pages of
`summary judgment and Daubert briefing and an additional 250 pages of briefing in the EA case;
`and (iii) that there will be no validity summary judgment or Daubert motions as those have
`already been briefed in the Activision case (with the parties submitting over 65 pages of briefing
`on validity issues). The issues in the Take Two case will likely overlap and, with rulings from
`the Activision case, Take Two will necessarily need to focus the issues to be raised on summary
`judgment and Daubert.
`
`Take Two’s proposed schedule seems designed to place an undue burden on Acceleration
`Bay and the Court and is not an attempt to be judicially efficient. Take Two proposes
`exchanging reply expert reports on July 18, 2018, with depositions to follow shortly thereafter
`and summary judgment and Daubert motions in August, which is likely not enough time for the
`Court to issue orders on the pending summary judgment and Daubert motions in the Activision
`case (or in the EA case, where summary judgment and Daubert are now fully briefed).
`Furthermore, there is no need for such a compressed schedule as the parties agree that the Take
`Two trial should take place in May 2019. In contrast, it was necessary to submit summary
`judgment and Daubert briefing in the EA case without waiting until the conclusion of the
`Activision motion practice and trial because the EA trial was then scheduled to begin two months
`after the Activision trial. Now, almost seven months separate the proposed dates for the Take
`Two trial from the Activision trial. Finally, Take Two seeks 250 pages of briefing, which is
`excessive and unnecessary for the reasons discussed above.
`
`Thus, in the interest of judicial economy and to conserve the parties’ resources,
`Acceleration Bay respectfully requests that the Court set a case schedule in the Take Two action
`that schedules expert discovery, including the conclusion of expert reports and expert
`depositions, and summary judgment and Daubert motion practice after the conclusion of the
`Activision trial.
`
`Respectfully,
`
`/s/ Philip A. Rovner
`
`Philip A. Rovner (#3215)
`
`cc: All Counsel of Record
`5850568
`
`