In The Matter Of:
`Acceleration Bay, LLC v.
`Activision Blizzard, Inc.,
`
`Special Master Teleconference
`March 30, 2018
`
`Wilcox & Fetzer, Ltd.
`1330 King Street
`Wilmington, DE 19801
`email: depos@wilfet.com, web: www.wilfet.com
`phone: 302-655-0477, fax: 302-655-0497
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 1 of 172 PageID #: 34489
`
`Original File Acceleration Bay v. Activision Blizzard 03-03-18 Teleconference.txt
`Min-U-Script® with Word Index
`
`
`Acceleration Bay, LLC v.
`Activision Blizzard, Inc.,
`
`Special Master Teleconference
`March 30, 2018
`
`Wilcox & Fetzer, Ltd.
`1330 King Street
`Wilmington, DE 19801
`email: depos@wilfet.com, web: www.wilfet.com
`phone: 302-655-0477, fax: 302-655-0497
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 1 of 172 PageID #: 34489
`
`Original File Acceleration Bay v. Activision Blizzard 03-03-18 Teleconference.txt
`Min-U-Script® with Word Index
`
`
`
`1
`
`
`
` IN THE UNITED STATES DISTRICT COURT
`
`
`
` FOR THE DISTRICT OF DELAWARE
`
`
`
` ACCELERATION BAY LLC, )
` )
` Plaintiff, )
` )
` v. ) C.A. No. 16-453 (RGA)
` )
` ACTIVISION BLIZZARD, )
` INC., )
` )
` Defendant. )
` - - - - - - - - - - - - -
` ACCELERATION BAY LLC, )
` )
` Plaintiff, )
` )
` v. ) C.A. No. 16-454 (RGA)
` )
` ELECTRONIC ARTS INC., )
` )
` Defendant. )
` - - - - - - - - - - - - )
` ACCELERATION BAY LLC, )
` )
` Plaintiff, )
` )
` v. ) C.A. No. 16-455 (RGA)
` )
` TAKE-TWO INTERACTIVE )
` SOFTWARE, INC., ROCKSTAR)
` GAMES, INC., and 2K )
` SPORTS, INC., )
` )
` Defendants. )
`
` Friday, March 30, 2018
` 12:01 p.m.
` Teleconference
`
` BEFORE: SPECIAL MASTER ALLEN TERRELL, JR.
`
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 2 of 172 PageID #: 34490
`
`
`
`2
`
`
`
` 1 APPEARANCES:
`
`
`
` 2 PHILIP A. ROVNER, ESQUIRE
` POTTER ANDERSON & CORROON, LLP
` 3 1313 North Market Street, Suite 1400
` Wilmington, Delaware 19899
` 4
` -and-
` 5
` AARON FRANKEL, ESQUIRE
` 6 PAUL J. ANDRE, ESQUIRE
` KRAMER LEVIN NAFTALIS & FRANKEL, LLP
` 7 1177 6th Avenue
` New York, New York 10036
` 8 For the Plaintiffs
`
` 9 JACK B. BLUMENFELD, ESQUIRE
` STEPHEN J. KRAFTSCHIK, ESQUIRE
`10 MORRIS NICHOLS ARSHT & TUNNELL, LLP
` 1201 North Market Street
`11 Wilmington, Delaware 19899
`
`12 -and-
`
`13 MICHAEL A. TOMASULO, ESQUIRE
` DAVID P. ENZMINGER, ESQUIRE
`14 KATHLEEN B. BARRY, ESQUIRE
` WINSTON & STRAWN, LLP
`15 For the Defendants
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 3 of 172 PageID #: 34491
`
`
`
`3
`
`
` 1 SPECIAL MASTER: All right.
`
` 2 Very good. Let us begin.
`
` 3 This is the Special Master,
`
` 4 Allen Terrell, and this is a hearing in the
`
` 5 United States District Court, District of
`
` 6 Delaware in the cases Civil Action 16-453,
`
` 7 454, and 455, all brought by plaintiff,
`
` 8 Acceleration Bay, LLC.
`
` 9 Before me today are several
`
`10 motions that have been brought on by the
`
`11 defendants. Before we begin with the formal
`
`12 part of the hearing, perhaps the court
`
`13 reporter will identify herself, and then
`
`14 starting with the defendants, identify
`
`15 themselves, and the plaintiffs as well.
`
`16 THE REPORTER: Heather Triozzi,
`
`17 court reporter.
`
`18 SPECIAL MASTER: Thank you,
`
`19 Heather.
`
`20 MR. BLUMENFELD: It's Jack
`
`21 Blumenfeld for the defendants, and also on
`
`22 from Winston & Strawn are Mike Tomasulo,
`
`23 David Enzminger, Kathleen Barry, and Paul
`
`24 Harold. And I think Steve Kraftschik from
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 4 of 172 PageID #: 34492
`
`
`
`4
`
`
` 1 Morris Nichols is also on.
`
` 2 MR. ROVNER: And Special
`
` 3 Master, it's Phil Rovner from Potter
`
` 4 Anderson & Corroon for plaintiff. And as you
`
` 5 heard, on the line is Paul Andre, and Aaron
`
` 6 Frankel.
`
` 7 SPECIAL MASTER: Very good.
`
` 8 Defendants why don't you proceed in whatever
`
` 9 order with your motions you'd like, and then
`
`10 I will leave it to the plaintiff to decide
`
`11 whether the plaintiff would like to respond
`
`12 after the defendant has addressed each motion
`
`13 or wait until the defendant is through in
`
`14 entirety.
`
`15 So defendant, you can proceed.
`
`16 MR. TOMASULO: Okay. This is
`
`17 Mike Tomasulo. I'm going to address the
`
`18 motion regarding Hamilton Capital.
`
`19 If I may proceed, Your Honor?
`
`20 SPECIAL MASTER: Go ahead.
`
`21 MR. TOMASULO: So I'm going to
`
`22 sort of skip to it, skip the recitation of
`
`23 the two-year saga that got us here and sort
`
`24 of jump straight in to the relief we're
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 5 of 172 PageID #: 34493
`
`
`
`5
`
`
` 1 seeking.
`
` 2 The categories of relief are
`
` 3 set forth in our Proposed Order and our
`
` 4 brief. Briefly, let me repeat them, though.
`
` 5 We're seeking compliance with
`
` 6 your Order as confirmed by the Court that
`
` 7 plaintiff provide all documents provided to
`
` 8 Hamilton Capital or its counsel in writing,
`
` 9 including the documents specifically
`
`10 identified in our motion. For instance, the
`
`11 written infringement claim charts that were
`
`12 discussed at the in-person meeting, and any
`
`13 written infringement analysis provided by
`
`14 Dr. Medvidovic, if it exists.
`
`15 In addition to an order
`
`16 specifically requiring the plaintiff to
`
`17 produce those documents identified in our
`
`18 brief, the plaintiff should also be required
`
`19 to do a proper email and document search that
`
`20 complies with the Federal Rules of Civil
`
`21 Procedure and the local rules regarding
`
`22 electronically stored information for emails
`
`23 sent to or received by Hamilton Capital or
`
`24 its representatives, and produce those
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 6 of 172 PageID #: 34494
`
`
`
`6
`
`
` 1 documents as kept in the ordinary course of
`
` 2 business and in the format required by the
`
` 3 local rules.
`
` 4 We seek an opportunity, without
`
` 5 the restrictions imposed by the plaintiff, to
`
` 6 depose Dr. Medvidovic on his opinions that
`
` 7 the defendants infringe the Acceleration
`
` 8 patents, including specifically as to the
`
` 9 development, foundation, formation of those
`
`10 opinions.
`
`11 And lastly, we seek fees
`
`12 incurred in the two years of serial motions
`
`13 that got us to this place.
`
`14 I'm going to start with the
`
`15 first issue which is the documents provided
`
`16 in writing. This issue is really rather
`
`17 simple.
`
`18 Were documents provided to
`
`19 Hamilton Capital or its counsel during the
`
`20 diligence period? If so, those must be
`
`21 produced.
`
`22 Your Order required them to
`
`23 produce what it provided in writing to
`
`24 Hamilton Capital or its counsel at the time
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 7 of 172 PageID #: 34495
`
`
`
`7
`
`
` 1 of Hamilton Capital's due diligence.
`
` 2 Plaintiff objected to that Order, but only as
`
` 3 to the emails exchanged between it and
`
` 4 Hamilton Capital. The Court overruled those
`
` 5 objections and adopted your Order.
`
` 6 Our papers specifically
`
` 7 identify documents referenced in the
`
` 8 diligence emails themselves that were
`
` 9 provided to Hamilton Capital. Those
`
`10 documents should be produced. Additional
`
`11 documents may have been provided in other
`
`12 emails that were not produced, and those
`
`13 should be produced as well. This isn't based
`
`14 on speculation.
`
`15 Regarding the infringement
`
`16 claim charts, Acceleration Bay admits they
`
`17 were discussed with Reed Smith, and it
`
`18 doesn't deny that they showed Reed Smith the
`
`19 charts at the December meeting. And that's,
`
`20 frankly, the purpose of having an in-person
`
`21 meeting is to show somebody in writing.
`
`22 And so they say they didn't
`
`23 give copies to Reed Smith; and therefore,
`
`24 they didn't provide them in writing, but
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 8 of 172 PageID #: 34496
`
`
`
`8
`
`
` 1 that's a distinction without a difference.
`
` 2 The written charts were discussed and shown
`
` 3 to Reed Smith. Even if they were not
`
` 4 provided to Reed Smith, or Reed Smith didn't
`
` 5 leave them with copies, they were plainly a
`
` 6 written document. A claim chart is a written
`
` 7 document, and it was shown to Reed Smith at
`
` 8 that meeting. And, you know, notably they
`
` 9 did not submit a declaration on this point,
`
`10 to the extent it would have mattered.
`
`11 Their principal argument
`
`12 regarding this is they say that the claim
`
`13 charts are work product. This is the very
`
`14 same issue that has been rejected by Judge
`
`15 Andrews twice. First, when it affirmed
`
`16 Special Master Order Number 6, the Court
`
`17 rejected plaintiffs' claim of work product
`
`18 protection or its exchanges with Hamilton
`
`19 Capital.
`
`20 Notably, plaintiff made the
`
`21 very same work product objections it now
`
`22 makes at Pages 5 to 7 of docket number 254.
`
`23 Those are plaintiffs' objections to your
`
`24 Special Master Order Number 6. The Court
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 9 of 172 PageID #: 34497
`
`
`
`9
`
`
` 1 rejected those work product objections on
`
` 2 September 5th, and that's docket number 285.
`
` 3 These are in the Activation case.
`
` 4 Second, the Court specifically
`
` 5 rejected the work product argument in
`
` 6 connection with documents exchanged with
`
` 7 Hamilton Capital in the due diligence
`
` 8 process. That's docket number 461.
`
` 9 That Order specifically covers
`
`10 these charts and anything that was provided
`
`11 in writing or disclosed to Hamilton Capital.
`
`12 In the beginning of the Court's Order, it
`
`13 says that the motion concerns emails and
`
`14 documents provided to Hamilton Capital and or
`
`15 Hamilton Capital's counsel, Reed Smith,
`
`16 during their negotiation of the litigation
`
`17 financing agreement in 2014 and 2015.
`
`18 The Court concluded that these
`
`19 documents were not work product for two
`
`20 separate reasons, both of which apply with
`
`21 full force to all of the communications with
`
`22 Reed Smith.
`
`23 One, the Court says, "The
`
`24 documents were, thus, prepared with a primary
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 10 of 172 PageID #: 34498
`
`
`
`10
`
`
` 1 purpose of obtaining a loan as opposed to
`
` 2 aiding counsel and possible future
`
` 3 litigation. For that reason alone, the
`
` 4 communications are not work product.
`
` 5 Two, they were prepared for a
`
` 6 nonparty, Hamilton Capital. So the work
`
` 7 product issue has already been resolved
`
` 8 twice.
`
` 9 It's worth noting, too, that
`
`10 the plaintiffs' objections to Special Master
`
`11 Order Number 13 focus almost exclusively on
`
`12 the very same work product objections it
`
`13 makes here. Those objections are at docket
`
`14 number 379.
`
`15 For instance, they argue to
`
`16 Judge Andrews that the documents were "core
`
`17 work product" entitled to absolute
`
`18 protection. They made the same arguments,
`
`19 and those arguments were rejected by Judge
`
`20 Andrews, and there's no reason to reconsider
`
`21 the work product issue here or believe that
`
`22 it would be entitled to a different result.
`
`23 Lastly, the plaintiff has the
`
`24 burden of proof on it. Even if you were to
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 11 of 172 PageID #: 34499
`
`
`
`11
`
`
` 1 reconsider the work product issue, they've
`
` 2 advanced no evidence at all that the claim
`
` 3 charts that were shown to Reed Smith were not
`
` 4 prepared for that very purpose. They say
`
` 5 they were prepared for litigation, but they
`
` 6 offer no evidence of that. And without the
`
` 7 15-million-dollar loan, there wasn't going to
`
` 8 be any litigation.
`
` 9 And nor has Acceleration Bay
`
`10 properly raised its claim of work product
`
`11 protection. It has repeatedly said that
`
`12 these documents did not exist. And then when
`
`13 it's revealed that they do exist, they claim
`
`14 work product protection.
`
`15 You know, confidentiality alone
`
`16 doesn't justify not identifying or logging
`
`17 the documents, which is found in your Special
`
`18 Master Order 13. So just as with the emails,
`
`19 these claim charts are not work product
`
`20 because they were created to obtain funding.
`
`21 Plaintiff did not even own the patents when
`
`22 it created these charts.
`
`23 I'm going to move to the
`
`24 pre-filing analysis. Acceleration Bay says
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 12 of 172 PageID #: 34500
`
`
`
`12
`
`
` 1 it doesn't exist in written form. You know,
`
` 2 if that's the case, there's nothing to
`
` 3 produce. But this is the first that they've
`
` 4 told us that.
`
` 5 And, frankly, then there should
`
` 6 be no harm in an order issuing it to be
`
` 7 produced if it was something that exists, and
`
` 8 they can certify that it doesn't exist. But
`
` 9 there's certainly no reason not to order them
`
`10 to produce it.
`
`11 I'm going to jump to his
`
`12 deposition. So Dr. Medvidovic, his
`
`13 deposition, we want a deposition, which we're
`
`14 entitled to under the rules.
`
`15 Dr. Medvidovic has testified
`
`16 that the defendants infringe, and that
`
`17 there's no non-infringing substitutes for
`
`18 these patents that the defendants could use.
`
`19 And he also testified that he did not conduct
`
`20 the test preferred by the inventor, Dr. Holt,
`
`21 after the case was filed.
`
`22 We're entitled to fully explore
`
`23 his role in this case, and how he reached
`
`24 these opinions, when he reached them, how
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 13 of 172 PageID #: 34501
`
`
`
`13
`
`
` 1 they were formed, what he considered, what he
`
` 2 did not consider, what tests he did and did
`
` 3 not run, and all sources of compensation
`
` 4 related to these patents in this case.
`
` 5 There's no protection for any of this
`
` 6 information.
`
` 7 The moment they designated
`
` 8 Dr. Medvidovic as a testifying expert and
`
` 9 offered his opinions on infringement and on
`
`10 no non-infringing alternatives, all of this
`
`11 became fair game. Any privilege was waived,
`
`12 and that's specifically confirmed by the
`
`13 Court's Ansell opinion, if you look at that
`
`14 at Page 7. The rules confirm that this is
`
`15 correct --
`
`16 SPECIAL MASTER: Let me just
`
`17 ask you a question.
`
`18 MR. TOMASULO: Sorry. Yes.
`
`19 SPECIAL MASTER: Haven't you
`
`20 already deposed him?
`
`21 MR. TOMASULO: Mm-hmm. And we
`
`22 were not allowed to ask about the formation
`
`23 of his opinions which occurred prior to the
`
`24 filing of the case.
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 14 of 172 PageID #: 34502
`
`
`
`14
`
`
` 1 SPECIAL MASTER: Got you. Go
`
` 2 ahead.
`
` 3 MR. TOMASULO: So the rules are
`
` 4 pretty clear on this. Under Rule 26,
`
` 5 testifying experts like Dr. Medvidovic are
`
` 6 required to submit an expert report
`
` 7 disclosing their opinions, the basis, and
`
` 8 reasons for those opinions, and the facts and
`
` 9 data considered in forming those opinions and
`
`10 considered as broader than relied on.
`
`11 Rule 26 further provides that
`
`12 we may depose any testifying expert, and
`
`13 that's Rule 26(a)(4)(a). Plaintiff has the
`
`14 burden to show that the deposition should be
`
`15 limited, and they point to the 2010 rule
`
`16 changes to Rule 26. But those 2010
`
`17 amendments dealt with drafts of expert
`
`18 reports and communications with counsel.
`
`19 Those are the only two things that the 2010
`
`20 Amendment dealt with.
`
`21 Those are two issues that are
`
`22 not at issue here. We're not seeking his
`
`23 draft report. What we're seeking is a
`
`24 deposition about how he formed his opinion,
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 15 of 172 PageID #: 34503
`
`
`
`15
`
`
` 1 and we're not seeking communications with
`
` 2 counsel.
`
` 3 In fact, the 2010 Advisory
`
` 4 Committee Notes and the Ansell opinion
`
` 5 specifically confirm that the deposition
`
` 6 objections were improper, and that we're
`
` 7 entitled to the relief we seek.
`
` 8 If you look at Page 56 of the
`
` 9 PDF of the rule that we sent last night, what
`
`10 the Advisory Committee Notes say is that the
`
`11 limits "do not impede discovery about the
`
`12 opinions to be offered by the expert or the
`
`13 development, foundation, or basis of those
`
`14 opinions." The development, foundation, and
`
`15 basis of those opinions are fair game, and
`
`16 that's confirmed by the Ansell opinion as
`
`17 well.
`
`18 I think that's on Page 6 of the
`
`19 Ansell opinion where the Court says, The 2010
`
`20 Amendments were not intended to "impede
`
`21 discovery about the opinions to be offered by
`
`22 the expert or the development, foundation, or
`
`23 basis of those opinions.'"
`
`24 So you have the Advisory
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 16 of 172 PageID #: 34504
`
`
`
`16
`
`
` 1 Committee Notes, and you have Judge Andrews
`
` 2 both saying that the rules allow us to seek
`
` 3 full discovery on the development,
`
` 4 foundation, and basis of Dr. Medvidovic's
`
` 5 opinions.
`
` 6 We know that Dr. Medvidovic
`
` 7 developed and formed his opinion of
`
` 8 infringement before the case was filed. We
`
` 9 know this from him himself. He says it in
`
`10 his declaration, and that's our Exhibit 4.
`
`11 He says in Paragraph 8 that
`
`12 before the case was filed, he conducted an
`
`13 initial investigation and he "concluded that
`
`14 the products infringe the asserted claims."
`
`15 That's his word, "concluded."
`
`16 In Paragraph 9 of that
`
`17 declaration, he says that his subsequent
`
`18 review of the materials produced in the case
`
`19 "confirmed his opinions." He doesn't say
`
`20 that he started from scratch and reached new
`
`21 opinions.
`
`22 In Paragraph 13, he said the
`
`23 code for the accused games "reconfirmed" his
`
`24 opinions. Reconfirmed. That's referring
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 17 of 172 PageID #: 34505
`
`
`
`17
`
`
` 1 back to his initial opinions that he
`
` 2 developed before the case was filed.
`
` 3 In Paragraph 16, he says his
`
` 4 post-filing work "reinforces" his opinion.
`
` 5 Reinforces.
`
` 6 So he developed an opinion, and
`
` 7 whenever he developed his opinion, we're
`
` 8 allowed to take that testimony. And the
`
` 9 rules don't provide an artificial distinction
`
`10 as to whether these opinions were developed
`
`11 before or after the case, and the plaintiff
`
`12 offers no such authority.
`
`13 The Advisory Committee Notes
`
`14 elaborate that, "The experts testing of
`
`15 material involved in the litigation and notes
`
`16 of any such testing would not be exempted
`
`17 from discovery by this rule. Similarly,
`
`18 inquiry into communications the expert had
`
`19 with anyone other than the party's counsel
`
`20 about the opinions expressed is unaffected by
`
`21 the rule."
`
`22 It also says that, "Counsel are
`
`23 free to question expert witnesses about all
`
`24 alternative analysis, testing methods, or
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 18 of 172 PageID #: 34506
`
`
`
`18
`
`
` 1 approaches to the issues on which they are
`
` 2 testifying, whether or not the expert
`
` 3 considered them in forming the opinions
`
` 4 expressed." This is all around Page 56 of
`
` 5 that PDF, and all of this is confirmed in --
`
` 6 I'm sorry. Hold on.
`
` 7 These rules just don't limit
`
` 8 discovery the way the plaintiff says they do,
`
` 9 and they specifically don't limit discovery
`
`10 into the expert's compensation. The Advisory
`
`11 Committee notes explain that inquiry into the
`
`12 compensation "is not limited to work
`
`13 performing the opinions to be expressed, but
`
`14 extends to all compensation for the study and
`
`15 testimony provided in relation to the action.
`
`16 Any communications about additional benefits
`
`17 to the expert, such as further work in the
`
`18 event of a successful result in the present
`
`19 case, would be included. The objective is to
`
`20 permit full inquiry into the potential source
`
`21 of bias." And that's at Page 57 of the PDF
`
`22 we sent.
`
`23 Their answer is that because
`
`24 Dr. Medvidovic's report doesn't rely on his
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 19 of 172 PageID #: 34507
`
`
`
`19
`
`
` 1 pre-filing work, well, then that solves the
`
` 2 issue. It's not discoverable.
`
` 3 First of all, that doesn't make
`
` 4 any sense. It means you could have all of
`
` 5 the -- you know, someone could do the tests
`
` 6 that you have, unsure of the results, and you
`
` 7 could have them be done before the case is
`
` 8 filed. And then if they don't turn out the
`
` 9 way you want, well, then nobody ever knows
`
`10 you did them.
`
`11 But as Judge Andrews noted in
`
`12 Ansell, the Federal Rules don't limit
`
`13 discovery to what an expert relies on. They
`
`14 permit discovery into the facts or data
`
`15 considered by the report in forming his
`
`16 opinions.
`
`17 We know from his declaration
`
`18 that he considered certain materials in
`
`19 forming his opinions. That's reflected at
`
`20 Paragraph 8 and 9 of his declaration which is
`
`21 our Exhibit 4.
`
`22 And so the Advisory Committee
`
`23 Notes and Judge Andrews have explained that
`
`24 that includes materials that were considered,
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 20 of 172 PageID #: 34508
`
`
`
`20
`
`
` 1 whether or not they were ultimately relied
`
` 2 upon by the expert. So they can't create an
`
` 3 arbitrary distinction by saying, Well, you
`
` 4 know, he didn't rely on it, and that provides
`
` 5 a restriction on what we can or can't ask
`
` 6 him.
`
` 7 In fact, that's one of the more
`
` 8 common things to say. Well, you didn't
`
` 9 consider this. You didn't consider that.
`
`10 You know, we're entitled to take discovery
`
`11 regarding his opinion.
`
`12 He's offered an opinion that
`
`13 says we infringe. We're entitled to know
`
`14 everything that he has done with these
`
`15 patents with respect to our games, period.
`
`16 Hard stop.
`
`17 We have to be allowed to
`
`18 cross-examine him on this at trial, and this
`
`19 is a big deal. You're going to have two
`
`20 experts. If this goes to trial, we're going
`
`21 to have two experts that say diametrically
`
`22 opposite things on a very complicated topic.
`
`23 The jury is entitled to know whether, and
`
`24 we're entitled to present evidence as to
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 21 of 172 PageID #: 34509
`
`
`
`21
`
`
` 1 whether his opinions have changed, whether
`
` 2 they were originally -- whether he reached
`
` 3 opinions for using a scientific method or
`
` 4 some other method.
`
` 5 How on earth did he form an
`
` 6 opinion of infringement without testing our
`
` 7 games or looking at our source code? The
`
` 8 inventors say you can't do that.
`
` 9 So we're entitled to know how
`
`10 he reached these opinions. Our position is
`
`11 that he's plaintiff counsel's hired gun. He
`
`12 testified for them repeatedly and, you know,
`
`13 he knows where his bread is buttered. And we
`
`14 need to be able to take the testimony about
`
`15 his full involvement in this case.
`
`16 Plaintiff also relies on the
`
`17 Protective Order, but that doesn't say what
`
`18 the plaintiff claims. Dr. Medvidovic is a
`
`19 testifying expert, and the Protective Order
`
`20 says this means we can't get drafts of
`
`21 reports in declarations or documents
`
`22 constituting notes created by or for an
`
`23 expert in connection with preparation of his
`
`24 report or declaration. And we can't get
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 22 of 172 PageID #: 34510
`
`
`
`22
`
`
` 1 conversations or communications except to the
`
` 2 extent they were relied on.
`
` 3 But we're not asking for those
`
` 4 things. We're asking for a deposition about
`
` 5 how he formed his opinions, and whatever
`
` 6 conversations he may have had with third
`
` 7 parties other than his counsel.
`
` 8 But we're not asking for
`
` 9 documents by this, we're not asking for work
`
`10 product. We want to know what this guy
`
`11 considered, how did he form these initial
`
`12 opinions, what he's been paid, and what his
`
`13 role was besides simply providing this
`
`14 opinion in the case.
`
`15 And the case law is clear, and
`
`16 these are the cases that we cited that we can
`
`17 inquire into what an expert knew because what
`
`18 he knows and chooses not to rely on is
`
`19 relevant to impeachment. And those are the
`
`20 United -- Sy versus UPS and Air Crash
`
`21 Disaster cases which we cited and which
`
`22 plaintiffs did not respond to, I believe.
`
`23 So that's it on Dr. Medvidovic.
`
`24 The other issues which are equally important,
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 23 of 172 PageID #: 34511
`
`
`
`23
`
`
` 1 they say that they have produced all
`
` 2 substantive emails relevant to the Reed Smith
`
` 3 investigation, but that's not what you
`
` 4 ordered. The word substantive and relevant
`
` 5 to the Reed Smith investigation aren't part
`
` 6 of your Order.
`
` 7 Plaintiff was ordered to
`
` 8 provide what it provided in writing to
`
` 9 Hamilton Capital or its counsel at the time
`
`10 of Hamilton Capital's due diligence. And the
`
`11 way you do that is you have your IT person
`
`12 run a search. The IT person runs a search.
`
`13 They give you the PST files.
`
`14 Your discovery person loads
`
`15 them into your system, and you review them
`
`16 and produce them. It's simple. It would
`
`17 take less time than this motion or this
`
`18 hearing are taking. And that's what the
`
`19 default rules require.
`
`20 Plaintiffs says that, Well, we
`
`21 have this agreement that we wouldn't seek
`
`22 email. That's not at all what happened.
`
`23 This was after this issue was
`
`24 originally brought up. We moved for a
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 24 of 172 PageID #: 34512
`
`
`
`24
`
`
` 1 privilege log in February 2016, and were told
`
` 2 there was nothing to log.
`
` 3 Then after that, in the context
`
` 4 of other E-discovery sites, the plaintiff
`
` 5 moved to compel an enormous amount of our
`
` 6 email, and you turned them down. But we
`
` 7 never reached an agreement that email would
`
` 8 not be discoverable, and we certainly hadn't
`
` 9 reached one with respect to this specific
`
`10 issue. And that's another issue that, you
`
`11 know, has already sailed.
`
`12 This isn't a big deal. It
`
`13 seems implausible, but the only eight emails
`
`14 that were produced were the eight emails that
`
`15 happened to find its way on the Reed Smith
`
`16 privilege log. There are other people
`
`17 identified in those emails. For instance,
`
`18 this Jack Simony guy who's not a Reed Smith
`
`19 lawyer. Maybe there were emails to him
`
`20 directly that would not have shown up on the
`
`21 Reed Smith log. You know, frankly, it's not
`
`22 a burden, and we have no obligation to accept
`
`23 a representation that this is it at this
`
`24 point.
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 25 of 172 PageID #: 34513
`
`
`
`25
`
`
` 1 And, lastly, the topic of fees.
`
` 2 I mean, the rule requires fees to be shifted
`
` 3 to the prevailing party, unless there's a
`
` 4 reason not to award them. And, frankly,
`
` 5 there's every reason to award them in this
`
` 6 case.
`
` 7 This is not how things are
`
` 8 supposed to go. This has been a two-year
`
` 9 saga. There's been serious
`
`10 misrepresentations along the way,
`
`11 misrepresentations that have been called into
`
`12 account by the district judge here in sort of
`
`13 an unusual order that doesn't happen very
`
`14 often.
`
`15 There's certainly no basis to
`
`16 not shift the fees here. And we've had who
`
`17 knows how many motions on this topic, and
`
`18 then in each instance were told things that
`
`19 we learned later to not be correct.
`
`20 The first thing they said,
`
`21 there were no diligence documents at all.
`
`22 That wasn't correct.
`
`23 At the last hearing they said
`
`24 there was no work product provided to Reed
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 26 of 172 PageID #: 34514
`
`
`
`26
`
`
` 1 Smith or Hamilton Capital. That's not
`
` 2 correct. This is not how litigants are
`
` 3 supposed to behave, and we shouldn't have to
`
` 4 pay the bill for it.
`
` 5 So that's all I have on these
`
` 6 aspects of the Hamilton Capital motion that
`
` 7 we're calling. Ms. Barry is going to handle
`
` 8 the other two. You know, it may make sense
`
` 9 to do them one at a time, rather than all
`
`10 three, so that at least this one can be
`
`11 addressed, you know, concurrently, but I'll
`
`12 leave that to the Special Master and to the
`
`13 plaintiff.
`
`14 SPECIAL MASTER: One question.
`
`15 With respect to the timing, assuming I were
`
`16 to rule in your favor on one or more of your
`
`17 requests, when could it all be accomplished,
`
`18 and what is the current trial date?
`
`19 MR. TOMASULO: Well, our
`
`20 current trial date for the first case is
`
`21 April 30th. The other cases are set much
`
`22 later.
`
`23 And this relief applies to
`
`24 everybody. If you were to rule in our favor,
`
`Case 1:16-cv-00455-RGA Document 503 Filed 04/26/20 Page 27 of 172 PageID #: 34515
`
`
`
`27
`
`
` 1 we would probably confer with the plaintiff
`
` 2 and see if we're going to appeal. And if
`
` 3 they won't give us an answer, we would
`
` 4 probably go in with an emergency motion to
`
` 5 the Court. I don't know that we've dressed,
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
